'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A century ago, progressives viewed the U.S. Constitution as fundamentally flawed and a relic of outdated mores.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.