Constitutional Rights In Two Worlds: South Africa And The United States

This page intentionally left blank constitutional rights in two worlds South Africa and the United States The South African Constitutional Court has issued internationally prominent decisions abolishing the death penalty, enforcing socioeconomic rights, allowing gay marriage, and promoting equality. These decisions are striking given the country’s apartheid past and the absence of a grand human rights tradition. By contrast, the U.S. Supreme Court has generally ruled more conservatively on similar questions. This book examines the Constitutional Court in detail to determine how it has functioned during South Africa’s transition and compares its rulings to those of the U.S. Supreme Court on similar rights issues. The book also analyzes the scholarly debate about the Constitutional Court taking place in South Africa. It furthermore addresses the arguments of those international scholars who have suggested that constitutional courts do not generally bring about social change. In the end, the book highlights a transformative pragmatic method of constitutional interpretation – a method the U.S. Supreme Court could employ. Mark S. Kende is a Professor of Law, the James Madison Chair in Constitutional Law, and Director of the Drake Constitutional Law Center. Kende earned his BA cum laude with honors in philosophy from Yale University and his JD from the University of Chicago Law School, where he was a member of the Law Review. Before entering academia, he clerked for a federal judge and litigated employment, civil rights, and constitutional cases at a Chicago law firm, where he worked with Barack Obama. He has co-taught constitutional law classes with two current U.S. Supreme Court Justices. Kende previously taught at Notre Dame Law School, the University of Montana School of Law, the Thomas M. Cooley Law School, and the University of Tennessee Law School. He was Teacher of the Year at Montana in 2002–2003. He has served as a Senior Fulbright Scholar and Visiting Professor of Law at the University of Stellenbosch in South Africa, as a Fulbright Senior Specialist in the former Soviet Republic of Moldova, and as a Visiting Professor at the University of Nantes, France. He has lectured or published scholarship in Canada, China, the Democratic Republic of the Congo (as a rule of law consultant), France (at the University of Paris I – Sorbonne), Germany, Spain, South Africa, the United Kingdom (at Oxford University), and throughout the United States. In 2003, he served as chair of the Association of American Law Schools Section on Africa. In 2008, he served as chair of its Section on Constitutional Law. He also co-directs a Law & Society Research Network on Africa. Kende’s writings have appeared in publications such as Constitutional Commentary, the South African Law Journal, the Hastings Law Journal, and the