Home > Human Limits, Legal Issues, Primacy of Society, Utopia > Justice Ginsburg would not look the to US Constitution in drafting a new one in 2012

Justice Ginsburg would not look the to US Constitution in drafting a new one in 2012

According to this New York Times article, the U.S. Constitution has been losing its international influence:

There are lots of possible reasons. The United States Constitution is terse and old, and it guarantees relatively few rights…

In an interview, Professor Law identified a central reason for the trend: the availability of newer, sexier and more powerful operating systems in the constitutional marketplace. “Nobody wants to copy Windows 3.1,” he said.

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, theSouth African Constitution, the Canadian Charter of Rights and Freedoms or theEuropean Convention on Human Rights.

Justice Ginsburg would not look to the U.S. Constitution that she is sworn to uphold for inspiration? Maybe that is why she savages it at every turn.

But that’s ultimately not the problem here. Bad jurisprudence is one thing; bad principles are quite another.

Indeed, later in the article, Justice Scalia is quoted about his skepticism over “parchment guarantees,” and it is worth noting that a hypothetical new African nation could guarantee all they wanted and not put it into practice.

But the question is one of liberties versus rights.

The U.S. Constitution is fundamentally a limiting document. It says not much more than “the government cannot infringe on a person’s liberty to do…[fill in the blank].” Even its structural aspects, such as setting up the Congress and executive, are designed in such a way as to ensure their limitations – not their powers.

It may be “newer” and “sexier” to introduce a “right” to health care, housing, or food, but just because you put it in your Constitution doesn’t mean that you’re not forcing someone else to provide those goods. By contrast, the U.S. Constitution would be more likely to disallow the government from forcing the conscription of certain people for the service of other people.

You see, there are economic problems with bestowing positive rights to goods and services. Where guaranteed, these positive rights must either be explicitly limited, or more likely, limited by courts in ways that are suboptimal, precisely because goods and services, as an economic matter, are not unlimited.

These “rights” solve none of the problems inherent to the interactions of free people. All they do is add layers of bureaucracy.

Are they fashionable? Maybe. Sexier? Maybe. Are they half-baked and ill-designed to solve real problems? Absolutely. Ginsburg would be better served by furthering her understanding of the ultimate point of her own Constitution than looking across our borders for fantasy “rights” that amount to nothing more than simple coercion.

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  1. March 5, 2012 at 11:10 AM

    Well said, thanks. Striking is the arrogance, not only of Justice Ginsburg, but of the NYT. This is in-your-face fundamental transformation, by the very people charged with ensuring the maintenance of the fundamental.

    It is sad that this kind of thing is not the stuff of standard water cooler chat. We the People are ill served, ill advised, and ill informed.

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