Post on 05-Feb-2023
Michael HuffstutlerCreated for the Department of Political Science
With Liberty and Justice for All
Written for the University of Minnesota Twin-Cities [2013]
Since the rise of the first Supreme Court leading in to our
modern era, there has been persistent contention over the idea
that the High Court is in fact a democratic institution.
Privileges such as life tenure and judicial review along with
ideas such as clandestine policymaking have been called into
question by scholars including Jeremy Waldron, who call these
qualities at their very essence unconstitutional. Although the
original intent in creating the Supreme Court is laid out by
Alexander Hamilton in Federalist 78, in which he surmises “[The
Court] may truly be said to have neither force nor will but
merely judgment (p.437).” Constitutions from country to country
vary in both their level of breadth and specificity respectively.
To ensure that fundamental civil rights and liberties aren’t in
danger of becoming compromised or infringed upon, a High Court
represents the best chance and most logical option for
protecting, interpreting, and preserving these rights.
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Because the constitution in nature is not a self-clarifying
document, but instead entails transcendent, enigmatic language,
there is a constant need for specialized, impartial
interpretation. These specialists must not be influenced by self-
interest, term limits, or partisanship, all of which could crack
the very foundation of constitutional liberty the United States
was founded upon (Levy & Karst, 1995, p.301). Hence, it must not
be the duty of congress nor the executive to uphold these
fundamental rights, but instead the duty of an entity in which
neither self-bias nor partisanship is allowed to entangle
interpretation. The Supreme Court thus represents the most
sensible branch for entrusting constitutional interpretation
within. Ronald Dworkin (1996) logically deduces that
interpretation lies safest in the hands of the Supreme Court
because there are no term limits to influence decision making,
and no acting political pressures including financial and moral
(p.35). His argument concludes by reasonably declaring that the
best institutional structure is one that is most highly
calculated to offer the best answers to fundamental inquiries
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about what democratic conditions are, and with it the ability to
achieve compliance with them.
The unique structure of the Supreme Court lends itself to
both high praise and harsh opposition. Given life tenure, and the
powers of judicial review as well as judicial supremacy, critics
like Jeremy Waldron, who commonly refer to the high court as “A
bunch of un-elected philosopher kings (Hilbink, 2008, p.229),”
and “A nine-man, black robed junta,” have opposed the system for
being insulated, anti-democratic, and authoritarian (Waldron,
1999, p.228). However, the United States represents a vast
conglomerate of different ideas and values, thus, conceding
constitutional interpretation to the legislative or executive as
suggested by Waldron would be utterly fatal in the hopes of
achieving an unbiased constitutional interpretation.
In Federalist 78, Alexander Hamilton upholds these very
criticisms as the basis for which the structure for the Supreme
Court was constructed, and through this construction, has the
highest probability of achieving the most democratic
constitutional interpretation possible. Life tenure is certainly
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not an authoritarian principle orchestrated towards an elitist
power transfer, but rather an essential condition that
contributes to “That independent spirit…which must be essential
to the faithful performance of a so arduous duty (p.440).”
Hamilton goes on to present the idea that the independence of
judges acts as an ‘essential safeguard’ against the repercussions
of occasional missteps in society which could lead to ‘dangerous
innovations’ and ‘serious oppressions of the minority’(p.441).
Regarding the logical assertion of judicial review in the courts,
Hamilton points argues that in order for the legislative to have
a check on their power, it is necessary that the court be able to
pronounce acts of legislation void, and that “To deny this would
affirm that the deputy is greater than his principal; that the
servant is above his master (p.438).” Without this check, the
powers of legislation would be elemental hypocrisy, and the
blatant antithesis of the American democratic system, which
stresses the balance and limit of the governmental powers at be.
While theory may illuminate the unmistakable presence of inherent
democracy invested within the Supreme Court, let us consider a
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theoretical alternative in which the Supreme Court is absent, and
plays no role in our functioning, governing society.
Following the short-lived Missouri Compromise of 1820, the
fight for equal rights in the court system ignited. Prigg v.
Pennsylvania [1842] acted as the catalyst which would eventually
spark highly controversial cases including Plessy v. Ferguson [1896],
the landmark decision in Brown v. Board of Education [1954](Kommers et
al., p.570-74). Regents of the University of the University of California v. Bakke
[1978] and McCleskey v. Kemp [1987] further this discussion into a more
modern setting and with new forms of possible discrimination. To
further extrapolate, consider the following set of ideas.
