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SC Justice, NY Times: US Constitution Outdated and Uncool?

To most Americans, the U.S. Constitution is the foundation of our democracy, a clear manifestation of American values, and the reason for much of our success as a nation. Not so the New York Times. In a recent article, the Grey Lady appears bored with our aging charter, pining for the sexier constitutions of newer democracies, which promise everything from affirmative action to the right to food:

The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)

It’s not clear what the Times is suggesting here: does it think our constitution is so rigid that it won’t last?

The U.S. Constitution, long praised for its brevity, apparently cannot compete with the zillions of minor rights and mandates afforded by the lengthy and nearly impenetrable European Convention on Human Rights or Canada’s Charter of Rights and Freedoms. Perhaps America should follow their lead?

This is horrible advice. The U.S. Constitution’s parsimony is its greatest asset. Rather than attempting to anticipate every conceivable situation, the Constitution provides broad, comprehensible guidelines for government power and lets politics handle the rest. The leeway for adaptation and interpretation inherent in our Constitution has served us well in adapting to unforeseeable changes; its old age is a sign of its success, not a shortcoming.

The Times’ deep antipathy towards the constitution is certainly alarming, but not entirely unexpected. The paper has taken some odd positions in the past, and will doubtless continue to in the future. But the real meat of this article, the really surprising confession, is buried deep within:

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

This looks pretty shocking on its face: One of the justices of the Supreme Court admits she doesn’t have much regard for the document she is charged with interpreting and defending.

Let’s hope the Times story, clearly written by someone with foggy constitutional ideas, doesn’t do justice to the full complexity of Justice Ginsberg’s thought. Even a very bright light can look dim when glimpsed through a dirty window.

But it does suggest a question that should be required in the confirmation hearings of all future candidates for US Supreme Court seats: “What do you think is wrong with the US Constitution and how should it be changed?”

Via Meadia guess: nobody who confessed to the views expressed by this Times piece would get confirmed. Ever.

Americans generally think our Constitution is better than these complicated, untested laundry lists of rights and laws that fill the world today, and want that document interpreted by people who understand the strengths that have made it so durable.

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  • BillH

    Perhaps these folks’ misgivings reflect the fear in their hearts that some of their proudest accomplishments might take a hit from a hard turn to the political right, and that their most cherished dreams (as expounded in the laundry lists they seem to admire so) might be put off, at least for awhile.

  • Some Sock Puppet

    I read that article with a mix of revulsion and gut-churning awe. It’s like they’re prepping the battlespace for a major overhaul.

    I’m paranoid, I freely admit it. But with the last several administrations, that’s an asset, not a weakness.

  • Phineas

    Justice Ginsburg’s TV interview is mounted at MEMRI: . I don’t think there’s any additional context. While she says the right things about the spirit of the people needed to give life to a constitution, it’s also clear she considers ours outdated, a relic of the 18th century.

    I posted my own thoughts here:

    As for the NYT, I guess that meteor didn’t take out *all* the dinosaurs.

  • LarryD

    Progressives have long chafed at the limits the Constitution places on the federal government. There is a fundamental conflict between Progressivism and the American value of limited government. Since limiting government is the Constitutions’ whole point, , it’s no surprise that Progressives scorn it.

    Progressivism originated in Prussian universitys in the 1800s, its core values have always been in conflict with American values.

  • Chase Crucil

    Professor, Justice Ginsberg is actually pretty conservative, especially when compared to the last warren court stalwarts, Brennan and Marshall.

    Edward Lazarus, a former supreme court clerk and author, said that in the area of criminal procedure, she is so conservative – meaning in this sense that her positions would please right leaning Americans – that it is as if Justice White never left the bench.

  • Mike M.

    Nothing like a U.S. Supreme Court justice going to Egypt of all places and bad-mouthing her own government, now matter how softly and diplomatically.

    Listening to Ginsberg convinces me even more that one of the Founders’ biggest mistakes was giving USSC justices a lifetime appointment.

  • Fred Bartlett

    I actually have a copy of the Soviet Constitution in English (also the US Constitution in Russian — long story).

    There are two major differences between them, which I’m sure both you and Ginsburg know, but which are essential to bring out in any discussion of Ginsburg’s speech.

