Sunday, March 11, 2012

Amend or Defend

Unpopular law
by | Janie B. Cheaney [abridged] World Magazine
… last month when Supreme Court Justice Ruth Bader Ginsberg suggested, in a visit to Egypt of all places, that the document she has sworn to uphold is approaching its sell-by date. "I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012." Other models might better serve, such as South Africa's: "That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights [and] had an independent judiciary."
It may be the first time a justice has actually said this, though the Court has been stretching the document for at least 80 years. Ginsburg's comments indicate that the elastic is shot, a notion seconded by Adam Liptak of The New York Times.
Liptak argues that nobody wants to model their sparkly new constitution on ours because it's "terse and old," with "relatively few rights," and is notoriously difficult to change. "Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years."
…Far from an idealized document, our Constitution was constructed from reams of practical experience, accumulated by 13 former colonies that had been governing themselves for 12 years or more. The delegates arrived in Philadelphia with well-tested theories of what worked and what didn't, and they hammered out their differences with pragmatic compromise. Their experience, combined with learning drawn from the deep well of philosophy, history, and the Bible, produced a document that has been called a "miracle" by sober-minded historians.
By contrast, the stylish South African Constitution, the Canadian Charter of Rights, and the European Convention of Human Rights (all admired by Justice Ginsberg) are based on the latest popularity contests. Adam Liptak even says so: "These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty."
He fails to distinguish between natural and positive rights: what the state should protect (life, liberty, and property) and what the state must provide (food, education, and healthcare—to name a few). Natural rights are necessarily limited; positive rights are bound to expand and step on each other. Just ask columnist Mark Steyn, whose right of free speech was steamrolled in Canada by Muslims who objected to something he wrote.
The fact that the Constitution has lasted all these years should tell us something: It works. Though far from perfect, and stretched out of recognition in places, it is still a guide that's based on enduring truth, not the latest Utopia reboot. With a little tightening, it would be good as new.
[Thanks to Jesse H for sending this my way and for the post title, "Amend or Defend".]
[comic from]

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