February 08, 2012

Good to know these folks are on our high court

Via Hans Bader: "Liberal Justices Complain About American Law Being Too Protective of Civil Liberties and Colorblindness." In it, we read that some of our "progressive" justices aren't very keen on the document they're sworn to uphold:

When describing the nature of a constitution, Justice Ginsburg did appropriately recognize the importance of a constitution and the duty of the citizens to defend it. Justice Ginsburg did not, unfortunately, take her own advice. She undermined insight of its crafters and stated, “I would not look to the US Constitution if I were drafting a Constitution in the year 2012.” Instead, Justice Ginsburg referred to the constitutions of more supposedly progressive countries, like South Africa, Canada, and the European Convention on Human Rights. She stated, “I can't speak about what the Egyptian experience should be, because I'm operating under a rather old constitution.” (Link)

What makes South Africa's constitution, for example, so admirable to Ginsburg? Let's see:

South Africans have the right to "make decisions concerning reproduction," "form a political party," or "form and join a trade union."

The state must take reasonable legislative and other measures, within its available resources, to foster conditions which enable citizens to gain access to land on an equitable basis.

It also stipulates that citizens have the right to housing and adequate healthcare.

As you can see, the above is a statist's wet dream come true. South Africa's constitution contains so-called "positive rights" -- rights that "affirmatively provide socio-economic necessities." Human rights groups divide rights into three "generations," the second and third of which are the so-called "positive" ones:

First generation rights are political and civil, and are usually negative rights. Second generation rights involve the government's socio-economic obligations, and are frequently positive rights. Finally, third generation rights are exemplified by the right to a clean and healthy environment, and are commonly called "green" rights.

I'm fascinated as to how governments would be obligated to provide -- and that's what it is, after all -- these rights. Can people sue if they've lost their home and there's no shelter immediately available? The SA constitution's Section 10 protects "human dignity;" is it "dignified" to live in a small phone booth-sized room which is a government-provided "positive right?" Who gets to determine what is "dignified?" If you're Ginsburg and those who constructed the SA constitution, it's the government -- specifically the courts. The government can merely insist such a situation is "dignified," despite it obviously not being so, so you can see the inherent contradictions that occur when modern "progressives" get to devise a foundational legal document. In addition,

Section 12 of the Bill of Rights addresses the "freedom and security of the person." This section specifically bans torture, cruel and inhumane treatment, general violence, detention without trial, and deprivation of freedom without just cause.

Nevertheless, despite a recent drop in some areas of crime, South Africa remains one of the most violent countries on the planet. Who do people sue in court for the government's failure to enforce the ban on "general violence?"

Again, the courts do. Consider: "The Court's overall responsibility is to determine whether the infringement on the right is proportional to the resulting societal benefit." You can see how such power can be infinitely greater in the hands of such jurists as opposed to those here in the US. The US Constitution's First Amendment for example, virtually unique among legal concepts worldwide, could be vastly misapplied were it in the hands of SA judges. SA judges, like many jurists in other countries, are permitted to use precedents from other countries to justify their decisions. So, since so-called "hate speech" is illegal in many countries, SA-style judges could use these international legal bases to essentially dismantle our free speech rights. Remember -- is "the infringement on the right proportional to the resulting societal benefit?" You can bet that SA-style judges would rule "no;" in other words, the societal benefit, in their minds, would be greater if "hate speech" were disallowed. Whereas, of course, many others would -- rightly, in my opinion -- claim that the suppression of speech is a greater negative to society than a benefit, especially since the question is, as always, "who gets to decide what's 'hateful?'" Do we want our courts continually to decide such matters for us? An even bigger question is, how is this the essence of freedom?? Mark Steyn puts it thusly:

The bigger the Big Government, the smaller everything else: In Sweden, expressing a moral objection to homosexuality is illegal, even on religious grounds, even in church, and a pastor minded to cite the more robust verses of Leviticus would risk four years in jail. In Canada, the courts rule that Catholic schools must allow gay students to take their same-sex dates to the prom. The secular state’s Bureau of Compliance is merciless to apostates to a degree even your fire-breathing imams might marvel at.

Then there's the UK forbidding a group to advertise that God can heal illnesses. Obviously, for Sweden, Canada and the UK (and the list is endless, really), the infringement on those individual rights wasn't "proportional" to the resulting "societal benefit." But, again, it's the societal benefit that "progressives" believe in. And now, this philosophy is really beginning to assert itself here in the US: The Obama administration has mandated that religious-oriented employers (not actual churches or institutions) provide contraception, birth control and drugs that may assist abortion. This is almost unprecedented in its legal audacity, not to mention that it has actually served to unite, however briefly, many people on both sides of the political aisle.

Nevertheless, witness: Separation of church and state -- for "progressives" -- is of paramount import ... unless THEY deem it otherwise. A kid bringing a Bible to public school runs counter to the "societal benefit," but forcing people to act completely contrary to their conscience is as well. Go figure.

Our system of government -- our Constitution -- indeed may not be ideal, or the "best," for other countries. If a country doesn't have a tradition of democratic principles, it'd be difficult to see it formally incorporate such a model. But it's distressing to see one of our Supreme Court justices demean our founding document's greatness by not pointing out its unique -- and most important -- emphasis on individual liberties. For, if these are not protected, then eventually -- inexorably -- even those "positive rights" that the "progressives" adore will vanish ... all at the whim of The State.


Posted by Hube at February 8, 2012 05:14 PM | TrackBack

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The South African constitution will lose it's luster after Julius Malema takes power and shreds it. South Africa's future is Zimbabwe's past.

Posted by: Scott Kirwin at February 15, 2012 12:39 PM