Lost in Egypt

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

That’s an incredible video of Justice Ruth Bader Ginsburg circulating on the World Wide Web. It shows a sitting associate justice of the Supreme Court of the United States, speaking on Al-Hayat TV in an Egypt that is about to begin writing the foundational law for its attempt at democracy, saying “I would not look to the U.S. constitution if I were drafting a constitution in the year 2012.” Instead she suggests she might look at the constitution of South Africa.

“That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary,” she kvells. She also commended the new Charter of Rights and Freedoms that was set up at Canada. She also refers the Egyptians to the European Convention on Human Rights. “Yes,” she says, “why not take advantage of what there is elsewhere in the world?”

We would not want to suggest, even for a nanosecond, that Justice Ginsburg lacks for patriotism. And some of the clips of her remarks on the Web, such as that linked above, seem to exclude many thoughtful and some profound observations contained in the full interview. But Justice Ginsburg’s caution to the constitution-writers-on-the-Nile against looking to the United States Constitution is not the first time Justice Ginsburg has appeared to be what one might call lost in Egypt.

There was a moment during her confirmation hearings that has stuck with us all through her years on the high bench. It occurred during the third day of her hearings — this was in 1993 — when she was being questioned by Senator Hatch. They had fallen into a discussion of Dred Scott v. Sandford, the worst decision ever handed down by the Supreme Court. Senator Hatch was rattling on about substantive due process when he was interrupted by the only African American member of the upper chamber, Carol Moseley-Braun of Illinois, who asserted what is called “a point of personal privilege.”

Ms. Moseley-Braun said that she found it “very difficult to sit here as the only descendent of a slave in this committee, in this body, and hear a defense, even an intellectual argument that would suggest that there is a rationale, an intellectual rationale, a legal rationale, for slavery that can be discussed in this chamber at this time.” Senator Hatch tried to explain that he wasn’t being correctly understood, but Ms. Moseley-Braun wouldn’t let go.

The thing that has always struck us about that moment is that Ruth Bader Ginsburg stood silent. We kept waiting for her to speak, but she didn’t. She was as silent as a mushroom. It was no doubt shrewd in terms of her confirmation fight (the Senate approved her 96 to three). What we were waiting for the judge to say is that, in fact, Ms. Moseley Braun was not the “only descendent of a slave” in the judiciary committee or the proceedings.

In fact, Senators Metzenbaum, Feinstein, Cohen, and Specter were, among others present, either Jewish or descended from Jews, and the future justice herself was Jewish. It struck us then — and we have thought about it often over the years — that she could have pointed out that every year, for three millennia, Jews have made a point of beginning the Passover Seder by recalling precisely that they were slaves in Egypt.

The point of speaking up would have been not to belittle Senator Moseley-Braun’s point of personal privilege. On the contrary, it would have been to buttress her point. It is in the nature of slavery that no people ever subjected to it will ever forget it. It will be talked about and taught down through the generations. This is why Ms. Moseley-Braun was seething over slavery more than a century after constitutional emancipation and why the Jews will never stop speaking of it to their children.

Maybe Judge Ginsburg just didn’t think of the point in the pressure of the confirmation hearings. But what a moment it would have been had she marked that point. Instead she sat there quietly and the moment passed, and the judge was lifted up onto the high bench for a distinguished career. And now she is appearing on Al-Hayat television in Egypt advising Egyptians who are getting ready to write a constitution to look elsewhere than the American parchment.

It’s all the more ironical since history teaches us that the authors of the document that emerged from Philadelphia in the summer of 1787 often thought of the Exodus from Egypt. They knew they were writing our Constitution in the light of the laws handed down at Sinai. The laws of Sinai were handed down to a people escaping tyranny in the same land where so many millions of Egyptians seek to escape tyranny today. It’s a fact that would have enabled Justice Ginsburg to commend the American constitution in a way that would have brought it all the way back to the beginning.


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