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Ginsburg Cautions Egyptians: Don’t Use U.S. Constitution as your Model

Cairo, Egypt:  Supreme Court Justice Ruth Bader Ginsburg suggests the U.S. Constitution is not the best model for modern democracies to follow. Ginsburg, traveling during the court’s break, addressed her remarks to students at Cairo University while visiting with legislators and judges in Egypt. The Justice’s visit comes at the same time Egyptian officials are preparing to send to trial 19 American democracy and rights workers.

In an interview with Al Hayat Television last Wednesday, Ginsburg said, “I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights have an independent judiciary. It really is, I think, a great piece of work that was done.”

Such views are nothing new for the Supreme Court Justice, but rather foundational to her judicial philosophy. She has often stated that she takes into consideration foreign law along with U.S. law when forming legal opinions.

When in speaking before an audience at the American Society of International Law in April 2005 she said, “The notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification.”

In a long interview with a reporter who asked her to explain the foundation of the U.S., Ginsburg suggested with pride that “we have the oldest written constitution still in force in the world, and it starts out with three words, ‘We, the people’.” Ginsburg also extolled several aspects of the document, particularly the separation of powers, the concept of checks and balances and an independent judiciary.

But when asked again about models for the Egyptian people, Ginsburg said Egyptians “should be aided by all the constitution-writing that has transpired since the end of World War II.”  Models she suggested to Egyptians included South Africa’s Constitution, the European Convention on Human Rights, and Canada’s 1982 Charter of Rights and Freedoms.

“Why not take advantage of what is else there in the world? I’m a very strong believer in listening and learning from others,” said Justice Ginsburg.

Ginsburg told the Egyptian interviewer that she can’t dispense advice for Egyptian society about how to set up its constitution, nor can she comment on a document that isn’t written or in force yet. To her credit, Ginsburg said a constitution is only as good as the people who live by it.

“If the people don’t care, the best constitution in the world won’t make any difference,” she warned.

Justice Ginsburg’s comments made in a nation torn by political and religious upheaval should be paid attention to here in the States. The Supreme Court has more than one Justice whose philosophy of determining legal precedent is more global rather than based our own founding documents.

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