Conservative columnist Jeff Jacoby has a good article today on the somewhat overwrought criticism of Justice Ruth Bader Ginsburg for saying, in Cairo, that the US Constitution is not a good model for other countries in 2012. As Jacoby points out, conservative Justice Antonin Scalia recently actually said that “[t]he bill of rights of the former ‘evil empire,’ the Union of Soviet Socialist Republics, was much better than ours,” without raising any such hackles. Scalia avoided criticism in large part because he quickly added that a good constitutional text has little value if isn’t enforced. But, as Jacoby notes, Ginsburg added much the same qualification in Cairo.
Generally speaking, Ginsburg is absolutely right to suggest that the US Constitution is not an ideal model for every foreign nation. There are lots of ways in which our institutions might be inappropriate for other nations in different circumstances. For example, the US presidency concentrates enormous power in the hands of one person. That might be very dangerous in a society that has only recently emerged from dictatorship. Countries such as Switzerland have done fairly well with a plural executive. A small country that wages few wars has less need of a powerful, unitary executive than a global superpower. Similarly, the US system of federalism might not be the best model for the many societies where the main purpose of federalism is to mitigate ethnic conflict by giving minority groups subnational governments that they control. And a few provisions of the US Constitution are simply outright mistakes by the Founding Fathers that no one would want to imitate.
That said, I am much less sympathetic to Ginsburg’s specific reasons for preferring other models over the US Constitution. She would “look at the constitution of South Africa,” because it “was a deliberate attempt […]