In 2012, Justice Ruth Bader Ginsburg made the impolitic suggestion that “I would not look to the U.S. Constitution, if I were drafting a Constitution in the year 2012,” instead pointing foreign constitution drafters to the constitution the late South African leader Nelson Mandela signed in 1996. Her statement received the predictable response from many conservative voices. One publication called for her to resign.
The truth, however, is that the United States could learn a great deal from South Africa’s constitution. As Ginsburg noted, that constitution was drafted much more recently than America’s 226 year-old founding text. Accordingly, its drafters benefited from more than two centuries of human experience that our founding fathers did not have. Ginsburg in no way impugned the genius of George Washington, James Madison or Alexander Hamilton when she suggested that these men could not possibility have known the things that we know today — and that nations drafting new constitutions should benefit from the full range of human experience.
The South African Constitution begins with an absolutely breathtaking first passage: “We, the people of South Africa, Recognise the injustices of our past.” This is not just a document drafted by men dissatisfied by their lack of representation in a distant central government. Rather, this the constitution of a nation that is profoundly aware of how governments can go wrong — and why the inherent human rights of every individual must be honored to ward off atrocity.
No doubt for this reason, the South African Constitution is structured very differently from our own. Our own founders believed that the best way to protect liberty is to structure government in a way that hinders attacks on individual freedom. “In framing a government which is to be administered by men over men,” James Madison famously wrote, “you must first enable the government to control the governed; and in the next place oblige it to control itself.” To accomplish this goal, “[a]mbition must be made to counteract ambition.” Senators must be played against representatives and justices against presidents — all to ensure that no one body acquires the power it would need to effect tyranny.
For this reason, our Constitution begins by laying out the structure of government. Article I is Congress, Article II the executive branch, Article III the judiciary. The concept of explicitly protected individual rights was largely an afterthought. The Bill of Rights was not ratified until a few years after the Constitution went into effect, and it was originally understood only to place limits on the federal government — not the states.
The South African Constitution, by contrast, devotes 32 different articles to individual rights before it even mentions the structure of government. While America’s founders were primarily worried about how lawmakers would be selected and what powers they would and would not have, South Africa’s Constitution begins with a statement of human rights. Its drafters wanted first and foremost to ensure that nothing like apartheid would ever exist again.
One obvious difference between South Africa’s constitution and ours is the sheer breadth of the rights protected by their national charter. Familiar rights such as the rights to equality, faith, free speech and privacy against unreasonable searches and seizures are all protected by the South African Constitution, but so is a right to “fair labour practices,” to “form and join a trade union,” to “an environment that is not harmful to . . . health or well-being,” and to “sufficient food and water.” As a reminder than many South Africans endured a kind of dehumanization that few Americans could even comprehend, their Constitution also protects rights such as the right “to a name and a nationality from birth” and to “not to be used directly in armed conflict” while still a child.
There are valid arguments against defining positive rights such as the right to food or a healthy environment in a constitution — these sorts of rights are rarely self-executing, and ultimately will depend on the nation’s legislature enacting sensible laws. But Americans could learn a great deal from how precisely many of the rights protected by the South African Constitution are defined. The United States is currently in the middle of a great constitutional debate over whether our Constitution’s guarantee of “equal protection of the laws” applies to gay people. In the 1970s, we went through a similar debate over the rights of women. Our Constitution’s vague words provide very little guidance on what forms of discrimination are forbidden. South Africa’s Constitution, by contrast, provides that “[t]he 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.”
Similarly, our Constitution’s guarantee that no person shall be deprived of “liberty . . . without due process of law,” provides judges with far too little guidance about what “liberty” means our what kind of “process” is “due.” For much of the Twentieth Century, conservatives read into these ambiguous words a right to overwork workers for little pay, and to forbid them from joining unions. More recently, Roe v. Wade read these same words to protect the right to an abortion — a right that is now on life support thanks to a conservative judiciary. South Africa’s constitution, by contrast, does not suffer from the same ambiguity that our own founding document does. It provides, for example, that “[e]veryone has the right to have access to . . . health care services, including reproductive health care.”
Though the South African Constitution does not begin to lay out the structure of South African government until the document’s 40th article, their government is well-designed to avoid what is probably the greatest defect in the American Constitution. In virtually all cases, a bill cannot become law in the United States unless it is enacted with the consent of two houses of Congress plus the president — each of which are elected on separate ballot lines and on different schedules. The United States is, thus, unusual among modern democracies in that different political factions can control Congress and the White House, or the House and the Senate, at the same time.
The American people got a very unfortunate demonstration of why this kind of government is dangerous last October. Because Democrats and Republicans could not agree on how to keep the government open, our government shut down. And we came within a hair of defaulting on our national debt. In our system, bitter political rivals often have to agree on must-pass legislation — potentially risking catastrophe if the legislation does not pass. Worse, it allows figures like Sen. Ted Cruz (R-TX) to essentially extort their political rivals by threatening to block must-pass bills unless their rivals agree to unreasonable concessions.
South Africa also has a bicameral legislature and a national president, but their government is structured to prevent the kind of brinkmanship America saw in October. Unlike the United States, where the president is elected separately from the Congress, South Africa’s constitution provides that “[a]t its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President.” Thus, there is far less risk that the national legislature will reach a dangerous impasse with a president from a rival political faction.
Additionally, while there is some complexity to South Africa’s legislative process, their constitution permits the the lower house of parliament to pass most bills — including budget and appropriations bills — without necessarily obtaining the consent of the upper house. For this reason, South Africa does not risk a standoff similar to last October’s shutdown because its two houses of parliament cannot agree upon legislation.
None of this, of course, means that South Africa is a utopia. To the contrary, Ginsburg’s most pointed word of advice to nations drafting new constitutions was that there are limits to what such a document can achieve — “a Constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom. If the people don’t care, then the best Constitution in the world won’t make any difference.” As Aviva Shen noted this morning, South Africa remains plagued by economic inequality. South African President Jacob Zuma is currently embroiled is a corruption scandal alleging that he spent taxpayer money on a swimming pool and other upgrades to his private home. A Harvard study found that former President Thabo Mbeki’s AIDS denialism led to hundreds of thousands of deaths. No constitution can rescue a nation from bad governance.
But in a nation committed to the rule of law and good governance, a well-drafted constitution can ward off avoidable crises, guide a nation’s commitment to individual rights and help ensure that power rests in the true representatives of the people.