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Monday, May 04, 2009

Transformative Pragmatism and a "New" Constitution

Having written several posts on the South African Constitutional Court's socio-economic rights rulings, I want to suggest the Court has adopted an interpretive methodology that can be called "transformative pragmatism."  Richard Posner, Dan Farber, and Suzanna Sherry are perhaps the most well known American adherents to a pragmatic constitutional methodology.  The South African approach has some similarities and differences (and certainly Posner and Farber don't see eye to eye).  The core idea agreed upon by South African justices, scholars, and advocates is that the Constitution was meant to transform South African society.  I view this as similar to the Civil War Amendments in the U.S., which seem to get short shrift here compared to the "founder's" Constitution. 

The Constitutional Court justices, however, have been pragmatic in how they implement transformation.  Thus, they have handled socio-economic rights remedies carefully, and have rejected United Nations committee recommendations that nations set a "minimum core" regarding socio-economic rights.  As a new Court, they had interests in institutional self preservation and legitimacy (they are not elected), they had few human rights case precedents, and they sought to avoid doctrinal mistakes.  Justice Richard Goldstone told me in an interview that, "I...strongly believe that in the formative years it would be a serious mistake to craft wider opinions than necessary.  It is far better to hasten slowly and be more certain of building a coherent jurisdiction.  I have no doubt that principles should be clear but that is another matter."  I call this the Hippocratic view (do no harm).  They also looked to foreign law for guidance, as recommended by their Constitution.  Another Justice described their approach to me as "minimalist maximalism"  e.g. bring about real transformation, but do so cautiously unless a dramatic remedy is constitutionally necessary 

To an American law professor, their Court's approach still seems bold in enforcing socio-economic rights, abolishing the death penalty, supporting gay marriage, etc.  Most South African constitutionalists, however, have criticized the Court for not going far enough.  Living with apartheid and its legacy would understandably explain some of their impatience.  My book though argues that the South African Court's approach has been largely correct (it's interesting to see the typical academic-judicial divide in another country).  It contrasts with the U.S. Supreme Court's formalism in areas like affirmative action (Gratz), the duty to protect (DeShaney), the death penalty (McCleskey), and socio-economic rights.  I also argue the U.S. Supreme Court could have pursued a transformative pragmatic approach given the Civil War Amendments, the Ninth Amendment, etc.  More examples will follow in later posts contrasting American and South African precedents, as well as addressing the current support for popular constitutionalism in the American academy.

Posted by Mark kende on May 4, 2009 at 02:32 PM | Permalink

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