To answer this, first let us consider what “out of context” means. When a quote is pulled out of context, it means that it is separated from adjacent facts or statements that impart information essential for grasping the meaning of the quote; this isolation of the quote from relevant facts causes a distortion of the original meaning, which is precisely why it is deceptive and wrong to deliberately quote someone out of context.
However, a quote cannot be dismissed as being “out of context” simply because it is revealing. It is the responsibility of a journalist to convey a passage with fidelity, but not to resolve the contradictions of the person he is quoting. The fact that elsewhere in the interview Justice Ginsburg said some nice things about the Framers and the Constitution, praise that was not reported by MEMRI or the conservative pundits, does not mean that her sentiment is “out of context.” The criticisms I saw did not accuse Justice Ginsburg of being thoroughly, slavishly anti-American in her every utterance; there is no comparison to a Michael Moore or a Noam Chomsky. The criticisms took her at her word; they reported Justice Ginsburg’s statement as if it conveyed her sentiments on the matter, which it does.
The quote that spread like wildfire in conservative circles is essentially self-contained, and it precisely expresses Justice Ginsburg’s views on the matter; there is certainly nothing deceptive or distorting in it. It is a direct answer to a direct question: When asked for her advice in constructing a new constitution for Egypt, Ginsburg said very plainly that she would overlook the United States constitution in favor of more recent documents, including the South African constitution, the Canadian Charter of Rights and Freedoms, and the European Convention on Human Rights. Period.
In order for the quote to be deemed “out of context,” it would have to be the case that Ginsburg’s opinion is actually quite different from her reported words—for instance, if she really thought that Egypt should model its constitution after the one she swore to defend, but somehow her words were twisted to make it seem like she advised using more recent, non-American documents. But this is not the case. Justice Ginsburg made her point quite clearly, and supported it with a logic that should resonate quite well with the modern relativist: “I’m a very strong believer in listening and learning from others,” she said by way of explanation.
Therefore, if conservatives have leaped to “gang up on Ginsburg,” as Jacoby put it, they have done so by shining a light upon, not obscuring, her meaning. There is nothing unfair about it. The leftist denunciations of Ginsburg’s critics are groundless, amounting to alternating ad hominem attacks and irrelevant claims purporting to cast her position as pro-American—or, at least, to muddy the water enough to make her seem like she is not un-American.
This is not to say that conservatives are universally correct in their evaluations; on the contrary, they may very well base their criticisms upon foggy or invalid premises. (I am not a conservative and cannot speak for them. Many conservatives, for instance, hold the U.S. Constitution with the same white-knuckled fervor as they hold the Bible—as if the law of the land were a quasi-scriptural absolute that should be unquestionably obeyed. My view is that the Constitution is good because it is based on the objectively valid principle of individual rights—not the other way around.) Ultimately, though, the leftists’ defense of Ginsburg fails because the Supreme Court Justice’s viewpoint is fundamentally anti-American. Justice Ginsburg’s comments in the full context show her to hold fundamental premises that are diametrically opposed to the principle that is the soul of America: individual rights.
To Ginsburg, the very antiquity of this “rather old constitution” constrains the instrument. The ideas that underpin the document—the Enlightenment concept of individual sovereignty, the notion that the law must free a citizen from, not relegate him to, a condition of perpetual servitude—are old-fashioned and simple-minded to her. Universal truths afford expression in a few all-encompassing words—an alarming discomfort to a modern, “progressive” intellectual, and vexingly inconvenient for an executive, legislature, and judiciary that prefers the authoritarian obscurity and comforting flexibility of minutiae. The Rights of Man, the idea, is a clearing; the 20th-century concept of “human rights” is a jungle that encroaches upon it. The former is bathed in light, illumined by Reason; this radiance cannot penetrate the latter—the better for creatures that scurry for cover beneath its myriad laws and regulations. On the one hand is a single sentence in the Declaration—on the other, the Federal Register in its tens of thousands of pages.
Crucially, our old-fashioned Constitution, which the New York Times derides as having “seen better days,” does not exhibit the flexibility of modern charters. The Framers did not conceive of the relativity of cultures and morality, nor did they imagine “rights” to goods and services that supersede fundamental freedoms of action. Above all, nowhere to be found in that remote birth of the United States is the idea that the state may use the force of law to impose itself upon citizens as if it were a parent of helpless children. The Founders would have been dismayed to know that the age-old tyranny of kings, which they threw off at so dear a cost, would be replaced by a tyranny of a different sort: a tyranny of the “public good,” a democratic and thoroughly modern tyranny, a behemoth, a leviathan proffering a maternal breast swollen with the forced labor of all, from which the willing suck greedily and beneath which the unwilling are crushed.
