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.