More “wisdom” from Justice Ginsburg

February 6, 2012

Last Saturday I wrote about my… “disappointment” at Justice Ginsburg’s dismissive attitude toward using the US Constitution as a model for others. Thanks to a link from Jim Vicevich, I was reminded of one of Madame Justice’s earlier moments of glory, from 2009: her inability to understand why anyone would have a problem with an American judge using foreign law to shape US judicial decisions:

I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law,” Justice Ginsburg said in her comments on Friday.

(…)

Justice Ginsburg said the controversy was based on the misunderstanding that citing a foreign precedent means the court considers itself bound by foreign law as opposed to merely being influenced by such power as its reasoning holds.

“Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?” she asked.

She added that the failure to engage foreign decisions had resulted in diminished influence for the United States Supreme Court.

The Canadian Supreme Court, she said, is “probably cited more widely abroad than the U.S. Supreme Court.” There is one reason for that, she said: “You will not be listened to if you don’t listen to others.”

She also offered a theory about why after World War II nations around the world started to create constitutional courts with the power to strike down legislation as the United States Supreme Court has.

“What happened in Europe was the Holocaust,” she said, “and people came to see that popularly elected representatives could not always be trusted to preserve the system’s most basic values.”

American hostility to the consideration of foreign law, she said, “is a passing phase.” She predicted that “we will go back to where we were in the early 19th century when there was no question that it was appropriate to refer to decisions of other courts.”

(Emphasis added)

I’m a helpful, caring sort of guy and I have a great deal of sympathy for confused little old ladies, so let’s see if we can help Justice Ginsburg out, shall we?

First, I suggest she reread the article, with special emphasis on the quote from her colleague, Chief Justice Roberts:

“If we’re relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge,” Chief Justice Roberts said at his confirmation hearing. “And yet he’s playing a role in shaping the law that binds the people in this country.”

And there’s the key: democratic accountability. While we rightly shield federal judges from base politics and the need to run for office, we can still say with reason that they are accountable to the people because we elect those who appoint and confirm the judges. And, in the worst cases, they can be removed by the people’s representatives.

More directly, US judges rule on laws passed by American legislators who are democratically accountable to the American people, and the US judge operates under rules established by precedent (common law) and legislation (statute and constitutional amendments). He is the heir to an evolving legal and political tradition stretching back over 1,000 years to the origins of trial-by-jury and the field of Runnymede, and coming forward through the development of elected parliaments, separation of powers, and judicial review to form a system that works because it has the legitimacy of the people.

None of that applies to the hypothetical German judge, who works within his own context and whose rulings carry none of that legitimacy here.

I would suggest to Madame Justice that, regardless of what law reviews she chooses to read (and I applaud her desire to broaden her horizons), it is not at all unreasonable or incomprehensible that she or any American judge should be expected to confine her judicial rulings to the law derived from that rich Anglo-American heritage and enacted with democratic legitimacy under the US Constitution.

If she wants to refer to the writings of Edward Coke, great! But a ruling of the French Constitutional Council? Non!

PS:  A “passing phase?” Why does this sound like Justice Ginsburg is telling the rest of us (and her colleagues?) to “grow up?” Oh, wait. That’s because that’s exactly what she is doing, because that’s what progressives do: condescend. We’re just not enlightened enough and too busy clinging bitterly to our old, outdated Constitution to understand progressive, sophisticated jurisprudence.

PPS: And why should a US Justice care how often her court is cited relative to others? What matters is the Court’s legal influence within the United States, not being a finalist in some international judicial beauty contest.

PPPS: Though she did raise an interesting question. I wonder how often foreign law was cited in the Early Republic?

(Crossposted at Sister Toldjah)


Justice Ginsburg: “Don’t use the US Constitution as a model”

February 4, 2012

Old and outdated?

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.

via David Freddoso, Phillip A. Klein, and Weasel Zippers

RELATED: Justice Ginsburg, eugenicist?

LINKS: More at The American Spectator and Hot Air.

Footnotes:
(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 Sister Toldjah)