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In the lexicon of the “progressive” movement to rewrite America’s founding document on a global model, the guarantees of what the founders recognized as pre-existing God-given rights—among them, free speech, freedom to assemble, the Right to Keep and Bear Arms, the right against self-incrimination, the right to be protected against undue search and seizure—all of those most basic protections are considered “negative rights.”
These people are not talking about replacing the U.S. Constitution with the South African Constitution out of hand. What they seek is to include key viral elements of that document, in a bit-by-bit infection that will ultimately transform the whole nature of our country.
So what is it that these people find so attractive in the South African Constitution? In a phrase, the answer is something they call “positive” rights.
Perhaps the most direct explanation of what they are going for was penned on the “Constitution in 2020” blog by Emily Zackin, now an assistant professor at Hunter College:
“These rights (sometimes called positive rights) obligate government to intervene in social and economic life, promoting equality rather than simply procedural fairness.”
So, fairness—the very basis of real blind justice in America—is to be replaced with social/cultural favoritism decided by a cadre of law school radicals.
Dr. Zackin—who won top honors from Princeton for her Ph.D. dissertation, “Positive Constitutional Rights in the United States,” cited as an example: “… the South African Constitution includes the right to medical care. The text of the U.S. Constitution contains no such explicit guarantees, and the Supreme Court has consistently declined to interpret the Constitution to include them.” She further defined the notion of “positive rights” as “welfarist policies.”
These “positive rights,” like the “right to health care” and the “right to housing,” are the key elements that make the South African constitution so attractive to welfare statists who would control every element of American life. These “positive rights” dump fairness in favor of drastically skewing the playing field to the advantage of select groups of citizens.
With this stealthy Soros-backed effort, the new, radical Constitution that would emerge in the future will likely include as “positive rights” many government-granted privileges and collective rewards centered around endless memes of “justice”—“social justice,” or “economic justice,” or “green justice.” The list could be endless.
One thing is certain—there will be “freedom from gun violence” added to the list of “positive rights.” With that, the Second Amendment will be headed to the dumpster of history.
In a spot-on Canada Free Press analysis of the effect of “positive rights” versus “negative rights,” Daniel Greenfield characterized the combined “positive rights” pressed by the so-called progressive establishment as “the right to be taken care of in every way possible.” These “rights”—touted as the be all, end all in the South African constitution—“serve to eliminate most of what Americans have traditionally considered freedom. … Positive rights offer a privilege that is overseen by the government … universal benefits at the cost of individual liberties.”
Yet privileges—unlike rights—can be withheld at the whim of those who hold the power of government.
As for the 61,000-word South African Constitution, perhaps the best view of what U.S. proponents are really striving for was spelled out in a 2003 law review article by Mark S. Kende, now head of the Constitutional Law Center at Drake University Law School. The title of the article is unambiguous: “Why the South African Constitution is better than the United States’. ”
Giving meaning to Sunstein’s delirious “most admirable constitution in the history of the world” tag, Kende says the description fits because, “It contains a lengthy list of socio-economic rights, which the drafters hoped would protect and assist those … who are poor and vulnerable.”
“Conversely,” he says, “the United States Supreme Court has been unwilling to find socio-economic rights in the United States Constitution.”
Among those “positive rights” he lauds, “Everyone has a right to have access to adequate housing,” and “the right to have access to health care services … sufficient food … appropriate social assistance.”
“Moreover, courts must consider international law in rendering decisions, and may also consider foreign law.”
What is so bizarre about this article—and what is so strange about all of the radical proponents of the document—is that none of these “positive rights” are even marginally attainable by the tens of millions of South Africans who live in indescribable poverty and suffer from a homicide rate nearly seven times higher than ours in the U.S.
So what good is it?
Kende puts it this way: “Placing socio-economic rights in a constitution does not mean that every individual is entitled to assistance on demand. … The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights.”
Further, he writes that under a “limitations clause” on the “socio-economic rights,” “The court’s overall responsibility is to determine whether the infringement on the right is proportional to the resulting societal benefit.”
So in reality, these so-called “positive” rights are not rights at all. They are privileges doled out under a deeply corrupt system of state rationing.
With perhaps as many as 7 million South African citizens dying of HIV and AIDS, the constitution’s guarantee of the right to “have access to health care services” was pointless under the regime of President Thabo Mbeki, a virus denier who kept Western life-saving medicine at bay while his people died.
How would this cadre of activists and professors alter the U.S. Constitution to take on elements of the South African model? Obviously not by any means provided in Article V of the Constitution, which the Founders intentionally made extraordinarily difficult to accomplish.
So what are they proposing? By what means do they alter the foundation of the nation? By what means do positive rights creep into constitutional law?
Those questions were actually at the very core of the second Yale conference. Among the back-door approaches discussed:
• Enacting “landmark” laws that are too big, too complicated and bring dramatic fundamental change. These laws take on the force of the Constitution.
• Enacting international treaties that have the force of law. As one speaker put it, “Once you have an Article II [ratified by the U.S. Senate] treaty in place, it can undo state law that’s contrary, and undo federal law that’s contrary.”
• Creating administrative law that the speaker claimed would be beyond the normal scope of judicial review.
Attendees also discussed a grassroots political effort to force the U.S. Senate to get rid of the filibuster with its 60-vote requirement to close down debate, making all sorts of simple majority legislative mischief possible.
What the Soros gang proposes is a melding of their notion to replace the Constitution with administrative orders, landmark laws, treaties and the like with raw propaganda and a long-term, grassroots activist agenda. Mobilizing for change on the streets, if you will.
Yale law professor Jack Balkin, among the leaders of the “Constitution in 2020” movement, says under “democratic constitutionalism” grassroots politics is the key: “The basic way that the Constitution changes over time is that people persuade each other that the way they thought about the Constitution and what it means isn’t the right way of thinking about it. … That’s why you just can’t focus on elections, judicial appointments … constitutional culture. That’s why you have to focus on the people’s arguments about norms.”
Keep in mind that “norms”—international norms—are at the heart of the gun-ban movement worldwide. It is a well-recognized “norm” that the United Nations pointedly refuses to recognize armed self-defense as a human right.
It is certain that for many in the “democratic constitutionalism” movement, the kind of draconian laws that have left South African citizens at the mercy of brutal, murderous criminal violence would represent America’s constitutional norm in the future, if they get their way.
Of course, future Supreme Court appointments will be determined by who wins the presidential election this fall. Four more years of Barack Obama would undoubtedly mean one or more new justices in the mold of Justice Ginsburg who would push to shift our freedoms further from what our Founding Fathers intended—yet more “change” that our Right to Keep and Bear Arms might not be able to survive.
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America's 1st Freedom
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