    1. The Soviet Constitution discusses the duty of citizens to the State; the US Constitution does not (though, of course, some are implied — e.g., the duty to obey the law). For instance,

    Article 60. It is the duty of, and matter of honour for, every able-bodied citizen of the USSR to work conscientiously in his chosen, socially useful occupation, and strictly to observe labour discipline. Evasion of socially useful work is incompatible with the principles of socialist society.

    2. The Soviet Constitution guarantees positive rights (citizens have the right to …), while the US Constitution guarantees negative rights (Congress shall make no law …). For instance,

    Article 44. Citizens of the USSR have the rights to housing.


    Article 46. Citizens of the USSR have the right to enjoy cultural benefits.

    I think you can see pretty clearly how Soviet-style rights and duties — lovely though they may seem at first hearing — ensure that the State must be totalitarian. After all, if you have the right to housing, then the State must have the power to take property from me and give it to you.

    The other constitutions on offer around the world all guarantee similar positive rights, and all tend to the totalitarian; witness, for instance, the absence of free speech in Canada. The South African Constitution praised by Ginsburg has similar problems: rights to housing, rights that may not be exercised if in conflict with other rights, and even an section explicitly defining how the government can limit the people’s rights.

    So Ginsburg is as wrong as a constitutional scholar and practicing jurist could possibly be.

  • BillH

    Can’t dispute your conclusion, Mike M. But, can you imagine what would have happened in the first two years of the Obama admin. if the Supremes could simply be fired and replaced? We need to make it very hard, but not impossible to fire them. Maybe something similar to referendum and recall?

  • Anthony

    A point of insight relevant to discussion but regarding economics and constitution is “as economic life becomes more complex, we should expect the role of government to become more extensive. Therefore, expecting to find good twenty-first century economic answers in a constitution that dates back to 1789 is unrealistic. The Founding Fathers were clever, to be sure, but the cleverest thing they realized is that Thomas Jefferson’s famous aphorism that the earth belongs to the living means laws from a premodern age should not blindly bind us today”….

    Durability and strength of Constitution is beyond question but fresh thinking and inquiries help to maintain both strength and durability.

  • Kris

    If you thought the NYT article was bad, two thirds of the comments are along the lines of: “Of course the Constitution must be replaced! Citizens United! QED!” And since the readers think this the height of constitutional cerebration, all such comments get voted up.

  • rvastar

    @ Anthony

    “…as economic life becomes more complex, we should expect the role of government to become more extensive.”

    Actually, this is precisely backwards. The truth is that as govt becomes more extensive, economic life becomes more complex.

    “Durability and strength of Constitution is beyond question but fresh thinking and inquiries help to maintain both strength and durability.”

    And that’s precisely why the Founders provided an avenue for “fresh thinking” to occur as time passed and society changed – it’s called “Amendment”.

    Ginsburg should be impeached. Period. The fact that she’s won’t be is illustrative of just how gutless Republicans are and how far removed our nation truly is from it’s Constitutional moorings.

  • Jim.

    Two questions:

    – Do SCJ’s have to take an oath to defend the Constitution?
    – Can SCJ’s be deprived of their position if convicted of a felony, e.g. perjury?

    If the answer to both is “yes”, there is a clear way to proceed here.

  • Kris

    Anthony@9: “as economic life becomes more complex, we should expect the role of government to become more extensive”

    Only in the most literal sense; I would expect this to happen, even if it shouldn’t.

    When economic life was relatively simple, a small number of “the best and brightest” might have deluded themselves into thinking they could direct it. Now that it has become so complex, such delusion becomes pathological. Cf “The Use of Knowledge in Society”.

  • Peter M. Todebush

    Interesting, three of the current Supreme Court Justices(Ginsburg, Sotomayor and Kagan) were brought up on the upper west side of New York City, the most liberal/progressive environment imaginable.

  • Luke Lea

    ” Thomas Jefferson’s famous aphorism that the earth belongs to the living” was not entirely true: it also belongs to future generations.

    It has been said that our own constitution was designed by geniuses to be administered by idiots. Not sure how idiot proof it is though. I’m thinking of Citizens United.

  • Marty

    The Progressive disease, dished up in black and white by Woodrow Wilson, holds that our Constitution is a quaint product of its time, completely made obsolete by (now) post-modernity. That arguments such as the one the Professor highlights are taken seriously by sentient beings should be a call to arms to anybody who wants to see the next iteration of the American Dream succeed. Only freedom wins.

  • Walter Sobchak

    “Therefore, expecting to find good twenty-first century economic answers in a constitution that dates back to 1789 is unrealistic.”

