When parsing through an argument you are always well-served to begin by identifying the motivating themes. In William Tucker’s “Justice Ginsburg Should Resign” the themes are simple: (1) the U.S. Constitution is awesome because its sparse nature defends limited government and negative rights and (2) liberals are against the Constitution and limited government and (3) judicial “activists” are bad and undermining the Constitution. Keeping these in mind will make this a much easier article to dissect.
The impetus for Tucker’s article is a recent television interview in Egypt where Justice Ginsburg counseled that “I would not look to the United States Constitution if I were drafting a constitution in the year 2012.” Tucker argues that this Ginsburg does not understand that the “Constitution is a charter of limited government,” employing both italics and boldface to prove that he’s serious…and pedantic.
He begins a convoluted history of the Constitution, suggesting that the Bill of Rights Amendments were unnecessary additions to the Constitution that demeaned its status as a document of “enumerated powers” (italics! boldface!) framed by delegates with “no question in their minds that they were writing a charter for limited government.” While many may have held that opinion, he is glossing over Alexander Hamilton going to the convention seeking the creation of a new King and the compelling argument of Anti-Federalists that the Constitution seemed to justify broad power if all branches of government could only agree democratically (Tucker cites “Brutus” making the limited observation that the Constitution hinted at “implied powers” which was not his primary argument but a second-line pre-empt of the Federalist suggestion that a Bill of Rights was superfluous).
Tucker bemoans that the Bill of Rights created a world where “liberal law is focused on the enumerations of the First, Fourth and Fifth Amendments: Freedom of Speech, Freedom of Religion, Freedom against Search and Seizure,” which he seems to characterize as somehow improper activist jurisprudence by those who believe these rights are granted by the government rather than retained by the people. Though he provides no reason why litigation over government intrusions into speech and religion, and improper searches and seizures wouldn’t be the focus of the courts in a world without a Bill of Rights under Tucker’s conception that the Constitution is a per se guarantee of negative rights. Indeed, under the vision he seems to prefer, judges would have far more latitude to interpret the rules required to uphold those negative rights. It’s as though these “liberal” rights to be free of government harassment are not hallmarks of limited government in his mind. This is Tucker’s inherent disdain for liberal jurisprudence shining through, even where it contradicts his overall arguments about limited government and anti-judge.
But the biggest problem with Tucker’s screed is that Justice Ginsburg is fundamentally in agreement with him on the most important issue. The statement of Justice Ginsburg, that the U.S. Constitution is a poor model for future states, is not an attack on the Constitution’s principles as much as a recognition that a modern state should adopt a document that resolves modern questions of governance, as much as possible, democratically to increase certainty while minimizing the role of the judiciary. Tucker defends the Constitution over “1,000 page” documents without recognizing that its sparse nature is precisely why there is a “liberal,” “activist” judiciary constantly engaged in deciding the scope of proper government action. Modern constitutions may not always succeed, or make great choices, but they exhibit a commitment to resolving complex issues without leaving concepts like “privacy” to a vague penumbra interpreted 200 years hence by life-tenured judges (unless he disagrees with life-tenure, in which case I’d ask, “why do you hate the Framers, Mr. Tucker?”).
Rather than appeal to a selective history lesson about the Constitution, Tucker should consider who he would want to have the biggest role in shaping the future principles of a state if we were founded today — elected delegates or judges. I’ll bet he’d prefer to debate out as many specifics as possible beforehand.