Ruth Bader Ginsburg To Egypt: Don’t Use Our Constitution As A Guide

Ruth Bader Ginsburg had some advice on Constitution drafting for Egyptians

Supreme Court Justice Ruth Bader Ginsburg gave an interview to an Egyptian television network recently, and her responses to questions about that nation’s ongoing process to create a new Constitution for itself were interesting to say the least:

Amid fresh clashes in Egypt, the U.S. Embassy in Cairo has posted an  Alhayat TV interview of Justice Ruth Bader Ginsburg. She traveled to the region last month in coordination with the State Department to meet Egyptian counterparts as they begin the nation’s constitutional transition.

“It is a very inspiring time, that you have overthrown a dictator, and that you are striving to achieve a genuine democracy,” the U.S. Supreme Court associate justice says. “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.”

She says that after meeting with the head of the election commission, she was pleased to see that the recent elections in Parliament’s lower chamber were considered free and fair.

“Let me say first that a Constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom.,” Ginsburg, 78, says in the Jan. 30 interview. “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, the right to speak freely, and to publish freely, without the government as a censor. ”

Asked by the interviewer if she thought Egypt should use the Constitutions of other countries as a model, Ginsburg said Egyptians should be “aided by all 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,” says Ginsburg, whom President Clinton nominated to the court in 1993. “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 recent than the U.S. Constitution.”

Here’s the video of the full interview, the first minute or so is in Arabic but the rest is in English:

And, here’s the transcript of the part of the interview that’s gotten the attention of more than a few people:

Q: Would your honor’s advice be to get a part or other countries’ constitutions as a model, or should we develop our own draft?

A: You should certainly be aided by all the constitution-writing that has gone one since the end of World War II. I would not look to the US 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 recent than the U.S. 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. 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.

Not surprisingly, this comment is already arousing the predictable response from the right. John Hayward at Human Events put it this way:

The Egyptians could use exactly the kind of timeless and powerful ideals laid out by the brilliant framers of the United States Constitution, a document written precisely to thwart the ambitions of “reformers” who think utopia is just a few trampled individual rights away.

They could also stand to hear a robust endorsement of American ideals from someone who actually loves and understands this country, not a mealy-mouthed half-hearted squeak from someone who dwells on our failures, and admires the rest of the world for being so much more enlightened than we are.  The darker forces battling for the soul of Egypt will not be hesitant in advancing their ideals.  They won’t waste any time talking about the deficiencies of their ancient laws, or suggesting the Egyptian people look around the world for more advanced upgrades to their timeless ideals.

Meanwhile, those Americans who recoil from the idea of a Supreme Court populated by people who are willing to express such casual contempt for the U.S. Constitution before foreign audiences should remember that electing Democrats to the White House means you’re absolutely guaranteed to get more of the same.

Having watched the entire interview, I think its somewhat absurd to characterize Ginsburg’s statements as expressing “contempt” for the U.S. Constitution. To me at least, it seemed as though she was making an entirely practical point about whether the system of Government that the United States adopted in 1787 is really appropriate for a non-Western country 200+ years later. It’s worth noting that our system of government is rather unique in the world, and that it hasn’t really adapted well when other countries tried to adopt something similar. David Weigel notes, for example, that the Mexican Constitution of 1824 was based to a large degree on the still-new U.S. Constitution. It proved to be a bad fit for Mexico and was abandoned by 1835. Since then, few nations have fully adopted the structural elements of our Constitution, preferring instead to copy some variation on the Parliamentary systems developed by Great Britain and France.

Of course, as John Tabin points out, there is one area where our Constitutional system has worked better than most others in the world. There are few nations in the world with protections for freedom of speech and religion as broad as those we have in the United States. In Canada, for example, freedom of speech is under constant assault by so-called “human rights” laws that would seek to prosecute people for voicing opinions or making statements of religious faith that some group or another finds offensive. To that degree, I would say that Ginsburg is wrong to say that such nations should be a guide for any other nation seeking to create a Constitution that would both create a functional government and protect individual liberty. Were I looking for a guide in that regard, I doubt one could find a better example of where to start than the Bill of Rights. Of course, I doubt the Egyptian powers-that-be really want to have the kind of freedom that a real Bill of Rights would give the Egyptian people. That’s why so many of nations have a very diluted example of what one would call a “Bill of Rights” that gives far too much authority to the government.

