Should Justice Ginsburg Have Said Anything Different?

Good morning.  Yesterday, at the VC, Eugene Volokh had a nice post summarizing and linking to the interview Justice Ginsburg gave to Egyptian television, from which the most pseudo-controversial excerpt has been her suggestion that in looking to draft a new constitution, the Egyptians ought to look elsewhere than to the US as a model. Eugene quotes from a statement by Liberty Counsel, which said in part:

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.”

Eugene already does the easy work of pointing out why this is silly.  I thought it was worth asking, just the same, whether she might have said anything different:

1) "No comment."  This seems like a good alternative to me, with respect to the whole interview.  Although I don't think judges are obliged generally to remain quiet, neither do I generally care who they think wrote Shakespeare's plays and so on, and I doubt public discourse would be harmed much if we heard less from them.  (Judge Posner excepted.) 

2) "I'm not qualified to answer that question."  Another good alternative.  The whole transcript suggests that Ginsburg did in fact inform herself about local conditions: she met with the head of the elections commission.  And she has certainly visited with other judges and, earlier in her career, was interested in comparative law issues.  So this is not quite a case of a judge or other person delivering herself of opinions on which she lacks any expertise at all.  Still, this is not a bad answer: a few meetings won't so quickly change the unlikelihood that she really knows enough about conditions on the ground in Egypt to give useful advice about constitutional drafting, and a nodding acquaintance with constitutional law in South Africa, Canada, and other countries, probably one focused on rights rather than structure, again doesn't necessarily give one much expertise in comparative constitutionalism.  

3) "Constitutions aren't that important."  Obviously, she would have been flayed for that answer too.  But the point here, and Eugene makes it as well, is that much of the success or failure of the U.S. Constitution is owed not to the bare text, but to the glosses on it, and accommodations with it, we have made over more than two centuries.  That doesn't make constitutions unimportant, but it does suggest that as or more important than what goes into them is the degree of civil order that exists and the extent of the public and official commitment to a working constitutional enterprise over time.  Note, though, that she did say something like this, although it's been quoted less often: "Let me say first that a constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. If the people don't care, then the best constitution in the world won't make any difference. So the spirit of liberty has to be in the population."

4) "Bills of Rights are secondary."  Some commentators complained that Ginsburg, given her interest in rights and liberties, focused overmuch on bills of rights rather than the fundamental structure of the Egyptian constitution and, in particular, how it allocates power and so on.  After the quote I've just given, Ginsburg added: that any new constitution "should safeguard basic fundamental human rights, like our First Amendment, the right to speak freely, and to publish freely, without the government as a censor."  There are a few points worth making here.  First, it's worth pointing out that she didn't talk about rights until after she'd talked about the fundamental importance of ensuring a proper election structure.  Second, her critics have  charged that she was wrong to point to constitutions like those of Canada because they provide less protection for free speech.  This quote ought to soften those criticisms.  Finally, the basic argument seems right to me: for Egypt, bils of rights are less important than how power is arranged and shared in that country.  Without the proper groundwork, any bill of rights will be a parchment barrier.

Finally, as a former Canadian, I must say I find lacking the general argument that Ginsburg was wrong to point to the postwar generation of bills of rights, with their explicit balancing provisions, as potentially superior to the U.S. Constitution on the grounds that those countries are less protective of free speech.  As it turns out, I do think the Canadian courts and other bodies have erred in their approach to free speech from time to time.  But those criticisms are usually overstated. More important is the question of where the fault lies.  If we have a robust First Amendment doctrine, it's surely not because there's no explicit balancing provision in our Bill of Rights; if other countries reach less speech-protective rulings, it's again not for that reason.  Judges in the U.S. balance rights against state interests all the time, and judges in Canada and elsewhere interpret their balancing provisions to require something like strict scrutiny in some cases.  The differences don't lie in the texts of the constitutions; they lie in local conditions, social norms, and a variety of other mostly non-legal influences.  To lay all of this at the feet of the constitutional text is rather silly.

Although that does suggest a final alternative answer Ginsburg could have given to the question, one that is always appropriate for lawyers: "It depends."