Ruth Bader Ginsburg is rightfully lionized for blazing the path through which constitutional law came to embrace women’s equality. She is among an elite group of lawyers, Thurgood Marshall among them, who have played an outsized role in facilitating the evolution of constitutional law.
It might seem anathema to refer to the constitution as evolving. You probably have heard originalist arguments that judges are bound to interpret the Constitution’s provisions according to the meaning of the provisions at the time they were adopted. That was the core philosophy of the late Justice Antonin Scalia, who famously said that “the only good Constitution is a dead Constitution,” and is similarly espoused by his former clerk and now Supreme Court nominee, Amy Coney Barrett, who said in her acceptance speech that Justice Scalia’s “judicial philosophy is mine, too.”
Yet the primary reason our dusty old Constitution has survived for over two-hundred years is because justices have interpreted the document expansively to meet the needs of our ever-changing society. Indeed, the idea of an evolving or “living” Constitution is nothing new.
The most eloquent case for expansively interpreting the Constitution was made by Chief Justice John Marshall back in 1819 when he proclaimed that the Constitution was “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” He warned those inclined to interpret the document restrictively that “we must never forget that it is a constitution we our expounding.”
Ruth Bader Ginsburg is celebrated for adapting our Constitution to embrace women’s equality. This goal could have been achieved more directly had the Equal Rights Amendment been adopted. But that amendment failed. Yet Ginsburg, the advocate and judge, helped women achieve many of the same goals by convincing justices to repurpose an 1868 amendment to advance women’s rights.
That amendment, the 14th, has magnificent language that broadly endorses the principle of equality. The amendment’s Equal Protection Clause proclaims that no state shall deny to any person “the equal protection of the laws.”
But few could seriously contend that the 14th Amendment’s drafters intended the amendment to abolish gender discrimination. At the time of the amendment’s adoption, women did not have the right to vote, and in many states married women could not own property or even serve as legal guardians for their own children.
Yet step by step, during the 1970s, Ginsburg convinced nine old men that the Equal Protection Clause prohibited discrimination based upon a person’s sex. An astute strategist, Ginsburg eased the justices into this conclusion by feeding them a steady diet of cases in which men, not women, suffered the negative consequences of sex discrimination.
Ginsburg’s work, together with that of other gender equality advocates, led the Court to strike down numerous laws that were based on “archaic and overbroad” generalizations about gender roles. The justices decried “outdated misconceptions” about women needing to be “in the home rather than in the marketplace and world of ideas.”
The icing on the cake came years later, in 1996, when Ginsburg was a justice on the Supreme Court and authored the Court’s current leading opinion on gender equality. In her decision, which struck down the Virginia Military Institute’s refusal to admit women, Ginsburg unhesitatingly acknowledged the “inherent differences between men and women.” She said these differences were a “cause for celebration.” But she also warned that these differences may not be used “for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.”
That is Ginsburg’s great legacy. Yet, for some, her legacy may now be tarnished by a sense that Ginsburg overstayed her time on the Court and gave Donald Trump the opportunity to name her replacement.
That brings us to a second reason why the Constitution has survived for over two hundred years: the good faith of those who administer it. Just think of George Washington graciously declining to seek a third term and setting the precedent that presidents, unlike kings, do not serve for life. (As Washington sings in the musical Hamilton, “If I say goodbye, the nation learns to move on.”)
The Constitution speaks in spare terms and often leaves much discretion to those in public office. For example, the Constitution merely says that a president may appoint Supreme Court justices with the advice and consent of the Senate. There is nothing about how quickly this process should occur or whether it should be suspended if a presidential election is impending.
Unfortunately for our nation, good faith is currently in short supply. Partisanship almost always overrides patriotism, as we are currently witnessing in the clash over the timing of choosing Ginsburg’s replacement.
But just imagine how a single noble act by Republication senators could instantly confound the public’s negative expectations about Washington and spread good will through a nation so in need of healing. All the Republicans would need to do is declare, against their own partisan self-interest, that they will abide by the same rule that they themselves announced when they refused to entertain Merrick Garland’s nomination.
They would thus refuse to move forward on any nominee until after the public had spoken in the impending presidential election and a new presidential term had begun.
Alan Garfield if a professor at Widener University Delaware Law School.