Laying Aside Politics for a Fraction of a Moment

An editorial in the New York Sun that begins as a tribute to the late Justice Ginsburg and a call to “lay aside politics for a moment” almost immediately transitions into something else. First, the editors point to an anecdote which you may not have heard:

At Ginsburg’s confirmation hearing, there was a remarkable moment. It came when Senator Carol Moseley Braun erupted angrily over something said by Senator Orrin Hatch in reference to the Dred Scott case. Ms. Braun demanded to speak on a point of personal privilege in her capacity as “the only descendent of a slave” in the hearing. Judge Ginsburg sat still, declining to correct the senator. We clapped our head in disbelief.

For Senators Metzenbaum, Feinstein, Cohen, and Specter were, among others present, either Jewish or descended from Jews, and the future justice herself was Jewish. So we thought she could have pointed out that every year, for three millennia, Jews have made a point of beginning the Passover Seder by remembering precisely that they were slaves in Egypt. It was not that we wanted to mark that Ms. Braun was wrong.

The point we’d wanted Ginsburg to have made is that she comprehended fully that slavery can mark a people for millennia — that it can never be forgotten. We thought it would have underscored Senator Braun’s fury and sketched a unifying view. Yet Ginsburg had just sat “quiet as a mushroom,” we once wrote, and let the moment pass. Soon enough we came to realize that she took the wiser course.

I certainly hadn’t. They conclude by quoting another anecdote:

The local interviewer, in a thoughtful conversation, noted that Egypt was writing a new constitution and asked whether it should look to the constitutions of other countries as models. “I would not look to the U.S. constitution if I were drafting a constitution in the year 2012,” Justice Ginsburg said. She recommended the longer, more detailed bills of rights in the constitutions of Canada, South Africa, and Europe.

The answer shocked us down to the ground. Not because we doubted the Justice’s patriotism (not even for a moment). Rather, it was that the constitutions to which she was directing her interviewer gave positive rights, meaning that the constitutions granted them. Our Constitution rarely grants rights. It establishes negative rights, meaning prohibitions on government interfering with rights granted by God.

There are dramatic differences between the United States and those other countries, not the least of which is that other than Canada none of them have common law systems (South Africa’s system is a mixture of common law and civil code). I wish fewer Americans and in particular fewer jurists admired civil code systems so much. I don’t think they understand the value of our system and the deficiencies of a civil code system.

8 comments… add one
  • PD Shaw Link

    Its probably difficult for any country to enact a common-law system without it being implemented by the English. The larger issue is the lack of Constitutionalism in much of the world, that encourages adoption of one of the two European legal systems that do.

    I suppose if the U.S. was a Civil Code jurisdiction, there would be no Roe v. Wade.

  • I haven’t by any means read all of the world’s constitutions but I have read a lot of them—at least half. Most have clauses attached to declarations of rights that vitiate the rights. Something along the lines of “except when prohibited by law” or “except as otherwise specified by law”. In the U. S. rights are either much more absolutist or expanded on in the common law.

  • CuriousOnlooker Link

    Justice Ginsburg probably knows 100 times about constitution law around the world then I do, so take the following in that light.

    But being interested in Canadian and American politics; which requires knowledge of their laws and constitutions; my observation is for liberal democracies; each constitution is uniquely suited for that country’s cultural context and would work poorly elsewhere.

    For example; Canada core divide is over language. To account for the “French” fact, the charter of rights and freedoms included a non-withstanding clause that allows any provincial government to disallow application of the charter over a piece of legislation for 5 years. Quebec used it to ban wearing religious symbols by certain government workers (Quebec follows French discourse on Lacite, which is totally difference concept of secularism from American usage of the term) It is uncomfortable for English Canada but accepted as the price of keeping the country together. In the US cultural context; allowing Congress or a State to override the bill of rights would be clause for rebellion. On the other hand; American ideas like 10th amendment are non-starters in Canada where the Federal government was assigned all “powers” not specifically given to a province.

    The other observation is I tend to think of American law as a heavily modified common law system. The common law as practiced in the U.K. has no constitution; and protection of rights is more by political and moral restraint derived from a cultural consensus then by explicit laws.

    I would love an elucidation of the pros and cons of common law vs civil law.

  • Canada has a dual system. Quebec’s constitution guarantees a civil code legal system; the other provinces have common law systems.

    In general the role of judges differ in common law systems vs. civil code systems. In a civil code system, all contingencies are covered by the code. It is the judge’s responsibility to determine what portion of the code applies to the particular situation and how it applies. In a common law system some situations are simply outside the law. The judge may demur from ruling in which case the issue remains outside the law or the judge may rule, using the written law, precedent, and the principles of the common law to render his or her decision. Unless overruled by a higher authority or made obsolete by changes made by the legislature, that decision becomes part of the existing precedent.

    My view is that civil code systems are better suited for consensus-based societies. For a common law system to prevail jurists must believe that precedent should not be overruled without overwhelming reason not merely the judge’s preference.

  • steve Link

    The problem I see with our Constitution is that it has lead us to a strong man government. Puts way too much power in the executive. Some of that is the fault of Congress.


  • TarsTarkas Link

    ‘The problem I see with our Constitution is that it has lead us to a strong man government.’

    That certainly wasn’t the intent of the Writers of the Constitution, who other than Hamilton tended to distrust a strong executive and its organs out of recent experience. It’s not their fault that Congress, which was intended to be the most powerful of the branches of the US government, has ceded so much power to the regulatory agencies attached to the executive.

  • CuriousOnlooker Link

    The above comments bring to mind an observation from a former Canadian PM’s chief of staff and was also a senior civil servant, who studied in the US.

    Some countries like Canada follow “responsible government”. The executive and legislature are fused, the lower house is all powerful compared to the upper house. The key to its operation is the fraction in power is given all the power of government to implement their program, but held responsible for anything that goes wrong., The fraction out of power is literally labelled the “opposition”, whose role is to hold the government to account and propose an alternative government for voters for voters to choose from at election time.

    Did you know Justin Trudeau as PM appoints Canadian senators, appoints Supreme Court justices without requiring approval from parliament, can dismiss parliament, or call an election at anytime?

    The American system is “representative government”. Power is dispersed to different fractions by seperation of powers of the 3 branches, a bicameral legislature, and federalism. The key to the system is it is supposed to encourage compromise by the different fractions and institutions.

    It is a long way to say I do not think the President / Executive is too powerful, but rather Congress is not fulfilling its responsibilities. And why Congress is failing is Republicans and Democrats in Congress do not want to compromise. Fix that and the President’s power diminishes significantly.

  • It is a long way to say I do not think the President / Executive is too powerful, but rather Congress is not fulfilling its responsibilities.

    There are many factors behind Congress’s shirking its responsibilities including parties losing the ability to reward their workers, human nature, the increased professionalization of political operatives, what is effectively lifetime tenure, gerrymandering, technocratic impulses, lobbying, and the federal government ‘sundertaking roles the Founders never intended. Those all work synergistically to create our present situation.

    Reluctance to compromise is both a cause and an effect. It’s an outcome of gerrymandering, effective lifetime tenure, the seniority system, and Congressional fund-raising.

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