Malcolm Rivera
The late Ruth Bader Ginsburg, a liberal icon and the second woman to serve on the Supreme Court, interpreted the US Constitution in a manner that reflected her reverence for it. Ginsburg's interpretation of the Constitution was influenced by her belief that it was meant to govern through the ages and keep pace with an evolving society. She was committed to the separation of church and state and took a distinct approach to the Fourteenth Amendment. Ginsburg's interpretation of the Constitution has been characterised as rational minimalism, building cautiously on precedent rather than pushing it towards a personal vision.
| Characteristics | Values |
|---|---|
| Interpretation of the First Amendment | High degree of separation of church and state |
| Interpretation of the Fourteenth Amendment | Equality and evolving society |
| Interpretation of the Free Speech Clause | Protest |
| View of the Constitution | A living document that should be interpreted in the context of the climate of the era |
| Self-identification | Progressive originalist |
| Approach to interpretation | Rational minimalist |
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What You'll Learn
Separation of church and state
Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court, has been described as one of the greatest protectors of the separation of church and state. She has consistently interpreted the establishment clause of the First Amendment to provide for a high degree of separation of church and state.
Ginsburg's commitment to the separation of church and state is evident in several cases. In Zelman v. Simmons-Harris (2002), she dissented from the majority opinion, which upheld an Ohio school voucher law that provided tuition assistance for religious and nonreligious schools. Ginsburg also dissented in Capitol Square Review and Advisory Board v. Pinette (1995), where the majority reversed a decision denying the Ku Klux Klan a permit to leave an unattended cross on the statehouse square. She wrote, "No human speaker was present to disassociate the religious symbol from the State," highlighting her concern for the government's neutrality in matters of religion.
In American Legion v. American Humanist Association (2019), Ginsburg again demonstrated her commitment to church-state separation. She dissented from the majority's ruling that a Latin cross on public property was constitutionally permissible, arguing that it "elevates Christianity over other faiths, and religion over nonreligion." Ginsburg's interpretation of the First Amendment sought to maintain a clear boundary between church and state, ensuring that religious symbols and practices did not become endorsed or imposed by the government.
Ginsburg's interpretation of the Constitution, particularly the First Amendment, reflected her commitment to secular governance. She recognized the importance of religious liberty but sought to ensure that government policies and decisions did not favour any particular religious group or promote religion over non-religion. Her dissents and written opinions in these cases provide a powerful legacy of her dedication to upholding the separation of church and state.
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Opposition to gender bias
Ruth Bader Ginsburg, the second woman to serve on the Supreme Court, was a steadfast opponent of gender bias throughout her career. She recognised that dismantling patriarchy was necessary not only for women's liberation but for everyone's freedom to thrive regardless of gender.
Ginsburg's push for gender equality was cemented when she joined the Supreme Court in 1993. One of her landmark decisions was writing the majority opinion that struck down the male-only admission policy at the Virginia Military Institute. She also argued six discrimination cases before the Court, winning five of them. One such case was against a law excluding women from jury service. Another was against the practice of giving Social Security survivor benefits to widows but not widowers.
Ginsburg's arguments before the Supreme Court were rooted in her own experience with discrimination. She was denied a professional job in private law practice because of her gender. One of her professors recommended her for a clerkship with Justice Felix Frankfurter, who said he was not ready to hire a female law clerk.
Ginsburg adopted the strategy of using the phrase "gender discrimination" in her arguments instead of "sex discrimination". She explained that this was due to the advice of her secretary at Columbia Law School, who pointed out that the male justices would have different associations with the word "sex".
During her time as director of the ACLU Women's Rights Project, which she co-founded in 1972, Ginsburg represented Charles Moritz, a man who was solely responsible for the care of his elderly mother. He had been denied a caregiving tax deduction because he was unmarried. By representing him, Ginsburg was able to show male judges that sex discrimination hurts both men and women. This case also allowed her to collaborate with her husband Marty, a tax specialist.
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Interpreting the Fourteenth Amendment
Ruth Bader Ginsburg, the second woman to serve on the Supreme Court, has been a steadfast opponent of gender bias throughout her career. She has interpreted the Fourteenth Amendment as prohibiting discrimination on the basis of sex, as well as race and other protected categories. This interpretation has helped establish the foundational law of constitutional equal protection for women.
Ginsburg's interpretation of the Fourteenth Amendment is notable for her recognition that the framers of the amendment wrote broad principles that were meant to evolve with society. She argued that the Constitution was meant to govern through the ages and, therefore, had to be adaptable to the changing needs of the people. This is reflected in her work with the ACLU Women's Rights Project, which she founded in 1972 to establish equal rights for women under the Fourteenth Amendment.
In the 1975 case of Weinberger v. Wiesenfeld, Ginsburg avoided the issue of the Equal Rights Amendment (ERA) ratification by calling for "heightened scrutiny without further labelling." She argued on behalf of a father who was unable to receive survivors' benefits to care for his newborn son because the Social Security regulations provided these benefits only to mothers. The Court sided with Ginsburg, striking down the sex-discriminatory regulations under the Fourteenth Amendment.
