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Justice Ginsburg and the Constitution

by Andrew P. Napolitano
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Justice Ruth Bader Ginsburg served on the Supreme Court for 27 years until her death late last week. Her tenacious advocacy for the rights of those she perceived as legally disadvantaged, combined with her outsized intellect, moved the vector of the court's direction as few justices have in history. She championed the rights of women and members of the LGBTQ community.

Justice Ginsburg enjoyed a famous public friendship with the late Justice Antonin Scalia. She was a liberal Democrat. He was a conservative Republican. She believed in the "living Constitution." He believed that the meaning of the Constitution was fixed at the time of its ratification.

She believed that the Constitution enabled Congress to right any national wrong. He believed that Congress was limited to those federal areas of governance delegated to it by the Constitution. Yet, many times, they ended up on the same side of Supreme Court rulings.

Here is the backstory.

Justice Scalia championed a theory of interpretation of the Constitution known by two names: "textualism" and "originalism." Textualism teaches that the words of the Constitution mean what they say and its language, as well as the language of statutes, should be interpreted in accordance with the plain meaning of the written words.

When the words are ambiguous or inadequate to address a contemporary problem, then the proper mode of interpretation is originalism. Originalism teaches that the meaning of the Constitution's clauses and values were firmly established as the supreme law of the land when the states ratified it in 1789.

The argument for this theory offers that if the meaning of the Constitution changes with the passage of time, or if individual justices could reinterpret the words in the Constitution differently from the plain meaning employed by the Framers, then the Constitution is not the supreme law of the land as it proclaims itself to be.

This theory also teaches that Congress may only do what it is authorized to do in the Constitution. Originalism observes that the way to change the Constitution is not by life-tenured unaccountable justices reinterpreting it but by elected state representatives amending it.

Justice Ginsburg took the opposite view. She looked at the Constitution as a moral document that empowered the justices' interpretations in discerning right from wrong — and thus, to issue proper moral rulings. This view, the "living Constitution," teaches that many of the words and phrases in the document are so vague as to enable justices to adapt their meanings to our modern times, which the Framers could not have imagined.

This theory teaches that Congress can right any wrong, regulate any behavior and interfere in any event or state of affairs so long as the issue to be addressed is national in scope and there is no expressed prohibition on Congress doing so in the Constitution.

To Justice Scalia, the Constitution restrains the court and the government. To Justice Ginsburg, the Constitution unleashes the court and the government.

Who was right?

The Constitution proclaims itself to be the supreme law of the land, meaning that all legislation and even the culture of the times and the preferences of Supreme Court justices are subordinate to it. Yet, it does empower the Supreme Court to issue the proper moral rulings.

The classic example of this is Brown v. Board of Education, a unanimous landmark 1954 decision that found that state public schools segregated by race were inherently unequal and thus unconstitutional. Is education mentioned in the Constitution? It is not. Didn't Congress own and operate segregated schools of its own in 1954? It did. Yet, the opinion obviously made the right moral choice to liberate Black children from inferior government schools.

Though neither was on the court in 1954, both justices repeatedly lauded the Brown decision. To Justice Scalia, segregated government schools violated the express constitutional right of freedom of assembly — the right to join with any people or groups one wishes. To Justice Ginsburg, state and local schools segregated by race violated the moral obligation of government to treat all people equally.

In a series of cases implicating the constitutionally guaranteed right of criminal defendants to confront their accusers in court, both justices agreed that state court rules that permitted some accusers to testify in secret or on video were unconstitutional.

At the time of her death, Justice Ginsburg's closest friend on the court was Justice Neil Gorsuch, who succeeded Justice Scalia and who also embraces textualism and originalism. In a case in which an Alabama man was prosecuted twice for the same crime — possession of a weapon by a felon — once by the feds and once by the state, Justices Gorsuch and Ginsburg both dissented and offered that the Constitution's prohibition on double jeopardy means what it says. It was written to prevent all government from repeated attempts to convict for the same offense.

And in a case involving the meaning of the word "sex" in the Civil Rights Act of 1964, both justices agreed it means all things sexual — thus applying civil rights protections to those discriminated against because of sexual status or orientation.

One of the gifts in my life was my warm friendship with Justice Scalia during the final 10 years of his life. He loved Ruth Bader Ginsburg as a dear friend. He once told me that he believed Justice Ginsburg's legacy would be greater than his since he argued for restraint and she argued for change — and the folks who write history view agents of change more favorably.

Now they both belong to history.

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