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Contributors
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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