The South African Constitution begins with the first passage: “We, the people of South Africa, Recognise the injustices of our past.”
/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. It’s 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.
