Reviewed by Christopher Malone, Associate Professor and Chair, Department of Political Science, Pace University cmalone[ at] pace.edu.
Over the last seven years, I’ve had the good fortune to develop and co-teach a comparative race and gender course on the United States and South Africa with a colleague at Pace University, the International Relations scholar Meghana Nayak. On three occasions, we’ve brought our students to South Africa at the conclusion of the semester to meet some of the people and witness firsthand some of the things we had studied over the course of the semester. As many faculty at universities around the world know, travel courses like these are incredibly demanding, intellectually and emotionally draining – and the most rewarding teaching experience one could probably ever have. They allow us to connect the classroom to the “real world” in dramatic fashion. They transform the foreign and strange into something wonderfully familiar, if only for two weeks at a time – and in the process usually wind up providing a transformative experience for the students. In a course like ours, the travel component allows us to build on the tried and true of all pedagogies, the comparative method.
In our case, it certainly doesn’t hurt that the field upon which to compare and contrast the United States and South Africa is incredibly rich, for obvious reasons. For decades, scholars have sought to understand one by looking at the other. The comparative historian George M. Frederickson returned to the subject time and again over his illustrious career with works such as White Supremacy: A Comparative Study of American and South African History (1981), an excellent chapter on South Africa and the United States in The Arrogance of Race: Historical Perspectives on Slavery, Racism and Social Inequity (1988), and Black Liberation: A Comparative History of Black Ideologies in the United States and South Africa (1996). Anthony Marx’s 1998 Making Race and Nation added Brazil in the mix, providing another point of reference for the comparison. Around the same time, Safundi: The Journal of South African and American Studies was launched, dedicated exclusively to studying the two countries in international, transnational, and comparative fashion.
Add to this growing list of comparative works Mark Kende’s Constitutional Rights in Two Worlds: South Africa and the United States. Kende’s approach should be properly classified as comparative constitutionalism, as he [*348] examines and critiques the jurisprudence of the South African Constitutional Court and the U.S. Supreme Court in various areas: the death penalty, gender equality, gay rights, affirmative action, freedom of expression, freedom of religion, and socioeconomic rights. While each chapter of the book is comparative in nature, analyzing the cases before the respective courts, Kende clearly writes for an audience of constitutional scholars more familiar with the American context. Thus, the brunt of the analysis is on the South African Constitutional Court and its decisions, which are then held up in comparison to Supreme Court jurisprudence in similar areas. The result is a critical analysis of great depth that provides us with a unique examination on the role and function of the courts not yet found in the scholarship of the United States and South Africa.
Kende’s efforts yield rich evaluations in each of the seven areas he explores. Undergirding the detailed description of cases is a much broader, deceptively simple question: why has the Constitutional Court of South Africa consistently come to more progressive decisions on social issues while the U.S. Supreme Court has not? Here is where the comparative method yields the most promise, and Kende’s conclusions are indeed illuminating. He identifies in the opening pages five distinctions between the jurisprudence of the respective courts. Each of these reasons could easily serve as the subject matter for whole chapters. The first and most obvious comparison is found in the words of the constitutions themselves. As Kende points out South Africa’s was intentionally drafted to be socially transformative. Whereas the U.S. Constitution delineates “negative rights” (“freedom from”), the South African Constitution provides for “positive rights” (“freedom for”). Kende quotes Judge Richard Posner, who summed up appropriately the differences in commenting on the intent of the framers of the U.S. Constitution in Jackson v. City of Joliet: “[Our] Constitution is a charter of negative rather than positive liberties…the men who wrote the Bill of Rights were not concerned that government might do too little for the people but that it might do too much to them” (p.244). The South African Constitution indeed seeks to do much for its people: it authorizes affirmative action, affirms the right to health care, protects the right to unionize, and lays out specific rights for children. The U.S. Constitution is a great “liberty” document; the South African Constitution on the other hand guarantees “human dignity” – however that term might be defined. Protection from government oppression preoccupied the American Founders, while obligating the government to provide services to a predominantly poor population consumed those who built the New South Africa.
