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Trashing the Constitution

Posted By Joseph Klein On February 7, 2012 @ 12:19 am In Daily Mailer,FrontPage | 36 Comments

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.

At least there was a time when she believed that the United States can both teach other nations from its own experience as well as learn from the experience of others:

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?

On the other hand, the South African constitution enshrines such entitlements as “adequate housing,” “reproductive health care,” and education (including “adult basic education”) as constitutional rights, along with creating a constitutional right to a clean environment.

Would it really be wise for Egypt to follow South Africa’s example and create loopholes in the protection of free expression, as well as to elevate a whole set of expensive entitlements to the status of constitutional rights when Egypt cannot even meet the most basic needs of its citizens such as food? The U.S. Constitution may be “old,” but its principles remain relevant today as the best model for protecting the liberties of the people from an overly powerful government.

Canada’s Charter of Rights and Freedoms more closely resembles our Bill of Rights, with one notable exception. Under Section 33. (1), parliament or the legislature of a province may, through legislation, effectively override the various rights and freedoms enumerated in the document such as freedom of religion, freedom of expression, protection from unreasonable searches and seizures, the right against self-incrimination and the like. In other words, the legislature is supreme. In Egypt’s case, if it followed the Canadian model, that would mean the ascendancy of the Muslim Brotherhood-dominated parliament passing laws based on sharia.

The European Convention on Human Rights, like the South African constitution, contains basic rights but with restrictions on the exercise of such rights even more far-reaching than South Africa’s restrictions. For example, Article 10 states that “[E]veryone has the right to freedom of expression,” but that right can be restricted for such reasons as “the protection of health or morals” and “the protection of the reputation or rights of others.” This loophole is large enough for gaggles of European Union bureaucrats to walk through.

Ironically, as Justice Ginsburg philosophizes to her Egyptian audiences, Egyptian authorities have rounded up 43 Non-Governmental Organization workers, including Americans, and are planning to put them on trial before a criminal court for allegedly using illegal foreign funds to foment unrest.

Finally, it seems that Justice Ginsburg has forgotten that sharia law will remain the foundation for all Egyptian laws, including the constitution that will be prepared under the watchful eyes of the Muslim Brotherhood. Sharia law, which separates Muslim believers from nonbelievers, sanctions inferior status for women, and criminalizes blasphemy and apostasy, will trump any constitution that Justice Ginsburg recommends as a model for the Egyptians to follow.

The United States Constitution is one of the greatest documents for freedom and liberty that has ever been written and is still the premier model for other nations truly interested in building a durable democratic republic. Justice Ginsburg should unequivocally reaffirm her oath to “to support this Constitution” or resign.

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