Santorum: Supreme Court justice "prefers" South African Constitution

A political rally drew Republican presidential candidate Rick Santorum to First Redeemer Church in Forsyth County, not Sunday services.

So instead of teaching the Bible on Feb. 19, he preached on the U.S. Constitution and what he thinks is an effort by liberals to push it aside.

Santorum’s example was U.S. Supreme Court Justice Ruth Bader Ginsburg, who is widely considered among the most liberal justices. He asked his audience of 3,000 whether they heard what she said the other day, and they erupted into boos and guffaws.

"So she prefers the South African Constitution over the United States Constitution. A Supreme Court justice says we should be recommending to the world a South African view," Santorum told them.

More boos.

Did she really say that?

PolitiFact Florida wrote about a similar accusation by that state’s U.S. Sen. Marco Rubio, a Republican. He said Ginsburg suggested that some U.S. cases will be decided based on South African law.

PolitiFact Florida found that Rubio was referring to a recent interview she gave on Egyptian television in which she mentioned the South African Constitution. Our Florida counterparts watched it and found that her point didn’t relate to decisions about U.S. cases at all. Rubio earned a False.

Santorum’s claim is somewhat different. He accused Ginsburg of saying that she "prefers" the South African Constitution. We reviewed her statement to see whether Santorum was right.

We found she said no such thing.

First, some context.

After a popular uprising and the ouster of President Hosni Mubarak, Egypt is in the midst of writing a new constitution. Ginsburg went to Egypt in January to meet with Egyptian judges and legal experts, and while there gave an interview to Al Hayat TV.

Much of the interview, which lasted about 15 minutes, focused on how Ginsburg would advise Egyptians to write their own constitution.

Ginsburg’s lengthy, nuanced responses repeatedly praised the values, concepts and language of the U.S. Constitution and called the people who wrote it "some of the most brilliant minds of the day "

Ginsburg warned that a constitution means "nothing unless the people are yearning for liberty and freedom." She emphasized the importance of the U.S. Constitution’s First Amendment and of the separation of powers between Congress, the president and the judiciary that it created.  

Ginsburg also pointed out that a long time had passed between the passage of the U.S. Constitution and Egypt’s current efforts.

"I can’t speak about what the Egyptian experience should be, because I’m operating under a rather old constitution," Ginsburg said early in the interview. "The United States in comparison to Egypt is a very new nation, and yet we have the oldest written constitution still enforced in the world. And it’s a constitution that starts out with three wonderful words: ‘We the people.’ "

South Africa came up when Al Hayat asked whether Egypt should incorporate parts of other countries’ constitutions in its draft constitution.

"Would your honor’s advice be that a society like ours, with what we call -- what we like to call  -- a transition to the second republic, would your honor’s advice be to get part or use other countries’ constitutions?  

"Maybe the United States or other countries as a model? Or [that] we come up with our own methods and our own draft?" the interviewer asked.

Ginsburg replied:
   
"You should certainly be aided by all the constitution writing that has gone on since the end of World War II. I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I 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 [and] had an independent judiciary. It really is, I think, a great piece of work that was done.

"Much more recently than the U.S. Constitution is Canada, [which] has a charter of rights and freedoms [and] dates from 1982. You would almost certainly look at the European Convention on Human Rights. … I'm a very strong believer in listening and learning from others.''

At no point during the interview did Ginsburg say that she prefers the South African Constitution to the U.S. one. Her point was that it’s better for Egypt to base its constitution on more recent ones written after Word War II.  

Santorum claimed that Ginsburg said she "prefers the South African Constitution over the United States Constitution." She never said that she did.

What Ginsburg did do was give a nuanced opinion of what rights and concepts a good constitution should embody.

Although Ginsburg said that Egypt should draw from newer constitutions, she made a concerted effort to praise key concepts of the U.S. Constitution, such as an independent judiciary and the ideas embodied by the words "We the people."   

Santorum’s take on Ginsburg’s comments twisted a handful of words to mean something that they did not. He earns a False.

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