Ginsburg’s Right: US Constitution is a Bad Model

Noah Feldman, an American Constitutionalist, posited that other countries would be

better off if they would not pattern their constitution to the 223-year old US
Constitution. He echoed the thoughts of the venerated SCOTUS Justice Ruth Bader
Ginsburg who told her Egyptian interviewer that a relatively more modern constitution,
such as that of South Africa, would be a better model in drafting a new constitution. 1 The
main argument of Feldman was that newer constitutions “spell out the answers to
contemporary problems” unlike the centuries-old US Constitution which has judges
“channel historical figures to decide whether violent video games are a form of free
speech, or whether owning handguns is covered by the right to bear arms for the
purpose of preserving a well-regulated militia.”

Using the point raised by Alfred Stepan about the Upper Chamber’s constitutional
prerogatives to constrain,2 I tend to agree with Feldman that the US Constitution is no
panacea. First, the legit democratic agenda of appointing a person on a SCOTUS seat left
vacant by the late Justice Scalia is currently on a political blockade by the Senate
Republicans.3 This is because the Senate has exclusive competence to confirm or deny
all major judicial and administrative appointments 4 and they, the GOP, are making the
most out of it. Hence, several cases of paramount importance such as public unions and
immigration were decided on a split 4-to-4 vote, making no precedents. 5

Feldman also pointed the banality of the ‘originalism debates’—the question of whether
or not it is possible to recover and apply the framer’s intended meaning as opposed to
believing that the document must be treated as a living thing, growing and developing in
keeping with the changing needs, institutions and circumstances, that the Court’s time is
better left spent in ‘arguing what the Constitution is ought to mean’ instead of ‘what it
originally meant.’ Centuries had passed and several amendments were already
introduced to the Constitution and few of those amendments are already contemplated
of being modified, figuring in the policy debates on the ongoing presidential race. 6 This
only shows that over time, several provisions may prove to be obsolete and irrelevant to

1
According to Justice Ginsburg, “That (the South African Constitution) was a deliberate attempt to have fundamental
instrument of government that embraced basic human rights… It really is… a great piece of work…”
http://www.memritv.org/clip/en/3295.htm
2
Stepan on the Upper Chamber’s constitutional prerogatives to constrain a majority at the center.
Stepan, A. ‘Federalism and Democracy: Beyond the US Model’ (1999) 10 Journal of Democracy 4
3
Totenberg, N, ‘170-Plus Days And Counting; GOP Unlikely to End Supreme Court Blockade Soon”
http://www.npr.org/2016/09/06/492857860/173-days-and-counting-gop-unlikely-to-end-blockade-on-garland
-nomination-soon
4
Stepan, A. supra.
5
Liptack, A, Buchanan, L, and Parlapiano, A, ‘How a Vacancy on the Supreme Court Affected Cases in the 2015-2016
Term’ http://www.nytimes.com/interactive/2016/02/14/uspolitics/how-scalias-death-could-affect-major-
supreme-court-cases-in-the-2016-term.html?r=0
6
‘Hillary Clinton: Bernie Sanders isn’t tough enough on guns’ a CNN Democratic Debate Video
https://youtu.be/CernbxcFnmc.
the context of the United States today, thus interpreting it in the original context, of
being a textualist, may prove to be, if not futile, dangerous.

Finally, as a social contract,7 the Constitution must be reflective of the will of its people:
the context to which the body operates must be taken into account. The South African
Constitution embodied the nation’s transformation from a racist, brutal, Apartheid-
based regime to a democratic, multicultural government 8; the Indian Constitution was
designed to maintain the unity of India 9; under the 1987 Constitution of the Philippines,
the term governance means an open, transparent, and accountable process of
formulating and implementing government policies 10 in response to what transpired
during the martial law period. These peculiar circumstances to which the Constitutions
of the respective states were brought into existence could not be accommodated by the
US Constitution. Each state has its own unique history and context, far different from
that of the United States; it is but appropriate, as Feldman and Ginsburg suggested, that
they look beyond what the US model has to offer.

Prepared by:
Juno V. Geronimo
Legal History, I-Evening
September 10, 2016

7
Curtis, M. ‘The Great Political Theories’ p. 360 with reference to John Locke.
8
Kende, M. ‘The South African Constitutional Court’s Embrace for Socio-Economic Right: A Comparative Perspective’
Chapman Law Review, Vol. 6, Spring 2003 pp. 137
9
Stepan, A. supra.
10
Lazo, R, ‘Philippine Governance and the 1987 Constitution’ p. 13