When I heard of Justice Ginsburg’s statement before an Egyptian audience today, I have to admit I just couldn’t work up the amount of outage as many on the right. Many folks fail to consider that a good part of our constitution is strictly mechanical, and represents compromises brought about by folks who were facing the daunting task of bringing 13 separate sovereigns together into some kind of national Republic. Much of the mechanics of the US constitution doesn’t translate into the political cultures of other countries, even if the overarching principles are worth studying (for which I would include to RKBA to be among those principles).
Eugene Volokh also sticks up for Justice Ginsburg:
And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions â€” for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own statesâ€™ constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesnâ€™t tell us that it would work well for Egypt for the coming years.
I tend to agree, and with the rest of his argument. I certainly have many disagreements with Justice Ginsburg’s interpretations of the U.S. Constitution, but in many ways the US Constitution reflects the unique circumstances of this country’s founding, and continuing political struggles, that is not necessarily reflective of the political struggles in other countries. To be sure, it outlines many guarantees I believe are universal, but most of the constitution revolves around structural components which are arguably suited to our culture, but perhaps not others. It would, for instance, be difficult to imagine the French arguing over the meaning of interstate commerce, to the extent Americans do today, and have done since the founding.
11 thoughts on “On Ginsburg’s Statement to Egypt”
And since The Constitution relies on a foundation of Common Law, it may as well be written in Venusian to the Egyptians.
That’d definitely be helpful for people trying to found a nation…
Are you sure you don’t mean Natural Law? If you do, I agree wholeheartedly.
No, I’m pretty sure he means English Common Law. The Bill of Rights is only a small portion of the Constitution. The nuts and bolts of the main body is derived primarily from English Common Law.
I’ll buy that, but the concept of natural law – that you’re born with inherent rights – is where I think the true beauty of the Constitution lies.
I dont worry much very much about Ginsbergs contempt of the US Constitution. It’s become more common since FDR and LBJ declared it to be racist.
I do, however, fear who might replace her. To me, this is the most crucial part of voting for all of us.
In the very first sentence, she states, “you are striving to achieve a genuine democracy.” If that’s indeed the goal, then why on Earth would she suggest using our (a republic’s) consitution for a model?
I only disagree on one point: Constitutions are worthless if they are easy to change. If a constitution is not substantially harder to change then other laws, it is just another law subject to the whims of politics. Constitutions are meant to embody core rights that are not expected to change, thus it should be as hard as possible to change while still allowing the ability to do so if there is a compelling reason and truly wide support.
This point she made is difficult to disagree with: “So the spirit of liberty has to be in the population, and then the constitution – first, it should safeguard basic fundamental human rights, like our First Amendment, the right to speak freely, and to publish freely, without the government as a censor.”
I mean, look at our own experience with RKBA issues–the 2nd Amendment is only genuinely “safe” when people believe in it and in its original meaning.
I have to disagree with Ginsberg though on the US constitution being a bad model, especially the Bill of Rights. I can’t think of another country that has such anything as beautiful and deeply radical as our own First Amendment. You can be arrested in France for insulting religion or denying historical facts, such as the Holocaust for instance, whereas in this country we rely on the intelligence of the citizens to keep the loonies or the hate-mongers in check. Perhaps Egypt–a place where apostasy can still be punished with death–isn’t ready for that, but I doubt this country was either when we were given the gift, e.g. President Adams certainly wasn’t!
“Constitutions are worthless if they are easy to change”
An additional problem is, that the best constitution in the world may not be easy to change, but every constitution is easy to ignore when people want it ignored.
I haven’t verified the absolute truth of this myself, but I’ve read that no new country in the world chose to voluntarily emulate the U.S. Constitution after about 1848. I think that meant, the structure of the governments, not the Bill of Rights.
In a country with many factions, with almost unreconcilable differences, it could be impossible to get those factions to accept anything except a parliamentary style system that guarantees almost all factions representation. That is somewhat like our reason for giving the smallest states in the union the same representation in the Senate as the largest states.
I only heard Ginsburg’s comments as I was driving to work the other day, regularly interrupted by Glenn Beck’s commentary. The take I was getting wasn’t just that our Constitution won’t work for Egypt (which may or may not be true–as other comments have pointed out, a Constitution is only as good as the people are willing to live up to it)–but that she even had contempt for it, being applied to Americans on American soil.
Admittedly, what I heard was filtered through a right-wing radical talk show, and my recollection of it is still a bit fuzzy (it didn’t help that I only learned after listening to the bits that it was Ginsburg speaking) so my understanding needs to be taken with a grain of salt. But even then, I’m not *too* outraged–after all, it was my understanding that she had that viewpoint already!–it’s just interesting that she’s putting her disdain for it out in the open.
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