In an appearance on Egyptian television in early 2012, Supreme Court justice Ruth Bader Ginsburg lamented the fact that she operated “under a rather old constitution.” She told Egyptians that she wouldn’t “look to the U.S. Constitution if [she] were drafting a constitution in the year 2012,” and that they should rather pay close attention to “all the constitution-writing that has gone on since the end of World War II.” She particularly commended the constitutional documents of South Africa, Canada, and the European Union. The important things about these models, according to Ginsburg, are explicit guarantees of human rights along with independent judiciaries to interpret those guarantees. And of course, she pointed out, they’re new.
She thus expressed the core teaching of progressive jurisprudence: Our Founders’ Constitution is an anachronism, little more than a dusty historical curiosity in the National Archives. Further, constitutional text, tradition, logic, and structure are not terribly important for guaranteeing rights. That job can be done much better by cleverly drafted parchment barriers and powerful judges.
Comments