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Amy Sherman
By Amy Sherman February 14, 2012

Marco Rubio said a U.S. Supreme Court justice suggested that some U.S. cases will be decided based on South African law

Florida U.S. Sen. Marco Rubio spoke to his fellow Republican brethren at the Conservative Political Action Conference -- the annual gathering of big-name conservatives. In his speech Rubio defended those who believe in the Constitution. Let’s make that crystal clear -- the U.S. Constitution.

"So the majority of Americans are conservatives," Rubio said Feb. 9, 2012. "They believe in things like the Constitution. I know that’s weird to some people but they believe in it. Of course, if you listen to one of our Supreme Court Justices recently she believes that. ...’’

At this point, the audience interrupted Rubio with boos.

"Yeah," Rubio continued. "Let me just say if you are an appellate lawyer, you need to brush up on your South African law because that is how some cases apparently are going to be decided here going forward. Anyway, where was I? Oh yeah -- America."

We wondered what Rubio was talking about; it sounded like he was saying that a Supreme Court justice had suggested that future cases will be decided based on South African law. (We fact-checked whether the majority of Americans are conservatives in a separate report.)

Rubio didn’t name the justice in that part of his speech, but it didn’t take long to find a flurry of media reports about comments U.S. Supreme Court Justice Ruth Bader Ginsburg made on Egyptian TV, in which she mentioned the South African Constitution. But when we listened to her entire interview, we found that her point didn’t relate to decisions about U.S. cases at all.

Rubio spokesman Alex Conant told us in an email that "Ginsburg recently praised the South African constitution, said it was better than ours." He also pointed to this post in Foreign Policy magazine, which reviewed the response of conservative blogs to her comments.

When we contacted Conant again and told him that we thought Rubio’s claim was inaccurate, Conant replied, "I think it was pretty clear that Sen. Rubio was joking." (Watch Rubio's remarks and decide for yourself.)

What Ginsburg said

Once an attorney for the American Civil Liberties Union, Ginsburg was nominated to the Supreme Court in 1993 by President Bill Clinton. She is widely viewed as one of the court’s most liberal justices.

Ginsburg went to Egypt in January 2012 to meet with Egyptian judges and legal experts, and while there gave an interview to Al Hayat TV.

The interviewer asked Ginsburg her advice about whether Egypt should look to other countries’ constitutions as a model.

Ginsberg 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 from listening and learning from others.''

During the 18-minute TV segment, Ginsburg made several other comments -- many positive -- about the U.S. Constitution:

• The Egyptian Constitution "should safeguard basic fundamental human rights, like our First Amendment is the right to speak freely, to publish freely without the government as a censor."

• "One of my favorite provisions in our Constitution is the one that says that government shall not deny to any person the equal protection of the laws."

• The U.S. Constitution includes a separation of powers between Congress, the president and the judiciary, and the judiciary has independence.

•  "We have the oldest written constitution still in force in the world. And it's a constitution that starts out with three wonderful words: ‘We the people."

•  The men who wrote the U.S. Constitution were "some of the most brilliant minds" and "very wise."

Ginsburg also noted that at the time the U.S. Constitution was written in 1787, slavery was legal, and women weren’t part of the Constitutional Convention (though Ginsburg notes that John Adams' wife Abigail urged him to not forget the ladies as he wrote it).

"The genius of the Constitution, I think, is that it had this notion of who composes 'We the People.' It has expanded, expanded over the years. So now it includes people who were left out at the beginning: Native Americans were left out, certainly people held in human bondage, women, people who were newcomers to our shore," she said.

The left and right respond to Ginsburg

Ginsburg’s comments set off fire from the right. Consider these headlines: "Ruth Bader Ginsburg: Anti U.S. Constitution" wrote the Liberally Conservative blog, and from U.S. Rep. Michele Bachmann, R-Minn., posting on RedState, "Our constitution is not irrelevant, Justice Ginsburg." Mathew Staver, founder and chairman of the Liberty Counsel and Dean of Liberty University School of Law, said,  "For a sitting U.S. Supreme Court Justice to speak derisively about the Constitution she is sworn to uphold is distressing, to say the least."