The Prigg case, found in violation of the fugitive slave
clause, was responsible for inflaming the already deep
ideological laceration dividing Americans during this time (Finn
et al., p.571). Although Plessy sustained constitutional muster
against the lowly rationality-test, it spurred the NAACP to
challenge the separate but equal doctrine to its fullest extent
in landmark cases like Sipuel v. Board of Regents [1948] and Sweatt v. Painter
[1950]. Although Prigg and Plessy represent blunders of the
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Supreme Court today, it pleads a cautionary tale about the courts
hesitation to act unilaterally. At the time of Plessy for
instance, southern whites would not have complied with a judicial
ban on segregated railroads (Rosen, 2006, p.57). In cases such as
Strauder v. West Virginia [1880] and Yick Wo v. Hopkins [1886], demonstrated the
need for overall stricter racial consideration, and progress
would slowly continue in a piecemeal fashion until the historic
inclusion of footnote four in United States v. Carolene Products Co. [1938]
setting a new precedent of strict scrutiny in certain instances,
and later, the unanimous ruling of Brown v. Board under the Warren
court (Finn et. al., p.574).
With the arrival of affirmative action, a new suite of
constitutional questions arose. With the striking down of Regents
of the University of California v. Bakke (1978) on grounds of violation of the
Equal Protection Clause of the Fourteenth Amendment, The Supreme
Court condemned the quota-like race system at UC-Davis,
concluding it possessed “A facial intent to discriminate (1978,
p.629).” The case of Grutter v. Bollinger [2003] being upheld in
contrast with the striking down the University of Michigan’s
point system in Gratz v. Bollinger [2003] demonstrate the complexity of 6
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interpretation the Court underwent when interpreting these cases
under the scope of strict scrutiny in order to decipher what
constitutes as narrowly-tailored as opposed to openly
discriminatory (Finn et al., p.578).Through this introspective
hypothesis, it should become evident that without the Supreme
Court, state legislatures would have committed serious legal
blunders facilitating the growth of racial disparities through
Jim Crow laws and constitutional violations of the Equal
Protection Clause under the Fourteenth Amendment. At the time of
Plessy, the will and determination of the public to enforce
segregation are reflected in the courts approval of railroad
segregation, in which they lacked the support of congress and the
president, their power to interfere was critically limited. Such
a check on power logically demonstrates that the Supreme Court
cannot be authoritarian in nature, due to its innate lack of
ability to enforce without support from either two branches
(Rosen, 2006, p.57.)
During the Lochner Era, the Supreme Court actively asserted
judicial review upon striking down a number of state laws deemed
unconstitutional, such as infringing on the individual’s property7
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rights and liberties of contract. It is important to note that
judicial review has been criticized for being anti-democratic,
but Stephen Griffin contends that the United States was not
founded as a majoritarian or pure democracy, but rather as a
constitutional or representative democracy (Griffin, 1996,
p.103). He goes on to sustain that “The very existence of the
Constitution establishes that Americans have traditionally
regarded restraints on the will of a democratic majority as
legitimate (p.103).” Decisions such as Lochner v. New York [1905] and
Adair v. United States [1908] demonstrate that as dutifully bound by the
constitution, overturning state legislature is acceptable when
“There is no reasonable ground for interfering with the liberty
of person or the right of free contract (Barber et al., 1995,
p.1111).” In the case of Adair, Justice Harlan perceived nothing
in the yellow dog contract that expressly affected the safety,
health, or morals of the community, invoking great strength in
the doctrine of liberty (p. 153). The Lochner Era does not
represent the most popular era of Supreme Court decisions; rather
it illustrates the Court upholding fundamental liberties, only
when necessary to prevent the abuse of state powers.
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In contrast with the arrival of Nixon and the Burger Court,
time has illuminated a spectrum from conservatism to activism
within the Supreme Court. This fluctuation is not the product of
moral impositions or party-line politics in the least. In Lawrence
v. Texas [2003], Clarence Thomas, a presumed conservative justice,
respectfully grounds his dissent against this gay-rights case not
in his own moral ideology or party politics, but in how he
embraces and interprets the constitution. Thomas states, “As a
member of this Court I am not empowered to help petitioners…my
duty, rather is to “decide cases ‘agreeably to the Constitution
and laws of the United States (Lawrence v. Texas, 2003, p.337).’”
