Commentary Magazine


Contentions

Ruth Bader Ginsburg and Barack Obama v. the Founders

Two recent interviews with two prominent liberal figures help cast some revealing light on modern liberalism’s attitude toward the Constitution.

Let’s start with Supreme Court Justice Ruth Bader Ginsburg, who said in an interview earlier this month with Al Hayat television, “I would not look to the U.S. 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, have an independent judiciary. It really is, I think, a great piece of work that was done.” She went on to praise Canada’s Charter of Rights and Freedoms and the European Convention on Human Rights as much more recent, and better, models. “Why not take advantage of what there is elsewhere in the world?” Justice Ginsburg asked. “I’m a very strong believer in listening and learning from others.”

Then there was President Obama’s interview with NBC’s Matt Lauer, in which Lauer said, “I have talked to so many people over the last couple of years, President Obama, who were huge supporters of yours back in 2008. And today they are not sure. I hear more and more that they’re disappointed in you. That you aren’t the transformational political figure they hoped you would be. How does that make you feel when you hear that?”

To which Obama said, “I think this is the nature of being president. What’s frustrated people is that I have not been able to force Congress to implement every aspect of what I said in 2008. Well, it turns out our Founders designed a system that makes it more difficult to bring about change than I would like sometimes.” [emphasis added.]

These two comments highlight one of the characteristics of 20th and 21st century liberalism, which is the belief (as Charles Kesler, editor of the Claremont Review of Books, points out so well in this 2009 essay) the Constitution is “time bound,” out-of-step with modernity, a clumsy checks-and-balances, separation-of-powers charter that impedes progressive change. Hence the need to think about the Constitution as a “living Constitution” – a tendency to read the work of the founders as (in the words of Kesler) “a Darwinian document, whose meaning must evolve with the times, and under whose precepts the national government must be allowed and encouraged to outgrow its old limits and blend its powers in novel ways.”

Justice Ginsburg’s colleague Antonin Scalia has offered the best counter-argument to those championing a Living Constitution. “Perhaps the most glaring defect of Living Constitutionalism, next to its incompatibility with the whole anti-evolutionary purpose of a constitution, is that there is no agreement, and no chance of agreement, upon what is to be the guiding principle of the evolution,” according to Justice Scalia. “Panta rei [“all things are in flux”] is not a sufficiently informative principle of constitutional interpretation.”

When determining when and in what direction the evolution should occur, Scalia asks:

Is it the will of the majority, discerned from newspapers, radio talk shows, public opinion polls, and chats at the country club? Is it the philosophy of Hume, or of John Rawls, or of John Stuart Mill, or of Aristotle? As soon as the discussion goes beyond the issue of whether the Constitution is static, the evolutionists divide into as many camps as there are individual views of the good, the true, and the beautiful. I think that is inevitably so, which means that evolutionism is simply not a practicable constitutional philosophy.

There are key differences that separate, at the political and philosophical level, modern-day liberals and modern-day conservatives. One is where they stand on equality of opportunity v. equality of outcome. Another is the centralization of power (collectivism v. subsidiarity). And yet another is the American Constitution. Between Ruth Bader Ginsburg and Barack Obama on the one side and the founders on the other, count me as standing on the side of the latter. The Federalist Papers still beat any opinion by Justice Ginsburg or any speech by President Obama. By a country mile.