"The bill of rights of the former 'evil empire,' the Union of Soviet Socialist Republics, was much better than ours," Antonin Scalia told a congressional panel last October. "I mean it literally: It was much better. We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!"
Why no outrage? Because Scalia went on to make the point that the Soviet constitution was nothing but "words on paper," a fig leaf for tyranny. By contrast, America's constitutional system -- with its careful separation of powers and government institutions checking and balancing each other -- has proved a bulwark against tyranny. Only someone brazenly yanking Scalia's words out of context could have accused him of revering the Kremlin's Potemkin constitution more than the one drafted in Philadelphia in 1787.
I'm not a fan of Ginsburg's jurisprudence. I find her too left-leaning and too inclined to see the Constitution as an "evolving" document that can be interpreted in the light of foreign law. And while one can plausibly argue that a document drafted during the American Enlightenment might not be the ideal template for an Egypt under military rule and dominated by Islamists, Ginsburg ought to have realized that telling any foreign audience that she "would not look to the US Constitution … in the year 2012" was bound to provoke umbrage at home.
But to accuse her of insulting the Constitution or being "mealy-mouthed" in its defense is absurd.
As anyone watching the full Ginsburg interview can see, she went out of her way to praise the US system. She extolled the Framers of 1787 as "very wise," and explained how the Constitutional architecture -- separation of powers, checks and balances, judicial independence, amendability -- has secured the blessings of liberty for generations of Americans. "We have the oldest written constitution still in force in the world," she said proudly, "and it starts with three words: 'We, the people.'"
Politely but clearly, Ginsburg echoed Scalia's point that mere "words on paper" guarantee nothing: "If the people don't care, then the best constitution in the world won't make any difference." And she stressed the need for a shield "like our First Amendment: the right to speak freely and to publish freely, without the government as a censor."
Like those who rushed to exploit Mitt Romney's "I'm not concerned about the very poor" comment, those who jumped on Ginsburg for her remarks should be embarrassed. In their eagerness to score political points, they dishonored themselves -- and debased the nation's discourse just a little more.
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