The US Constitution: Assaulted By The Judiciary
February 18, 2012 7 Comments
On February 7th, the New York Times ran a piece claiming the US Constitution is obsolete. Justice Ruth Bader Ginsburg was quoted as saying in and interview on Egyptian TV: “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution… or the European Convention on Human Rights”.
It rightly caused some uproar in conservative circles. It appears Justice Ginsburg, like most of her colleagues in government, is ignorant or disdainful of the US Constitution as a charter of negative liberty. She would prefer a massive document of positive liberty similar to what exists in the EU, where both “work” and “rest and leisure” are guaranteed human rights. Such “positive rights” are in fact the antithesis of liberty. Just because you want someone with greater means to pay for your contraceptives or subsidize your insurance doesn’t mean you have a “right” for it to be so. Positive “rights” are simply perversions of the term, as they enslave one person to the service of another. The EU is by far the best example of current PC fads being given legally enforceable canonical status, which is why the quasi-constitution that is the Lisbon Treaty will quickly become dated. If Environmentalism and the Anthropogenic Global Warming scam go out of fashion, so goes a pillar of EU law. The Lisbon Treaty, like the EU Constitution that failed to pass by French and Dutch voters, guarantees to protect “the physical and moral integrity of sportsmen and sportswomen”. How nice. As went the old quip about French constitutions, you can file it with the periodicals.
When the delegates at the Constitutional Convention sat down to write the Constitution, they knew they were writing a charter of limited government, not one that doled out ‘rights’ to every conceivable party. The states already had their individual governments and did not necessarily want another more powerful one. So the US Constitution is one of enumerated powers. Everyone understood that the Federal government could do only what was permitted in the Articles and nothing more. This is not something the modern vanguard in the Federal government cares for. They want new and flashy documents like those that exist in the new South Africa endorsing affirmative action and other silliness. What they consistently ignore is that their jobs do not permit this. The Ninth and Tenth Amendments say:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Ergo, because something isn’t in the Constitution or the Bill of Rights does not mean it isn’t permitted. The right to wear silly hats or to travel to the next town over exist but don’t have to be written down in the Constitution. The people and the states retain these rights and powers. Justice Ginsburg’s position does not mean she can sit and dole out rights to health insurance. Its a matter for the states.
Alas, I wish I could say Justice Ginsburg’s idiocy is confined to those on the left of the spectrum. On the very same day the New York Times article came out, Justice Brett Kavanaugh of the D.C. Circuit Court of Appeals ruled that ruled that senior citizens can be forced to accept Medicare coverage even if they don’t want it and are happy with their private insurance (Dick Armey is one of the plaintiffs). Prior to this Kavanaugh has decided that several plaintiffs did not have legal standing to challenge Obamacare using reasoning that even the Obama administration itself abandoned before the U.S. Court of Appeals for the District of Columbia. Kavanaugh is a former colleague of George W. Bush. Conservatives lobbied hard to get him to his highly important bench.
Thus is the tragedy of the US Constitution. It couldn’t survive the country’s own ideologically determined judiciary. The oldest written constitution still in operation, the founding document of the world’s Superpower, is waning just like the global status of the Superpower itself. Those two phenomena are certainly linked.