Conservatives are often ridiculed for criticizing activist judges who fail to respect the Constitution. We are told that it is not conservative originalists (labeled ignorant and extremist) but rather enlightened liberal judges—with their nuanced understanding of constitutional penumbras—who truly respect the spirit of the Constitution.
Conservatives, however, have good reason to be skeptical of the left’s “respect’’ for the Constitution. Just last week, for example, Supreme Court Justice Ruth Bader Ginsburg told an Egyptian TV station that she would not recommend the U.S. Constitution as model for Egypt’s new government.
The problem, you see, is that the U.S. Constitution is “a rather old constitution.” Ginsburg suggested that Egyptians should look instead to the Constitution of South Africa or perhaps the European Convention on Human Rights. All these are “much more recent than the U.S. Constitution.”
Ginsburg’s comments echo those by Washington University professor David Law, who published a study with Mila Versteeg on the U.S. Constitution’s declining influence worldwide. In an interview, Law unfavorably compared the Constitution to “Windows 3.1”—outdated and unattractive in a world of sleek and sexy modern constitutions. Such obsession with the age of the Constitution is both absurd and irrelevant.
For one, the Constitution is still among the shortest and most elegantly written constitutions in the world. By contrast, South Africa’s constitution is well over 100 pages long, filled with tables, schedules, and such stirring passages as detailed provisions for a Financial and Fiscal Commission: “A. National legislation referred to in subsection (1) must provide for the participation of – a. the Premiers in the compilation of a list envisaged in subsection (1) (b); and b. organized local government in the compilation of a list envisaged in subsection (1) (c).” And you thought the U.S. Constitution was hard to read.
Equally ridiculous is the claim that the Constitution is too antiquated to apply to the modern world. The principles of the Constitution, although first articulated centuries ago, are not tied to the material conditions of a bygone age. They rest on that most solid and enduring of all foundations: human nature. The Constitution itself contains no policy prescriptions. Rather, it is a short, elegantly written document that create a framework for a free people to confront the political questions of their times.
Of course, the real reason progressives swoon over South Africa’s constitution is that it goes far beyond merely establishing a framework for government and guarantees progressive policies—for example, by requiring legislation that prevents pollution and ecological degradation. In other words, the left’s real discontent with the U.S. Constitution is that it does not require Americans to adopt a progressive government and expansive welfare state that provides for every “right” social scientists can justify.
Americans should be very wary of those who would seek to upend the Constitution from the firm grounding in human nature that has allowed it to endure for more than two centuries and would transform it into an instrument devoted to policies of passing whimsy.
