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.
why is this woman still on the Supreme Court if she feels this way? shouldn’t she be trying to get a gig at The Hague or someplace?
I do not care for putting Ginsburg and Obama on the same side. Evolution of the Constitution has been taking place and of course there is provision for just that. Our constitution did fail initially in important respects for important reasons. The most compelling reason was the need to have ALL the states join the union. We did not explicitly prohibit slavery. We did not explicitly grant women the vote. And we gave states with a population of three, two senators and two representatives – i.e. we were not created as a democracy, the form we so intensely advocate for new emerging nations. While the evils of slavery and the vote for women were slowly but eventually corrected, we have not yet created a democracy. A parliamentary system would be more akin to democracy, and would enable us to get rid of an undesirable president without waiting for four years.
I would not place Justice Ginsburg and Obama on the same side. However, our constitution did fail in important respects for important reasons. The most compelling reason was the need to have ALL the states join the union. We did not explicitly prohibit slavery and we did not explicitly grant women the vote. And we gave states with a population of three, two senators and two representatives – i.e. we were not created as a democracy, the form we so intensely advocate for new emerging nations. The evils of slavery and prohibition of women at the polls did 'evolve' by the amendment process. To create a democracy by that process is realistically not probable. A parliamentary system would be more akin to democracy, and would enable us to get rid of an undesirable president without waiting for four years. But such an amendment would require the approval of states which now have an undemocratic advantage in the present system. Justice Ginsburg is correct in advocating a fresh start, a constitution different from ours, in emerging nations.
So "Independent Judiciary" is the new code for Marxist Dictatorship. Ah-huh!
If the Judiciary is not independent, why even have it? Our Constitution was intentionally left vague, so that future generations could refine it. The founders were keenly aware that there would be future difficulties regarding slavery, voting rights and interstate commerce and that these issues would have to be resolved. Almost every significant change in this country started with a court decision that forced later legislation. nTo say that we should live with an unchanged 18th century is like the radical Islamists who want return to the world of the 6th century.
And another thing Andrew, I know that you are on an all out attack on the Obama, but do you really think that any President in the last 100 years has felt any differently? n
We don't have to "live with an unchanged 18th century" constitution as is made clear by the 17 amendments that have been adopted since the bill of rights. We merely have to recognize that it's a better idea to require clear concensus before changing the rule of law we all agree to live by, rather than permitting it to be capriciously changed by agreement of 5 superannuated justices, a couple of which are typically senile at any given time.
Who, on the current Court, do you consider to be senile? And please just don't give me names of Justices with whom you disagree.
I'm sorry but I have to emphasize the primacy of the amendment process. Clearly, we can't accept the validity of every new liberal cause celebree. If it can't attain the democratic majority needed to change the constitution, then its not valid enough. Of course, democrats rely on judicial activism instead of an amendment process.
Why no start with a number of "ideals" common to all humans and compare them to the US constitution, the UN charter of HR, the EU convention of HR and other valuable docs. nThe notion that everything US Made is always better has never been true and is not true but underline a deep chauvinism that is a reflection of the concept of misplaced "patriotism".
(Thanks, Peter. Right on. Saw this little piece on the web that's never boring!) n nTo see US Supreme Court Justice Ruth BADer SINSburg's think-alike friends, Google or Yahoo "Sandra Bernhard, Larry David, Kathy Griffin, Bill Maher, Joan Rivers, Sarah Silverman" – ideal leaders for the New World that's coming!