Open Letter to Ruth Bader Ginsburg – Nothing Wrong with Our Constitution

For those of you who may be unaware of why Ms. Ginsburg has drawn my attention (and frustration) lately – the Associate Justice of the Supreme Court recently appeared in an interview for Egyptian Television to discuss her thoughts on Egypt’s best path forward when drafting its new Constitution.  She had this to say to a potential ally of the US (or a potential enemy):

“Well there has certainly been a lot of great Constitutional lawmaking since World War Two and there are many positive examples to which Egypt can look in forming a new democracy.  I would say that, if I were to start writing a new Constitution today, I would not look to the United States Constitution as my precedent.  I might prefer to start with something closer to the Constitution of South Africa.”

and later:

“Much was left unsaid in our own document that has given rise to a huge amount of uncertainty in the law for legislators and state governments back in the US.  For such an unspecific document, we were fortunate that the framers were wise and recognized that circumstances might change.  I would say, however, that things might have gone better if, for example, there had been even one woman or minority involved in the drafting of such an important document.  Perhaps we could have foreseen some of the biggest problems that have affected our history if we’d have had a broader perspective.”

These quotes are coming from one of the nine most influential lawmakers of the land (and yes, they are lawmakers despite the Constitution’s best efforts to prevent such an eventuality).  The immediate reaction to these quotes from Conservatives has been disgust that a Supreme Court Justice could evince such small regard for the document she is charged with upholding against Governmental intrusions and particularly that she would make such remarks to a nation that may, one day soon, look to the US as a friend or foe based o how we interact with them as they form their new government.  I think, however, that there is a much bigger and much scarier reason to be angry with Ms. Ginsburg.  She knows full-well what the founders intended when they drafted the Constituion (she can’t NOT know it – you don’t get into Constitutional law without knowing this).  But like most Progressives, she rejects the Founders’ notion of the proper role of government and thusly misses the point of her appointed office.

We are left with a supreme arbiter of the Constitution who dislikes the very principles upon which the Constitution were based.  To understand that this must indeed be the correct interpretation of Ginsburg’s words, we need to first understand what the Constitution is and is not…and we must then ask ourselves what Ginsburg believes a Constitution should and should not be based on her rulings and on her quotes here.

THE CONSTITUTION – HOW IT WORKS

I refer you to this full-text transcription of the Constitution and its amendments for your reference…I’m going to very briefly go through each of the articles of the original document and describe what they mean in plain English so that we are all on the same page when I talk about the bigger themes embodied in the document.

PREAMBLE

This establishes nothing except the motivation of this text – it’s worth re-reading it carefully as it makes clear what the Founding Fathers were trying to do.

ARTICLE 1: THE LEGISTLAIVE BRANCH

Section one briefly defines the legislature as consisting of two branches and grants the legislature full power to enact new laws.

Section two defines the process by which members of the House of Representatives should be selected (popular election binding state electors every two years).  It defines who should be counted in the census and how often the census should be taken, and it further grants the House the sole power to impeach the President.

Section three defines the Senate (appointed by the states and reappointed every six years – always two Senators per state).  It gives the VP the authority to break tied votes in the Senate, gives the Senate the power to preside over impeachment procedings and gives the Senate the power to elect a new VP should the current one vacate office.

Section four gives the legistlative branch the power to make law prescribing the time and manner of election practices for the legislature and requires the legislature meet at least once a year but not to define Congressional districts – a power vested in the states.

Section five gives each branch fo the legislature the power to enforce conduct and set procedure for itself.

Section six describes compensation rules for the legislature.

Section seven gives the House the first writ of authority on matters of budget and appropriation but requires the Senate to concur with all such rulings.  It provides the President with the authority to veto any bill passing both houses of Congress but also gives the Congress the power to overrule his veto should they get 2/3 of their members to agree.

