OXFORD — U.S. Supreme Court Justice Ruth Bader Ginsburg stirred the pot, at least a small pot, with a recent observation. On a Christian TV network in Egypt, where she was visiting in support of that nation’s move toward democracy, she was asked to name an existing document that would make a good basic law. “I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012,” Justice Ginsburg said. “I might look at the Constitution of South Africa.”
In context, of course, she had nothing bad to say about the U.S. Constitution (except that no women participated in writing it), but that didn’t prevent some from calling her anti-American, or worse.
All she was saying is that South Africa’s operational document is 16 years old, compared to America’s, which is 213 years old, and might speak with more clarity toward modern times. (After all, the U.S. Constitution gives Congress the power “to grant letters of marque and reprisal,” which doesn’t come up very often and somehow South Africa’s constitution doesn’t even mention.)
That being said, what about Mississippi’s constitution?
We have one. All states do. No two are exactly alike. Ours was adopted in 1890.
Through a lot of the 1970s and 1980s, there was chatter about drafting a new constitution. Maybe it had something to do with the document’s centennial approaching. I don’t remember. But the talk subsided, and no one mentions it much. I dare say not one of the 174 members of the Legislature has read it. It’s not taught in high schools or colleges. So far as I can tell, it’s not even mentioned in law schools.
Section 124 did get a smidgen of prominence this year.
It’s not well-drafted, but it says a governor shall not consider granting a pardon until “the applicant therefor shall have published for 30 days” in some newspaper in the county where the crime occurred a petition saying why the pardon should be granted.
Clearly, those words don’t say a governor is required to explain anything or give any reasons — and so Haley Barbour broke no law by issuing more than 200 pardons, commutations and early releases. Too, it would appear that a governor would be free to grant pardons whether people “petitioned” for them or not. A literal reading indicates only felons seeking pardons, meaning making some type of application, would need to list a reason or reasons in a newspaper. If a pardon comes out of the blue, as some may have done, how could a person have been expected to place an ad?
Another point, which for now is obscure, is that the constitution specifies “newspaper.” In 1890, there was no radio or television and certainly no Internet. Today, there are newspapers still printed in the vast majority of Mississippi’s 82 counties, but what about 50 or 100 years from now. If there are no “newspapers,” does that mean no one can be pardoned?
The U.S. Constitution is composed of seven articles divided into a total of about 30 sections, plus the Bill of Rights and other amendments. Mississippi’s constitution is composed of 15 articles divided into 289 sections, counting the imminent domain and voter ID provisions adopted last fall.
It is not nearly as easy to study or follow as the U.S. Constitution because it is not nearly as well-ordered.
That’s not a criticism; it’s a fact. In a nice touch, Mississippi’s basic set of laws pretty much starts out with an enumeration of citizens’ rights — about two dozen of them.
Then it’s not long before things get murky. Section 47, for example, says no member of the Legislature may receive a fee or reward related to any pending legislative matter. (I have a sneaking feeling that may have been violated a time or two.) And it’s never surprising — because lawmakers, after all, are the people who make law — that “immunity of members” provisions such as Section 48 were included. From 15 days before a session until 15 days after a session, legislators cannot be arrested in most situations, apparently including speeding tickets.
The major problem of the Mississippi Constitution, if there is one, is that instead of sticking with basic, structural and operational matters, there are many provisions that deal with, well, minutia — perhaps important in 1890, but not so much today.
Justice Ginsburg probably could have chosen her words better. If Mississippians were to write a constitution today, we’d use different words, too. There’s no push to do so, however, because the document is so rarely seen, so rarely used.
• Charlie Mitchell is assistant dean at the University of Mississippi School of Journalism. Contact him at cmitchell43@yahoo.com.
