Is Constitution's influence waning?

Building a nation? Justice Ginsburg suggests looking to South Africa


This is a rush transcript from "The Five," February 7, 2012. This copy may not be in its final form and may be updated.

GREG GUTFELD, CO-HOST: So, Supreme Court Justice Ruth Ginsburg was in Cairo recently where she threw our Constitution under the camel. As for what Egypt should adopt as a new charter, she said this.


RUTH BADER GINSBURG, SUPREME COURT JUSTICE: 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, had independent judiciary. It is, I think, a great piece of work that was done.


GUTFELD: We should look to South Africa? My liver is in better shape than South Africa.

Worse, this is from a woman who is a guardian of the American Constitution. It's like the Pope saying he never liked the New Testament.

Just days ago, President Obama told NBC's attack gerbil Matt Lauer this.


BARACK OBAMA, PRESIDENT OF THE UNITED STATES: What's frustrated people is that I have not been able to force Congress to implement every aspect of what I said in 2008. Well, you know, it turns out that our Founders designed a system that makes it more difficult to bring about change than I would like sometimes.


GUTFELD: Stupid founders.

How funny is it that just weeks ago, Obama envisioned an America that's built to last. Yet, the one thing that really lasts he wishes wouldn't.

Anyway, if this isn't a prime example of how far libs will go to counter American exceptionalism, what is? After all, if there's one document that defines the American system, it's probably the Constitution, not the lyrics to "Imagine." Although John and Yoko, unlike the Constitution, aren't as old or terse, which is how the New York Times described the Constitution. Yet, yesterday, the paper said its influence is waning, unlike The Times, of course. Anyway, their point: America is nothing special. In just three years, exceptionalism has become as quaint as granny's ribbon candy and just as hard.

If only our Constitution could be witty as Betty White, as bendy as a silly straw, or as cozy as a Snuggie. Instead, it's just too mean and rigid. Maybe Zimbabwe could come up with something better.

Bob, in the break, you were telling me how much you looked forward to this monologue and that you wanted to jump right in and tell me what a great job it was.

BOBO BECKEL, CO-HOST: I'm not -- I'm not participating in this part of this. Ruth Bader Ginsburg has done more for women as a jurist in this country than any other single jurists in history.

GUTFELD: She's the most left-wing jurist ever, correct?

BECKEL: Can I finish?

GUTFELD: Yes, please.

BECKEL: I'm finished.


GUTFELD: Don't be a baby. I pretend to be interested in polling when you are talking.

BECKEL: That's a little different. You can interpret polling, you can interpret somebody's motives for something --

ANDREA TANTAROS, CO-HOST: You don't need to interpret this. You don't interpret this, Bob. This speaks for itself. Liberals have always had contempt for the Constitution, whether it's mandating we buy insurance or whether this contraception issue. That's true.


BECKEL: We have contempt for the Constitution. That's right. We all have. Go ahead.

TANTAROS: Well, Obama just --

BECKEL: You're right, you're right.

TANTAROS: -- he always whines about the separation of church and state.

ERIC BOLLING, CO-HOST: The point here, that's the reason for the document, is to protect against people like that man who just said, you know, I get a little frustrated when I can't force the Congress to do what exactly I want them to do. That's why the document is there.

DANA PERINO, CO-HOST: OK. Let me just defend the Supreme Court as a body for a second, because one of the things we've been arguing on this contraception issue is that if it were to go to Supreme Court, it would probably lose based on the precedent of the Supreme Court's own making, because just three months ago, in a vote of 9-0, they pushed back on the administration when it came to religious organization.

So, where I might not agree with her on every issue, I don't think it's necessarily contempt. I think it's a different interpretation. And that's why this election is important, because if you look at the makeup of the court and age of some of the justices, whoever is the president in the next four to eight years will have a very strong and lasting impact on the Supreme Court because their nominees will be younger, they'll be healthier and they live for a lot longer.

And then all of our children -- well, I don't have children. By any of the relatives will be living under an Obama or a Romney, Gingrich, Paul or Santorum court for the next generation.

GUTFELD: You know, The New York Times coincidentally published an article yesterday about this very same topic, about I guess the outdated-ness or the irrelevance of the Constitution. I want to throw up a quote up here and read it really quickly if I can.

"The United States Constitution is terse and old." Unlike The Times. "And it guarantees relatively few rights, the commitment of some member of the Supreme Court interpreting" blah, blah, blah, blah, blah, blah, blah. At the end of this quote, they say, "The Constitution's waning influence may be part of a general decline in American power and prestige."

That's got to bother you, Bob, a little.

BECKEL: That does bother me. I think it's bad interpretation, just all liberals don't like the Constitution is a bad interpretation.


BECKEL: But we understand where the right comes from on this and accept it. But on this one, where it did say, the meat of this story, though, is an important one. It was George Washington who would have not been very comfortable with the Tea Party.

GUTFELD: Wait, that's a different story.

BECKEL: Oh, it's a different story?


BECKEL: Oh, I'm sorry. Then I don't want to talk about it anymore.

GUTFELD: I almost tricked you, though.

South Africa constitution, not bad, right? Better than ours?

TANTAROS: Yes, I'll book a ticket for tomorrow.


PERINO: I'm not so sure what --


PERINO: -- women and right to free speech and press and religion is --


PERINO: I think that's a great place to start.

GUTFELD: They also lauded Canada, too. They said Canada was better.


BECKEL: You take -- I just want to you say one thing about this, if you take a predominantly Muslim country in Africa and you would ask what would be -- and the type of government they're going to have in Egypt, who would be the best current constitution, it would be South African one. But that would take a long intelligence conversation to have, and that's something we're not going to have.

GUTFELD: Because it was created by liberals, right?

BECKEL: No, because Ginsburg said the contemporary South African constitution would protects first and foremost human rights, which is primarily, incredibly important part of the Egyptian situation. It was not as much when we founded and we did our Constitution. That's what she was talking about.

GUTFELD: OK. Fair enough.

I want to go quickly to the Time magazine on George Washington. I want to throw up a quote here, it's what Bob was getting at.

The writer Joseph Ellis claims that "George Washington had no patience in his own time of the states' right interpretation of the Constitution and would have found conservative agenda of the modern Republican Party and its Tea Party allies as a repudiation of all he stood for."

Andrea, isn't it great when you can actually say how a dead person thinks?

TANTAROS: Isn't it amazing you can read his mind?


TANTAROS: First of all, George Washington was a federalist. To say that he would be supportive of Obamacare is pure fantasy.

And when you look at this author, you'd have to be doing massive amount of LSD to make the leap that he made. But if you look at his past he said he served in Vietnam and he gave speeches saying he served in Vietnam.

He never served in Vietnam.

Then he went on to write a book claiming that he suffered the same way that George Washington did because of the false claims that he had made.

I'm sorry. This guy is a narcissistic -- fill in blank.

BECKEL: George Washington was a federalist, true. But he wanted to try to bring as many states under one document. And the Tea Party interpretation today is very much states rights oriented. And that is what I think he's referring to. And the Tea Party is out there, they got voted and they should go back to that.

TANTAROS: He did that after the Articles of Confederation because he wanted to strengthen the United States in certain areas. But not bailout and overreach and Obamacare and define the Constitution.

BECKEL: I see. I see. Or guns with -- never mind.

GUTFELD: I know where you're going with that. You'd be wrong, Bob.

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