Justice Ruth Bader Ginsburg's authority, she apparently believes, extends all the way to rewriting the Declaration of Independence. Words written by Thomas Jefferson and edited by Benjamin Franklin won't do for her.
"A Decent Respect to the Opinions of (Human)kind," she titled a speech delivered last month at the Constitutional Court of South Africa.
The address might have gone wholly unnoticed were it not belatedly reported last week that Ginsburg took the occasion to reveal that some idiot writing on an Internet chat site a year ago had called for violence against Ginsburg and then-Justice Sandra Day O'Connor because they had cited foreign laws and judgments in their opinions.
Of course, the Internet-idiot deserves Ginsburg's scorn and ours. But that should not immunize the justice against the criticism she deserves for what she actually said in South Africa. While she began her speech with a politically correct rewrite of the Declaration, her main point was that she and other justices have the authority to change the Constitution -- and use contemporary foreign laws and rulings as inspiration for doing so.
"The notion that it is improper to look beyond the borders of the United States in grappling with hard questions ... is in line with the view of the U.S. Constitution as a document essentially frozen in time as of the date of its ratification," said Ginsburg. "I am not a partisan of that view. U.S. jurists honor the Framers' intent 'to create a more perfect Union,' I believe, if they read the Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings."
The problem here is that the Framers did not give judges the authority "to create a more perfect union." If any perfecting of our Constitution is to be done, the means for doing so are spelled out in Article 5 of the Constitution itself, which authorizes two-thirds of both houses of Congress to propose constitutional amendments and two-thirds of state legislatures to convene constitutional conventions. The Framers intended to make it so difficult to actually "perfect" the Constitution, however, that they required three-fourths of the states to ratify any proposed amendment.
By contrast, Ginsburg believes five justices can amend the Constitution if their personal opinions happen to coincide -- and if they can gain sufficient ideological reinforcement, if not actual authority, from foreign courts.