Cass Sunstein, Supreme Ginsburg and the S. African Constitution

Why the South African Constitution is better than the U.S. goes on to describe the good news.  I have been scouting around in order to find out what Supreme Ginsburg had in mind for us as well as Egypt. What do you know, Cass Sunstein’s name crops up. Does anyone, can anyone not understand where we are headed with Obama? Here we go. A portion of the above link, then Sunstein.

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 Paper at above link.

Social and Economic Rights? Lessons from South Africa

Link below:


Cass R. Sunstein

Harvard Law School

May 2001

U of Chicago, Public Law Working Paper No. 12; U Chicago Law & Economics, Olin Working Paper No. 124 


Do social and economic rights belong in a democratic constitution? Skeptics have wondered whether it is possible to constitutionalize such rights without imposing an untenable managerial responsibility on courts. In an extraordinary decision, the Constitutional Court of South Africa has provided a new approach to social and economic rights, one that respects the fact of limited resources while also requiring governmental attention to basic needs. This new approach might be called an administrative law model of constitutional rights. It contains considerable promise, because it recognize rights to reasonable programs, rather than to protection of each individual, a path that might well be beyond governmental capacities.

Why the South African Constitution is better than the U.S. goes on to describe the good news.

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