In that sense, then I think Ginsburg is mistaken to point to nations like Canada and South Africa as ideals for a nation considering a charter of rights to add to their Constitution. As far as her main argument goes, though, I think Weigel gets it about right:

I don’t see how you could argue the opposite — all transitional democracies should start with the Constitution we wrote in 1787! — unless you’re writing a Toby Keith song or something. Hell, we’re among the countries that have done some constitution-writing since the end of World War II. Ask a sponsor of the Balanced Budget Amendment; more boringly, ask someone who helped institute presidential term limits.

As a final point its worth noting that Constitutions are above all a reflection of the culture and values of the people that they are adopted by. The idea that we could just take a document that was written during one hot summer 225 years ago and graft it onto a completely different nation without taking into account not only those differences, but also; the numerous Amendments we’ve ratified over the years, the Court decisions interpreting the document, the things we all agree should be fixed, and how other nations have done things is little more than mindless jingoism. We live in a nation of 50 states with 50 different Constitutions, many of which have been changed several times over the years, why wouldn’t the same be true of the world? More importantly, I doubt you’d find a single person on either side of the political aisle who has advised other nations on drafting new Constitutions that would disagree with with the fundamental point that Ginsburg made.

So, yes, Ginsburg is partially incorrect here, but “contempt” for the Constitution? Don’t be ridiculous.

FILED UNDER: Africa, Democracy, Law and the Courts, Political Theory, Religion, US Politics, , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.

Comments

  1. Rob in CT says:

    Hmm. I might have made the same general argument, but not the way she did. Egyptians should create a constitution that works for them, and Egypt != America. Thus, just copying ours isn’t the best approach.

    I’d also say they should look around at all the various blueprints available… *including* ours. And yeah, it’s a little odd not to mention that ours has evolved some over the past 225 years.

    I do think our constitution is dated in certain areas. But it’s held up reasonably well overall, at least post-1865. Which, in the context of creating and maintaining a representative republic, is pretty much all you can ask for, no?

  2. Doubter4444 says:

    But that’s nuance, Doug.
    Why bother with it when you can score points about an American hating STOUS?
    I agree that she might have said something along the lines of “our constitution has evolved” – but even that, to the constitution fetishists would not work – she’d be hammered by the anti “living document” crowd.
    I took away that there are more modern and perhaps more timely documents than our constitution, as written.
    A heresy, I’m sure, to the automatic outrage set, but reasonable advice.

  3. Brian Lehman says:

    Didn’t we essentially write the Constitution of Japan after World War II? Their system is quite different from ours too. Like you said, different documents for different peoples.

  4. Indeed we did. The same goes for Iraq, as well as nearly every former Soviet client state after 1991.

  5. PD Shaw says:

    I think the Justice was unnecessarily critical of the U.S. Constitution, which it should be emphasized has been amended from time to time and contains flexible principles. But I agree with Doug, there is no particular reason that the U.S. Constitution would be useful for a country that has operated with a civil code culture.

  6. rodney dill says:

    She’s advocating using all the resources available in a pragmatic manner. Good advice.

  7. Trumwill says:

    “Different documents for different peoples” is exactly right. I would add, though, that’s a reason not to look at our peculiarities as being necessarily wrong just because they are out of sync with what a lot of other nations do.

  8. DRS says:

    And whatever they do: DON”T ADOPT THE PRIMARY SYSTEM!!!! Have the Egyptian people not put up with enough over the years?

  9. Countries with constitutions like ours don’t last.

    In his classic essay “The Perils of Presidentialism” (PDF) political scientist Juan Linz noted the striking fact that “the only presidential democracy with a long history of constitutional continuity is the United States . . . [a]side from the United States, only Chile has managed a century and a half of relatively undisturbed constitutional continuity under presidential government—but Chilean democracy broke down in the 1970s.” By contrast, many parliamentary democracies have managed to hold together for a long time.

    Linz briefly treats the question of why presidential democracy, which basically doesn’t work, has managed to work in the United States:

    But what is most striking is that in a presidential system, the legislators, especially when they represent cohesive, disciplined parties that offer clear ideological and political alternatives, can also claim democratic legitimacy.

  10. WR says:

    As the great thinker at Human Events proves so nicely, the only permitted statement on foreign relations is: America rules, everyone else drools.

    Should someone dare to suggest anything more nuanced, they hate America.

    Oh, unless it’s right-winger claiming that 9/11 happened because Americans are so morally depraved. Then they are great, God-fearing patriots and deserve a lifetime job at National Review.

  11. @Brian Lehman:

    Didn’t we essentially write the Constitution of Japan after World War II? Their system is quite different from ours too. Like you said, different documents for different peoples.