Supreme Court justices and the Court at its core are not a
supreme, authoritative force, nor are they a heroic guardian.
Rather, they are human beings, confirmed by directly elected
officials in the senate, who willingly invest and devote their
minds and lives to a sacred constitutional duty in order to
secure the blessing of liberty to ourselves and our posterity,
and establish justice through skilled interpretation and
impartial rulings.
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The Supreme Court is often misinterpreted as being an out of
touch, elitist group that is unrepresentative and
uncharacteristic of American democracy as we see it today.
However, contemporary American democracy acknowledges the
essentiality of nationally guaranteed civil rights and liberties,
back by entities with the power of enforcement (Griffin, 1996,
p.103). Upon analyzing the theoretical facet in the framework of
the Supreme Court, it is palpable that the conditions and terms
pertaining to the Court are in fact democratic, specifically
pertinent in modern American Democracy. By reviewing case studies
and considering some of the outcomes of a non-existent Supreme
Court, it is obvious that our democratic system of government is
not in danger. Bruce Ackerman concludes that “When judges
intervene, they tend to operate on behalf of internationally-
recognized norms of human dignity. Thus, it is further evident
that in their rulings, the Court transcends moral and political
squabble in a fashion that most could not to protect our
fundamental civil rights and liberties. Supreme does not
constitute the authority, nor rule of the Court, rather it
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extends an idiosyncrasy enmeshed in the supreme judgment and
insight it is able to offer.
With regard to human rights in constitutions, they are
essentially “Negative obligations for the state (Otto-Bryde,
p.189).” That is to say that while there is consensus upon the
negative liberties imposed by human rights collectively, some
states have been compelled as far as to create positive
liberties, thus obliging the promotion and protection of human
rights (p.189). Textually, the German constitution draws
similarities with the United States in that they both restrict
the writing explicitly to negative rights (p.190). However, the
jurisprudence of the Federal Constitutional Court of Germany or
Bundesverfassungsgericht (BVerfGE) incorporates the teleological
interpretation of these rights to also develop positive
functions. Succeeding the failure of the Weimar Constitution and
the perils of Nazi Germany and Sonderweg (p.191), a new
constitution was drafted in 1949 (p.194). The prominences of
anti-liberal and authoritarian values in Germany at the time are
key factors historians attribute as logical reasons that led to
the fall of the Weimar Republic (Baun, p.80). As a whole, the 11
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Basic Law was drafted and founded from a reactionary position due
to the abuse of state powers.
The most prominent safeguard against the abuse of state
power is the multi-tiered system of judicial review, with a
separate Constitutional Court at the apex (p.194). The idea that
the Constitutional court be its own entity represents the German
mindset that constitutional law is a distinctly higher law,
rather, a supreme law. Whereas in the United States, All cases
have the potential to be brought to the Supreme Court, and there
are no separate, final administrative court branches. In its
hierarchical construction, the Basic Law purposefully states in
Article 1(1) that “Human dignity shall be inviolable (The Basic
Law, A.1(1)).” With its previously failed state in mind, the
German Basic Law was founded on the principles of upholding human
dignity and having a powerful check to state power. The BVerfGE
has a jurisprudence closely aligned with these ideas, and their
ability to draw from authoritarian traditions from Rechtsstaat and
actively assert them in the new constitution grants them a power
and influence not wielded on the same level by the United States
Supreme Court. Thus, it is imperative to understand that 12
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ultimately, the telos of the Federal Constitutional Court are
directly linked to the protection and upholding of fundamental
human rights.
As an activist court, the BVerfGE is able to, and in some
cases, has assumed broader powers, such as judicial policymaking.
While the German Federal Republic is heavily dependent on the
BVerfGE to oversee and assert constitutional rule federally and in
regard to Germany’s 16 Länder, the Court takes into account and
abides fairly by judicial restraint when applicable and
necessary. One way in which the German Constitutional Court
controls judicial activism is by the principle of proportionality
(p.204). This rule, which has even influenced European
jurisprudence as well as abroad internationally, asserts that
“[the Court] may not restrict the protected freedom more than
necessary (p.204-5).” In this way, the Court gives lawmakers a
broad margin of appreciation. Amongst this, Germany is adamant
about upholding the guarantee of state neutrality. Related to
this matter is the fact that Germany is also a strictly secular
state (Langenfeld & Mohsen, p.86). However, religious references
are allowed in the public schools, and the BVerfGE has upheld that13
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the non-denominational Christian-school paradigm is compatible
with the Basic Law, making religious expression and freedom a
less clear cut issue within the Court (p.86).