Section eight lays out in no uncertain terms the precise powers of Congress…in order: they may lay and collect taxes, tariffs, excises and all other revenue, borrow money from other nations, to regulate commerce with other nations or between the states or with the Indian tribes (NOT with the people!), to make laws governing citizenship, to form a mint and establish currency, to establish the postal service, to provide patents, to form Federal district courts, to stop piracy, declare war, provide for defense, govern the behavior and actions of the army and the navy, and to write laws governing DC.

Section 9 gives Congress limits – those being:

Congress may not disrupt Habeas Corpus except in cases of imminent threats to national security.  They may not pass an “ex post facto” rule.  They may not tax persons directly (this has been altered by the dastardly 16th amendment).  They may not tax on exports, they may not favor one state’s commerce over another.  They may not take money from the treasury except as prescribed by law, they may not accept titles of nobility from foreign nations nor grant such titles.

Section 10 limits the powers of state legislatures.  Such limits include:

States may not form treaties with other nations or other states.  They may not print their own money or make new forms of currency.  They may not offer titles of nobility.  They may not pass laws of ex post facto.  They may not issue tariffs or taxes on imports and exports except to pay for port authority inspections.  They may not raise armies.  They may not make war without clear and present danger.

ARTICLE TWO: THE EXECUTIVE BRANCH

Section one vests all powers of the executive in a President and describes how he will be elected.  Much of the language of the original text was repaired after huge flaws in the electoral system were discovered in the first few elections.  The system put in place by the 12th amendment resolved those problems.  The President is now chosen by electors who are not technically bound to uphold the popular votes from their districts, but who do so nonetheless.

It also sets the rules for who can be President (must be Natural US Citizen and at least 35 years of age), provides for his residence and his payment during his time of service, and requires the President to take a specific Oath of Office.

Section two give the President the title of commander in chief of the Army and Navy (he makes the final call on all military actions).  It gives the president the power to make treaties as long as they are ratified by the Congress with 2/3 majority vote.  It also grants him the broad power to make appointments to Federal agencies and to diplomatic missions abroad with Congressional approval except when Congress is not in session (the so-called recess appointment).

Section three requires the President to make a report to the Congress each year (the state of the union) and to convene Congress each year.

Section four sets the parameters of impeachment of any executive branch officer as treason, bribery and other high crimes and misdemeanors (typically limited to felonies though this is not stated).

ARICLE THREE: SUPREME COURT

Section one vests all judicial power in the US to the Supreme Court and the District Courts as appointed by Congress with the Supreme Court having the final say.  It also states that officers of the courts serve “in good health” (which has bee interpreted in modern times to mean indefinitely as long as able) and with compensation.

Section two gives the judicial broad authority over all civil and criminal cases and all matters of establishing legal precedent w/r/t the Constitution…however these pwoers were limited by the 11th amendment to the Constitution to prevent judicial bodies from tampering with civil lawsuits.  Section two also gives the supreme court original jurisdiction only over matters of international law – they have appelate jurisdiction over all other cases and have the authority to choose which cases they will hear.

Section three defines treason as an act war against the US, or an act to give aid and comfort to our enemies.

ARTICLE FOUR: POWERS VESTED IN THE STATES

Section one requires each state to honor contracts and transactions offered by all other states and must adhere to COngressional authority in defining how record-keeping should be done.

Section two states that all citizens of any state are US Citizens entitled to full Constitutional protections.  It also states that extradition will be granted between the states (if you’re caught in one state and have a warrant out on you in another, you will be returned).

Section three defines how new states should be admitted (by majority vote in Congress with Presdiential approval) and prohibits states from forming within the confines of other states or forming as a result of the merging of two states without approval form both of the original states.

Section four guarantees a representative (republican) form of government, granting all powers to the states not gifted to the Federal Government.

ARTICLE FIVE: AMENDMENT

This article allows for the amendment of the US Constitution either with a 2/3 majority in both houses of Congress and approval by the President or through a 3/4 majority affirmative vote among the state legislatures or through the convening of a Constitutional Convention to propose amendments with 2/3 approval by state legislatures.