Returning to Justice Ginsburg, we understand from her words that the United States Constitution is too limiting a document to recommend as a practical foundation for a modern country. But in what respect is it limiting? I do not think she feels that the governments’ powers are too limited, at least not directly; she is not power hungry in the same manner that most politicians are today (Barack Obama being a prominent example). On the contrary, in the interview Ginsburg praised the separation of powers, the checks and balances, and the independence of the judiciary with an emphasis and sincerity that was surely genuine.
No, the limitation that Ruth Bader Ginsburg perceives in the United States Constitution is what she regards as the inadequacy of its underlying principles. The concept of individual rights—the idea that every person has a right to his life, his property, and the pursuit of his own happiness—evidently seems outmoded, old-fashioned, and incomplete to the Supreme Court Justice. What our Constitution lacks, in her view, is the modern, collective concept of “human rights”—and that is precisely what the South African, Canadian, and European documents bring to the table.
The South African Constitution of 1998 enumerates these alleged “rights.” Everyone has the right, it claims, to “have access to” health care services, “adequate” housing, “sufficient” food and water, “social security,” a “basic” education, “fair” labor practices, and an “environment that is not harmful to their health or well-being.”[13]
Who is to determine what levels of these services—exacted by force from those who produce them and demanded by right by those who did not—are “basic,” “sufficient,” “adequate,” and “fair”? The democratic state. What constitutional principle, in this system, protects an individual from having his life and livelihood—his person and property—disposed of at the whims of a government claiming to speak for the people? Why, nothing at all. “Property may be expropriated only . . .for a public purpose or in the public interest”—which is the same as saying that one’s life and labor belongs to the state, to be doled out in whatever manner the state deems to be in the “public interest.”
Perhaps it is this concept of “human rights” enshrined in the South Africa constitution—this utter inversion and corruption of individual rights—that Justice Ginsburg feels is lacking in her own limiting, constraining Constitution.
There must be other shortcomings, too. For instance, unlike the U.S. Constitution, the Canadian Charter explicitly institutionalizes discrimination based upon race, sex, ethnicity, etc. The declaration in Section 15, Subsection 1, that every individual is equal before the law, is followed immediately by a statement that utterly reverses it: “Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”[14]
Stop a moment to regard the audacity of this contradiction and the naked power grab that it represents. It states, in effect, that all individuals are equal before the law . . . except if the government chooses to hand out favors or punishments to certain citizens because of their race, religion, sex, age, heritage, or disability. What conceivable government program could not be excused under the cover of this carte blanche?
The United States Constitution lacks this alleged “right” to tear the blindfold from Lady Justice’s eyes so that she may deliver rulings in favor of a religious group because of its religion and an ethnic group because of its ethnicity. The Constitution was created for precisely the opposite purpose: to protect the rights of all individuals and to be completely blind to such things as race, religion, or creed. The “preservation and enhancement of the multicultural heritage” has no place in the law of a civilized nation because its implementation necessarily violates individual rights.
Let us finally turn to the third document Ginsburg mentioned. What is it in the European Convention on Human Rights of 1950 that Justice Ginsburg admires above our own law of the land? Perhaps it is Article 4, the prohibition against slavery, that she sees as “righting a wrong” that plagued our own Constitution. If so, she is dreadfully mistaken.
This article holds, “No one shall be held in slavery or servitude,” and “No one shall be required to perform forced of compulsory labour”—except in the cases of detention, war, emergency, and “any work or service which forms part of normal civic obligations.”[15, emphasis mine]
Again, the brazen seizure of power is stunning. This passage, which purports to prohibit slavery, is actually a limitless, legal institutionalization of universal thralldom. Men are granted freedom for a purpose: to become slaves of the collective. There is absolutely nothing that cannot be construed as a “civic obligation”; thus, there is absolutely no labor that the government cannot demand of its citizens under this appalling principle. The grotesque corruption of the concept of rights that is expressed in the European Convention is precisely what the United States Constitution does not in its essence hold—and perhaps this is what Justice Ginsburg finds so wanting in her “rather old” document.
