Difference between South Africa constitution and USA constitution?
Answers
One of the most common assumptions about the United States Constitution is that it protects negative rights. Yet the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities. The theory is that liberty at least presumes subsistence.
International human rights experts actually speak of three "generations" of rights. 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.
Cass Sunstein said that the South African Constitution is "the most admirable constitution in the history of the world." It contains a lengthy list of socio-economic rights, which the drafters hoped would protect and assist those disadvantaged by Apartheid and those who are poor and vulnerable. The relatively new South African Constitutional Court has required the government to implement these rights. Conversely, the United States Supreme Court has been unwilling to find socio-economic rights in the United States Constitution, in part because of separation of powers concerns.
This paper is divided into three parts. The first part describes some of the distinctive features of the South African Constitution, and compares these features with the United States Constitution. Part two discusses the South African socio-economic rights cases. Finally, part three critically examines American constitutional jurisprudence on socio-economic rights. This paper seeks to demonstrate that the South African Court has accomplished quite a feat: it has made clear that socio-economic rights are enforceable, but has interpreted economic rights in a way that limits separation of powers concerns. Moreover, this paper asserts that the United States Supreme Court should reconsider its separation of powers objections in light of these South African decisions.
II. Background of the South African Constitution
South Africa adopted its constitution in 1996. That year, the Constitutional Court issued the Second Certification Judgment, ruling that the Constitution complied with the thirty-four Constitutional Principles agreed upon in political negotiations that took place from 1991 to 1993. The new Constitution embodied the nation's transformation from a racist, brutal, Apartheid-based regime to a democratic, multi-cultural government. Both the Constitution's length and detail distinguish it from the United States Constitution.
The South African Constitution establishes a parliamentary structure for the national government and allocates powers to the provincial governments. It also creates a Constitutional Court with eleven Justices who are appointed to serve twelve-year non-renewable terms. The first group of Justices was impressive as it included an international war crimes prosecutor, several former law professors, and the attorney who founded the nation's leading civil rights litigation firm and represented President Nelson Mandela during his imprisonment.
The South African Constitution's Bill of Rights seeks to preserve and enhance human dignity, and substantive equality, by encompassing all three generations of rights previously discussed. Whereas the United States Supreme Court implies the existence of certain fundamental personal rights in the liberty provision of the Fourteenth Amendment's Due Process Clause (a legacy of Lochner v. New York), the South African Bill of Rights specifically enumerates these rights. 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. It further provides that everyone has bodily and psychological integrity, including the right to make reproductive decisions. Section 14 encompasses the right to spatial privacy: privacy in one's home, of one's possessions, etc. Section 21 guarantees freedom of movement and residence. There is a lengthy equality provision in Section 9, Section 10 protects human dignity, and Section 11 says that everyone has a right to life.
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Answer:
Mark S. Kende, The South African Constitutional Court's Embrace of Socio-economic Rights: a Comparative Perspective, 6 Chapman Law Review 137 (Spring 2003)
One of the most common assumptions about the United States Constitution is that it protects negative rights. Yet the International Covenant on Economic, Social, and Cultural Rights, as well as many foreign constitutions, require governments to affirmatively provide socio-economic necessities. The theory is that liberty at least presumes subsistence.
International human rights experts actually speak of three "generations" of rights. 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.
Cass Sunstein said that the South African Constitution is "the most admirable constitution in the history of the world." It contains a lengthy list of socio-economic rights, which the drafters hoped would protect and assist those disadvantaged by Apartheid and those who are poor and vulnerable. The relatively new South African Constitutional Court has required the government to implement these rights. Conversely, the United States Supreme Court has been unwilling to find socio-economic rights in the United States Constitution, in part because of separation of powers concerns.
This paper is divided into three parts. The first part describes some of the distinctive features of the South African Constitution, and compares these features with the United States Constitution. Part two discusses the South African socio-economic rights cases. Finally, part three critically examines American constitutional jurisprudence on socio-economic rights. This paper seeks to demonstrate that the South African Court has accomplished quite a feat: it has made clear that socio-economic rights are enforceable, but has interpreted economic rights in a way that limits separation of powers concerns. Moreover, this paper asserts that the United States Supreme Court should reconsider its separation of powers objections in light of these South African decisions.
II. Background of the South African Constitution
South Africa adopted its constitution in 1996. That year, the Constitutional Court issued the Second Certification Judgment, ruling that the Constitution complied with the thirty-four Constitutional Principles agreed upon in political negotiations that took place from 1991 to 1993. The new Constitution embodied the nation's transformation from a racist, brutal, Apartheid-based regime to a democratic, multi-cultural government. Both the Constitution's length and detail distinguish it from the United States Constitution.
The South African Constitution establishes a parliamentary structure for the national government and allocates powers to the provincial governments. It also creates a Constitutional Court with eleven Justices who are appointed to serve twelve-year non-renewable terms. The first group of Justices was impressive as it included an international war crimes prosecutor, several former law professors, and the attorney who founded the nation's leading civil rights litigation firm and represented President Nelson Mandela during his imprisonment.
The South African Constitution's Bill of Rights seeks to preserve and enhance human dignity, and substantive equality, by encompassing all three generations of rights previously discussed. Whereas the United States Supreme Court implies the existence of certain fundamental personal rights in the liberty provision of the Fourteenth Amendment's Due Process Clause (a legacy of Lochner v. New York), the South African Bill of Rights specifically enumerates these rights. 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. It further provides that everyone has bodily and psychological integrity, including the right to make reproductive decisions. Section 14 encompasses the right to spatial privacy: privacy in one's home, of one's possessions, etc. Section 21 guarantees freedom of movement and residence. There is a lengthy equality provision in Section 9, Section 10 protects human dignity, and Section 11 says that everyone has a right to life.
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