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Ginsburg on Transnationalism



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On Bench Memos, Ed Whelan is writing a valuable series detailing the transnational legal framework of “human rights” that guides Harold Koh, Obama’s nominee as legal adviser to the State Department. Whelan descibes the extreme social engineering that informs the U.N. Convention on the Elimination of All Forms of Discrimination against Women, dedicated in effect to making the sexes entirely the same (opposing Mother’s Days in various countries, for example).  It is worthwhile to remember that Justice Ginsburg cited this Convention, as well as its equally Orwellian-sounding companion, the Convention on the Elimination of All Forms of Racial Discrimination, in her opinions in the Grutter and Gratz cases.    As support for the University of Michigan Law School preferences in the first case, Ginsberg cited in her concurrence the convention regarding women as ”authorizing temporary special measures aimed at accelerating de facto equality.” “De facto equality” means equality of outcome, of course. In the Gratz case, in which overt racial preferences in the undergraduate division of the University of Michigan were disallowed, Ginsburg’s dissent stated that contemporary human-rights documents such as the two Conventions do not favor “invidious” preferences but allow them to ”correct inequalities.” That is, preferences that disfavor minorities should be disallowd, but preferences that favor them are in order.      Ginsburg also notes that the Conventions mandate that the preferences “shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.”  But given that the goal is de facto equality, that is, equality of outcome of all groups and of men and women, this proviso is meaningless. They may as well say, when pigs fly. Even apart from Ginsbrug’s concurrence, the Grutter case went a long way toward redefining America as a place of group rather than individual equality. 



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