As we discussed in class whether or not the the U.S. Constitution would work as well if was being proposed today, I thought this was an excellent article based on comments from sitting Supreme Court Justice Ruth Bader Ginsberg on the topic.
Some quotes from her;
(She) lauded the Founding Fathers' "grand general ideas that become more effective over the course of ... more than two sometimes-turbulent centuries," she also said she "would not look to the United States Constitution if I were drafting a constitution in the year 2012,"
Since World War II several other models have emerged that offer more specific and contemporary guarantees of rights and liberties, she said, pointing to South Africa's constitution, which she called a "really great piece of work" for its embrace of basic human rights and guarantee of an independent judiciary. She also noted Canada's charter of rights and freedoms and the European Convention of Human Rights.
Thurgood Marshall traveled to Kenya to draft its bill of rights, which he modeled after the European Convention on Human Rights. Unlike the U.S. Constitution, the Kenyan document guarantees rights to education, health, welfare and a right to work.
I really don't have a whole lot of respect for Ginsburg, and these comments decrease what little respect I do have for her as a Supreme Court Justice. I find her comments, as you quoted, very questionable and difficult to wrap my head around.
ReplyDeleteMy reasons for this are because Ginsburg recommends South Africa's constitution as a basis for erecting a constitutional government (what appears to be) solely off of the alleged "rights" it guarantees. So, she may like the rights it maintains, but what irks me terribly is that she seems to take absolutely NO regard of its contents in the form of government it establishes and its more intricate details like the amendment process, whether it be a supreme legislature or a limited legislature, etc.
For example, the national legislature of the South African government, a parliament, is hardly limited in its scope of powers at all. Look at all the areas it is given authority to legislate concerning by consulting the following link:
http://www.info.gov.za/documents/constitution/1996/96conssec4.htm
And that's just part of their authority. The SA constitution gives the national legislature the "power to pass legislation with regard to any matter, including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5; and..."
"To pass legislation with regard to ANY matter." This seems very reminiscent of the the 1766 British Declaratory Act, which stated:
"That the said colonies and plantations in America have been, are, and of right ought to be, subordinate unto, and dependent upon the imperial crown and parliament of Great Britain; and that the King's majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in parliament assembled, had, hash, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever."
"To make laws and statutes...to bind the colonies and people of America...in all cases whatsoever."
http://www.ushistory.org/declaration/related/declaratory.htm
America whigs and radicals hated this act, of course, which outlined the supreme authority of Parliament to make whatever laws it saw fit, including nulling Magna Carta and the Bill of Rights of 1688, and its one of the reasons why Americans devised a national government with very limited, strictly enumerated powers. If Ginsburg is indicating this would be a good constitution for any country, even America, she must not know her American history very well. But as a Supreme Court Justice, I'll give her the benefit of the doubt.
Now compare these enumerated powers of the SA national legislature with that of the US Congress found in Article 1 Section 8. There's a huge difference between the two. In SA, it seems federalism means the national legislature has all the power and authority, while the local legislatures have some authority; the US is completely different, with the federal legislature having little authority except those matters that are truly national concerns, while the states retain most authority. Of course this is how it was designed to be in the US, in theory, but it practice, as of the last century, it has become more like SA, with the federal legislature sucking all the state's authority from them like a ravenous black hole, legislating in areas not granted to them in the Constitution, like education for instance. There's nowhere in Article Section 8 that gives authority to Congress to regulate public education. That's purely a state matter.
Also, the Amendment process of the SA constitution too is given to the national legislature, instead of basing such authority on the sovereign people via sending such amendments to be ratified by the local legislatures. In essence, this give the national legislature the ability to amend the SA constitution willy-nilly, possibly out of existence or into a completely different governmental system, all based upon the will of a temporary majority, which is one thing the American framers of the US Constitution, especially Madison, wished to avoid, that of tyranny of the majority. This one of the defects of many of the state constitutions, that they were not ratified by the sovereign people but were created by the state legislatures, which meant they could be amended easily or even done away with by one sitting legislature. This why Madison and the framers of the federal Constitution made the amendment process so difficult, so that changes could be made, but not imprudently and irrationally quick by some tyrannous majority.
ReplyDeleteThese are just two things out of many other possible imperfections I see in the SA constitution, and I can't get my head around why Ginsburg would think the SA Constitution would be a better model for an up and coming democratic nation. And I haven't even gone into the checks and balances and separation of powers of the US governmental system as compared to a supreme parliamentary system such as South Africa's.
Granted, I do not mean to say that there is nothing admirable about South Africa's constitution. On the contrary, there is much that is admirable and it is a good system, but its only a step toward a better system like America's. I don't laud America's Constitution solely because I'm an American or as a matter of national pride, but because I truly believe it has a better system of checks and balances and separation of powers and it does a better job at maintaining limited government and protecting the private rights of private individuals. South Africa's smacks too much of collectivism for my tastes, as well as of supreme, arbitrary legislative authority.
I really like this quote by Edmund Burke and think it has much truth in it:
"Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their appetites; in proportion as their love of justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters."
South Africa's constitution works for South Africa while America's works great for America. The principles of America's Constitution, checks and balances, separation of powers, limited government, and the equal protection of the rights of individuals (for what the individual doesn't have, the collective community can't have either) (equality before the law) are principles for the whole world, if they will but accept them. But in the meantime, America remains a bastion and refuge of freedom and equality before the law, limited government, and equal protection of individual rights for those yearning for such among the world, even South Africans. I don't know that every nation is capable of mimicking the US Constitution; every nation could, but it depends on their ideals and desire, what they value most, collectivism or individualism.
I think we have a great system when followed equally to all, but that is not the case in America. India still has a Caste system and America still has a Class system. Money rules.
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