RBG, her constitutional legacy

Tributes to the late Justice Ruth Bader Ginsburg have rightly focused on her leadership in promoting human rights, especially gender equality, throughout her entire legal career. Overall, the most important contribution she made to the law was her championship of a “living” Constitution.

As Justice William Brennan put it in 1985, “the genius of the Constitution rests not in the static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” Ginsburg did this better than any justice of her generation.

The opposing view was exemplified by her dearest friend and colleague, Justice Antonin Scalia. It holds that the only legitimate way to interpret the Constitution is to determine the original understanding or meaning of each provision at the time its drafters wrote and ratified it. As Scalia once wrote, “Our manner of interpreting the Constitution is to … give [the Constitution’s] text the meaning that it bore when it was adopted.”

As an example, the 1868 equal protection clause of the 14th Amendment states that no state “shall deny to any person the equal protection of the laws.” The provision was designed to protect the newly freed Black slaves, not women, not gays and lesbians, not transgender persons.

Ginsburg led the court in expanding the provision’s meaning way beyond its original understanding, to update it to resolve problems plaguing our times. She would take on more than just the “originalists” like Scalia, who was soon joined by Justice Clarence Thomas. Today, two additional originalists sit on the bench, Justices Neil Gorsuch and Brett Kavanaugh. (Should President Trump nominate Judge Amy Coney Barrett to succeed Ginsburg, the court will potentially add one more.) 

It is important to note that not all conservative jurists are originalists. Justice Samuel Alito took issue with Scalia in a 2012 Fourth Amendment case when he wrote that Scalia had written the majority opinion “based on 18th century tort law … This holding, in my judgment, is unwise … and it is highly artificial.”

Ginsburg was more direct, even brutal in asserting her view that as times change, the Constitution evolves with those changes. In 2007, she wrote a blistering dissent when the court upheld the prohibition on late-term abortions.

Writing for a bare majority, Justice Anthony Kennedy admitted he had no evidence to comment on the emotional and psychological pain that a late-term abortion may have on a woman. But that did not stop him: “It seems unexceptionable,” he surmised, “to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow.”

For Ginsburg, Kennedy’s assertion reflected an antiquated, 19th century view of the subordination of women and their place in society. One hundred and fifty years ago, Myra Bradwell applied for a license to practice law after she was admitted to the Illinois bar. State law, however, prohibited a married woman from entering the profession, and in 1883, the Supreme Court upheld that position. Concurring in the decision, Justice Joseph Bradley wrote that “the natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life … The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.”

Ginsburg attacked Kennedy for viewing women through Bradley’s lens. “This way of thinking,” Ginsburg fumed, “reflects ancient notions about women’s place in the family and under the Constitution.” Plenty of medical evidence, she said, supported the dangers to women’s health in some late-term pregnancies. As a result, Kennedy had offered only “flimsy and transparent justifications for upholding a nationwide ban” on late-term abortions.

As originalists, Scalia and Thomas wrote that abortion has “no basis in the Constitution” whatsoever.

When the court reviewed the male-only admissions program at Virginia Military Institute, Ginsburg argued along the lines of her attack on Kennedy in the late-term abortion case. Times have changed, she said, and the Constitution must reflect those changes. 

Scalia, the sole dissenter in the VMI case, argued from his originalist position that “today the court shuts down an institution that has served the people of the commonwealth of Virginia with pride and distinction for over a century and a half. To achieve that desired result, it rejects (contrary to our established practice) the factual findings of two courts below, sweeps aside the precedents of this court, and ignores the history of our people.” (Thomas undoubtedly would have joined him, but he recused himself because his son was a student at VMI.)

To understand the full impact of Justice Ginsburg’s legacy, we must see it as how she labored her entire career to make the Constitution relevant in our time, and not as an antiquated document rooted in its 18th century past, with little guidance for the problems and challenges of the present moment.

 

Jack Fruchtman, a resident of Aquinnah, taught constitutional law and politics for over 40 years.