    Indeed. Likewise we had input in the Germany constitution (which is dissimilar to ours in many ways). We also didn’t just hand our constitution to the Afghans or Iraqis. It just doesn’t work that way.

  12. Septimius says:

    “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,” says Ginsburg, whom President Clinton nominated to the court in 1993. “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 recent than the U.S. Constitution.”

    So true. Because the U.S. Constitution doesn’t embrace basic human rights at all and the judiciary is completely beholden to the other branches.

  13. Tsar Nicholas says:

    I suspect Ginsburg went senile 10 years ago and even prior thereto, when she was a hop head ACLU bigwig, that she already had been suffering from a mood disorder. Putting that aside, however, Ginsburg did manage within the constraints of her diminished mental state to make one cogent point; to wit, that there are a number of recently-enacted constitutions around the globe from which a nascent democracy might glean various positives. Like Iraq’s constitution, for example.

    The Iraqi constitution was enacted very recently, October 2005. One safely could assume that an Iraqi constitution from 2005 would have at least some relevance to Egypt in 2012. Oddly enough, however, Ginsburg didn’t mention Iraq’s constitution. She noted South Africa, Canada and Europe. Not Iraq. Hmm. Perhaps the latter omission was a Freudian slip. Perhaps not.

  14. Tillman says:

    Her comments probably have more to do with the fact that our Constitution was written when there were already thirteen interdependent states with their own established governments. The Constitution’s balance of powers between federal and state governments (if one includes the Bill of Rights) reflect this.

    I’m not an expert on Egyptian political structure, but I doubt their provincial governments are set up so as to have powers similar to American statehood delegated to them.

  15. Brummagem Joe says:

    “So, yes, Ginsburg is partially incorrect here”

    She’s not partially incorrect she’s just making a suggestion you don’t happen to agree with.

  16. Brummagem Joe says:

    @Tsar Nicholas:

    I suspect Ginsburg went senile 10 years ago and even prior thereto, when she was a hop head ACLU bigwig, that she already had been suffering from a mood disorder.

    You always rely on these wingnuts for the singularly graceless comment.

  17. mattb says:

    @Septimius:
    While I get your point about the judiciary, it is fair to note that when drafted, the constitution really didn’t do too well on human rights, given that it needed to be amended to both get rid of the entire slavery thing, and then later enfranchise women.

    At least in the case of South Africa, the constitution expressly dealt with the issue of human rights to deal with the legacy of Apartheid. One could argue that the US Constitution expressly avoided human rights in order to put off the Civil War.

  18. @Brummagem Joe:

    You’re right, I don’t think following the flawed legacy of a nation like Canada on freedom of speech issues is a good idea.

  19. Brummagem Joe says:

    @Doug Mataconis:

    Don’t know enough about it to debate it. I’ll stick to commenting about what I know.

  20. Robert in SF says:

    Once again another topic that The West Wing has addressed, in a manner of speaking…

    http://www.youtube.com/watch?v=gLoio0Z6jLw

  21. Septimius says:

    @Brummagem Joe:

    Don’t know enough about it to debate it. I’ll stick to commenting about what I know.

    I guess that’s the last we’ll be hearing from you around here.

  22. garretc says:

    Doug, not sure why you’d need to harp on Canada’s free speech issues when free speech was in fact one of the things Justice Ginsburg explicit mentioned as worthy of emulation from our constitution:

    “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. ”

  23. An Interested Party says:

    Her comments probably have more to do with the fact that our Constitution was written when there were already thirteen interdependent states with their own established governments. The Constitution’s balance of powers between federal and state governments (if one includes the Bill of Rights) reflect this.

    Exactly right…but of course, logic like this doesn’t implant itself in the minds of those who are just so sensitive about how wonderful our country is and don’t dare give any credence to any criticism (imagined or otherwise) of it…I mean, really, if this isn’t an impeachable offense on Ginsburg’s part, what is…

  24. hihoze says:

    The U. S. Constitution was written for a Republic consisting of several Sovereign States who had their own Constitutions, guaranteeing unlimited individual and state’s rights, united to create a common federal government with well defined and limited powers, it was NOT written for a Marxist, Socialist Centrally planned tyranny controlled by a handful of elites, dictators and an elected emperor controlling all the states and citizens. Ginsburg needs to be impeached. She is praising a Muslim Califate of hate that sided with the Nazis and approves of an actual Egyptian Nazi Party.

  25. Doubter4444 says:

    @hihoze:
    Oh lord above.
    Get a grip.