On the topic of slavery, Justice Ginsburg apparently does not hold the perspective (as I do) that from the outset, the United States Constitution enshrined a single principle that is objectively universal and true: individual rights; that the expression of this principle in political form utterly vanquished slavery as no other document before it or since, implicitly identifying the freedom of action due every human, man and woman, black and white, young and old, religious and secular; and that the passages of our Constitution excusing or overlooking the ongoing practice of racial slavery at the time were abominable contradictions to that fundamental principle.
Instead, Justice Ginsburg views our Constitution as a collection of brilliant but sometimes flawed principles that are gradually corrected over time by the democratic process—generally, by majority rule and numerous bureaucratic processes set by lawmakers. To Justice Ginsburg, principles are true not by correspondence to facts but by reference to opinion (public or scholarly); the universal is determined not by an objective application of logic but by the inexorable expression of the Zeitgeist.
Hence, when asked explicitly by the Egyptian interviewer about which standards ought to be considered when his country constructs its constitution, Justice Ginsburg did not mention individual rights—the single principle that distinguishes America from the rest of the world. She gave brief lip service to the Framers’ writing “in general terms” and spent the remaining portion of her time on Egyptian television cataloguing the various failings of the United States’ founding—the lack of women present at the Constitutional Convention, for instance, or the slave trade, or the relative barbarity of punishments like “twenty lashes.”
The Framers of our Constitution could not have imagined or understood the “progressive” views today because they could never, even in their darkest moments, have brought themselves to have so much contempt for ordinary people. The Founders were men of the Enlightenment; they saw men as good, independent, efficacious, productive, capable of great things. The modern documents that Justice Ginsburg admires reflects the modern view of men as weak, incompetent hothouse flowers, eternally dependent upon the state for their basic needs.
In the final analysis, Justice Ginsburg’s interview shows her to hold a very specific set of ideas. These ideas may with justification be said to be intellectual, uncontroversial, popular (even fashionable), sensitive to international opinions, and conforming to all modern standards. They may be regarded as accurately expressing the consensus in America today and in democracies throughout the world. They may be widely applauded as reflecting what is today called the spirit of “cooperation” and “tolerance” among nations, of “fairness,” and of “diversity.” They cannot, however, be said to be American in any meaningful sense.
On the contrary, it is profoundly un-American for Justice Ginsburg to regard the modern documents she cited as offering enlightened improvements to the United States Constitution. To believe that a man has a right to food, clothing, and shelter is to believe that another man must be forced to provide it for him—which is equivalent to believing that men have no rights at all. To believe that the essence of a man is his membership in a group is to sever him from rights, which apply only to individuals. To favor the modern concept of “human rights” is to eviscerate the very concept of rights—the essence of the United States of America—at its root.
NOTES
3. Transcript from Rush Limbaugh’s radio program, February 7, 2012, http://www.rushlimbaugh.com/daily/2012/02/07/the_constitution_is_an_impediment_to_libs. Limbaugh followed this comment with a profoundly astute declaration of the morality of the Constitution: “The Constitution raises up the individual over the state, enshrines the whole notion of the pursuit of happiness, which you may think that’s just a throwaway phrase. . . It is a major reason why this country has become a superpower in so few years. . . Yes, it’s freedom, but it’s the definition of freedom vis-a-vis the state. Right to life, liberty, pursuit of happiness. It is fundamental.” Bravo, Mr. Limbaugh!
10. David Lyle, “Selective (And Misplaced) Outrage: The Right-Wing Freakout Over Justice Ginsburg’s Comments in Egypt,” February 9, 2012, MediaMatters for America, http://mediamatters.org/blog/201202090010.
11. “US Supreme Court Justice Ruth Bader Ginsburg to Egyptians: Look to the Constitutions of South Africa or Canada, Not to the US Constitution,” excepts from an interview which aired on Al-Hayat TV on January 30, 2012, The Middle East Media Research Institute, http://www.memritv.org/clip_transcript/en/3295.htm .
13. Constitution of the Republic of South Africa 1996, pp.6-8, “Constitution of South Africa unpan005172.pdf.”
14. The Canadian Charter of Rights and Freedoms, Department of Canadian Heritage, p. 3, “The Canadian Charter of Rights and Freedoms.pdf.” The South African constitution, by the way, contains the very same principle in its “Equality” section [Note 13, p.4], with its contradiction so brazenly manifest it could easily be mistaken as a satirical exaggeration: “9. (3) The state may not unfairly discriminate directly or indirectly . . .” and “(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.” In other words, state discrimination is unfair unless it is established, by the state, to be fair.