Concerning the principle of proportionality, the
preservation of state neutrality, and the secular state, the
Teacher Head Scarf Case [2003] challenged the above as a trifecta as
the Constitutional Court worked to interpret the Basic Law to
decipher if the plaintiff’s claims of her Article 4(1), (2), and
33(3) rights being violated were valid and justifiable (p.86). As
teaching careers fall within the bounds of the German civil
service, the administration expects nothing less than full and
utter compliance with the policies of state neutrality. The
Oberschulamt Stuttgart school authority thus rejected her
application, ultimately concluding that the public wearing of a
head scarf was “Not only a symbol of religious conviction but
also a political manifestation, which was not compatible with the
principle of state neutrality (p.87).”
In their decision, The Constitutional Court ruled that there
were no provisions in the Civil Service Law justifying Islamic
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head scarf prohibition, and referred to Article 33(2) and (3) of
the Basic Law which in regard to the civil service, stipulates
equal eligibility for all German citizens (p.88). Due to the
abstract nature of the alleged effects that headscarves could
have on children in a public school setting, The Constitutional
Court declared that only the parliament is suited to deal with
liberty rights (p.89. While the Constitutional Court relied on
precedent cases such as Crucifix [1995] and the Christian Paradigm, the
Teacher Head Scarf Case, though ruled unconstitutional, was a ‘weak-
ruling’ that left many loopholes after it was handed back to the
legislature to decide upon. However, the Teacher Head Scarf Case
demonstrates the capacity, consciousness, and willingness of the
BVerfGE to include the role of judicial restraint and recognize
when the Länder in fact, are more fit to make decisions through
their respective legislative processes.
The Federal Constitutional Court presides with admirable
consistency in its case rulings as well as in regard to
interpretation critical to the upholding of fundamental
constitutional rights provided in the Basic Law. Arguably, the
Housework Day Case [1979] marked the Courts dedication to issues 15
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revolving around gender inequality (“Human Dignity, Personal
Liberty”… p.428). An early precursor to the Nocturnal Employment Case
[1992], the Court invalidated this case concluding that Article
3(2) “Does not justify the disadvantaging of men who actually run
their own households themselves (p.428).” In this case it is
evident that the Court was re-considering and challenging the
validity of stereotypical and once traditional gender roles in
society. Nocturnal Employment catalytically came to Court’s
attention sparked by predecessors such as the Common Marital Name
Case [1991] (p.431). This benchmark case (Nocturnal Employment) in
German Constitutional law marks the beginning of the Court’s
adherence and dedication to equal protection jurisprudence
(p.430). Nocturnal Employment has later exerted influence over such
cases as Fire Brigade II Case [1995] and the Maternity Leave Case [2003]
(p.431).In a collaborative view of these cases compared to Men
Housekeepers [1979], it is clear the Court’s focus was on achieving
not just formal equality, but substantive equality as well
(Eberle, 2008, p. 44-45). Ultimately, gender inequality cases in
Germany triggered a shift to a scope of strict scrutiny applied
in all gender related cases and an elevated level in other
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suspect classes, which by its very nature makes it more proactive
than the United States Supreme Court.
Looking at cases such as Machinist and Firefighter [1995], it is
important to note that other underlying factors influencing
jurisdiction such as the theory of the Third Party Effect
(Drittwirkung) and the theory of Reciprocal Effect (Wechselwirkung) are
at play here (p.56). Machinist represents a case involving an
employer-employee relationship in the private-sector. Firefighter is
another closely related gender inequality case. In these
instances, German constitutional norms are applied through
Drittwirkung. Essentially, values within the Basic Law “radiate out
and influence interpretation of private law (p.56).” However,
this can also work the other way in Wechselwirkung, in which
private law norms are able to influence how constitutional norms
are interpreted (p.56). The most prominent example of this
occurring is in the Lüth Case [1957] which illustrates that basic
rights clearly influence civil law as well (p.56). Overall, these
theories have played decisive roles in case decisions pertaining
to fundamental rights protected by the Basic Law.
