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 AfricaÂ’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.