The trailer for “On the Basis of Sex,” a forthcoming movie about Supreme Court Justice Ruth Bader Ginsburg, twists the text of the U.S. Constitution. This move proved rather fitting, as Ginsburg is one of several liberal justices who take a “living Constitution” approach to America’s founding document, reading into the text “rights” that simply aren’t there.
At the trailer’s climax, Ginsburg (Felicity Jones) argues a sex discrimination case before a panel of judges.
“The word ‘woman’ does not appear even once in the U.S. Constitution,” one judge declares.
“Neither does the word freedom, your honor,” Ginsburg quips.
The entire moment is silly, and it merely reflects Hollywood’s inability to understand legalese. Yes, the text of the Constitution does not say “woman” anywhere. Neither does it say “man.” Even so, the Constitution clearly refers to both men and women in the word “person.”
The 18th Amendment, concerning women’s suffrage, does not technically include the word woman. It does state, however, that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
Ginsburg’s quip is the fundamental problem, however. “Woman” does not appear in the Constitution, but “freedom” emphatically does. Both “freedom” and another word that means essentially the same thing — “liberty” — appear throughout the Constitution.
First, there’s the preamble: “We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America” (italics added, capitalization original).
Then there’s the 1st Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (emphasis added).
There’s also the 5th Amendment: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor be deprived of life, liberty, or property, without due process of law…” (emphasis added)
And of course the 14th Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis added).
Does this matter? Not really. Ginsburg’s quip about freedom not appearing in the Constitution is just a cinematic moment. For all I know, the movie later on goes to correct her.
The only reason it’s worth commenting on is that this twisting of the Constitution for cinematic effect mimics Ginsburg’s willingness to twist the Constitution for political effect. The “notorious RBG” holds to the “living Constitution” school — the idea that judges must actually “give meaning” to the document.
In 2012, the notorious RBG made a stunning admission. “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012,” she said, mentioning a preference for the constitution of South Africa.”
Like far too many other Supreme Court justices, Ginsburg believes that the Constitution must be altered — not by amendments the way the founders intended, but by judicial fiat. Good examples of this came in 1973 with Roe v. Wade and 2015 with Obergefell v. Hodges.
Both cases took existing law — the 14th Amendment quoted above — and read into it a right to abortion and a right to same-sex marriage. Not only does the text of the 14th Amendment say nothing about these rights, but those who drafted it would be horrified to see their words twisted in this direction.
Indeed, compared to such a perversion, the claim that “freedom” appears nowhere in the Constitution seems rather innocent.