Why Obama Loves Ginsburg Best
In a choice between the Constitutions of the United States and South Africa, U.S. Supreme Court Justice Ruth Bader Ginsburg gives South Africa home court advantage.
Ginsburg took a taxpayer-funded trip to Egypt where she advised Egyptians to look elsewhere than the U.S. Constitution in drafting their own. She urged them to be "aided by all Constitution-writing that has gone on since the end of World War II."
So much for the test of time and reality.
Ginsburg prefers the Constitution of South Africa (CSA), the Canadian Charter of Rights and Freedoms, and the European Convention on Human Rights for today. Anyone who's read her opinions and speeches knows her penchant for wandering off our constitutional reservation to find enlightenment in international and foreign laws.
Ginsburg is an advocate of abortion rights and gender equality as expressly guaranteed in the CSA. In 1977 Ginsburg and feminist Brenda Feigen-Fasteau co-authored a report titled Sex Bias in the U.S. Code for the U.S. Commission on Civil Rights, advocating sex integration of the Boy Scouts, Girl Scouts and in prisons; for reducing the age of consent for sexual acts to persons who are "less than 12 years old" and a comprehensive program of government-supported child care," to name a few.
Undoubtedly, Ginsburg's champion in the Oval Office shares her preference for the CSA over the U.S. Constitution. Said Obama in 2001:
"But, the Supreme Court never ventured into the issues of redistribution of wealth, and of more basic issues such as political and economic justice in society. To that extent, as radical as I think people try to characterize the Warren Court, it wasn't that radical. It didn't break free from the essential constraints that were placed by the Founding Fathers in the Constitution, at least as it's been interpreted, and the Warren Court interpreted in the same way, that generally the Constitution is a charter of negative liberties. Says what the states can't do to you. Says what the federal government can't do to you, but doesn't say what the federal government or state government must do on your behalf."
It's so fatiguing finding obscure "liberties" among penumbras formed by emanations in an outdated Constitution written by a bunch of old wise guys working without a net. There were no feminists among them, Ginsburg lamented to the Egyptians. Alas, the Founders clung to religion and guns.
And slavery existed in 1780 America, Ginsburg reminded the Egyptians, while omitting that "We the People" banned it by adding the 13th Amendment to the Constitution in 1865. Meanwhile, in Egypt, human trafficking for sex and labor abounds, and "the commercial sexual exploitation of children is greatly under-acknowledged given that Egyptian cities (Alexandria and Cairo in particular) are reported destinations for sex tourism," according to the U.S. Labor Department.
Ginsburg is apparently aglow with the "Arab Spring," and imagines that the Muslim Brotherhood, which now controls 75% of the Egyptian Parliament, is keen on human rights. Following are some of the rights in South Africa's Constitution that are unlikely to pass the Muslim Brotherhood's Sharia test:
- Reproductive choice
- Homosexual rights (South Africa's Constitutional Court cited "sexual orientation" equality when it ordered Parliament to legalize same-sex "marriage." (Ginsburg no doubt agrees, based on her concurrence in Lawrence v. Texas. Obama dumps DOMA.)
- Heath care services, including reproductive care (What a help to uphold ObamaCare's mandatory contraceptive coverage by healthcare providers despite religious objections.)
- A healthy environment (Cap and Trade, anyone?)
- Social justice
- Education, including adult
- Access to any information held by the state (so much for national security interests)
- Inherent dignity and having dignity respected and protected (and covered by a burka)
- Freedom of expression except "advocacy of hatred that is based on race, ethnicity, gender or religion"
- Freedom from all forms of violence (how about female circumcision?)
All of which the state must make "progressively available and accessible." Maybe Egypt can qualify as a distant cousin of the EU and get a bailout after Greece, Italy, and Spain.
- "The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable" (What government gives -- government can take away. This happens when government ignores that "all men are endowed by their Creator with certain unalienable rights.")
- Courts "must consider international law and may consider foreign law" when interpreting the Constitution (as Ginsburg says).
- Property may be expropriated "for a public purpose or in the public interest" (as Ginsburg agreed in Kelo v. City of New London, permitting one person's property to be taken for the benefit of another private person under the guise of "public purpose").
- There is no right to keep and bear arms. (Ginsburg dissented in District of Columbia v. Heller, which upheld an individual right to keep and bear arms.)
- No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3)." (So much for private property and religious liberty rights.)
Not to be outdone in discounting the U.S. Constitution, Ginsburg's fan club at The New York Times ran a column Monday by Adam Liptak, titled: "'We the People' Loses Appeal With People Around the World."
Maybe Neil Diamond will have a new hit, "Nobody's Coming to America." Maybe Congress will cut funding for the obsolete Border Patrol, ICE and USCIS.
According to Liptak, "the Constitution has seen better days." He cites a forthcoming study in The New York University Law Review "that bristles with data":
"Over the 1960s and 1970s, democratic constitutions as a whole became more similar to the U.S. Constitution, only to reverse course in the 1980s and 1990s.
"The turn of the twenty-first century, however, saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world's democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II."
"There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights. The commitment of some members of the Supreme Court to interpreting the Constitution according to its original meaning in the 18th century may send the signal that it is of little current use to, say, a new African nation. And the Constitution's waning influence may be part of a general decline in American power and prestige."
What Obama, Ginsburg and Liptak ignore is the decline in power and prestige and economic collapse of socialist countries with constitutions less similar to ours.
May God save the United States from further Obama appointments to the Supreme Court.
Jan LaRue is senior legal analyst with the American Civil Rights Union.