    Less unrealistic than trying to find good answers in the NYTimes. And less unrealistic than trying to get good answers out of a [person advanced in years whose views I do not respect] like Ginsburg.

    If you think a constitutional provision is obsolete or unworkable, you should draft an amendment and campaign for it.

  • Cunctator

    What can one say except that most people outside of the US, over much of the last two centuries, have looked with envy to the freedoms recognised and stable system of government provided by the US Constitution.

  • Corlyss

    “It’s not clear what the Times is suggesting here: does it think our constitution is so rigid that it won’t last?”

    Hardly. They’re terrified that Americans are so attached to it as it exists (even if they don’t understand what that means) that they won’t be able to get the constitutional convention at which they will press hard for a dictatorship of the elites like the NYT editors and reporters. Those of us who prize the old document are troublesome to the likes of the NYT owner and editors and reporters because we don’t acknowledge that they know best what is good for us and should let them have their way. They are boosters of statism, the modern administrative state, welfare for everyone, responsibilities for none. Of course they aren’t afraid the thing won’t last.

  • Jim.

    @Luke Lea:

    Is there any talk of an amendment to the Constitution that specifies that corporations are not, in fact, people?

    I’d support any legislator that supported such an amendment, too. We’re clearly not the only ones. Shouldn’t the people who feel most passionate about it work to make it happen?

  • Anthony

    @Kris, I concur and use quote as context to WRM’s Quick Take subject matter; however, a mixed economy has always been central to American capitalism.

    @rvastar, I understand amendment standard as well as constitutional process established thereto; my quoted comment intended to generate thought (via fresh thinking phrase) given modern circumstances – did not read NYT article nor see Justice Ginsburg’s talk; therefore, was not addressing either per se.

  • jbay

    The NYT article struck me as having no knowledge of jurisprudence, history or common sense and I agree w. your opinion. As to the justice… I like what Jim suggests: perjury?

  • a nissen

    On-going observation of state and local electeds’ fickle desire and unlimited ability to transform, even reverse, supposedly long-range matters like comprehensive plans has brought me to nevermore cherish that “ancient” timeless document that keeps us as open and thoughtful as current mores are able to imagine and bring to bear. Long may it reign.

  • Lou R.

    The article printed in the NYT cites a letter from Thomas Jefferson to James Madison in support of the assertion that our Constitution is outdated.

    In the letter Jefferson proposes no constitution should last longer than 19 years: “Every constitution, then, and every law, naturally expires at the end of 19. years. If it be enforced longer, it is an act of force and not of right.”

    The use of this quote with no other context is a clear example of where the left is often disingenuous: specifically, there are two notes or caveats that should accompany this quote; namely 1) James Madison in his response essentially disagreed with Jefferson, who was asking his opinion; and 2) the overall theme of the letter was focused on the fairness of one generation incurring debt that would be left behind to burden the succeeding generation with Jefferson computing the reasonable span of life after one comes of age (age 21) to be 19 years for committing succeeding generations to debt from that current generation. The 19 years was based on his actuarial estimates of life expectancy in his day.

    Net, Madison suggested the idea was, while not without some merit, unworkable and not advisable for many reasons; and the primary topic was in fact centered around Jefferson’s strong belief that current generations should be limited in the amount of debt they can leave to future generations (how about that for a most timely, anti-Big government topic in the NYT!!!).

  • ruralcounsel

    Justice Ginsberg’s lack of enthusiasm for the U.S. Constitution reminds me of the old saying… “It’s a poor carpenter who blames his tools.”

  • algispetreikis

    The Constitution is Graeco-Masonic anti-Catholic that is why it allows contraceptions and abortions. It was not until the Ellis Island offspring put forth the New Deal that we began to be freed of its oppression. If we bilingually translate it into Spanish, we will further make it better. The Ohio public schools were originally run by the Catholic Church. We must join with the anti-Federalists to return to private ordering of things. We don’t need the Constitution, it is Judaic Deuteronomy Law, not natural law like Roman, the law of the Second Charlemagne, Napoleon, which should rule the earth, starting with our great Fourth Empire of the EU at Brussels. Prussia is Great because Prussians are really Lithuanians, so it is just that Merkel should be the Fourth Charlemagne to rule the world together with China and Islam. Is must blessings Brzezinski for Sineurabia Code uniting Roma, Mecca and Pekino against arrogant, aggressive Greeks, Jews and Hindus.

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