In a recent editorial, Hyman attacks Judge Ruth Bader Ginsberg for her judicial philosophy, which Hyman claims opens the door to getting rid of basic constitutional freedoms. He says Ginsberg has called the Constitution “frozen in time” and that justices of the Supreme Court should “be able to void any portion of [it] they disagree with.” According to Hyman, Ginsberg also believes the Supreme Court should use the decisions of foreign courts (even, Hyman says, the Constituional Court of South Africa!) as frameworks for their own decisions.
I’m sure, gentle reader, that you will be shocked, shocked, to learn that Ginsberg says none of the above.
In one of the more intellectually vapid editorials he’s delivered lately (which is saying something), Hyman attacks Ginsberg for a speech she made in South Africa earlier this year. (She made virtually the same speech over a year ago, but apparently it took awhile for Hyman to get his dander up).
In the speech, entitled "A decent Respect to the Opinions of [Human]kind: The Value of a Comparative Perspective in Constitutional Adjudication,” Ginsberg specifically does not call the U.S. Constitution “frozen in time,” but rather attacks those who do see it as frozen in time. She notes, for example, that the idea that the Constitution should not be interpreted with regard to changing standards, particularly those seen in the world beyond the United States, was precisely the logic that Justice Taney used in the infamous decision in the Dred Scott case. As she points out, the idea that the law of the U.S. should not ignore broader notions of human rights is not new. John Jay, one of the founders himself, said that the United States, “by taking a place among the nations of the earth, bec[a]me amenable to the laws of nations.”
As far as noting that Ginsberg “even cited South Africa's Constitutional Court as an example,” of a court whose rulings might be enlightening to jurists around the world, Hyman is using a cheap and dishonest rhetorical trick, hoping his audience will associate South Africa with repression and apartheid, not recognizing that the current government bears no resemblance to the all-white regimes of the past. And for the record, Ginsberg singles the court out because she was giving the speech at the Constitutional Court of South Africa.
But if we can hack our way through the superficial lies and distortions of Hyman’s commentary, we do finally get to a meatier issue, and that is the notion of how the Constitution should be interpreted. Hyman, apparently, falls in line with so-called “strict constructionists” who claim that their reading of the Constitution is in accord with the founding principles of its authors. Such folks claim that the idea that one might interpret the Constitution with regard to evolving ideas of justice and freedom is an invitation to relativism.
Much like their ideological cousins, Biblical literalists, strict constructionists take a philosophically rich document and fetishize one particular layer of meaning. They will tell you, of course, that their particular interpretation is valid because, after all, they are interpreting what the document actually says without “reading in” meanings of their own (which is what they claim the rest of us do with both the Constitution and the Bible). They claim their reading of the document is privileged because it reveals the original intent of the authors.
Now, tabling for a moment the enormous hubris it takes to claim one can glean the original intent from texts created by multiple authors (or by an author who happens to be an omnipotent, eternal deity) with their own individual differences and who all are separated from us by culture and time, it should still be clear that this claim to faithfulness to original intent is bogus, both in terms of the Constitution and the Bible.
Take for example the idea that the Bible should be taken literally. Even Biblical literalists don’t fully commit to this idea. They would acknowledge that when Christ calls Peter the “rock” on which his church will be built, he means it metaphorically, not literally. It’s a figure of speech that must be interpreted to be understood (at least one would hope so, for poor Peter’s sake). Nor are references to Christ as the “lamb of God” meant to suggest that Jesus was a cute, fuzzy, four legged creature that munched on grass. Rather, it is an image that is meant to get at a larger truth about Christ: his role as one who is sacrificed (among other things).
Let’s look at a slightly less silly example. Fundamentalists often point to a passage in Leviticus when justifying their animosity toward gays and lesbians. If one counters that this is likely simply a reflection of cultural attitudes of the time that we shouldn’t feel bound to, they will reply that the word of God is eternally true, and not subject to the vagaries of what happens to be acceptable in a particular time and place. You might point out in response that Leviticus barely mentions homosexuality at all, but spends dozens of verses talking about how to deal with mildew on clothes (apparently you’re supposed to take it to your local temple priest). If you ask them if they aren’t committing a sin each time they use their washing machine instead of taking their unmentionables to their pastor, you would almost certainly be told that such specific rules were meant for the people of the time, not those of us in the modern world who have access to the miracle of Woolite.
