**Posted by Phineas
Pardon me, but …ahem… WTF??
Ruth Bader-Ginsburg, an Associate Justice of the Supreme Court of the United States, on which she sits to rule on constitutional matters, gave an interview to Al Hayat TV on the revolutions overtaking the Arab world and the prospects for democracy. (Video here.) She starts off fine:
Let me say first that a constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. If the people don’t care, then the best constitution in the world won’t make any difference. So the spirit of liberty has to be in the population, and then the constitution – first, it should safeguard basic fundamental human rights, like our First Amendment, the right to speak freely, and to publish freely, without the government as a censor.
Can’t argue one bit with any of that. If there’s one thing fundamental to genuine democratic rule (and one reason why Sharia-based societies can never be truly democratic), it’s the guarantee of freedom of speech.
But then she runs off the rails and into WTF-land:
You should certainly be aided by all the constitution-writing that has gone one since the end of World War II. I would not look to the US constitution, if I were drafting a constitution in the year 2012. 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, had an independent judiciary… It really is, I think, a great piece of work that was done. Much more recent than the US constitution – Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world?
“But, for God’s sake, don’t use only the most successful governing document in Earth’s history. It’s so… old!”
I wonder if she and Ezra Klein are related?
Now, to be fair, there is a “this wasn’t a stupid thing for a SCOTUS Justice to say at all” argument. It runs something like this:
The Constitution of the United States arose under conditions unique to the time and place in which it was written, and to the people who wrote it. The traditions of British Common Law and Whiggery with its limitations on the power of government and protection for the rights of the individual; the Classical examples of Greek democracy and the Roman Republic, which the Founders knew by heart; the Judeo-Christian traditions that separated government from God; and the Enlightenment, which applied reason to government. Thus all Justice Ginsburg is saying is that this mix was unique to 18th century America, and that the new Arab governments should look to examples reflecting more current conditions.
But I don’t buy it.
When she refers to a “charter of rights,” I have to wonder if she’s ever heard of this little thing called the Bill of Rights. It secures the political rights of the people (free speech, free assembly, the right to a jury trial and habeas corpus) and their rights to their own property. (1) Beyond that, it leaves the people to take care of themselves as free citizens.
In that lies the problem, I suspect, for Justice Ginsburg: the Constitution and the Bill of Rights are negative charters. They grant limited powers to the general government and largely circumscribe what it may do, restricting it to those things necessary to the general welfare.
All else is left to the people and the states.
And I suspect that bugs the heck out of progressive liberals, such as Justice Ginsburg. They want government to do more for the people, because the world is too complex and just too difficult for people to take care of themselves:
This isn’t a new phenomenon by any means. It’s old, going back to the roots of American progressivism in the 19th century, what we now call, incorrectly, “liberalism.” It’s fundamental thesis is that the modern world is too complex for a governing system designed in the 18th century for a rural, isolated republic; that legislatures were too fractious and trapped by partisan interest to do what was best; and that these complexities were best handed off to boards of experts and technocrats who could make the correct decisions with scientific dispassion — Orszag’s “depoliticized commissions.” Woodrow Wilson crystallized this contempt for democratic governance when, before becoming president, he argued in essence that the Constitution was obsolete. (See also Goldberg’s excellent “Liberal Fascism.”)
Politically, it’s represented in modern times by FDR’s “Second Bill of Rights” and its modern promoter, Cass Sunstein, as well as the idea of the “Living Constitution” — a document that “evolves” with changing times and needs. Justice Ginsburg would be its judicial exemplar.
Take a look at a portion of one of the documents she praises, the South African Bill of Rights. It speaks not only of political and property rights, but health care, housing, the environment, and linguistic and community rights. That is, welfare state-style economic and social rights, far beyond what we understand as “unalienable rights.” I suspect that she would love to see the courts in the US step in to provide those economic and social rights when the legislatures fail to do so, acting themselves as a sort-of legislature.
But, to get back to Justice Ginsburg’s assertion that the US Constitution is not a good model for new Arab governments, I’d say quite the opposite. The danger in societies under Sharia is repression and the loss of individual rights, especially if one is a woman or a non-Muslim — or both. Sharia is totalitarian, governing every aspect of daily life, and its adherents are a threat to the liberties of others wherever they gain control of government.
And even if not Sharia-based, Arab governments have shown themselves far too willing interfere in their economies in the name of “fairness” (and to keep control for themselves), with results that have ranged from mediocrity to outright wreckage.
Hence what is needed and what new Arab governments should look to, if they want to guarantee liberty and prosperity, are precisely those governing philosophies and documents that limit the power and reach of government.
Gee, something like the United States Constitution and Bill of Rights. (2)
It’s a shame that a Justice of the United States Supreme Court doesn’t understand that.
RELATED: Justice Ginsburg, eugenicist?
(1) Yeah, I know these have been eroded to one degree or another, here, especially after Kelo. Bear with me.
(2) No slight meant to South African or Canadian readers, though Canada is a bit dodgy from a US point-of-view on free speech.
(Crossposted at Public Secrets)