INDIANAPOLIS, February 10, 2012 - States Associate Supreme Court Justice Ruth Bader Ginsberg damaged the perception of the most-basic foundation of the United States in her statements on Al Hayat Television in Egypt, on February 1.
In her interview, in which she was asked for advice by her Egyptian host, she began by espousing democracy while acknowledging none of the dangers of institutionalized mob rule. This is understandable, since she apparently does understand the concept of “government” as organized force and control over the people, and realizes that an unlimited government, nominally enforcing the “will of the people,” will have no limits on its power, and that this screen of legitimacy allows people like her to exercise unlimited rule with impunity, under color of law.
She said she thinks that because our Constitution is old, it’s useless (without picking up on the irony of her own age — 78 next month). She does give credit for the necessity of the peoples’ wanting liberty (without defining liberty or what it’s based on) in order for any constitution (sold on the idea of freedom) to work. She also likes the idea that the law should apply equally to everyone (except as it is in her world, with exemptions for Congress, the Executive Branch, and countless governmental agencies and their agents). So she says to look elsewhere for a good model: “I would not look to the US Constitution if I were drafting a constitution in the year 2012… I might look to the South African constitution, [which] …was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, [and] have an independent judiciary.” Or Canada’s, or the European Convention on Human Rights; these are all, to her mind, superior to the US system. She does not seem to grasp that our Constitution, in defining and restraining governments’ powers to only very specific and limited functions, protects “human rights” better than any diaphanous listing of the rights we are officially allowed to enjoy.
This viewpoint assumes that rights come from government, not that they are to be protected by government. Justice Ginsberg’s view thus makes government the absolute giver and taker of all rights. We are not, in other words, endowed with any “unalienable rights.” We get only what the government decides we should get, and which the majority at the time thinks are important, and which make it onto the ballot, which will be controlled by… whom?
Associate Justice Bader Ginsberg says that the ideas of our Founding Fathers had to have been flawed from the beginning simply because they were all … men, though any historical perspective would reveal that women were not then enjoying the same status in any civilized country in the world that they have gained in the U.S. and elsewhere since that time; and she might have noted that, through the amendment and legislative processes that were so thoughtfully incorporated in the Constitution, women now have equal rights — as do our citizens of all races, etc.
In bringing up old differences in citizens’ rights (which no longer exist, by the way), Bader-Ginsberg perpetes the old prejudices, the archaic and nasty ideas that say that people are not equal, and that their rights should be different, based on their sex or the color of their skin. Having women or slaves (free male landowning negroes were treated identically with their white counterparts under the Constitution) participate in the Constitutional Convention would have been as unthinkable then as excluding women or people of color would be today. But her preference of reserving seating at the Convention for people according to their sex or race assumes precisely that people are not equal, that people deserve different privileges based on sex or race, and that attainment should be denied others, because they are not of the favored sex or race. Her philosophy, in other words, is profoundly prejudiced (not to mention, elitist).
She’s also flat wrong in her explanation of the Dred Scott decision, in that the decision was not based on the question of slavery or the rights of slaves but on the day’s protection of the property rights of the slave owners. Dred Scott was a property-rights case, not a “slavery” case. She should know better than that, as she perverts the Constitution’s strong protection of property rights into a bad idea because of its abhorrent (to us, as well as to many of that time) result. Slavery was the bad idea, not property rights; but slavery was not the issue in the case. Again, the amendment process straightened out the problem.
She also said that the Eighth Amendment ban on “cruel and unusual punishments” of the late eighteenth century would not have excluded “twenty lashes,” and so that was another flaw in the Constitution, without recognizing exactly the point she makes: that “cruel and unusual” is defined by the mores of the day in which these punishments are administered, as the Founders realized when they wrote it, as has been formally recognized by the Court since at least Wilkerson v Utah (1879). Not only is her disrespect for the Constitution deplorable, her lack of insight is scary, and her deception is disrespectful of her host. It is hard to believe that she understands the Constitution or could possibly uphold it, given her disdain for our most-basic national document.
May she retire to South Africa. Soon!
Tim Kern is a technical and publicity writer near Indianapolis. See TimKern.com.
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