The differences produce clearly divergent methods of jurisprudence. As stipulated by Article 39, the Constitutional Court, for instance, may [*349] consider foreign and international law in its decisions (p.8). The U.S. Constitution has no such provision; in fact, a large portion of American political thought holds that the use of and reliance on foreign and international law undermines American sovereignty. Antonin Scalia’s dissent in Lawrence v. Texas (2003), which banned all anti-sodomy laws, is a case in point: Scalia took Justice Kennedy to task for basing part of his decision on changing international norms as they relate to homosexuality. Three years later, at the height of the Bush’s Administration’s “War on Terror,” A Republican-controlled Congress explicitly sought to ban courts from "foreign or international source of law" as "a basis for a rule of decision in the courts of the United" in the Military Commissions Act of 2006. A majority of the Court disregarded that provision, arguing in Hamdan v. Rumsfeld (2006) that military commissions violated Article 3 of the Geneva Convention.
Another distinction Kende finds is that the South African Constitutional Court has taken a more communitarian approach to its decisions, in contradistinction to its American counterpart more preoccupied with individual rights and libertarian values. This is an important cultural difference between the two nations. The African concept of ubuntu has consistently made its way into South African jurisprudence. Kende quotes Chief Justice Pius Langa in one landmark case: “The notion that ‘we are not islands to ourselves’ is central to the understanding of the individual in African thought”(p.9). By contrast, the individual in American thought is largely seen as possessing the right “to be let alone.” This melds well with another important difference found in competing concepts of “equality.” The U.S. Supreme Court has rarely accepted arguments based on substantive equality – the view that laws which specifically benefit historically disadvantaged groups are constitutional. The American approach has rather tended toward “formal equality” or the belief that all individuals should simply be treated the same. The tension between the two was on display prominently in the landmark Bakke (1978) decision where the Supreme Court struck down most of the California Davis Medical School’s affirmative action policy because it improperly favored historically disadvantaged groups. Quotas were unconstitutional to remedy past discrimination and “societal discrimination” was too amorphous a concept for a court of law to favor; in a highly fractured decision the Court reaffirmed the longstanding idea that the Constitution protects individual rather than group rights. On the other hand, the South African Constitutional Court has been more willing to uphold laws promoting substantive equality. Advantaging one group (black South Africans), which had been fenced out of the social, political and economic benefits of South African society, has routinely been viewed as completely acceptable if not encouraged. [*350]
Using these crucial differences as points of departure, Kende launches into his case studies with vigor and ease, without undermining his central focus of what exactly constitutes “rights” in the views of the respective courts. Perhaps here is where the most crucial difference lies in the two constitutional systems. Put simply, one person’s “right” is another’s “benefit” or “preferential treatment.” Because the book was published in 2009, it is somewhat outdated on issues like gay rights and health care. Recently the Supreme Court ruled on the constitutionality of the Affordable Care Act – Obamacare – and likely will soon rule on the constitutionality of same-sex marriage. Yet, Kende gets the underlying premise right: whereas the Constitutional Court has been more prone to see same-sex marriage, affirmative action, or health services as fundamental rights in the South African context (authorized by the South African Constitution), the U.S. Supreme Court has been reluctant to expand the definition of “rights” to include some of these more controversial issues. This is certainly why, for example, Roe v. Wade (1973) continues to be a controversial decision: conservatives fail to see where the Constitution explicitly provides for a “right to privacy” that includes the right to have an abortion. More recently, in NFIB v. Sebelius (2012), the Court certainly did not affirm the “right” to health care – only the government’s right to tax (or penalize) individuals who choose not to purchase it. It remains to be seen whether this Supreme Court will buy the argument put forward by erstwhile rivals Ted Olson and David Boies, the lead attorneys for groups challenging California’s Proposition 8, on grounds that marriage between a same-sex couple is a fundamental right.
