Justice Ginsburg Puts Politics First

By MAXWELL REINHARDT

This week, Supreme Court Justice Ruth Bader Ginsburg, told the Egyptian people on Al-Hayat Egyptian TV that “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012.”

Ginsburg went on to say, “I might look at the constitution of South Africa… It really is, I think, a great piece of work that was done. Much more recent than the U.S. Constitution—Canada has a Charter of Rights and Freedoms. It dates from 1982. You would almost certainly look at the European Convention on Human Rights. Yes, why not take advantage of what there is elsewhere in the world?

For many American’s ears, her words are shocking. Ginsburg has sworn to uphold the U.S. Constitution, yet she seems to be rejecting it as a model for modern governments.

Ginsburg, one of the country’s most prominent liberal jurists and arguably the most liberal justice on the high court, suggests that the Egyptian people ought to look documents that enshrine welfare-state programs into their respective legal codes.

For example, the South African Constitution guarantees its citizens the right to housing and health care. South Africa’s desperate housing shortage is well known and its health care system ranks 175th in the world according to the World Health Organization, while the U.S. ranks 37th.

The reason the U.S. ranks 37th is because it has the best neonatal care in the world, so infants that would not normally survive outside the womb are able to live for a few years after birth. Their early death drags down the U.S. health care system’s ranking because the WHO measures care not by the quality of outcomes but by births, infant mortality rate and deaths. Even though South Africa guarantees health care, the U.S. has produced significantly better outcomes.

Ginsburg’s comments should be of interest to everyone. American progressives have asserted for decades that the government should play a greater role in making affordable housing available, a belief that eventually culminated in calamitous over-lending by the government-backed mortgage giants Fannie Mae and Freddie Mac.

Progressives have also asserted that the government should try to make sure that everyone has access to healthcare. Some assert that this should be done through a government mandate to purchase health insurance, like the one inscribed in President Obama’s health care law; others have pushed for a more radical solution, a Canadian-style single-payer health care system.

Ginsburg believes they are necessary for a just society, but unlike many progressives she understands that they are not within the scope of the U.S. Constitution.

It will be interesting to read her opinion on the upcoming Supreme Court case to determine the constitutionality of the Obama health care law’s individual insurance mandate.