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Upon analyzing cases in the sphere of human rights and
dignity, the consistency and focus of the BVerfGE in their
interpretations becomes abundantly clear. The Court began
seriously considering prisoner’s rights in the Prison Correspondence
Case [1972] (Kommers & Miller, 2012, p.368), while The Lebach
judgment of 1973 in part explains the reasoning behind the Life
Imprisonment Case [1977] (Dünkel &Van Zyl Smit, p.349). In its
finding of mandatory life sentences unconstitutional, the BVerfGE
inferred from the meaning of Article 1(1) that prisoners forgoing
life sentences have a duty to strive towards their
resocialization (Kommers & Miller, 2012, p.366). The prohibition
of cruel and inhumane punishment, respect for human dignity, and
the principle of nulla poena sine culpa prompted the BVerfGE to follow a
Kantian logic of thought. In this manner, the BVerfGE asserts that
humans must be treated as ends within themselves, and that the
state cannot use a prisoner at their expense as an object for any
purpose of prevention or deterrence (p.365). The Court finds that
“Rehabilitation is constitutionally required in any community
that establishes human dignity as its centerpiece (p.366).”
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While social science as evidence was welcomed and generally
is viewed positively by the BVerfGE, the U.S. Supreme Court is
generally hesitant and quite reluctant to implement it into their
final decisions. Additionally, what liberty in the substantive
due process clause of the fifth and fourteenth amendments of the
U.S. constitution is for America, the “dignitarian” jurisprudence
of the Court is for Germany (p.373).The Mephisto Case and the
Tobacco Atheist Case [1960] demonstrate the absolute priority and
deference to the principle and value of human dignity protected
by the BVerfGE, as alleged values in these cases such as freedom
of the press (Mephisto Case) and the free exercise of religion
(Tobacco Atheist) are ultimately trumped in both instances by human
dignity (p.373).
It is obvious and with good reason that the rise of Nazism
and the fall of the Weimar Republic is responsible for countless
structural and ideological ideas seen in Germany’s new
constitution. Much more so than the United States, the Federal
Constitutional Court of Germany is purposefully given the
authority and responsibility to protect, interpret, and uphold
the Basic Law. In the words of an innocently oblivious George W. 19
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Bush, “I’m the decider, and I decide what is best.” Essentially,
the new constitution of Germany exhibits the desire for the
BVerfGE to take the reins and in a sense ‘be the decider’. With
the Court playing an active role in protecting fundamental civil
rights and liberties from becoming infringed upon, this setup was
intended to ensure that state power and human rights would never
again be abused. With this in mind, human dignity has clearly
been shown to be the central, absolute ideal taken into account
when interpreting constitutional cases, similar to how original
intent is considered by the United States Supreme Court. Cases
such as the Aviation Security Case [2006] further illustrate the weight
and attention placed on human rights and their inviolable
dignity.
The impetus placed on human dignity and an overall
encompassing threshold of social justice can again be seen in the
case of South Africa. Ravaged and torn apart by the reign of the
National Party until 1990, South Africa drafted the 1993 Interim
Constitution based in the same reactionary mindset of Germany’s
experience with rebuilding a country after the effects of a
horror regime (Deegan, 1999, p.17). Apart from establishing their20
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own Constitutional Court in this constitution, the most
significant achievement of the 1993 constitution is reasonably
schedule 4, which contains 34 clauses written to protect and
safeguard democratic principles. Furthermore, these principles
cannot be subsequently changed by the dominant governing party at
the time (p.17). With the establishment of the new constitution
in 1996 by the Constitutional Assembly, two years were devoted to
intense consultations with the general public about their ideas
about what a constitution should be, and what it should provide
(p.31). With this ‘collective wisdom’ compiled by all peoples of
the Republic of South Africa, a Constitution enshrined in the
value of human dignity, the protection of human rights and
freedoms, the upholding of social justice, and a dedication to
socio-economic prosperity was formed in the image of a greater
South African nation that could embrace their local humanitarian
concept of ubuntu.