15. European Convention on Human Rights, Council of Europe Publishing, p.7, “European Convention on Human Rights ENG_CONV.pdf.”
16. Below is my unofficial transcript, which I derived from the video.[1] “AH” refers to the Al Hayat interviewer and “RBG” refers to Justice Ginsburg. I put time stamps in brackets for the convenience of viewers looking for particular sections.
AH: [1:16] It’s really a pleasure to be talking to you, Honor, here today in Cairo, and I was just having my introduction maybe linking your visit to what we can call a very important phase in the time of our country, which is the constitution. Can we have the link between your visit to Cairo—it’s the first of its kind—to the discussions that we’re having about the constitution?
RBG: [1:44] It’s a very inspiring time—that you have overthrown a dictator and that you are striving to achieve a genuine democracy. So, I think people in the United States are hoping that this transition will work and that there will genuinely be a government of, by, and for the people.
AH: [2:10] How can we understand your schedule of the visit? What’s the main goal of the visit? It’s the first of its kind, for you here in Egypt.
RBG:[2:23] It’s mainly for me to understand something about what is happening in Egypt now, to have exchanges with law professors, law students, judges, and get their impression of the transition process.
AH: [2:43] Have you formed an idea through the meetings that you had during your visit? Have you formed an idea about the process that we’re trying to establish in regards to the constitution?
RBG: [2:56] I met with the head of the election commission. I think that the first step has gone well, that elections have been held for the lower house that everyone has considered to be free and fair—so that’s one milestone—and the next will be the drafting of a constitution. But I can’t speak about what the Egyptians experience should be because I’m operating under a rather old constitution. The United States in comparison to Egypt is a very new nation, and yet we have the oldest written constitution still enforced in the world. And it’s a constitution that starts out with three wonderful words: it’s “We the People.” And so that’s the [indistinguishable word, sounds like “moding,” though “motivating,” recorded in some transcripts, makes sense] idea, it’s that the government is formed with the consent of the people, and it should serve the interests of the people and not just—of all of the people and not just some of them.”
AH: [4:12] This is a very challenging moment for us here in Egypt and I would like to ask your Honor about your ideas about how to draft a constitution, away—or how can we protect the process of drafting a constitution away from the political powers that are on the scene? How can we draft a constitution away from all that?
RBG:[4:36] Let me say first that a constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. If the people don’t care then the best constitution in the world won’t make any difference. 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 is the right to speak freely, to publish freely without the government as a censor. One of my favorite provisions in our constitution is the one that says that government shall not deny to any person the equal protection of the laws. Then, another part that’s most significant for me—in our constitution, the body of the constitution has three articles; the first one is about the legislature, the next about the executive power, the president, and the third about the judiciary, and the guarantee of independence to federal judges is secured by two provisions: one is that we hold our offices, the constitution says, ‘during good behavior’—that means we have life tenure. And the second is that our salaries can’t be diminished while we hold office. That means the political branches can’t act against the judges if they are displeased with—for example, if we should hold a law passed by Congress unconstitutional. So judicial independence, I think, is very important in a democratic system.
AH:[6:45] I would like to know your thoughts. What are the most suitable environment to draft a constitution, or the perfect environment to draft a constitution, that can deliver all the goals that you are talking about to society?
RBG:[7:04] In the case of the United States, it was well over two centuries ago, the Framers gathered in Philadelphia, and some of the most brilliant minds of the day were together there, and they debated, made many compromises, and came up with an instrument that endured, But I think it was in part the experience that they had had before the constitution—that was the Articles of Confederation—that gave very little power to the central government, most to the states, it didn’t work. So they were determined then to create something that would work. They weren’t sure that it would. One of the famous drafters, Benjamin Franklin, said, “Now we have a Republic, if we can keep it.” And we have kept it over these many years. One of the aspects of our constitution is it gives each branch of government a foothold in the other. So the Congress makes the laws, but the President has the power to veto the laws. Congress passes a law, but the judges will review it for constitutionality. On the other hand, the Executive has a role in appointing all judges. All federal judges in the United States are appointed by the President with the approval of the United States Senate, the Upper House. So we begin as appointees of the President, the Executive, and then the Legislature has to approve the appointment and after that we have our independence. So it’s separation of powers—Legislature, Executive, and Judiciary—but there are checks and balances so that each branch of government has some foothold in the other and that idea is that no branch of government should be all-powerful, should be able to eclipse the other branches.