  26. David M says:

    I’d probably advocate a Parliamentary system over ours, and I’m not sure why starting from a more recent document is a bad thing. The electoral college is a good example of why not to start with ours.

  27. GoodIdeas says:

    Nice of Justice Ginsburg to speak her mind on Egypt. Sinecures clear the mind of those pesky principles and all. She obviously doesn’t recognize deadly terminal Arab anarchy when she sees it, and she doesn’t think much of American constitutionalism. I’m considering taking up a collection to buy her a one-way ticket to Johannesburg– she likes it there, and I’d like her there. Works out for everybody.
    Bye Ruth, love ya, honest, write, y’hear?

  28. grumpy realist says:

    @GoodIdeas: And this is exactly why it is impossible to have an actual dialog with certain individuals on the Right….

    Considering that Egypt managed to have a civilization from 3000 BC up until the present, I think that “deadly terminal Arab anarchy” is a pretty dumb statement. After the US has managed to exist 5000 years, maybe we’ll have the right to point fingers.

    Also, as notes for the curious: South Africa is one of the very few places in the world that supposedly still has remnants of Roman law in its code. This is because the Boers incorporated law from Holland before Napoleon went replacing all the judicial codes in Europe with his very own.

  29. Jim King says:

    What does she know, she was just a little kid when our Constitution was written… She should be sitting on a front porch rocking back and forth on her rocker…
    Jim

  30. An Interested Party says:

    She should be sitting on a front porch rocking back and forth on her rocker…

    You need to come up with better material, as she would be sitting on the front porch along with Scalia, Kennedy, and Breyer, who are all in the same age range as she is…damn that whole life tenure thing…

  31. GoodIdeas says:

    @grumpy realist:
    More than happy to engage in dialogue with you, grumpy, here and now.
    Your point: ‘terminal Arab anarchy’ is a dumb statement.
    My point: There is no rule of law there now, the country is solidly in the final throes of anarchy and I predict it will fall into full-blown chaos within the year. I base that prediction on the study of political history of the region, including ancient and modern Egypt’s, and the absolute inability of Arabs generally and Egypt specifically to govern themselves without substantial outside contributions. And, there is a very real potential for a hot, shooting war between Egypt’s neighbors soon which she cannot resist entering. Dickens classic ‘A Tale of Two Cities’ is instructive in recognizing impending chaos. Time will either confirm or rebut the wisdom of my assertion; but you’re certainly entitled to your opinion.
    Your point: South Africa’s law has elements from Holland that predate Napoleonic Code.
    My point: And your point is, exactly? That’s a completely unresponsive argument to my statement that Ruth Bader Ginsburg says she prefers South Africa’s brand spanking new constitution over our old dog-eared thing. I think Ruth should live where she likes under law she prefers.
    As an instructional aside, the State of Louisiana in the United States preserves large measures of the Napoleonic Code. And much western law, and Caesarean Egyptian law for that matter, can be traced back to Roman Code. Ruth should still live out her days where she’s most comfortable. We cannot make her live here among us.

  32. Byron Mullet says:

    Since the U.S. Constitution acknowledges that our rights come from the biblical Creator, she might have thought it unwise for Muslims to adopt a Christian constitution.? If you listen to the interview she goes on to enumerate, laud and note the wisdom of the founders in our system.

  33. @Byron Mullet:

    Since the U.S. Constitution acknowledges that our rights come from the biblical Creator, she might have thought it unwise for Muslims to adopt a Christian constitution.?

    Actually, there is no such acknowledgement.

    Perhaps you are thinking of the Declaration (i.e., “endowed by our creator”)–of course, even then the specific nature of said creator is unspecified.

  34. Byron Mullet says:

    @Steven L. Taylor: The same people who wrote the Declaration also wrote the Constitution. They were biblicists. It was understood and undebatable among them that Jesus was the Creator. Also, the Preamble does implicitly acknowledge God: secure the Blessings of Liberty to ourselves and our Posterity… Who do you think Blesses but God? They set up a system of government and laws that would satisfy the mercy, justice and fairness requirements plainly laid out in scripture. They knew God could and would bless not only them but us. How considerate of them!

  35. @Byron Mullet:

    The same people who wrote the Declaration also wrote the Constitution

    Well, actually, the primary author of the Declaration was Thomas Jefferson (and John Adams was part of the committee. Neither of them was at Philadelphia in 1787.