With an extensive 243 sections within their constitution,
the Constitutional Court plays a key role in interpreting and
conveying the meaning of these sections as they pertain to the
ideas and values of South African culture. Due to the issue of 21
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the prevalence of socio-economic plagues such as HIV,
homelessness, high crime rates, and lack of food and clean water,
socio-economic based rights were a major category of protected
and more importantly, justiciable rights under the new 1996
constitution. In Government of the Republic of South Africa v. Grootboom
[2000], the Constitutional Court applied chapter 2, article 26
finding that the government had violated and failed to comply
with the settler’s right to housing by essentially leaving them
homeless under multiple scenarios after already bulldozing their
shanty village (Kende, 2009, p.245). The Court based their
decision largely on the explanation that “[T]hese rights are…
justiciable. At the very minimum, socio-economic rights can be
negatively protected from improper invasion (Fitzpatrtick, J.,
Slye, R., 2003, p.670).” Based on the notion that restricting a
basic socio-economic right such as housing, it’s reasonable to
see how the Court was able to link this right and other similar
rights such as healthcare services and food as being pertinent
for people to realize their full potential and for the
advancement and equality of society as a whole, all of which were
a key focus in the 1996 constitution (p.671-75).
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Most notable in section 27 is the addition to health care
services which explicitly includes the right to reproductive
healthcare (Constitution of the RSA, 1996, sec. 27). This
addition demonstrates the commitment to basic needs with such a
prevalent percentage of HIV positive persons living in South
Africa. However, the lack of knowledge, effects of social
marginalization, and a lack of preventative health care measures
such as condoms are still leading factors in the rampant HIV
rates plaguing South Africa (Mayosi, B., Lawn, J., & Van Niekerk,
A., 2012, p.2029-45). In Minister of Health v. Treatment Action Campaign
(TAC) [2001], a unanimous decision was handed down by the
Constitutional Court providing that a more comprehensive
implementation of the AIDS antiretroviral drug nevirapine stating
that, “The Constitution contemplates…the courts…to require the
State to take measures to meet its constitutional obligations
(p.252).” While the Court struck down the government’s defense
resting on the separation of powers, it showed judicial restraint
and a general respect for the separation of powers by delegating
the overall solution and enforceability as part of the State’s
agenda and not the Court’s (p.253). In regard to their
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jurisprudential approach, the Court under section 39 “must
consider international law, and may consider foreign law
(Constitution of the RSA, 1996, sec. 39).” In the Treatment Action
Campaign case for example, the Court supported its remedial
authority by citing cases from Canada, India, and Germany
(p.253). Furthermore, the Brown v. Board of Education II [1955] ruling
from the United States Supreme Court was brought in (p.253). This
breadth of international and foreign consideration spawns from
South Africa’s desire to be seen favorably by the international
community and countries such as Germany who enshrine the
importance of human dignity within their Basic Law. Other
notable socio-economic rights cases include: Khosa v. Minister of Social
Development [2004], and more recently Port Elizabeth Municipality v. Various
Occupiers [2005] in which Court Justice Albie Sachs proclaimed, “The
spirit of Ubuntu… suffuses the whole constitutional order. It
combines individual rights with a communitarian philosophy
(p.257).”
Drawing parallels with what the German Federal
Constitutional Court reasonably may have done, the South African
Constitutional Court relied on section 1(c) of the Constitution 24
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dealing with the “rule of law,” rather than basing their decision
on the right to housing or the right to property when
interpreting the President of the Republic of South Africa v. Modderklip Boerdery
(Pty) Ltd [2005] case (p.258). In all of these cases, it is clear that
in instances regarding socio-economic rights violations , the
Constitutional Court imposes its jurisdiction when necessary and
reasonable to remain consistent with the ideals of protecting
fundamental civil rights and to uphold the commitment to the
realization of a higher level of basic humanity for its people.
In regard to their view on human dignity and the right to
life, the Constitutional Court takes on a similar jurisprudence
as the German Federal Constitutional Court. This is not
surprising due to the fact that both of these constitutions
respectively were drafted post-Nazism and post-Apartheid from a
reactionary position against the abuse of state powers. Logically
then, it is fitting that ideas such as human dignity and the
value of life were principle to the foundation of both their
constitutions. In S. v. Makwanyane & Another [1995], the Constitutional
Court upheld the new South African government’s claim that the
death penalty violated the section 11(2) right providing for the 25
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right not to be subjected to “cruel, inhuman, or degrading
punishment (Kende, M. 2006, p.209-210).” Furthermore, evidence
was presented showing erroneous errors in DNA death sentence
trials as well as racist sentencing (p. 211). With their decision
based predominantly on sections 8, 9 and 10 (Right to equality
before the law (8), the right to life (9), the right to respect
for and protection of his or her dignity (10), the Court
established that, “by its very nature, [the death penalty is] a
denial of the executed person’s humanity… and treats him or her
as an object to be eliminated by the state (S. v. Makwanyane &
Another, 1995).”
