Via MEMRI TV, skip ahead to 9:28. I’m actually sort of charmed that a left-wing jurist thinks it matters much what’s written in a nation’s constitution. Our Supreme Court managed to tease a right to abortion out of a clause governing legal procedure, didn’t it? Seventy years earlier, a right-wing Court teased a right of contract out of the same provision. If you can do that, there ain’t much you can’t do. In fact, we’re on the cusp right now of Congress being granted a new power to force Americans to buy certain products; the clause responsible for that, which deals with regulating commerce between states, was somehow used a few years ago to reach marijuana grown in someone’s own backyard for their own use — with conservative support, do note. A smart, aggressive judge can make a document say nearly anything. The constitution sets certain goalposts, granted, but there’s a lottttt of space between them for a skilled kicker to aim.
Ginsburg’s fondness for South Africa’s constitution, I take it, comes from the fact that their bill of rights includes welfare-state guarantees like the right to housing and the right to health care. In an age when the western world is starting to collapse under the weight of entitlements, she seems to prefer a model that would make it even harder to reform those entitlements through normal democratic means. That’s the last thing Egypt needs given how deep its economic problems run; there’s no way the government will be able to vindicate those rights anytime soon, so why make any promises? But they will promise, no doubt, because that’s what Egyptians are expecting, and if the new regime can’t keep its promise then it’ll simply revert to Mubarak tactics to quiet popular discontent. That’s the other unspoken punchline here, of course — that culture matters at least as much as what’s in the constitution, and probably more. No doubt Coptic Christians will have the right to free speech under whatever Egypt’s new parliament comes up with, just as North Koreans constitutionally have the right to vote, but how long do you think that’ll last under a government dominated by Islamists? In fact, note that the other model she mentions here is Canada’s Charter of Rights and Freedoms, which somehow failed to prevent Mark Steyn and Ezra Levant from being hassled for criticizing Islam by Canada’s Orwellian human rights Star Chamber. A constitution is as good as the political culture that surrounds it. Ginsburg would have been better off reminding Egyptian TV of that.