On the left, Media Matters said the right was showing "misplaced outrage" and linked to the blog of Eugene Volokh, a law professor at University of California at Los Angeles. (Volokh told us he considers himself center-right or libertarian-conservative.)

Volokh argued that Ginsburg, who swore an oath to uphold the U.S. Constitution, probably thinks it works well for our country.

"But why should she (or we) think that the 1787 constitutional text, coupled with the 27 amendments that have come in fits and spurts since then, would necessarily work well for a completely different country today? … None of this tells us whether Justice Ginsburg is committed to following the U.S. Constitution in the U.S. Maybe you think she is so committed and maybe you think she isn’t, but you’d have to figure that out from other sources than from the advice she gives to a different country about whether to adopt the constitutional text in a completely different political and legal requirement."

A Boston Globe editorial wrote that there was no outrage when Justice Antonin Scalia told a congressional panel in October 2011:

"The bill of rights of the former ‘evil empire,' the Union of Soviet Socialist Republics, was much better than ours. I mean it literally: It was much better. We guarantee freedom of speech and of the press. Big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests, and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!''

The Globe explained: "Why no outrage? Because Scalia went on to make the point that the Soviet constitution was nothing but ‘words on paper,' a fig leaf for tyranny. By contrast, America's constitutional system - with its careful separation of powers and government institutions checking and balancing each other - has proved a bulwark against tyranny. Only someone brazenly yanking Scalia's words out of context could have accused him of revering the Kremlin's Potemkin constitution more than the one drafted in Philadelphia in 1787."

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Our ruling

Rubio mentioned a female Supreme Court Judge and then concluded, "if you are an appellate lawyer you need to brush up on your South African law because that is how some cases apparently are going to be decided here going forward." Rubio was implying that Justice Ginsburg favored South African law rather than the U.S. Constitution, and that some cases in the U.S. might be decided based on South African law.

Rubio’s spokesman says he was joking, but even a joke can leave some viewers with a false impression. Rubio could have poked fun at Ginsburg’s comments without distorting them.

There is nothing in Ginsburg’s interview in which she suggested that any legal matter in the U.S. should be decided based on anything from South African law. Ginsburg was giving advice to another country on how to draft a constitution, and she suggested examples written more recently than the U.S. Constitution. She didn’t dis the U.S. Constitution -- she explained that it was written at a time when slavery was legal and women didn’t have equal rights. In fact, Ginsburg also heaped lots of praise on the U.S. Constitution. We rate this claim False.

Our Sources

YouTube, U.S. Sen. Marco Rubio Speech at CPAC, Feb. 9, 2012

YouTube, Al Hayat TV interview with U.S. Supreme Court Justice Ruth Bader Ginsburg, Jan. 30, 2012

U.S. Supreme Court, Biographies of current Justices of the Supreme Court, Accessed Feb. 13, 2012

U.S. Embassy of the United States Egypt, "U.S. Supreme Court Justices Ruth Bader Ginsburg visits Egypt," Jan. 28, 2012

Foreign Policy, "Why does Ruth Bader Ginsburg like the South African constitution so much?," Feb. 6, 2012

New York Times, "We the People Loses Appeal with People Around the World," Feb. 6, 2012

Liberally Conservative, "Ruth Bader Ginsburg: Anti-U.S. Constitution," Feb. 6, 2012

RedState, "Our Constitution is not irrelevant, Justice Ginsburg," Feb. 8, 2012

Liberty Counsel, "Justice Ginsburg calls U.S. Constitution a bad example," Feb. 3, 2012

Media Matters, "Selective (and misplaced) outrage: The right-wing freakout over Justice Ginsburg’s Comments in Egypt," Feb. 9, 2012

The Volokh Conspiracy, "U.S. Justices’ foreign statements about the U.S. Constitution," Feb. 3, 2012

The Boston Globe, "Ganging up on Ginsburg -- way too quickly," Feb. 8, 2012

Interview, Alex Conant, spokesman for Marco Rubio, Feb. 10, 2012

Interview, Eugene Volokh, law professor at UCLA, Feb. 13, 2012

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Marco Rubio said a U.S. Supreme Court justice suggested that some U.S. cases will be decided based on South African law

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