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If you wonder why conservatives are so concerned about Democrats stacking the court with liberals, read Eugene Volokh’s blog post reporting that Justice Ruth Bader Ginsburg appeared on Egyptian television and warned developing nations of the world not to use the U.S. Constitution as a model (emphasis is mine):

Liberty Counsel points to these these excerpts of an interview with Justice Ginsburg on Egyptian television, and argues:

In a recent interview with Egyptian television, Supreme Court Justice Ruth Bader Ginsburg insulted the U.S. Constitution and advised Egypt to look somewhere else when drafting its own constitution. Justice Ginsburg was asked to give insight on this crucial topic for the post-Mubarak government but focused more on liberal human rights, rather than traditional American freedom.

When describing the nature of a constitution, Justice Ginsburg did appropriately recognize the importance of a constitution and the duty of the citizens to defend it. Justice Ginsburg did not, unfortunately, take her own advice. She undermined insight of its crafters and stated, “I would not look to the US Constitution if I were drafting a Constitution in the year 2012.” Instead, Justice Ginsburg referred to the constitutions of more supposedly progressive countries, like South Africa, Canada, and the European Convention on Human Rights. She stated, “I can’t speak about what the Egyptian experience should be, because I’m operating under a rather old constitution.” This directly refutes the U.S. Constitution’s relevance today.

For a United States Supreme Court Justice, entrusted with the duty to interpret the Constitution, this type of statement is unacceptable. Justice Ginsburg failed to respect the authority of the document that it is her duty to protect. When given the opportunity to promote American liberty abroad, Justice Ginsburg did just the opposite and pointed Egypt in the direction of progressivism and the liberal agenda.

Mathew Staver, Founder and Chairman of Liberty Counsel and Dean of Liberty University School of Law, said, “For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least. Justice Ginsburg’s comments about our Constitution undermine the Supreme Court as an institution dedicated to the rule of law, as well as our founding document.”

Amazingly, Volokh disagrees, not with Ginsburg, but with Staver and the folks at Liberty Counsel:

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?

Professor Volokh says “I suspect [Ginsburg] thinks the US Constitution… works pretty well in the US.” But on what does he base this conclusion? If you read the actual statements Justice Ginsburg made in the interview, you would have to conclude the very opposite: that if Ms. Ginsburg had the power to do so she would scrap our outdated Constitution and replace it with something more modern (and, no doubt, more progressive).

For some reason the usually observant Professor Volokh is unable to see the obvious: Ms. Ginsburg clearly thinks the U.S. Constitution is a stale document, so outdated, in fact, that she wouldn’t even advise a developing nation to use it as a starting point for the drafting of its own constitution. It is no stretch, then, to assume that Justice Ginsburg would, if she could, replace our Constitution with something more to her liking. Professor Volokh is wrong. Justice Ginsburg’s statements are an utter rejection of the very document she has sworn to honor and uphold.

Ms. Ginsburg is an exemplar of liberal thinking. For her, the Constitution, in spite of her oath to uphold it, is no more than an annoying obstacle to be overcome on the way to fulfilling a progressive agenda. She clearly wishes that she had another, better – meaning more progressive - document to interpret. She, of course, must appear to follow the one we have, but is there any doubt that whenever she can justify a progressive construction that is at odds with it, she will choose that construction and justify it on the grounds that our old, archaic document is “living and breathing?”

Justice Ginsburg’s statements belong to the Howard Zinn/Noam Chomsky school of progressives whose motto is “if it’s American, it sucks and needs to be changed.”

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