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On January 30th, Supreme Court Justice Ruth Bader Ginsburg ignited a media firestorm by arguing in Egypt that if she were to draft a constitution today, she “would not look to the US Constitution.” This is certainly troubling, since her work entails looking to the Constitution regularly in order to judge the constitutionality of laws. The Constitution is our founding document, after all. If she doesn’t respect it as the supreme law of the land, then she is simply not qualified to be a Supreme Court Justice.
Of course, that’s not how she sees things. In fact, many have leapt to her defense, arguing that the controversial comments were only a small part of a lengthy interview in which she repeatedly praised the Constitution. And to be fair, that’s true. Regardless, she still claimed that the Constitution is outdated and that the Egyptian revolutionaries ought instead to look toward newer documents such as the South African Constitution, Canadian Charter of Rights and Freedoms, and the European Convention on Human Rights.
Realistically, the problem isn’t that Justice Ginsburg considers the Constitution a little too old to be of much use. Most people do have a natural preference for the new and cutting-edge. However, when people understand the purpose behind the old and traditional, they typically come to value these things as well.
And that’s the real problem. Justice Ginsburg doesn’t understand the purpose behind the Constitution, and neither do the legions of progressive and liberal writers who have risen up in support of her comments. There is a fundamental disconnect between how our Constitution was designed to function and how they believe a constitution should function. It’s all about rights and powers.
Justice Ginsburg clearly thinks that our Constitution is flawed because there isn’t enough of an emphasis on rights. As she puts it, “I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights… It really is, I think, a great piece of work that was done.” That’s in addition to the other two documents that she referenced, both of which literally have the word “rights” in their names.
A constitution will enumerate either rights or powers. So what does it mean to focus on rights instead of powers? If you enumerate rights, then you’re granting your government the power to do anything that is not specifically barred it. Every single right must be spelled out, every single loophole must be closed, and every single mistake in the process restricts your freedoms. That’s why the South African Constitution is 118 pages long. Still, these aren’t really rights, per se. They’re just government-granted entitlements. After all, if the South African Constitution were amended to remove the right to free speech, then you simply lose that right. It has been taken away from you.
That’s not how it works in the system designed by the Founders. The Founders wisely concerned themselves with powers. The social contract embodied by the Constitution concedes very few powers to the federal government it creates. The government is inherently limited to exercising these specific enumerated powers. We the people are granted every single right that is not barred from us by the Constitution. The Founders’ and Justice Ginsburg’s conceptions of how a constitution should work are diametrically opposed.
This is where the Bill of Rights comes into the argument. Granted, progressives will agree, the Constitution concerns itself with granting the government powers instead of granting the citizenry rights. But what about the Bill of Rights, which grants rights to the public? After all, those first ten amendments are part of the Constitution, and the Bill of Rights came from the Founders, too.
And that’s an understandable argument to make. Nevertheless, it’s also misleading. Yes, the Founders passed the Bill of Rights, which is largely similar to, say, the Canadian Charter of Rights and Freedoms. However, the Bill of Rights was not passed without a fierce debate. The federalists, led by the father of the Constitution, James Madison, were vehemently against a bill of rights. The anti-federalists, who believed that the federal government created by the new Constitution would be too strong, demanded the Bill of Rights. At a time when national unity was absolutely necessary in order to ward off invasion, national bankruptcy from the Revolutionary War debt, and even civil war between the new states, the federalists conceded the Bill of Rights to the anti-federalists in order to preserve the new Union.
So, why would Madison and the federalists fight against including a bill of rights in the Constitution? Did they hate the idea of a right to free speech, for example? Not at all. They foresaw the modern debate between enumerating rights or powers. Madison knew that nowhere within the Constitution was the power granted to the federal government to restrict our natural right to free speech. Therefore, enumerating a right to free speech is completely unnecessary, and potentially dangerous. Just by doing so, there appears to be the implication that somewhere in the Constitution, the federal government is granted the power to infringe upon our natural rights.
Madison and the federalists feared that people like Justice Ginsburg would eventually see the Bill of Rights and not the Constitution as the truly important founding document. That’s why they made sure to include the 9th and 10th amendments, which state the following:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
They meant for the Constitution to create a government that would defend our inherent natural rights, not give us government-granted entitlements.
Justice Ginsburg does not want to assess the constitutionality of laws like the ObamaCare individual mandate by the standards of the Constitution. The very same Constitution, mind you, that she swore to support and defend when she was appointed to the Supreme Court. So, why is she still a member of the Court?
Justice Ruth Bader Ginsburg ought to retire, along with any other Supreme Court justice who believes that constitutions doling out government-granted rights are superior to the US Constitution that creates a limited government with specific, enumerated powers.