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Ken Masugi- Columnist

Ken Masugi is the Director of the Claremont Institute's Center for Local Government. Its purpose is to apply the principles of the American Founding to the theory and practice of local government, the cradle of American self-government. Dr. Masugi has extensive experience in government and academia. Following his initial appointment at the Claremont Institute (1982-86), he was a special assistant to then-Chairman Clarence Thomas of the U.S. Equal Employment Opportunity Commission. After his years in Washington, he held visiting university appointments including Olin Distinguished Visiting Professor at the U.S. Air Force Academy. Dr. Masugi is co-author with Brian Janiskee of both The California Republic: Institutions, Statesmanship, and Policies (Rowman & Littlefield, 2004) and Democracy in California: Politics and Government in the Golden State (Rowman & Littlefield, 2002). He is co-editor of six books on political thought, including The Supreme Court and American Constitutionalism with Branford P. Wilson, (Ashbrook Series, 1997); The Ambiguous Legacy of the Enlightenment with William Rusher, (University Press, 1995); The American Founding with J. Jackson Barlow and Leonard W. Levy, (Greenwood Press, 1988). He is the editor of Interpreting Tocqueville's Democracy in America, (Rowman & Littlefield, 1991). [go to Masugi index]

Justice Ginsburg Versus the Founders
Foreign sources...

[Ken Masugi] 4/29/05

Both liberals and most conservatives have problems with using the Declaration of Independence to interpret the Constitution. But now it’s clear that conservative jurisprudence must use the Declaration to defend our Constitution from the use of foreign law and legal practices. Justice Ruth Bader Ginsburg interprets the Declaration to support her view that we are actually obliged to consult foreign sources. See Edward Whalen (the new President of the Ethics and Public Policy Center) at NRO for further commentary.

[W]hile U. S. jurisprudence has evolved over the course of two centuries of constitutional adjudication, we are not so wise that we have nothing to learn from other democratic legal systems newer to judicial review for constitutionality. …

In the value I place on comparative dialogue - on sharing with and learning from others - I am inspired by counsel from the founders of the United States. The drafters and signers of the Declaration of Independence cared about the opinions of other peoples....

In writing the Constitution, the Framers looked to other systems and to thinkers from other lands for inspiration, and they understood that the new nation would be bound by "the Law of Nations," today called international law.

U. S. jurists honor the Framers' intent "to create a more perfect Union," I believe, if they read our Constitution as belonging to a global 21st century, not as fixed forever by 18th-century understandings….

Ginsburg, as Whalen notes, would have the Founders (and their current supporters, such as Justice Thomas) interpreted in light of Roger Taney’s Dred Scott opinion. In response to her critics, including the Washington Post, Justice Ginsburg replied ‘We refer to decisions rendered abroad, it bears repetition, not as controlling authorities, but for their indication, in Judge Wald's words, of "common denominators of basic fairness governing relationships between the governors and the governed."’ But these and other throwaway lines that “foreign opinions are not authoritative; they set no binding precedent” are smoke intended to cover up her agenda.

We are justly indignant over the presence of illegal aliens in our nation. The Founders were wary of immigrants’ bringing a corrupt understanding of government to the new democracy. For this reason we today should be even more outraged by alien jurisprudence.

One should not take Justice Ginsburg’s concluding paragraphs as mere rhetoric; they should be taken seriously as an intent to refound the United States:

We live in an age in which the fundamental principles to which we subscribe - liberty, equality, and justice for all - are encountering extraordinary challenges. But it is also an age in which we can join hands with others who hold to those principles and face similar challenges. May we draw inspiration from Abigail Adams, who wrote to her son and future President of the era in which he was coming of age:

These are the times in which a genius would wish to live. It is not in the still calm of life, or the repose of a pacific station, that great characters are formed. The habits of a vigorous mind are formed in contending with difficulties.

Justice Ginsburg, and contemporary jurisprudence in general, overlooks the Declaration of Independence as the source of limited government, the rule of law, and constitutionalism. See Harry Jaffa and Tom West. The Declaration serves as our founding document, in opposing enemies foreign and domestic, because it relies on “the laws of Nature and of Nature’s God” and acknowledges that all men are created equal. It should be clearer than ever that our thoughts about the Declaration are not mere theoretical musings; they are a practical teaching whose implications must be grasped and acted upon. tOR

copyright 2005 Claremont Institute.


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