Justice Ruth Bader Ginsburg recently gave a speech defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution. The title of her speech — “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication” — nicely encapsulates the core flaws in her position.
First is her thinly disguised contempt for the Framers. Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, did she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.”
The rhetorical centerpiece of Ginsburg’s speech is a crude attack against originalists — those who adhere to the original understanding of the Framers’ Constitution and of the various amendments to it. Here’s the structure of her illogic: (1) Chief Justice Taney in Dred Scott stated the originalist principle that no “change in public opinion or feeling . . . in the civilized nations of Europe or in this country should induce the [Supreme Court] to give to the words of the Constitution a more liberal construction . . . than they were intended to bear when the instrument was framed and adopted.” (2) This statement of originalist orthodoxy, Ginsburg asserts, is “extreme.” (3) Notwithstanding the fact that the Civil War and the post-Civil War Amendments reversed Dred Scott, Chief Justice Rehnquist and Justices Scalia and Thomas somehow continue to share Taney’s “extreme” position that constitutional rulings should not be based on foreign developments. With this glaring non sequitur, Ginsburg absurdly insinuates that the position espoused by her three colleagues has some special kinship with Taney and Dred Scott.
Taney’s opinion in Dred Scott is deservedly infamous, but not because of its recitation of originalist orthodoxy. Besides its overt racism, the main legal defect in Taney’s opinion is that, while pretending to be faithful to originalist principles, it in fact marked the Court’s first use of the modern judicial activist’s favorite tool, “substantive due process,” to invalidate a statute — the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories. Notably, the dissenters in Dred Scott invoked and properly applied the very originalist principles that Ginsburg finds abhorrent: “I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings,” wrote Justice McLean. “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it,” explained Justice Curtis in exposing Taney’s deviation from originalism.
In attacking originalism as “frozen in time,” Ginsburg slights the genius of the Framers in setting up a system in which the people, through their elected representatives and within the broad bounds established by the Constitution, adapt the laws to changing times. She claims that judges “honor the Framers’ intent ‘to create [sic] a more perfect Union'” when they rewrite the Constitution to comport with their own understandings of the needs of the day. But it is “We the People of the United States,” not judges, to whom the Constitution looks to “form a more perfect Union.”
The second basic flaw in Ginsburg’s speech is signaled by her elusive subtitle. What exactly does a “comparative perspective” in constitutional adjudication mean, and what is its value? Addressing a group of international lawyers, Ginsburg resorts to kindergarten talk — “we can learn from others,” “we can join hands with others,” we should “share our experience” — but never even attempts to explain how a foreign court’s decision on how a foreign law measures up to a foreign charter can or should have analytical value in construing our Constitution. She emphasizes that she does not regard foreign decisions as “controlling authorities.” Could those foreign decisions be the tipping factor in a particular case? Ginsburg doesn’t expressly say so, but she gives no reason why that couldn’t happen. Nor does she offer any principle to determine what weight they should have. In short, she has no response to Scalia’s criticism: “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decisionmaking, but sophistry.”
When Ginsburg’s position is clear, her understanding is muddled. Ginsburg points out that the Framers understood that the United States “would be bound by ‘the Law of Nations,’ today called international law.” But the Constitution’s conferral of power on Congress “[t]o define and punish . . . Offenses against the Law of Nations” makes clear that it is up to Congress, not judges, to determine which obligations under international law should apply domestically.
Similarly, Ginsburg points out with pride that her separate opinions in the Michigan racial-preference cases cite two United Nations Conventions — one that the United States has ratified, and one that “sadly” it “has not yet ratified” — as evidence that the international understanding of racial preferences supports her application of the Equal Protection Clause. But the very fact that she sees no effective difference between a ratified treaty — which (whether or not it has any domestic effect) is part of “the supreme Law of the Land” under the Constitution — and an unratified convention demonstrates the incoherence of her views.
Ginsburg ends her speech by quoting Abigail Adams’s comment that the “habits of a vigorous mind are formed in contending with difficulties.” Alas for Ginsburg — and for all Americans subjected to her dominion — the habits of a flabby mind are reinforced in merely pretending to have contended with difficulties.
— Edward Whelan is president of the Ethics and Public Policy Center and directs EPPC’s program on The Constitution, the Courts, and the Culture.