What is clear is where Kende’s politics or legal philosophy lies throughout Constitutional Rights in Two Worlds. He tells us in the opening chapter that courts can and should play an active role in social change (p.10), and he admiringly approves of what he calls the Constitutional Court’s “African transformative pragmatism” (p.287). It is also apparent that Kende believes the U.S. Supreme Court could learn a thing or two from its South African counterpart. In fact, on several occasions Kende implies a “lost moment” in the history of American jurisprudence – somewhere probably in the 1970s when the Court decidedly turned away from its liberal trajectory during the Warren years in cases involving education, the poor, civil rights, and the rights of criminal defendants. Kende is certainly free to express his legal and philosophical principles. However, it is here that the author could provide more context that seems conspicuously obvious in its own absence.
In other words, what is missing in the analyses of the respective courts is an adequate political and historical context which could help answer why, for example, the U.S. Supreme Court took the turn it did toward a more conservative approach in the 1970s, and [*351] what that shift may portend for South Africa. After three decades of New Deal liberalism in the Post-War era, the election of Richard Nixon in 1968 initiated a conservative “counterrevolution” which one could argue we’re still in the midst of in the United States. Republican presidents have served 28 of the last 44 years. Of course, presidents nominate Supreme Court justices; it is no wonder, then, that the Supreme Court has taken that conservative turn. While all courts seek to keep “politics” at arm’s length, it would be foolish to suggest that the appointment of judges is not a political process that at the least has ideological ramifications. Put another way, in the history of the oldest constitutional democracy in the world, the U.S. Supreme Court has gone through periods of laissez-faire conservatism bordering on social Darwinism, followed by a robust progressivism that Kende seems to favor. Those jurisprudential transformations track fairly closely to the political realignments in the history of the United States.
By contrast, the New South Africa is barely two decades old. In the past several years, we’ve seen the mandatory retirement of the Constitutional Court’s pioneer jurists. It remains to be seen if the present and future courts will push South Africa further toward a progressive jurisprudence – or if there will be some type of conservative backlash similar to what the United States has witnessed over the last 30 years. Kende’s work reminds us that the South African constitution at its heart is a socially progressive document which will no doubt continue to shape the decisions of the Court. Yet, it is also the case that judges in every constitutional democracy get to tell us what the law is. The power of judgment is still an awesome power, and nothing is etched in stone.
To be fair, a historical analysis on this order is not what concerns Kende, and it is safe to say it would take him too far afield from his original focus. That said, there is room for at least some comparative reflection on these points. The concluding chapter overemphasizes a critique and refutation of Ran Hirschl’s Towards Juristocracy which, while valuable and enlightening in terms of literature on the constitutionalism of South Africa, has the effect of taking the reader away from the most valuable element of the book at the close – its comparative nature, and how entering into a dialogue about the two courts can shed light on each and, just as important, the wonderfully intriguing nature of constitutional democracies.
One thing is clear to this reviewer: I look forward to assigning the book in the next installment of my comparative course on the U.S. and South Africa.
Frederickson, George M. 1996. Black Liberation: A Comparative History of Black Ideologies in the United States and South Africa. New York: Oxford University Press.[*352]
Frederickson, George M. 1988. Arrogance of Race: Historical Perspectives on Slavery, Racism and Social Inequity. Middleton, CT: Wesleyan University Press.
Frederickson, George M. 1981. White Supremacy: A Comparative Study of American and South African History. New York: Oxford University Press.
Hirschl, Ran. 2004. Towards Juristocracy. Cambridge, MA: Harvard University Press.
Marx, Anthony. 1998. Making Race and Nation: A Comparison of South Africa, the United States, and Brazil. Cambridge: Cambridge University Press.
Hamdan v. Rumsfeld. 548 U.S. 557 (2006).
Jackson v. City Of Joliet 715 F. 2D 1200 (1983).
Lawrence v. Texas 539 U.S. 558 (2003).
National. Federation of Independent Business v. Sebelius NOS. 11-393, 11-398 AND, 11-400, 2012 BL 160004 (U.S. JUNE 28, 2012).
Regents of the University of California v. Bakke 438 U.S. 265 (1978).
Roe v. Wade 410 U.S. 113 (1973).
Copyright by the Author, Christopher Malone.