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Tuesday, May 12, 2009

South African v. American Constitutional Law

One last post before I must sign off and do some traveling.  If you want to highlight or contrast U.S.Supreme Court gender discrimination or equality jurisprudence, then you could have a class read the South African Constitutional Court's decision in Pres. of S. Africa v. Hugo (1998).  President Mandela issued a pardon after taking office as a form of celebration.  He pardoned women in prison who had committed non-violent offenses and who had children under 12.  A similarly situated man sued and claimed gender discrimination.  After an interesting discussion about why the issue was not a political question, the Court upheld the pardon as not amounting to unfair discrimination.  The Court relied on the fact that women had historically been victims of apartheid, that their imprisonment hurt their children, that the Constitution permitted forms of affirmative relief for disadvantaged groups, and that it would not be practical to release men.  Why not?  Because the crime problem in the country was so serious that releasing males would cause real panic.  In addition, men could still seek individual pardons.   Most controversially, the case includes an affidavit from Mandela stating that the reality is that women are the primary caretakers of children in African society.  This raises the issue of what do you do if the stereotype is partly true, which of course has numerous responses.  There is a strong dissent that quotes heavily from U.S. Supreme Court cases stating that this kind of ruling only perpetuates stereotypes of women as domestics.  Indeed, Justice Stevens has an opinion in a case that seems in direct conflict.

The South African case, in my view, shows transformative pragmatism.  The Court seeks to help a historically disadvantaged group and takes account of very practical reasons why it would not be feasible to go farther.  And the Court said no person has a right to a pardon.  But most interestingly, the Court honestly acknowledged the risk of stereotyping here but found the risk outweighed by these concrete substantive benefits to specific women.  The facts were also rather unique and the context mattered greatly.  This is substantive equality (practical, contextual, and concrete) v. formal equality where the presumption is that everyone should generally be treated equally regardless of context (a more rigid principle based on abstract theory).  Hugo is one of my favorite cases because I think the arguments on both sides are quite strong. 

In closing, let me mention that my book, Constitutional Rights in Two Worlds, contains many other interesting comparisons between the two countries. 

You can focus just on the South African analysis or just on the American analysis to see the theories of constitutional interpretation at work (chapters cover free speech, gay rights, the death penalty, affirmative action, popular constitutionalism etc.).  I spend much of the last chapter arguing that the leading supporters of the prominent "juristocracy" critique today (such as Ran Hirschl) do brilliant work but may not have theories that apply well to South Africa where scholars generally want a bolder court.  I hope some of you will take a look at the book and thank you for listening to my ramblings.  I especially want to thank the folks here at Prawfs Blawg for letting me join the fray.  Best wishes to all.  

Addendum:  I'll be doing an Author meets Reader panel at the upcoming Denver Law and Society meeting so feel to join us. 

Posted by Mark kende on May 12, 2009 at 07:11 PM | Permalink


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I am going to second the above poster - for goodness sake Prawfs, Rob's posting is so far from the core of this blog that I am going to stop reading, at least for a while. Its not just the no comments poilcy, its Rob's disingenuous claim that he is not advocating for her appointment. But blunt, be honest, be open, say you want her on the court because you think she would be the best choice and that the media is taking things out of context, but don't say you are not pushing her when you are, close off comments, and double post to keep your post at the top. Enough Prawfs, I thought better of this blog.

Posted by: Sally | May 12, 2009 11:08:49 PM

So, now not only does Rob get a forum to praise Judge Sotomayor without any commenting, but he gets his post regularly bumped back to the top?
This really is not why I came to this site and became a regular reader. Really seems to go against the notion of an open exchange of ideas.

By the by, my apologies to Mark for leaving this off-topic comment on your post--it just happens to be the most recent one allowing comments.

Posted by: D | May 12, 2009 10:19:50 PM

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