AH:[9:28] Would your Honor’s advice be that a society like ours, with what we call—with what we like to call—a transition to the Second Republic, would your Honor’s advice be to get a part or use other country’s constitutions—maybe the United States or other countries—as a model, or we come up with our own methods and our own draft?
RBG:[9:54] You should certainly be aided by all the constitution writing that has gone on since the end of World War II. 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, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recently than the US constitution—Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world? I’m a very strong believer in listening and learning from others.
AH:[11:05] I understand you have a meeting tomorrow with law students. . .
RBG: Yes.
AH: . . .and let me try and have a step ahead. I’m sure tomorrow in your discussions they would like to ask you about your opinion about if it’s best to have a constitution drafted before having a president—because we have this conversation—they would be asking for your advice about that. What would you reply for that?
RBG:[11:31] I can’t give advice for the Egyptian society.
AH: I mean legally speaking, constitutionally speaking.
RBG:The United States had a constitution setting up the government before it had a president. Nobody knew quite what it was going to be, but we had the Constitution. And then the Constitution—because the United States is a federal system—it had to be ratified by the states. And people—there’s a famous set of essays called the Federalist Papers. In the interval between when the Constitution was drafted and when it went into force there was much discussion in the whole country. The people, the press was writing about it and people were coming to understand what it was. So it’s a little hard for me to understand a constitution that’s going to be written between now and June and go into force all at once. The people need to understand what the constitution is, what the government will be like under the new constitution.
AH:[12:46] You were talking now about the best thinkers or the best brains that gathered together and wrote the U.S. Constitution, drafted the U.S. Constitution. Are there certain standards that you believe should be available in the committees or the gatherings, of such contributors to drafting the constitution. What standards should be?
RBG:[13:08] I would not make a list of essential criteria. I would try to have the convention representative, come from different parts of the country, having had different backgrounds, different experiences. We were just tremendously fortunate in the United States that the men who met in Philadelphia were very wise. It’s true that they were lacking one thing: that is, there were no women as part of the Constitutional Convention. But there were women around who sparked the idea. John Adams, who was one of our early presidents and instrumental in the Constitutional Convention, his wife Abigail Adams was a very well-known woman, very intelligent. She said, “Now, John, when you write that constitution, please remember the ladies.” And he wrote back something amusing; he said, “Are you suggesting that women should be part of the political community? That they should have the right to vote? Well, if we do that, then everyone will be claiming that right. Twelve-year-old boys will be claiming the right.” He treated it as a joke, but there have been women through the ages who have kept alive this idea that our nation should profit from the talents, the brainpower, of all of its people. And so we have become a more perfect union in that respect. I quoted the beginning of the Constitution, “We the People of the United States, in order to form a more perfect union” —and then they established the Constitution, but I think that the Constitution—our constitution—we are still forming a more perfect union. If you go back to when the Constitution was new, in the 1780’s, we still had slavery in the United States. The Constitution, of course, has changed in important respects, but in the pocket Constitution I carry around it still has that the slave trade was preserved until the year 1808, that there was what we call the Fugitive Slave Provision—if a slave escaped from a slave state into a free state, the master would have a right to sue in the free state to get his property returned. We keep those provisions, although they’re no longer enforced, just so people would see how imperfect we were and how much more perfect—we are still not all the way there, but the genius of the Constitution, I think, is that it has this notion of who, who composes “we, the people.” It has expanded and expanded over the years so now it includes people who were left out at the beginning, native Americans were left out, certainly people held in human bondage, women, people who were newcomers to our shore. So, the wisdom of the Framers—they wrote in general terms, so they wrote no person shall be denied due process of law. Well, what what due process of law in those times? There were some pretty awful punishments, and today, certainly we would not consider that proper. The provision specifically dealing with punishment is there shall be no cruel or unusual punishment. Way back in the 18th century, twenty lashes was not considered cruel and unusual; today it would be unthinkable. So, these grand general ideas that become more effective over the course of now some more than two sometimes turbulent centuries.
AH:[17:26] Justice Ruth Ginsburg, we thank your Honor very much for being with us on al Hayat television and on al Hayat [indistinguishable word] program. Thank you very much.
RBG:[17:35] It was a pleasure to talk to you.
AH: Thank you.
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