About that South African Constitution

 

You’ll recall the advice from Justice Ginsberg: 

“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. “

Well, let’s look at that Constitution’s Bill of Rights. 

“Everyone is equal before the law and has the right to equal protection and benefit of the law.”

Straightforward,  adamantine assertions of bedrock truths. Can’t go wrong. The very next line:

“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.”

So much for equality; that was fast. Subsection 3:

“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. “

Doesn’t this seem to contradict the previous notion? Don’t worry; here’s subsection 5.

“Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

The judges – Olympian-minded magestrates, all – would never say it was fair unless it really was, of course. So don’t worry.  Let’s move on to the Environment section of the Bill of Rights. Edited for clarity:

“Everyone has the right  . . .  to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that  . . .  secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.”

Again, it’s a model of clarity and precision; can’t see how it would result in anything but lots and lots of justifiable social development. If there are any head-scratching moments where these finely-crafted laws don’t spell out the obvious answer, there are other sources one can use:

  1. When interpreting the Bill of Rights, a court, tribunal or forum ­
    1. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;
    2. must consider international law; and
    3. may consider foreign law. 

It goes on and on, spelling out this and that in minute detail, but they managed to cover everything. This exemplary document was adopted in 1996. 

It’s only had 16 amendments so far.

There are 23 comments.

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  1. Profile Photo Inactive
    @RawPrawn
    Leporello: Am I the only one who thinks Ginsberg’s comment is justification for impeachment?  If a justice does not respect the Constitution, how can he fulfill his oath to uphold it and interpret it impartially?  Shouldn’t at least one Republican senator on the Judiciary Committee propose as much, if for no other reason than to expose just how low a regard liberals have for our founding texts? · 3 hours ago

    You’re not the only one.  Realistically, many of her decisions on the Court have done more damage to the Constitution than running her mouth in Egypt but it goes beyond a question of interpretation.

    I wonder if there is an internal disciplinary procedure within the party of greed, indolence, and treason through which she can be censured for letting the cat out of the bag.

    • #1
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    @MiffedWhiteMale

    To be fair, we amended our Constitution 12 times in that same amount of time after it was ratified.  Although to take back the fairness, 10 of those were our Bill of Rights, which was apparently included in the base SA Constitution.

    • #2
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    @GarrettPetersen

    16 amendments!  Ha!  If the constitution is so easily changeable, why even have one?

    • #3
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    @MothershipGreg

    My mind is boggling at

    Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

    Who is to decide if discrimination is fair or unfair, and are these terms defined? Is that spelled out somewhere else in this august document?

    • #4
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    @rr

    Psssh …Ginsberg…. who appointed that loon anyway….

    • #5
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    @Schwaibold

    I can’t get past the preamble:

    “We therefore… adopt this Constitution… so as to —heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights.”

    So, what if, to heal divisions and establish social justice, some people’s human rights must be violated? Oh well, you gotta break a few eggs…

    • #6
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    @JamesGawron

    James,

    The flaw is that the South Africans who wrote this don’t have a clue what RIGHT is.  I’m not going to get into Kant here but Kant precisely defined RIGHT.  The American Constitution follows the precise definition well and adds it’s own wonderful feel for practical checks and balances.  With the purest fundementals followed and a practical procedure that works, the American Constitution has endured every test.  Even the test of a fool like Ruth Bader Ginsburg on the Court.

    The South African Constitution, at least the part you are quoting, is vague and all over the place.  We are experiencing the results of an ideological environmental movement which oversold global warming.  Now that the truth is coming out, imagine if some bizarre constitutional obsession makes ending the false policy impossible.

    Their protection against discrimination adds nothing to our vision but again freezes in place the quota based social engineering mentality.  Equality of opportunity is nothing and equality of results is everything.  This is a formula for disaster.  We are finally recognizing this and realize that it has severely damaged our economy and destroyed our educational system.

    Judge Goldstone finally recanted his folly.  Ruth???

    Regards,

    Jim

    • #7
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    @Schwaibold

    During Obama’s fourth term, the new U.S. Constitution, adopted by Executive Order, will be much more to Ginsberg’s liking:

    “We adopt this Constitution so as to heal the planet, stop the rise of the oceans, establish social justice, and spread the wealth around”

    • #8
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    @MarkWilson
    James Lileks:

    “Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.”

    Ah, but James, this is perfectly Randian!  Unfair discrimination is unfair, while discrimination deemed to be fair is fair.  Who could argue with such airtight legal reasoning?  “A is A” and all that.

