Every Supreme Court justice is required, under Article VI of the United States Constitution, to be bound by his or her oath or affirmation “to support this Constitution.” Supreme Court Justice Ruth Bader Ginsburg has just broken this commitment by insulting, in front of a foreign audience, the very document she is sworn to support.
In an interview during her visit to Cairo, which aired January 30, 2012 on Al-Hayat TV, Justice Ginsburg advised the Egyptian people to ignore the U.S. Constitution in preparing their own new constitution. It’s just too “old,” she said. Instead, Justice Ginsburg lavished praise on several post-World War II foreign documents such as the South African constitution, Canada’s Charter of Rights and Freedoms, and the European Convention on Human Rights.
“I might look at the constitution of South Africa,” Justice Ginsburg said. It is “a great piece of work that was done.”
“You would almost certainly look at the European Convention on Human Rights,” she continued.
As for her own country’s constitution, Justice Ginsburg said she “would not look to the U.S. Constitution if I were drafting a new constitution in 2012.”
Quite the contrary. Justice Ginsburg believes that contemporary foreign laws and decisions should be used by her and other Supreme Court justices in determining the meaning of provisions of our own constitution.
If U.S. experience and decisions may be instructive to systems that have more recently instituted or invigorated judicial review for constitutionality, so too can we learn from others now engaged in measuring ordinary laws and executive actions against fundamental instruments of government and charters securing basic rights.
In her latest remarks to the Egyptian audience, however, Justice Ginsburg no longer saw any teaching value in our constitution. It’s just too “old.”
Justice Ginsburg’s remarks further confirm what we have suspected all along. This far-left justice, a former general counsel of the American Civil Liberties Union, has little use for our constitution as it was written. Typical of progressives, she views the constitution as malleable clay, which she is perfectly happy to refashion according to her idea of what an up-to-date document for 2012 should look like.
Consider the South African constitution, which Justice Ginsburg praised as “a great piece of work” for Egyptians to learn from instead of the U.S. Constitution.
The South African constitution contains a clause protecting free expression. But unlike the right of free speech under our First Amendment, the South African constitution says that the right of free expression does not include “propaganda for war” or “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.” These vague exceptions go beyond the very limited “incitement of imminent violence” exception to the First Amendment that our courts have recognized. Instead, they intrude into the very areas of potentially controversial speech that our constitution protects. Is that what Justice Ginsburg is seriously recommending?
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