As a result of this case, the Criminal Law Amendment Act
(CLAA) was passed by parliament in 1997, thus abolishing the
death penalty in South Africa (Africa News, 2006, LexisNexis).
Furthermore, in 2002 the Act was ratified so that no one within
state jurisdiction could be executed (Africa News). Because the
majority of South Africans actually support the use of the death
penalty the Makwanyane ruling and the CLAA have been high points
of contention. This is in part why the Constitutional Court cited
many international cases in support of their ruling from Germany,26
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India, and the European Convention on Human Rights. Even with
majority support, re-instating the death penalty would put South
Africa in violation of its international law obligations
according to parliamentary legal adviser M. Vassen (Africa News).
Furthermore, Judge Arthur Chaskalson asserted that “To allow a
referendum on the death penalty would be to allow the majority
view to prevail over that of minorities, and that was precisely
why parliamentary sovereignty was scrapped and a new legal order
was created with judicial review of all legislation (Africa
News).” In this instance, the Court demonstrates its willingness
to make the unpopular decision at times in order to maintain an
ideology consistent with the original values and direction
envisioned within the Constitution.
When looking at Canada’s approach to constitutionalism, it
may seem like they’re the outlier in this set of considered
ideas, however, their Supreme Court has also played a substantial
role in preserving and influencing fundamental rights through
their rulings and interpretations. Unlike all the other discussed
cases, Canada’s constitution is not an explicitly written
document. Instead, it is a compilation of documents such as: The 27
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Constitution Act of 1982, the Canada Act, the British North
America Acts from 1867-1975 (Renamed the Constitution Acts), the
Supreme Court Act, and the 1960 Bill of Rights (Marshall, 1988,
p.159). Legislative override and the idea of parliamentary
sovereignty through the notwithstanding clause in section 33 of
the Canadian Charter of Rights and Freedoms is an idea unique to
the Canadian structure. However, while provinces such as Quebec
have often invoked the notwithstanding clause, many have not and
two out of the three Canadian territories never have, and neither
has the Federal Parliament, creating a dynamic in which those who
use or abuse this clause lose respect amongst the group as a
whole. In its entirety, the notwithstanding clause has been
invoked only 17 times, and Goldsworthy asserts that the
‘perceived abuse’ of the clause by Quebec made it virtually
unusable before it could begin to be fully utilized (Albert,
2007-2008, p.1041). This hybrid system generally still places the
Supreme Court at the helm to navigate constitutional waters and
guide the system as a whole, but requires a cautious and
methodical approach in order to successfully preside over the
Canadian ‘constitution’ while still maintaining their legitimacy.
28
With Liberty and Justice For All
Because of its ability to nullify the power of judicial review,
this structure acts as somewhat of a public and political check
on judicial power leftover from the days of parliamentary
supremacy. However, cases such as R. v. Oakes [1986], Reference Re Secession
of Quebec [1998], R. v. Butler [1992], and Vriend v. Alberta [1998] demonstrates
the Court’s ability to be effective and consistent with their
enforceability of the constitution while forgoing any major
reasons to initiate the invocation of the notwithstanding clause
(R. v. Oakes, 1986, p.203) (Reference Re Secession of Quebec,
1998, p.166) (R v. Butler, 1992, p.91) (Wintemute, 2004, p.1151).
Emerging from a post-Apartheid regime, the parties involved
in the drafting of the constitution all made ideological
sacrifices in order to create a document that would embody the
values and rights of the new South Africa. As seen through the
Constitutional Court, socio-economic rights have been fervently
upheld in many cases by the Court in an attempt to ward off the
chance of a further regression of basic human rights and civil
liberties. With human dignity at the forefront of this post-
horror regime constitution, cases like Makwanyane illustrate the
Court’s concern to turn the words of a governing document into a 29
With Liberty and Justice For All
substantive reality. All in all, it is abundantly clear that
while not perfect, this young Constitutional Court has asserted
itself into a position of strength and legitimacy in which it
will surely continue to protect the fundamental rights of the
people of South Africa, promote the core values of its
constitution, and embrace ubuntu, a concept which Nelson Mandela
embodied to connect a nation of people, draw strength from their
similarities, and forgive their differences.
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