On Tuesday, Megyn Kelly and I had a shoot-out over liberal activist Supreme Court Justice Ruth Bader Ginsburg.

Ms. Megyn believes Judge Ginsburg is responsible, that she tries to base her decisions on the Constitution. I do not believe that.

The issue is important because Elena Kagan, President Obama's new Supreme Court nominee, is liberal as well. But no one knows whether Dean Kagan is an activist or not.

To protect you and your family, Supreme Court justices should be trying to uphold the original Constitution, not an evolving one, and that's my problem with Judge Ginsburg.

(BEGIN VIDEO CLIP)

BILL O'REILLY: I don't think Ruth Bader Ginsburg gives a whit about the Constitution. Now, you covered the court.

MEGYN KELLY, "AMERICA LIVE" HOST: Oh, I don't believe that at all.

O'REILLY: I don't think she cares a wit about it.

KELLY: Bill.

O'REILLY: As written.

KELLY: That's so unfair.

O'REILLY: As written?

KELLY: Yes. You are being really unfair.

O'REILLY: I don't think so.

KELLY: Don't attack the justices.

O'REILLY: I can prove it.

KELLY: No, you can't. You don't know what you're talking about on this. Come on.

O'REILLY: You're crazy. I can prove it.

KELLY: Don't assail her credentials and her commitment to the Constitution just because you disagree with the way she interprets it, OK? She may not be the kind of jurist you would like, but that doesn't mean she doesn't honor the Constitution as she sees fit.

O'REILLY: Read — if you read Ruth Bader Ginsburg's decisions, it is always based on what Ruth Bader Ginsburg feels is best for the country.

(END VIDEO CLIP)

So let me back my opinion up. In 2007, Justice Ginsburg dissented from banning partial-birth abortion, which the Supreme Court did outlaw. In her dissent, Ginsburg objected to a fetus being described as an unborn child.

Well, if it isn't an unborn child, what exactly is it, judge? And what gives Ginsburg the right to define a fetus anyway? Is she God?

She's entitled to her opinion, but certainly with human DNA present at conception, the unborn child description is scientifically accurate.

So it's clear that Judge Ginsburg supports the gruesome partial-birth abortion procedure because she doesn't feel a fetus has any rights. Where is that in the Constitution?

No. 2: You may remember that in 2003, a group of firefighters in New Haven, Connecticut, were denied promotions even though they qualified. Less qualified African-Americans were given preference. The case, Ricci v. DeStefano, was overturned by the court 5 to 4. So the firefighters received their promotions.

Judge Ginsburg objected to the decision, saying that New Haven had practiced "undisguised discrimination" in the past. Therefore, promoting minorities should supersede test results.

You will not find that anywhere in the Constitution. That is a political opinion.

One more: In both 2009 and 2005, Judge Ginsburg gave speeches saying that the Supreme Court should consider foreign law when making decisions in the U.S.:

"Why shouldn't we look to the wisdom of a judge from abroad? We are not so wise that we have nothing to learn from other democratic legal systems, newer to judicial review for constitutionality."

Now, are you going to sit there and tell me that Thomas Jefferson and James Madison wanted the U.S. Supreme Court to look at Portugal for guidance? Are you going to tell me that?

"Talking Points" believes Judge Ruth Bader Ginsburg is an ideologue, and we hope for the sake of the nation that Elena Kagan — and Sonia Sotomayor for that matter — will not go anywhere near Ginsburg's activism.

And that's "The Memo."

Pinheads & Patriots

Rachael Ray is doing a good thing. She traveled to Washington this week to tell the powers that be to put healthy foods in the public schools, not junk. For that, Ms. Ray is a patriot.

On the pinhead front, a viewer warning: some disturbing video.

Unfortunately, Miley Cyrus, when she was 16, did a little dance number with a 44-year-old man.

Click here to watch Miley's risqué dancing.

I think most of us would agree everyone involved with that, including Ms. Cyrus' parents, are pinheads.

You can catch Bill O'Reilly's "Talking Points Memo" and "Pinheads & Patriots" weeknights at 8 and 11 p.m. ET on the FOX News Channel and any time on foxnews.com/oreilly. Send your comments to: oreilly@foxnews.com.