  36. GoodIdeas says:

    @Steven Taylor:
    The founders agreed, and institutionalized by the U.S. constitution, that our rights are derived from God, not government. There were decades of polite discourse among these men about the rights of them and their fellows, supported by study and writing of some of the very best minds of the time, that went into our founding document. [We are a constitutional republic by the way, Ruth, not a democracy…you can look it up.] In the case of Egypt, with a severely fractured and violent muslim society, they’re expecting to whip out a document before the end of this May. What do we expect it to look like? What sound advice, as an old jurist with a lifetime of exposure to American jurisprudence, should Ruth Ginsburg been prepared to give? Be sure to forbid cruel and unusual punishment? Forbid slavery, include women? Consult South Africa? Really? She’s right about one thing–it will bear absolutely no resemblance to ours.
    She embarrassed me in Egypt, winging an interview on con law off the top of her head on local TV, but I’ll get over it. She won’t. She’ll know how lame she sounded when Justice Scalia winks and smiles when she gets back, after asking about her next trip to Johannesburg. That would be a pretty long commute to work for Ginsburg.

  37. Byron Mullet says:

    @Steven Taylor: John Locke wasn’t there at all, but his biblicist ideas were and did influence both documents. In addition, the notion of a self government of “We the People” is not possible without individual self governance. Self governance is not possible without exercising your religious freedom of conscience. In those days it was expected of you and everyone to live by their conscience. It is why John Adams said “a constitution for a virtuous people.” Or Benjamin Franklin, “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.”

  38. GoodIdeas says:

    @Byron Mullet: Benjamin Franklin, “Only a virtuous people are capable of freedom. As nations become corrupt and vicious, they have more need of masters.”
    Ben was right then, he’d be right now. From his spectacularly-well-advised perspective, the best that Egypt can hope for at this point is a benign, or enlightened dictator. They, regardless of much gushing from Ruth and Barry, are not within a century of self-governance.
    Or, they can adopt and ignore South Africa’s shiny-new politically-correct constitution verbatim. Their results would be the same.
    When is Ruth going to Damascus to advise Syrians on their constitutional needs? Their part of the Arab Spring has truly and well sprung.

  39. Byron Mullet says:

    @GoodIdeas: Sadly and strangely, strict Islamists anywhere and liberal Progressives here and everywhere, share one Representative Republic destroying ideology. They both not only justify but excuse the suspension of the moral conscience to advance each of their agenda’s. They both seek to institutionalize this sociopathy by the instruction of children. It is unraveling the U.S. Constitution here and will frustrate any Egyptian, Syrian or “Arab Spring” attempts at Constitutionalizing freedom and democracy over there.

  40. GoodIdeas says:

    @Byron Mullet: “It is unraveling the U.S. Constitution here and will frustrate any Egyptian, Syrian or “Arab Spring” attempts at Constitutionalizing freedom and democracy over there.”
    I disagree on the unraveling US constitution part, ours is much stronger and better protected than that, but agree on ‘Arab Spring’ [‘woo hoo’, Hillary said before the Syrian barbarism really picked up steam] excluding constitutional republics. In simple fact ‘sharia law’ and ‘constitutional republic law’ are mutually exclusive. Watching bi-polar Iraq try to make it work is the best current example, but history and the Cradle of Civilization is littered with the carcasses of other attempts to westernize byzantine mohammedanism. But Ruth Ginsburg hasn’t noticed. She’s not that curious about Cradles or civilization.

  41. @GoodIdeas: “Syrian barbarism”? You have heard of Charles Lynch, yes?

  42. @Byron Mullet:
    “God is an essence that we know nothing of. Until this awful blasphemy is got rid of, there never will be any liberal science in the world.” -John Adams

    “I almost shudder at the thought of alluding to the most fatal example of abuses of grief which the history of mankind has preserved—the Cross. Consider what calamities that engine of grief has produced. ” -John Adams

  43. @Timothy Watson: Yes, John Adams was quit religious. He was also not one of the framers of the US Constitution.

  44. @Steven L. Taylor: Oh, my point was that Adams wasn’t quite as religious as Byron was making him him out to be.

  45. Byron Mullet says:

    @Timothy Watson: Your Adams quotes are spliced together therefore misquotes according to one website.

  46. Dale W. Latham says:
  47. Kelsonus says:

    Impeach her

    “”I, _________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all…”

    That’s the vow she broke placing South Africa’s or Canada’s Constitution above the US

  48. DonD says:

    One of the worst things about Ginsburg is that she acknowledges using foreign law in her decisions. There is nothing whatsoever in the Constitution or anywhere else in our system of government that promotes or even allows this.

  49. Alex Evans says:

    @DRS:
    The primary system isn’t part of our constitution. Its existance is driven solely by the policies of the political parties.