High Courts and Constitutionalism: The United States, Germany, and South Africa

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.

With Liberty and Justice For All

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

5


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


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


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


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


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


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


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


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


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


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


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


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


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


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.

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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


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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High Courts and Constitutionalism: The United States, Germany, and South Africa

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