America’s Apartheid Moment?

For millions of Americans, the Supreme Court decision to overturn Roe v. Wade represents a backsliding of rights. Many pregnant Americans today have fewer rights over their bodies than their grandmothers did.

Yet, for students of South Africa’s long and checkered relationship with multiracial democracy, the idea of a top court rolling back long-established rights is familiar.

In the first elections in the Cape Colony in 1854, men of all races could vote, provided they owned property worth £25 — a fairly low bar, even then. The colony started off with one of the most liberal constitutions in the British empire, but subsequent politicians would chip away at it, changing the voting requirements and denying the vote to “natives” who lived on communal land.

By 1936 all “native” Black males had been stripped of the right to vote after a constitutional amendment. Twelve years later, when right-winger D.F. Malan was elected prime minister, “total apartheid” was implemented.

In the 1950s the apartheid government packed the Supreme Court of Appeal with five new right-wing judges in order to overcome the court’s liberal wing. This was done specifically to remove the last people of color remaining on the voters’ roll. These men of mixed-race heritage could be removed only by a constitutional amendment which the court would have to ratify. In the first case in 1952, the court found that the Separate Representation of Voters Act — which sought to exclude people of color from the voters’ roll — was “invalid, null and void and of no legal force and effect.”

In 1957, however, the Separate Representation of Voters Act returned to the now-packed Supreme Court of Appeal, and even the liberal Chief Justice Albert van der Sandt Centlivres gave in to pressure from the apartheid government and sided with the political appointees to give the victory to the doctrine of apartheid. Judge Oliver Schreiner, however, refused to betray his beliefs and wrote a scathing dissenting judgment.

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South Africa’s political regression from liberal democracy is the core theme of our book “Spoilt Ballots.” The key message: An expansion of rights should never be taken for granted. It is up to the citizens to safeguard any advances achieved by previous generations. As Vice President Kamala Harris said immediately after the Roe reversal: “The great aspiration of our nation has been to expand freedom.” But, she noted, the expansion of freedom is not inevitable.

With the packing of the court in South Africa, legal precedent went largely neglected. With free rein over the country, the apartheid government then stripped the rights to interracial marriage and freedom of expression, and instituted a policy of detention without trial.

That history should serve as a warning to America. The overturning of Roe v. Wade has sparked worries of a similar regression in the U.S., especially over gay rights and contraception. As Justice Clarence Thomas wrote in his concurring judgment: “In future cases, we should reconsider all of this court’s substantive due process precedents, including Griswold, Lawrence and Obergefell … We have a duty to ‘correct the error’ established in those precedents.”

In South Africa, before and during apartheid, white men systematically took away the rights and freedoms of people of color. In the U.S. today, men are taking away the rights and freedoms of women.

As Nelson Mandela said: “To be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.”

Regular OZY contributors Matthew Blackman and Nick Dall are the authors of two books on South African history: Rogues’ Gallery and Spoilt Ballots.

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