**Posted by Phineas
A little while back, I featured Justice Ginsburg opining that the US Constitution really wasn’t a suitable model for the modern age.
Now we have a Washington Post editor wondering if, perhaps, the first Congress got it wrong when it guaranteed the free exercise of religion in the First Amendment:
That‘s what Washington Post editor Melinda Henneberger told MSNBC’s Chris Matthews last night while defending Catholics. Here’s the full quote:
“Maybe the Founders were wrong to guarantee free exercise of religion in the First Amendment but that is what they did and I don’t think we have to choose here.”
And maybe they made a mistake guaranteeing free speech, too; otherwise we’d be able to punish dolts like Henneberger for saying such stupid things. And that whole trial by jury thing; it just gets in the way of government enforcing the law to protect us.
Former federal prosecutor Andrew McCarthy spots several problems with Henneberger’s proposition, the foremost being the centrality of freedom of religious expression to the Colonial experience and the foundation of the United States, itself:
First, there is the sheer unreality of it. As someone of Ms. Henneberger’s sophistication must know, the Founders cannot have been wrong to guarantee free exercise of religion. Had they failed to do so, there would have been no nation to found. Free exercise was a deal-breaker for Americans, and the adoption of the Bill of Rights (in which free-exercise was among the core of individual liberties that had to be specified) was a deal breaker for skeptics in several states who believed the Constitution transferred too much power to the federal government.
In other words, the new HHS rule regarding insurance coverage for contraception and abortifacients at religious institutions is exactly and precisely the kind of tyrannical and oppressive act regarding the free exercise of religion those who argued for a Bill of Rights had in mind, even if it’s presented as a “public good.”
They weren’t wrong, Melinda, they were prescient.
RELATED: Getting back to Justice Ginsburg and the outdated Constitution, historian Steven Hayward figured out why she seemed so enamored of the South African constitution:
The South African constitution is equally watery. Yes, it does include an independent judiciary and a long list of positive rights. Then there’s this:
“When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; must consider international law; and may consider foreign law.”
No wonder Ginsburg likes it so much: it more or less gives judges a blank check to look anywhere they want to reach any result they want.
So much more fun that sticking by our stodgy old rules, no?
(Crossposted at Public Secrets)