ARTICLE SIX: DEBT AND SUPREMACY

This article defines the Constitution as superceding the rules of the Articles fo Confederation, but honors all debrts and contracts prosecuted under the old system.

ARTICLE SEVEN: RATIFICATION:

This article defines how the Constitution shall be adopted (3/4 states must ratify).

That’s it.

That is precisely what is in the Constitution.

I went through all of this for a reason.  I have, on several occasions, gotten into suprisingly emotional fights with good friends regarding what was in the original Constitution.  Recently, someone I respect charged that the US Constitution specifically counted women as 3/5 of a person.  Many people I’ve known have maintained the belief that the document made law regarding minorities or w/r/t the precise mechanism of redistricting or any other specific application of law.  It’s all not true.  Read the text yourself.  The word woman NEVER APPEARS in the document.  Nor does any presciption of minority race or religious creed or ethnic background.

This is because the Constitution is not a legal document per say, nor a philosophical credo.  It is precisely a definition of a government.  Nothing more, nothing less.  And the founding fathers were smart enough to realize that all they could do that might hold up under the rigors of changing time would be to make a government that could respond to the needs of the people in a manner that avoids responding too quickly to fads and tries to prevent utter stagnation against the will of the people.  The document doesn’t make law…it establishes the system under which laws are made.

And that system is designed to prescribe as little as possible by fiat and preserve for the people and their elected officials as much leeway as possible to make laws that the people want and need.  In answer to the concern raised by Ginsburg that no woman was present during the writing of the Constitution and similarly raised by friends and history professors from my past that women weren’t protected under the Constitution and that amendments were needed to fix that problem (ergo, the original document was flawed)…I would say that the framers weren’t just operating on their own assumptions and biases, though certainly such things had to enter their minds – they were forming a more perfect union as the people demanded at that time.  It’s the height of temporal elitism to presume that what seems obvious to us today was obvious back then.  In point of fact, no expectation existed from women themselves that they should be a part of forming our government, nor that they should be involved in running it.  The leading FEMALE thinkers of the time (as seen in correspondence from the likes of Abigail Adams) believed that politics was a business far too ugly for the fairer (and better!) sex.  That they shouldn’t dirty their hands with it!  They weren’t subservient, mind you.  They also thought that it was their duty to influence the thinking of their husbands and to teach them how to be fair and work well with others.  But it is simply not the case that the framers produced a document that excluded women unfairly and against their wishes.  LAWMAKERS did in fact do such things…they did in fact hold women down far longer than was necessary or reasonable.  By the time we reached the late 1820s, feminists were cropping up and beginning to make the moral argument in favor of their right to vote and to hold public office – America, unfortunately got distracted by the much more pressing issue of race and slavery and civil war and the suffragettes didn’t start forming a serious political movement until the 1880s.  But – and this is the important thing – the same document forged by the framers that Ginsburg decries today was what made female suffrage and the taking of public office by women possible.  We had a system in place to change the government as demanded by the people.  Abolition of slavery required a war to fulfill, but became law for the same reason – our Constitution made that possible.

Ginsburg knows this, of course.  The thing is…it’s not good enough for her.  Based on a long history of judicial decision making and juicy quotations regarding the “living breathing nature” of the Constitution as an excuse for finding unconstitutional laws constitutional…I can only conclude that Ms. Ginsburg simply doesn’t like the definition of liberty laid out in the Declaration of Independence, nor the system of laws made possible by the Constitution because she doesn’t believe that system produces the results she wants.  That would be fine if she were a pundit or even a Congresswoman…but she’s a Supreme Court Justice!  Her job is to defend the Constitution and determine how it should be interpreted!  And in her judgment, it should be interpreted as an inferior form of government.  And that…should worry anyone who values our uniquely American form of government.  It sure as hell worries me.

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