So Biblical literalists aren’t literalists. They simply identify a certain level of interpretation that corresponds to their belief system, and label that particular interpretation as the “true” meaning of the text.
The same is true of strict constructionists and the Constitution. They will chastise anyone who suggests that principles enshrined in the Constitution should be applied to current concerns in a way that takes into account differences between today and the late 18th century. Yet, what do you think would happen if you were to suggest to Antonin Scalia or Clarence Thomas that the 2nd Amendment should be interpreted according to “original intent,” meaning that all U.S. citizens should be allowed to own a muzzle-loading, black powder, single-shot musket? That, after all, was the original intent of the Framers.
The notion that the 2nd Amendment allows Charlton Heston to own a Mac-10 submachine gun is exactly the sort of approach strict constructionists deride when it happens to involve something they feel less affection for than they do toward guns. (And notice that we haven’t even touched on the part of the 2nd Amendment that mentions a “well-regulated militia”; again, that’s a part of the “original intent” of the framers that the strict constructionist crowd blows off.)
And all of this is still assuming that there actually is an original intent at all, which there isn’t. The Constitution was the result of all sorts of compromises among a group of men who held such disparate views of the role of government that the differences among them make Dick Cheney and Ted Kennedy seem like ideological twins.
It should go without saying that this doesn’t mean that any interpretation is as valid as any other, but of course that’s exactly what strict constructionists would accuse me of (and it’s precisely the accusation Hyman lays at the feet of Justice Ginsberg). But let’s use another analogy to look at this: if I were to make the claim that Shakespeare’s Hamlet is in fact an elaborate allegory that argues for the wisdom of tying a national currency to the gold standard, you’d rightly accuse me of being off my rocker. Yet, you would likely not object if I suggested that the play is a sufficiently complex text that it allows for a number of different valid readings, perhaps even readings that are in some ways contradictory (Is Hamlet crazy, or just acting crazy? Is the ghost really his father, or is it a demon sent to tempt Hamlet into damning himself?) You might even acknowledge that the resonances and readings of the play for audiences today are different than they might have been to audiences of previous eras, and that the readings of an American audience might be different than an audience in Russia, China, or Botswana. The readings are constrained by the text, but there isn’t one reading dictated by the text.
This would not minimize the genius of the text or suggest that any reading is as good as any other. It would do no more than acknowledge the richness of the text and the genius it took to create a work that speaks on so many different levels and through the ages, and the applicability of its major themes to so many diverse audiences.
The same is true of the Constitution. Hyman's suggestion that Ginsberg’s judicial philosophy would lead to a case where freedom of religion (for example) could simply be done away with is every bit as ludicrous as my reading of Hamlet in which Claudius is actually a metaphor for the Federal Reserve Board. This is a classic example of the slippery slope fallacy. There is no room for such an interpretation by an intelligent reader of the text. When we do interpret the text (and, as I pointed out earlier, all of us interpret the Constitution, the Bible, and Hamlet, even if we claim we simply read them literally), we look to see how our interpretation of the text aligns with our understanding of the world and the interpretations of other readers.
As Ginsberg notes in her speech, courts (including the Supreme Court) do this all the time. Indeed, it’s at the heart of the whole use of judicial precedent. She simply points out that looking at how other people, including people in other countries, have interpreted words and concepts like “freedom of speech,” “due process,” and “cruel and unusual punishment” is part of what any intelligent reader of a document as complex as the Constitution should do (and in fact does do, even if they don’t do it knowingly).
But acknowledging this would cause deep anxiety for Hyman and those like them, who seem unwilling or unable to put together a good argument for their particular interpretation of the Constitution, but choose the false shortcut of simply claiming that their reading doesn’t involve interpretation and is therefore sacrosanct.
Is this due to intellectual laziness? Ignorance? Self-righteousness? All are plausible interpretations of the situation (and not necessarily mutually exclusive).
By the way, if you’re interested in reading more about the issue, I recommend historian Jack Rakove’s Pulitzer Prize winning Original Meanings, in which he meticulously takes apart the fallacy that the framers had (or even wanted to have) a single, unchanging meaning in mind when they wrote the Constitution.
And that’s The Counterpoint
Hyman Index: 3.72