Grading PolitiFact (Georgia): Rick Santorum and Ruth Bader Ginsburg's constitutional preferences

Sometimes I lead with an epigraph from PolitiFact's statement of principles.  It's hard to choose one in this case, since PolitiFact Georgia may have violated all of them.


The issue:

(clipped from PolitiFact.com)

The fact checkers:

Willoughby Mariano: writer, researcher
Jim Denery: editor
Jim Tharpe: editor


Analysis:

PolitiFact Georgia notably neglects the real context of Rick Santorum's speech, substituting in its stead an economical and prejudicial summary:

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 spoke for over an hour.  The PolitiFact summary barely hints at the content of his speech.


Comments referencing Justice Ginsburg start at about 25:00

PolitiFact:

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.

PolitiFact's reporting is mostly inaccurate.  It's true that the audience reacted to the statement about Ginsburg's statement--before its content was described--with a smattering of boos, changing to laughter when Santurm said "Well I guess you did hear that."  But Ginsburg wasn't Santorum's example of the left trying to push the Constitution aside.  Rather, it was his example of the left preferring a constitution where rights have a different foundation than in the U.S. system of government.  Santorum previously spoke at some length about the foundation for rights laid out in the Declaration of Independence.

PolitiFact:

"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?

Are we going to try to answer the question without putting Santorum's comments in proper context?

PolitiFact:

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.

Context is a good thing.  But why all the focus on the context of Ginsburg's interview statements in contrast to a one-sentence distillation of Santorum's remarks?

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.

All true, though I'm not sure what business an objective reporter has calling Ginsburg's statements nuanced (when does Politifact drop the pretext of objectivity?).  But what did Ginsburg say about basic rights other than mentioning the importance of the First Amendment?

PolitiFact (bold emphasis added):

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.''

How is one supposed to escape the conclusion that Ginsburg would prefer the South African constitution to the U.S. Constitution as a model for a contemporary effort to draft a constitution?    Ginsburg very clearly expressed a preference in the above.  The remaining question is whether Santorum's use of her statement adequately respects the context.

I guess there's still the question of this:

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 [sic].

What a load of manure.  As noted above, Ginsburg very clearly preferred the South African Constitution over the U.S. Constitution as a contemporary model for Egypt.

As for Ginsburg's supposed point, Ginsburg did recommend using as models constitutions more recent than World War II.  The specified date range excludes the U.S. Constitution.  Ginsburg mentions the constitution of South Africa by name.  That's a preference.

From this point, PolitiFact Georgia displays no concern over whether Santorum's remarks respected the context of Ginsburg's interview statements.  That's unsurprising given PolitiFact's disregard for the context of Santorum's speech as well as for the plain text of Ginbsurg's interview.


The grades:

Willoughby Mariano:  F
Jim Denery:  F
Jim Tharpe:  F


Afters:
PolitiFact provides quotations of Ginsburg sufficient to link her comments about the South African constitution to the foundation for human rights.  Santorum's point was that Ginsburg offered the state as the source of human rights rather than a creator.

Here's the preamble:

We, the people of South Africa,

Recognise the injustices of our past;

Honour those who suffered for justice and freedom in our land;

Respect those who have worked to build and develop our country; and

Believe that South Africa belongs to all who live in it, united in our diversity.

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to ­

• Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
• Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
• Improve the quality of life of all citizens and free the potential of each person; and
• Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

May God protect our people.

Despite a plea for divine protection, the preamble provides no clear evidence that South Africa bases its recognition of human rights on a creator.

Chapter 1 includes the following:

The Republic of South Africa is one, sovereign, democratic state founded on the following values:

1. Human dignity, the achievement of equality and the advancement of human rights and freedoms.
2. Non-racialism and non-sexism.
3. Supremacy of the constitution and the rule of law.
4. Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.

The next section proclaims the constitution as the highest law of the land.  Still we find no indication of a foundation for human rights above the authority of the constitution.

The South African Bill of Rights is a substantial document, yet leaves unclear the source of human rights.  Aside from one reference to "inherent" human dignity, human rights appear to derive from the law itself.

It's simply wrong and unfair to rate Santorum "False" on his claim.  There's a substantial amount of truth to it.


3/1/2012:  Added "as a model" to the following sentence to assist clarity:  "How is one supposed to escape the conclusion that Ginsburg would prefer the South African constitution to the U.S. Constitution as a model for a contemporary effort to draft a constitution?"