“What the Constitution means to me”
Arizona Daily Star 09/16/14 Op-ed by Adriane J. Hofmeyr
Today we celebrate Constitution Day.
There are many things to celebrate about the birth of constitutional government in the United States on Sept. 17, 1787, not least the idea that, for the first time, a people could govern themselves free of a tyrannical sovereign.
However, for me, a former South African lawyer and now American lawyer and citizen, it has come to mean so much more.
This much-revered, though imperfect document was more than just a new form of government; it was also — through the creation of a Supreme Court and the Bill of Rights — an exciting and unprecedented check on government power. Winston Churchill said it best: “Democracy is the worst form of government, except for all the others.” And what makes it “least worst” is the power of a Bill of Rights, and the willingness and ability of a people to use it as a shield against its own government.
I was born and raised in South Africa in the “bad old days” — under a government that managed to disenfranchise 90 percent of the population. Government was, in the truest sense, arbitrary. Without a Bill of Rights, the law was no help. I trained and practiced as a lawyer in that system, and the frustration and outrage were constant and palpable.
In that context, “restraining government power” was not just a nice theory; it was a necessity to preserve life, in some cases literally. And, as some might recall, that’s just what South Africa got.
After a century of darkness, we received light — in the form of a constitutional democracy that included one of the world’s most progressive Bills of Rights. This was an extraordinary change. I was working for a government body at the time — the Cape Town City Council — and suddenly 13,000 government workers had to adjust overnight from arbitrary government to rational, justifiable government.
Almost every law was re-written, a Constitutional Court was created, and suddenly there was no such thing as an inviolable sovereign. I remember training law enforcement officers on that fancy American concept known as “Miranda rights.”
In the midst of all this the United States beckoned.
I now practice law here, under this old, established, venerable system of constitutional democracy. And despite years of watching Hollywood movies, everything here surprised me. Partly, it was the high volume of debate on almost every subject under the sun. Partly, it was the love of commerce. Partly, it was the surprising level of trust in government (although it has deteriorated in the last ten years).
But mostly, thanks to the Constitution and Bill of Rights, it was the depth and breadth of the legal arsenal for challenging government power in America. And it’s a treat — the legal system is sophisticated; there are literally centuries of legal precedent (from 1791, when the Bill of Rights was ratified and the Supreme Court opened its doors for business); and there is money and a willingness to litigate.
For all its admirable qualities of openness and fairness, this is still a government that periodically behaves badly, and would behave badly more often if it weren’t for one thing, one brilliant invention by this very country: the world’s original Constitution and Bill of Rights which ushered in constitutional democracy.
As Thomas Jefferson pointed out, the “tempestuous sea of liberty” may not make for a quiet society. But, like old age, it’s certainly better than the alternative.
This is only possible thanks to the Constitution. Long may it live!