Another example of Ginsburg's interpretation of the Fourteenth Amendment is the case of Reed v. Reed, where the Supreme Court held that the Fourteenth Amendment prohibits discrimination on the basis of sex. The case challenged an Idaho law that favoured men over women when appointing administrators of a deceased person's estate. The Supreme Court reversed the Idaho court's decision, finding that the law violated the Equal Protection Clause of the Fourteenth Amendment.
Ginsburg's interpretation of the Fourteenth Amendment has had a significant impact on establishing equal rights for women and ensuring that the Constitution remains adaptable to the evolving needs of society.
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Rational minimalism
Ginsburg's rational minimalism also extends to her interpretation of the Fourteenth Amendment, which she believes includes an equality provision that was meant to govern society as it evolved. She argued that the framers of the Fourteenth Amendment wrote broad principles into the Constitution, expecting it to adapt to an evolving society. Ginsburg's interpretation of the Fourteenth Amendment stands in contrast to that of Justice Scalia, who held that it did not provide heightened protection against sex discrimination.
Ginsburg's rational minimalism is further reflected in her approach to constitutional interpretation, where she emphasised the importance of writing opinions that are accessible to non-lawyers. She believed that the Constitution should be interpreted in a way that is influenced by the climate of the era and kept in tune with the governed people. This interpretation aligns with a school of progressive originalism, which seeks to interpret the Constitution's texts at a higher level of generality while keeping its original meaning. Ginsburg's rational minimalism and progressive originalism influenced her approach to cases involving gender discrimination, civil liberties, and religious freedom.
Ginsburg's rational minimalism stands in contrast to more conservative interpretations of the Constitution, which tend to focus on the spare text and exclude rights not explicitly identified. Her interpretation of the Constitution as a living document that evolves with society has had a significant impact on US law, particularly in areas of gender equality and civil rights. Ginsburg's rational minimalism and commitment to judicial independence have earned her a legacy as a liberal icon and a moderate consensus-builder during her tenure on the Supreme Court.
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Interpreting the Constitution as a progressive originalist
Justice Ruth Bader Ginsburg, the second woman to serve on the Supreme Court, has been described as a "rational minimalist" by legal scholar Cass Sunstein. This characterisation refers to Ginsburg's approach of seeking to build cautiously on precedent rather than pushing the Constitution towards a personal vision. Ginsburg herself has stated that "measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable". Ginsburg's reverence for the Constitution and the Court has been reflected in her commitment to judicial independence and her desire to leave the Court in good shape.
Ginsburg has interpreted the First Amendment to provide for a high degree of separation of church and state. This interpretation is evident in cases such as Zelman v. Simmons-Harris (2002) and Van Orden v. Perry (2005), where she dissented from the majority opinion, upholding the constitutionality of religious displays and tuition assistance for religious schools. Ginsburg's commitment to church-state separation is also demonstrated in her dissent in Capitol Square Review and Advisory Board v. Pinette (1995), where she disagreed with the majority's decision to grant the Ku Klux Klan a permit to display an unattended cross on state property.
Ginsburg's interpretation of the Constitution is influenced by her belief that it should be kept "in tune with the people that are governed". She argues that the Constitution contains broad themes meant to grow with an evolving society. Ginsburg's interpretation aligns with progressive originalism, which seeks to interpret the Constitution's broad promises and ensure they are reflected in reality. This approach is in contrast to conservative originalism, which tends to interpret the text more narrowly and exclude rights not explicitly mentioned. Ginsburg's interpretation of the Fourteenth Amendment, for example, acknowledges the lack of equality provisions for women in 1868 but recognises the framers' intention to govern society as it evolved.
Ginsburg's interpretation of the Constitution is also reflected in her passionate dissents, which often reflected liberal views of the law. For instance, in United States v. Virginia (1996), Ginsburg wrote the majority opinion, allowing women to attend the Virginia Military Institute. In Burwell v. Hobby Lobby (2014), Ginsburg dissented, disagreeing with the Court's decision to allow Hobby Lobby to restrict employees' access to birth control options based on religious beliefs. Ginsburg's interpretation of the law in these cases demonstrates her commitment to gender equality and the separation of church and state.
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Frequently asked questions
Ginsburg interpreted the Fourteenth Amendment as a means to advance gender equality, despite the fact that, in 1868, when the amendment was passed, married women in many states were still subject to legal disabilities. She argued that the framers of the amendment wrote broad principles into the Constitution, expecting it to govern society as it evolved.
Ginsburg interpreted the First Amendment as providing for a high degree of separation of church and state. This interpretation is reflected in cases such as Zelman v. Simmons-Harris (2002) and Van Orden v. Perry (2005).
Ginsburg did not consider herself an originalist. She agreed with the idea that the Constitution should be interpreted at a higher level of generality, with the meaning it had when it was ratified, but she believed that it should be kept in tune with the people that are governed.
