Repeal Big Oil Tax Subsidies Act-- Resumed

Floor Speech

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Mr. GRASSLEY. Supreme Court Justice Ginsburg, on a recent trip to Egypt, made comments that garnered public notice. She said:

I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa.

She also spoke favorably of the Canadian Charter of Rights and Freedoms and the European Convention on Human Rights.

Although some people have criticized Justice Ginsburg for speaking negatively about the U.S. Constitution while abroad, I think she has a right to say what legal documents countries should consider that are now writing constitutions. But I do not agree with her those other constitutions are better examples of constitutions today than the U.S. Constitution is.

Some people who have criticized Justice Ginsburg's preference for the other constitutions she named have focused on the positive rights contained in those documents. Some of those constitutions, such as South Africa's, protect the right to ``make decisions concerning reproduction,'' to ``inherent dignity,'' and the right to have an environment protected ``through reasonable legislative and other measures that prevent pollution and environmental degradation.'' The European Convention on Human Rights guarantees a right to education. Of course, none of these constitutions contain anything like a second amendment right for the citizens to defend themselves.

Our Constitution is all about limiting the power of government. Americans do not fully trust the power of government, and Americans insist on rights that are protected against government action. In other words, our Constitution was intended to last for centuries, with the same meaning, even as those principles were applied to new situations. Our judges should reflect that philosophy, which is at the heart of our Constitution. If other countries feel differently, that is their right.

I think praise for those foreign constitutions rather than our own raises a much more serious issue--the role of the judiciary. Our Constitution made a judiciary that was the least dangerous branch, as Hamilton said. Policy is to be made by elected officials who answer to the voters and can be replaced; whereas, judges, under our Constitution, cannot be replaced. They have a lifetime position, short of impeachment.

The foreign constitutions that were named create a much different judiciary. The Canadian Supreme Court has stated their charter of rights and freedoms ``must be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind.''

The European Convention has been interpreted by the European Court of Human Rights to be a ``living instrument.''

Madam President, these are explicit statements--that Justice Ginsburg's preferred constitutions are ``living constitutions.'' A living constitution is one in which the meaning changes over time. Judges decide that new circumstances require a living constitution to mean something it did not mean sometime before. They say the constitution must keep up with the times. A living constitution can mean whatever judges want it to mean, completely contrary to what our forefathers had in mind when they wrote our Constitution.

Our Constitution is not a living constitution. Judges are not to make up its meaning as they go along over time. Even President Obama's Supreme Court nominees told us the role of a judge under our Constitution is not to interpret words however they believe new circumstances might warrant. ``It's the law all the way down,'' Justice Kagan said. We should be skeptical of a living constitution that opens the door for judges to impose their values, not those of the Framers of the Constitution, on the citizenry of this country.

The Canadian Charter says it ``guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and Democratic society.'' The Canadian Supreme Court interprets that provision in light of a highly generalized four-part test that invites judges to insert their own policy preferences.

Similarly, the South African Constitution provides that its rights can be limited if they ``are reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.'' It tells courts explicitly to apply a six-part subjective balancing test that allows judges to interpret this provision however they want.

How would you like to live under a constitution such as that?

These constitutions Justice Ginsburg endorses invite judges to rule however they want on any question of rights. That is not consistent with traditional American notions of the rule of law, of a government of laws and not a government of people. Some judges may prefer constitutions in which judges are free to displace democratic decisionmaking on policy questions that are to be decided by elected representatives of the people under our Constitution. I do not. Our Constitution does not. We do not live in a government of, by, and for the judiciary.

But no one should think that the Canadian or the South African Constitutions fully protect rights that Americans think are precious, such as freedom of speech. Under the Canadian Charter, reasonable limits on free speech include prohibiting so-called hate speech against a group.

Finally, it is important to recognize why some of us on the Judiciary Committee continue to press judicial nominees on their adherence to the Constitution without reference to foreign law. For instance, Justice Breyer has stated that foreign judges also interpret ``texts that more and more protect basic human rights.'' He has stated that he looks to the decisions of the European Human Rights Court and to Canadian cases as well, because they are ``relevant'' even if they do not control. He says, ``[W]e can learn something about our law and our documents from what happens elsewhere.''

What Justice Ginsburg did was to make very clear that which had only been implied in the past, making very clear that there are some in this country who feel that our venerable Constitution is outdated. If they treat that document as it was written and understood by the Framers, then their decisions will often lead to results they do not like as a policy matter. But if they can cite decisions from foreign courts and interpret constitutions that contain all kinds of different rights and that give judges unbridled power to make policy decisions at the expense of the elected representatives of the people, then they can reach decisions that our Constitution otherwise would not allow.

It is not simply a disinterested survey of what other courts around the world are doing. It opens the door to a search for preferred liberal activist outcomes. These are the very high stakes at issue when we discuss whether it is appropriate for judges to cite or rely on foreign law in interpreting the U.S. Constitution.

We need to preserve, protect, and defend the Constitution of the United States. We need to preserve, protect, and defend the rights of American citizens. Justice Ginsburg and others who have a judicial longing for other constitutions that protect different rights and give unelected judges power that, under our Constitution, self-governing people exercise themselves--I tell those judges, including Justice Ginsburg, that is the wrong approach.

I yield the floor, and I suggest the absence of a quorum.

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