As Egyptian officials prepare to send to trial 19 American democracy and rights workers, Supreme Court Justice Ruth Bader Ginsburg visited Cairo last week where she suggested Egyptian revolutionaries not use the U.S. Constitution as a model in the post-Arab Spring.
“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012,” Ginsburg said in an interview on Al Hayat television last Wednesday. “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.”
As Egypt prepares to write a new constitution, Ginsburg, who was traveling during the court’s break to speak with legislators and judges in Egypt as well as Tunisia, spoke to students at Cairo University, encouraging them to enjoy the opportunity to participate in the “exceptional transitional period to a real democratic state.”
In a long interview with a reporter who asked her to explain the foundation of the U.S. Constitution and how it would be applied in today’s Egypt, 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 that can’t have its salaries diminished if it rules a law enacted by Congress as unconstitutional.
But asked about models for the Egyptian people, Ginsburg said Egyptians “should certainly be aided by all the constitution-writing that has gone on since the end of World War II.”
She then pointed not only to South Africa’s constitution, but to Canada’s 1982 Charter of Rights and Freedoms and the European Convention on Human Rights.
“Why not take advantage of what is else there in the world? I’m a very strong believer in listening and learning from others,” Ginsburg added.
Indeed, Ginsburg’s comments are not foreign to her overall philosophy. The justice has previously stated that she weighs foreign law as well as U.S. law when forming a legal opinion.
“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,” Ginsburg told an audience at the American Society of International Law in April 2005.
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.
But she said looking at the Federalist Papers — essays written by the drafters to expound upon the articles before they were ratified by the states — it’s clear that a discussion must be held by all members of the country. She also suggested that 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.
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