The Whole Ginsburg Interview


As the wingnuts continue to rant and rave incoherently about Justice Ginsburg’s “treason” in daring to suggest — gasp! — that Egypt might look to the experience of many nations in forming their new constitution, you can watch the full interview in this video. You’ll see her praising the U.S. Constitution over and over again. Here’s the video:

Volokh explains why the wingnuts are utterly full of shit:

This criticism strikes me as quite misplaced. Justice Ginsburg swore an oath to uphold the U.S. Constitution, and I suspect she thinks that the U.S. Constitution, as interpreted by the U.S. Supreme Court and U.S. political practice, works pretty well in the U.S. But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today?

To be sure, our Constitution has the merit of having endured with only one really huge constitutional crisis — the Civil War — for a long time, and of having produced a very rich and free country; that’s good. But much of that, I suspect, comes not from the constitutional text, but from the constitutional traditions that have emerged since then, both in the courts and elsewhere; adopting the U.S. Constitution would not adopt those traditions.

And it might well be that Egypt might be well-served by a very different approach than the U.S. Constitutions — for instance, with regard to relations between the federal government and more local governments, with regard to whether to have a Presidential system or a parliamentary system, with regard to how hard the constitution would be to amend, with regard to how judges are selected and how long they serve, with regard to how the President is selected, with regard to the relationship between the two chambers of the legislature, with regard to whether all executive officials work for the President or whether some are independently elected or selected, with regard to just how to craft the criminal justice system, and so on. (And here I just speak of the big picture questions, and not more specific details.) Remember that even our own states’ constitutions differ in many respects, especially with regard to separation of powers and the selection and tenure of judges, from the U.S. Constitution. Again, that the constitutional text, coupled with a wide range of extratextual political and legal practices, has worked well for us over 200+ years doesn’t tell us that it would work well for Egypt for the coming years.

Nor do I think that there’s something disloyal or bad for American policy for an American Justice to make such statements to a foreign country. Rather, I think it’s just sensible and sensibly (not excessively or falsely) modest.

You’d think those pearls would be ground to dust by now by the perpetual clutching.

Comments

  1. doktorzoom says

    I’m particularly amused by the folks who say Ginsburg violated her oath to “uphold” the Constitution, because she didn’t say it’s the bestest and onliest way to run a government.

    E Plebnista! She’s not holding the Worship Words in proper awe!

  2. jufulu says

    First, I like her!

    The Constitution is just a piece of paper, what makes it remarkable is that we honor it and practice its principles (mostly). Back when I was in high school (very early 70’s), I compared/contrasted the US constitution and the Soviet Constitution and remarkably, I found the Soviet Constitution to be a good framework for a government. What was also obvious was that in practice, the people in power abused it. It is not enough to worship the Constitution, we must live it. We are lucky enough to live in a place where generally (sorta kinda) we try to provide for the common good. The Constitution provides a framework to accomplish that. There is no reason that other frameworks couldn’t so the same thing.

  3. jesse says

    You know, my cousin is a history teacher. And he said something that got me thinking.

    Me: The Constitution is pretty damned good as it has lasted so long and we’ve only had three real crises in the last century, and maybe a half-dozen since its inception. I was thinking of times when it was really possible that something could fall apart.

    The incidents I had in mind were, for those interested:

    Andrew Jackson, in his refusal to obey the SCOTUS at all when it came to Cherokee removal,
    the Civil War,
    the Bonus Army (MacArthur basically directly disobeyed the C in C at the time)
    MacArthur again, when he had to get fired by Truman
    Nixon’s succession to Ford (one could make a case that Ford was given the position unconstitutionally)

    You could argue with this list but you get the gist. It’s been pretty stable, all things considered.

    But my cousin said that actually, the fact that our Constitutional system has been imitated only a very small number of times — and often when the US imposed it (say, in the Philippines) that it shows it to be a failure. Not in the sense of working for us, but in the sense that it wasn’t workable anywhere else.

    Parliamentary systems, by contrast, have proven pretty flexible (my cousin said) and have lent themselves to a wider variety of nations, largely because in any system of sort-of-proportional representation you never leave any group feeling left out completely — there is always an incentive to work within the system.

    I’m not sure how I feel about this, and we didn’t go way deep into the weeds on it. But it was something that got me thinking about how governments structures must be very context-specific to work, and how much various traditions matter in getting everyone to sign on.

    And again, thinking about it, I wonder if something like proportional representation would go over with many people in this country (the US) because a certain winner-take-all mentality is so integral to our political culture, and dare I say it, to our self-identity as Americans.

    For instance, one thing Americans are really, really bad at is acknowledging the rights of minorities, either political, religious, or ethnic, until pushed almost to the breaking point. There’s a homogeneity that gets highlighted — mostly by white people — that seems to run awfully deep, and with that a refusal to acknowledge that institutional barriers even exist. With that, I think it kind of digs into that when you set up a voting system that explicitly acknowledges a need to listen to people who aren’t as privileged as yourself. So I wonder if that’s one reason people balk at the idea of say, proportional representation (it could be done at the state level, for instance).

  4. Chris from Europe says

    Jesse, if a state would choose a proportional or mixed voting system, that would change the political structure of that state and only that state. In all other states and at the federal level there would be two dominant parties while these two would be weakened in the state.

    The state parties would lose political influence within the national parties.

    Either a larger number of states commit to such a change or it doesn’t work. In a winner-take-all system there could still be agreements among ideologically related parties to endorse common candidates. That happens in other countries, but US parties have no reason to consider it.

    Maybe the difference is that there is virtually no direct party regulation possible in the US and the parties are looser constructs than in many other nations.

  5. juice says

    jesse,

    I don’t know about the Nixon-Ford thing. The 25th amendment says:

    In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

    Nixon resigned. The Vice President became president.

    Other acts that you listed would simply be unconstitutional acts, but maybe not considered constitutional crises. Like the way West Virginia became a state. Or the Louisiana Purchase.

  6. meg says

    @jesse

    Interesting comments, and got me thinking.

    Here in Oz we adopted the British parliamentary system, and like the British for many, many years, have had two dominant parties. (Okay, one is a coalition, but it’s a very long established coalition that no one believes will ever actually break up.) One would win the majority of seats in the House of Reps needed to form government. Often in the Senate (which is based on proportional representation on a State level, therefore more likely to have the smaller parties as members) a deal might need to be struck with said smaller party to pass legislation. (Recently the Greens, but previously the Aust Democrats, both on the left).

    Yet, this time round, we had a hung parliament, and a minority government. Britain has a coalition government. I think we’re heading the way of many European countries where we see many coalition governments. Again, I don’t quite know what this will mean long term, but interesting idea.

    Just wish our politicians were vaguely interesting. . .

  7. jesse says

    @juice — I was thinking that because Ford was appointed, and that the presidency should have gone to the Speaker of the House/ Pres pro tem of the senate. At leas that is the thinking in some quarters.

    Anyhow. the other incidents I mentioned were important (I think) because if Jackson had been more successful, and if other presidents followed his lead, the Supreme Court would have lost all power and legitimacy. That is, presidents would just say “screw you” and ignore them.

    Macarthur disobeying the President — twice! — sets a VERY bad precedent within the military. What if some other popular 4-star general decides to say “Hey, I can do a better job than the elected officials?” Imagine a Christian Nationalist in that position.

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