    • #9
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    @Percival

    So, the chicken coop that you have built on your property is contested by your downwind neighbor, on the basis that it harms the environment (and if you have ever been downwind of a chicken coop in the summer, you know that it will).  This would be an open-and-shut case in favor of your neighbor and the environment.  BUT, it turns out that you are a member of a previously downtrodden and persecuted group, and your neighbor is a member of the Hated Other, which moves the possession arrow back to your side.  BUT your neighbor only moved into South Africa three weeks ago, and never trod down on or persecuted anybody in the vicinity…

    The reason Justice Ginsburg likes this constitution so much is that it is basically a Full Employment for Judges Act in disguise.

    • #10
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    @docmolloy

    South African exceptionalism..such as it is. 

    • #11
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    @DaveCarter

    The worst part is the realization that Ginsberg and other like-minded black-robed Olympians are already applying the South African model in their rulings in American courts.   This is where the concept of judicial supremacy becomes downright suicidal.  

    • #12
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    @JamesOfEngland

    One of my favorite insights into comparative con law came from a professor of mine who wrote much of the Papua New Guinean constitution. Apparently when he wrote it, there was one guy who everyone (clearly including the prof.) thought was awesome, so they gave him ridiculous amounts of power in order to avoid too much squabbling over the remaining power. Then he died, and was replaced by a guy who was less impressive, and the government rapidly declined. My professor was absolutely shocked by the outrages that people blamed on his constitution, and felt that they came down entirely to unforeseeable misinterpretation. Better to have something that’s stood the test of time.

    A less happy example of a new constitution is Iraq’s, which is set up on the Belgian model. As a result, the Iraqis, like the Belgians, are unable to have proper democratic politics and ethnic strife is exacerbated. Had the US been willing to give them the American system, like the Japanese got (with a modified second Amendment), the country would be in far better shape. Too bad there’s so many Ginsburgs about.

    • #13
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    @StuartCreque

    I don’t why anyone would regard the South African Constitution seriously.  The current President of South Africa doesn’t pay much attention to it.  It probably won’t stay in force for very much longer, if he has his way.

    • #14
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    @

    As long as the South African constitution is thorough and comprehensive enough to cover every possible circumstance of human behavior and place that in its proper place it should work fabulously.

    What could go wrong?

    • #15
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    @
    Raw Prawn

    Leporello: Am I the only one who thinks Ginsberg’s comment is justification for impeachment?  If a justice does not respect the Constitution, how can he fulfill his oath to uphold it and interpret it impartially?  Shouldn’t at least one Republican senator on the Judiciary Committee propose as much, if for no other reason than to expose just how low a regard liberals have for our founding texts? · 3 hours ago

    You’re not the only one.  Realistically, many of her decisions on the Court have done more damage to the Constitution than running her mouth in Egypt but it goes beyond a question of interpretation.

    I wonder if there is an internal disciplinary procedure within the party of greed, indolence, and treason through which she can be censured for letting the cat out of the bag. · 7 hours ago

    Phew!  Thanks, Prawn.  I was feeling lonely…  And I like your question.  Too bad the GOP has never mustered the courage to do anything serious about judges.  I welcomed Gingrich’s proposal on judicial supremacy for this very reason – even though I preferred a different solution than his.  The first step is to propose something.

    • #16
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    @

    While we’re on the topic of foreign constitutions… The Honduran constitution is the size of a book, not a tract.  It has many flaws, and many good points, but one of the interesting things about it is that several clauses are “set in stone” (cannot be amended, ever.)  The main one is the one limiting presidents to just one consecutive term.  And it contains severe penalties for even proposing to change that section.

    Given the regional history of caudillos, it’s understandable the drafters would try to make the Presidential term limits as ironclad as possible.  This constitution, plus the plucky resolve of a few Honduran judges and the majority of the Honduran people, stood up to the world a few years ago and said, “No, we will not have a Chavez-style dictatorship in our country!”

    • #17
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    @

    Am I the only one who thinks Ginsberg’s comment is justification for impeachment?  If a justice does not respect the Constitution, how can he fulfill his oath to uphold it and interpret it impartially?  Shouldn’t at least one Republican senator on the Judiciary Committee propose as much, if for no other reason than to expose just how low a regard liberals have for our founding texts?

    • #18
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    @GusMarvinson

    When Richard Epstein laments the gaps in our own Constitution, whoever is nearest him should point to this example and say, “That’s why.”

    • #19
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    @Foxman
    Garrett Petersen: 16 amendments!  Ha!  If the constitution is so easily changeable, why even have one? · 14 hours ago

    I dunno, ours had ten after four years.

    • #20
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    @
    James Lileks:  It’s only had 16 amendments so far.

    That’s what makes it so great: it’s a living document.

    • #21
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    @

    The thing I hate about the west (and myself) is the persistent self-loathing

    • #22
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    @EricRasmusen

    Be serious, folks. Stupidity is not to be classified as a “high crime and misdemeanor”. To be sure, someone stupid is likely to commit a high crime, but it is that crime you should point to. I’m sure she’s given plenty of examples already.

    • #23

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