In an interview with Breitbart News Editor-at-Large Ben Shapiro, Sen. Rand Paul (R-KY) made the astute observation that Barack Obama is not just skeptical of our Constitution, but also has an alternative model in mind: the South African constitution. That document has been the object of fascination and envy for the American legal left ever since it was negotiated and passed in the mid-1990s, during South Africa’s transition to democracy.
The left is obsessed with a particular section of the South African constitution: its Bill of Rights, which includes so-called “positive,” or socioeconomic rights: the right to housing, the right to a clean environment, the right to health care, the right to food and water, and so on. South Africa's Bill of Rights also prevents discrimination on the basis of a wide range of categories, including both gender and sex, culture, sexual orientation, and pregnancy.
If that sounds like the wish list of the American “progressive” movement, that is because it is: many of the legal scholars who influenced South Africa’s constitutional negotiations were from the United States. One of the most important was professor Frank Michelman of Harvard Law School, whose contribution to South Africa’s doctrine of socioeconomic rights was lauded last year by South African Constitutional Court justice Sandile Ngobo.
Michelman, who taught at Harvard when Obama was a student, was also one of the few faculty supporters of Critical Race Theory pioneer Derrick Bell. Bell believed that the American legal system enshrined white supremacy, and that the Constitution--even after the Civil War amendments--was fundamentally racist. The only to redeem it, he argued, would be through the passage of amendments that guaranteed socioeconomic rights.
Obama was profoundly influenced by Bell’s ideas, and used them to teach his own law classes at the University of Chicago. He echoed Bell’s views of the Constitution as a “deeply flawed” document in an infamous interview with Chicago’s WBEZ-FM in 2001, when Obama observed that the Warren Court of the 1960s had been too timid to apply principles of equality to the “redistribution of wealth” and “political and economic justice.”
That task, then-State Senator Obama said, could not be entrusted to the courts within the limits of the Constitution as we know it; “redistributive change” would have to wait until the left had assembled “the actual coalitions of power” necessary. Today, Obama has done just that--and his attempt to divide and marginalize the Republican Party is aimed at removing potential opposition to the fundamental changes he wishes to enact.
In addition, the courts may no longer be the obstacle that Obama once feared. Supreme Court Justice Elena Kagan was familiar with Bell’s ideas, and lectured at least once on Critical Race Theory. Justice Ruth Bader Ginsburg, a Clinton appointee, recently expressed a preference for the South African constitution. More broadly, enthusiasm for socioeconomic rights seems widespread among the cohort Obama brought to power.
There are, however, three widely recognized problems with socioeconomic rights. One is that they are not justiciable--that is, there is almost no way for a court to enforce and protect them. For example, the classic case that established the vitality of South Africa’s socioeconomic rights, known as Grootboom (2000), also demonstrated their limits: Ms. Grootboom’s right to housing was upheld, but she died years later without a house.
Another problem is philosophical: socioeconomic rights are not inherent in the individual, but granted by government. Therefore they enshrine the supremacy of the state above the individual. And since they are not enforceable right away but must be “progressively realized,” socioeconomic rights tend to degrade the value of other rights, such as the so-called “negative” liberties--freedom of speech, freedom of the press, and others.
The third problem is political: paradoxically, the fact that socioeconomic rights exist may relieve pressure from governments to provide the promised socioeconomic benefits. In South Africa, for example, the government was proud of having given its citizens the right to health care, but refused for several years to provide life-saving Aids medicines. The result was that millions died--their bodies destroyed, their rights theoretically intact.
Other countries that have included socioeconomic rights in their constitutions have taken a softer approach. The Irish constitution, for example, includes “directive principles” that outline socioeconomic rights as policy goals without giving them the force of law. But in the U.S., “progressive” legal scholars still nurture the hope that obstacles to fulfilling the dream of socioeconomic rights will prove merely political, administrative--and temporary.
The American left has long drawn inspiration from the struggle against apartheid in South Africa. Obama has described that political cause as the reason he was drawn to politics, as well as one of the reasons he joined Jeremiah Wright's extremist church. As Obama's own example demonstrates, not every expression of solidarity with the anti-apartheid struggle was a healthy or even helpful one; some merely used it to advocate for radicalism.
It is worth noting that socioeconomic rights were not the necessary outcome of South Africa's struggle against apartheid. South Africa's liberal (in the classical sense) opposition, then known as the Democratic Party, opposed apartheid but also opposed the inclusion of socioeconomic rights, for many of the reasons above. That history of criticism, and the predicted failures of socioeconomic rights, have been largely overlooked by American admirers.
President Obama’s call to give “meaning” to the rights in our founding documents, and for “collective action” as a means for “preserving our individual freedoms” and providing “every citizen” with “a basic measure of security and dignity” clearly points toward the eventual creation of socioeconomic rights on something like the South African model. Sen. Paul deserves credit for recognizing that--and the dangers that poses to our Republic.
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