Ginsburg's global constitution

Terry Jeffrey
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Posted: Mar 22, 2006 12:05 AM

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.

Quoting former U.S. Appeals Court Judge Patricia Wald, Ginsburg said, "We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of 'common denominators of basic fairness governing relationships between the governors and the governed.'"

The sort of analysis Ginsburg is describing here is not judicial, but legislative. There is nothing in our Constitution that bars members of Congress from looking at foreign laws to see what works and what does not, what reflects American values and what does not. As long as they don't exceed the constitutional limits on Congress' own authority, they may, if they wish, propose legislation mirroring a foreign law to see if they can win a majority for it and persuade the president to sign it.

Congress, for example, could clone Russia's 13 percent flat tax, arguing, as Ginsburg or Wald might say, that Russia's tax plan embodies Congress' vision of the "basic fairness governing relationships between the governors and the governed."

It would not matter if Ginsburg preferred, say, Iran's tax system to Russia's. The Constitution, as written, does not authorize her to trump Congress' preferences in this area.

It is when Ginsburg cites specific Supreme Court decisions she believes were beneficially influenced by foreign courts that the real heart of the matter is revealed: On certain cultural issues, she likes other peoples' values better than those Americans have expressed through the democratic process. Some voters in this country, she clearly believes, just didn't get it right on same-sex sodomy and the death penalty.

"On respect for the opinions of (human)kind," she said of the opinion declaring same-sex sodomy a right, "the Lawrence Court emphasized: 'The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries.'"

"Roper v. Simmons presents perhaps the fullest expressions to date on the propriety and utility of looking to 'the opinion of (human)kind,'" she said. "Holding unconstitutional the executions of persons under the age of 18 when they committed capital crimes, the court declared it fitting to acknowledge 'the overwhelming weight of international opinion against the juvenile death penalty.'"

Justice Ginsburg has every right to embrace foreign opinion on these issues. But if she wanted to act on those opinions officially, she should have resigned from the court and ran for a state legislature first.