It’s rare to have a governing philosophy that usually hides behind a carefully constructed rhetorical justification be laid bare for all the world to see, but that’s exactly what happened when Justice Ruth Bader Ginsburg recently shared her thoughts about the document that she’s duty-bound to apply. Ginsburg, who’s been on the Supreme Court since President Clinton appointed her in 1993, recently said on Egyptian television, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.” The justice then added, “I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.”
Many Americans would presumably describe their own Constitution in similarly glowing terms. However, Ginsburg’s views, which she didn’t choose to express at her confirmation hearings, help explain why she has felt so free over the years to read foreign law into our own Constitution, using it to bind our elected representatives and force them to adopt policies more to her liking. More broadly, her comments help to explain why it’s necessary, in her mind, to view our Constitution as a “living” document; why unelected judges must be the ones to breathe continued life into that document; and why — in the words of the late Justice William Brennan, himself a leading “living constitutionalist” — judges must actually “give meaning” to the Constitution. The reason for all of this, so plainly stated by Ginsburg, is that the old document — written by the Founders and amended by later generations — simply wouldn’t be worth “looking to” today if one could help it. Therefore, it must be modified from the bench.
The “living Constitution” view has always had a great deal of rhetorical appeal — the alternative presumably being a “dead” Constitution — but it’s fundamentally at odds with the notion of a fixed rule of law that protects us from the arbitrary rule of man. The basic question is whether judges should apply the Constitution and laws as written by others, or should apply them as they wish they had been written by others. “Living constitutionalism” is the fig leaf behind which judges hide as they do the latter — at the expense of the written Constitution, the rule of law, and the self-rule of a free citizenry.
The basic reason why the Tea Party loves the Constitution, while the left often dismisses it, is that the Constitution was designed to ensure an energetic yet limited government. Its checks and balances thwart efforts to consolidate and centralize money and power in Washington. Such checks on centralized power make it hard to, say, mandate that all Americans must buy government-approved health insurance under penalty of law, or to mandate that all Americans, whatever their personal beliefs, must purchase insurance policies that have the seal of approval of Planned Parenthood and the current occupant of the White House.
As James Madison wrote in Federalist 51, our Constitution provides “a double security” to “the rights of the people”: the separation of powers, and federalism. The Left isn’t entirely keen on the former (Woodrow Wilson took direct aim at it), and it views the latter as an antiquated and pointless impediment to its designs. Hence the Left’s felt need to appoint judges who won’t adhere too closely to the Constitution as written — judges who won’t apply what the great Justice John Marshall called “the plain meaning” of the text. Better to appoint judges who realize that our Constitution isn’t really suitable as written, judges who will funnel their own policy preferences into the document — and will funnel the Founders’ preferences out of it — while longingly casting their eyes abroad in search of a truly “great piece of work.”