I think it's a big,...

I think it's a big,...

Shawn Mitchell

I still mean to write something longer and meatier, maybe an op/ed. But the short comment is: Progressives like Ginsburg dislike the restraints of our Constitution, because it gets in the way of implementing their enlightened ideas.

Federalism, (a degree of local/state control untrammeled by national power) is a distinctive American feature. Also, separation of powers includes not just an independent judiciary, but separation between legislative (policy-making) and executive (implementation and enforcement) powers. It's a critical check on an expansive administrative state and protector of due process, not a real concern of modern liberal.

Further, the "outmoded" American model is much stronger on rights of property and contract, things in which conservatives put much earnest stock.

Also, an "independent" judiciary is best channeled in a constructive role of judging the law and not expansively and unaccountably inventing policy in contravention of representative will if there are clear constitutional standards. But modern constitutions are generally more expansive but less concrete, offering grandiose aspirations, but with express invitation to balancing individual claims of right against "social" or "collective" rights for "justice." They often promise long, elaborate lists of "rights" meaning positive or "benefit rights" rather than negative, or "liberty rights" That is, they catalog entitlements, not limits on government power. And by leaving the concrete enforceable nature of the rights ambiguous, and expressly subject to balancing, they further empower unelected and unaccountable judges to substitute their will for the consent of the governed.

In fact, it's hard to think of a more complete transfer of power from elected policy makers to unelected judges than to enumerate a long list of desirable benefits as rights but leave their protection up to a judicial balancing of the public good. Judges could declare about anything they want to a right, or withhold about anything they want in the name of public need. They become the arbiters of all. Of course a Supreme Judge and political progressive favors such a system.

All in all, my objections are serious, substantial, and thought out. Is mine the last word or infallible? Of course not. But you were way off base suggesting it was reflexive, simplistic grandstanding. It is, in reality, another front in the existential debate between progressives and limited government constitutionalists about the scope and role of government, but with the backdrop of a surprisingly candid admission by a US justice sworn to uphold the US Constitution, and the power to "interpret" it to the point of bending it to her will, that she doesn't much like our model of constitution.