I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” The speaker was Associate Justice Ruth Bader Ginsburg of the United States Supreme Court. These, therefore, were astonishing words.

The authority over American law enjoyed by Justice Ginsburg and her colleagues on the Court owes solely to the existence of the U.S. Constitution, complemented by the high court’s proclamation that it has the last word on how that Constitution is to be construed. That latter power grab traces its roots back to Chief Justice John Marshall’s legendary 1803 opinion in Marbury v. Madison. Marshall “emphatically” declared it “the duty of the Judicial Department to say what the law is.” Despite naysayers from Jefferson to Lincoln, who thought that judicial supremacy would eviscerate popular sovereignty, Marshall’s assertion paved the way for the modern Court to claim even more boldly, in Cooper v. Aaron (1959) for instance, that judicial control over the Constitution’s meaning is a “permanent and indispensable feature of our constitutional system.”

In short, were there no Constitution, there would be precious little interest in Justice Ginsburg’s views. Yet, when she looks at this venerable source of her power—ratified in 1788 and, thus, as she explained, “the oldest written constitution still in force in the world”—she sees obsolescence. In its place, the Court’s senior progressive ideologue advised the assemblage of university students whom she was addressing to “look at the constitution of South Africa. That was a deliberate attempt