Justice Ginsburg Was Not All Wrong

Ruth Bader Ginsburg is being raked over the coals for her comments about the use of the U.S. Constitution in a post-Mubarak Egypt. She said the following in an interview on Egyptian television:

Q: Would your honor’s advice be to get a part or other countries’ constitutions as a model, or should we develop our own draft?

A: You should certainly be aided by all the constitution-writing that has gone on since the end of World War II. I would not look to the US constitution, if I were drafting a constitution in the year 2012. 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 [and] had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution: Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world? I’m a very strong believer in listening and learning from others.

It’s unfortunate that Justice Ginsburg didn’t elaborate on her comments, but her past statement that Justices “are becoming more open to comparative and international law perspectives” is troubling.

In reality, our Constitution will not work in Egypt, but Justice Ginsburg does not know why or is afraid to say why. It’s not that there’s a problem with our Constitution. The problem is with the majority of the Egyptian people and their worldview. Consider the first words of the Constitution: “We the people of the United States.” Now try it this way: “We the people of Egypt.” It’s immediately apparent that until the Egyptians change, NO constitution will work.

Our second president, John Adams, understood the relationship between morality and Constitution writing:

“Because we have no government, armed with power, capable of contending with human passions, unbridled by morality and religion. Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”1

What made our Constitution work was the worldview of the people that framed it. They were not perfect men, but they understood that in order for a constitution to function, the majority of the people had to be self-governing. That is not the case in Egypt or in the rest of the Islamic Middle east. Compare the days of rioting after a soccer match where 74 people were killed and 250 injured with the end of our Super Bowl. The people in Egypt must change before any Constitution will work.

  1. Letter to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, October 11, 1798, in Revolutionary Services and Civil Life of General William Hull (New York, 1848), 265–266. []