'Negative' Constitution still a positive force

A century ago, progressives viewed the U.S. Constitution as fundamentally flawed and a relic of outdated mores. In 2001, Barack Obama echoed another progressive, Woodrow Wilson, in observing that the Constitution is a "charter of negative liberties" focused on what government "can't do to you" instead of "what government must do on your behalf." The clear implication is that the republic has grown in ways the Founding Fathers would not have anticipated. Therefore, a "living, breathing document" needs help in remaining relevant as America continues to evolve.

One of Obama's favorite Supreme Court justices, Ruth Bader Ginsburg, has long argued that many kinds of minority, reproductive, environmental, and health-care "rights" require supplementing U.S. jurisprudence with foreign sources of law more enlightened than the Constitution.

Consistent with this view, Ginsburg made news in a Jan. 30 Al-Hayat television interview when she told Egyptians: "I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012 . . .." Instead, she encouraged them to look at many "good" post-World War II constitutions - specifically, the Constitution of South Africa, the 1982 Canadian Charter of Rights and Freedoms, and the European Convention on Human Rights.

To her credit, she also boasted to the Egyptians that ours is the first and longest-lasting written constitution in the world, and that the key to its success has been the recognition that it derives its just powers from "We the People." But too many times in contemporary interpretations of the Constitution and resulting governmental actions, "We the People" is thought to apply to special groups and not individuals. Consider these two examples:

In 2007, the Canadian Islamic Congress filed charges with various government entities accusing the country's best-known magazine, Maclean's, and contributor Mark Steyn of publishing 18 "Islamophobic" articles between January 2005 and July 2007.

Canada, like most members in good standing of the enlightened international law community, strictly prohibits, monitors, and punishes "hate speech" in order to protect politically acceptable minorities. Steyn, a Canadian citizen who lives in Vermont, is a keen political observer who assails hypocrisy with the witty cleverness of a latter-day Mark Twain or Will Rogers. His Maclean's essay - "The Future Belongs to Islam" - skewered political Islam and feckless, politically correct Western liberals for their use of speech codes and minority-rights legislation as a way to silence critics of honor killings, terror sponsorship and support, and other forms of sharia-inspired violence.

The Ontario Human Rights Commission, the British Columbia Human Rights Tribunal, and the Canadian Human Rights Commission all forced Steyn and his publisher to defend themselves at considerable cost and effort. Even though they won, the Canadian Broadcast Corp.'s Neil Macdonald explained why the episode and others refute Ginsburg's advice to the Egyptians:

"Canada currently has a federal government that tries to control almost every syllable spoken publicly by its bureaucrats and every bit of information disseminated to the public. Americans, who insist on scrutinizing politicians' medical records and tax returns, simply would not stand for such secrecy."

Precisely. The antiquated U.S. "charter of negative liberties" and its freedom of speech better serve "We the People" than the "commissions" (and "czars") of big government.

Ten days after Ginsburg's interview, another hate-speech case further weakened her argument. Hamza Kashgari, a Saudi citizen en route to New Zealand, was detained in Malaysia on orders of the International Police Organization. Interpol coordinates the efforts of police forces from 190 member countries to "make the world a safer place . . . within the limits of existing laws in different countries and in the spirit of the Universal Declaration of Human Rights." But here Interpol fell victim to the law of unintended consequences.

Kashgari, a Saudi author, blogged ideas about the Prophet Muhammad that the Saudis deem to be blasphemous. The Saudis then secured a fatwa calling for Kashgari's execution and turned to Interpol, guarantor of international laws condemning "hate speech," to aid in his capture. Interpol's duties to international agreements on hate speech forced it to act against human rights.

For the last 225 years, the "charter of negative liberties" that is the U.S. Constitution has produced the freest, most prosperous people in human history by limiting the writ of government and enshrining individual rights of property, speech, association, religion, and the press. Egyptians and anyone else seeking to "pursue happiness" should not be dissuaded from embracing it.