Supreme Court Justice Ruth Bader Ginsburg made a bit of stir the other day when she recommended that the Egyptians look to the Republic of South Africa’s Constitution vice the US as they start to draft their own.
Several thoughts occur:
First, it is worth taking a look at the Republic of South Africa’s Constitution and see what it says. It is an interesting document. The first thing you notice is that it is long, really long. Whereas our Constitution can fit on a couple of routine printed pages, the RSA constitution is well over 100 pages long, and it is an exceptionally legalistic document. Several things jump out at you when you read it: the central government controls everything - the constitution defines everything they could think of - down to definitions of various types of municipalities, make up of the municipal councils, etc., identifying types of municipalities by size, and so on.
The national legislature defines the budgets for the nation as a whole, including the provinces and the cities/towns; the national legislature can use deficit spending and take out loans willy-nilly, but provinces and cities/towns have to justify them and are year to year; political parties are nationally funded, and so on...
Also, the supreme court overseas the entire court system which reaches right down to the local courts, and it has the authority to tell the president and the national legislature that they are acting unconstitutionally; the president is clearly the weakest of the three branches of government; and there is a long and tortuous list of rights, which include nearly everything that a liberal lawyer could think of to include as to rights.
Of note, they spend so a great deal of time listing ‘rights’ (and rights include a whole host of entitlements) - a lot of them, pages of them, yet there is no right to defend yourself (or of the right to bear arms - God forbid). One might suggest that this right is implied. Yet, if you read through all the other rights, why they would include all those and leave out the right to defend yourself is a mystery.
All in all, I think one reason Judge Ginsburg (and others) might like this constitution more than the one she swore to uphold - it that is written so that the central government is all-powerful, and most importantly, lawyers run the central government. What's not to like (from her perspective)? One additional fun fact, RSA Judges are approved by the legislature, but no judge can be nominated until approved by the 'Judicial Service Commission' which is run by the chief justice. Nice...
All of this begs an interesting question, which is rarely discussed: What is a right? (More accurately, what is a natural right? Though there are some, those of the new world order, and I suspect Judge Ginsburg would find herself in that group, who would dispute that there is a natural right as separate and distinct from any other kind of right.) Natural rights, of course, are rights that come from God. To answer that question, the simplest description is: those rights that exist apart from government, not because of any government. A natural right predates government and exists despite government, not because of government. If it doesn't satisfy that requirement it is not a right. Our Constitution was drafted by people who recognized natural rights as apart from anything else that a government or court might attempt to create. Those who drafted the RSA constitution did not recognize the difference.
Second, there is nothing wrong with liking something from another country: I love Australian wines. But, Justice Ginsburg isn’t just someone; she’s a Supreme Court Judge. The Judge must either be truly naïve to believe that she could just make a simple statement that ‘for them, perhaps they might try X’ without really thinking much more about it than if she were suggesting a new soft drink, and that no one would really remark that a Supreme Court Judge didn’t rise in defense of our Constitution or, we must assume that she really does like other constitutions more than ours.
While Judge Ginsburg may truly believe in all the rights enumerated in the RSA constitution, the fact is that as a Supreme Court Judge she gave up some rights. So does everyone else who takes the oath of office. He is the simple truth: once you take that oath things change. And with seniority comes more responsibility. When Private Jones, USMC takes an oath to ‘preserve, protect and defend the Constitution’ he is laying his life on the line. He loses some rights (he can go to prison for not showing up to work on time…). Same for a Congressman, Judge or President. Except more so. I don’t expect them to adhere to the famous toast ‘our country right or wrong,’* I insist on it.
Consider schoolboys talking about their mom: it doesn’t matter if Johnny’s mom always had hot chocolate chip cookies and your mom didn’t; you’re still a lousy son if you didn’t say ‘my mom’s best.’ If you don’t feel the need to defend our country and our institutions from the outside, then you should leave the job. It is all well and good for us, inside the fence-line, to argue and fight. Outside the fence-line it is expected that you will defend mom.
As senior ambassadors of our nation – and a Supreme Court Judge is as senior an ambassador as you can get, short of the President – they must embody the best of our nation and they must embrace our nation. They are no longer private citizens. As long as they remain in their offices, they can’t like someplace else to live, they can’t prefer another type of government, they can’t wish they were born someplace else. If they want that, don’t take the job. We have the right to expect a certain degree of loyalty from our senior public officials. After all, we expect it from Private Jones, and we expect him to be ready to put his life on the line. In the end, I fully expect every public official to be not only ready to defend our country from comment and slander, I expect them to defend our country and be ready to die for our country. If this be parochialism, so be it.
* The complete quote, from Captain Stephen Decatur, 1816, is “Our country! In her intercourse with foreign nations, may she always be in the right; but our country, right or wrong.”
