The South African Constitutional Court has issued internationally prominent decisions abolishing the death penalty, enforcing socio-economic 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 US 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 US 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 US Supreme Court could employ.
• This is the first book to compare leading South African Constitutional Court rights decisions with their American counterparts in some detail • A critical examination of the South African Constitutional Court's development of a truly African approach to constitutional rights • The first book to provide background on the Constitutional Court's Justices about how they approached the transition from an apartheid judiciary to the judiciary in a multi-racial democracy
1. Introduction; 2. History and background; 3. The death penalty; 4. Gender equality; 5. Gay rights; 6. Affirmative action; 7. Freedom of expression; 8. Freedom of religion; 9. Socioeconomic rights; 10. Final thoughts.
'This book provides a perceptive examination and critique of important areas of the jurisprudence of the South African Constitutional Court. Professor Kende uses the South African decisions as a prism for examining the case law of courts of other democratic nations and especially the United States Supreme Court. It provides important new insights into many areas of concern to scholars, judges, practitioners and students.' Richard J. Goldstone, Former Justice of the South African Constitutional Court
'A fascinating, original, and genuinely important book, illuminating not only the South African and American Constitutions, but constitutional theory and practice in general. Indispensable reading.' Cass R. Sunstein, Felix Frankfurter Professor of Law, Harvard Law School
'Mark Kende's book is an outstanding and refreshing contribution to the growing literature on comparative constitutionalism. His profound analyses of the fascinating South African constitutional project, and the crosscultural juxtaposition of its constitutional rights jurisprudence and the US constitutional practices reflect the challenges of modern day constitutionalism. Kende's approach of 'transformational constitutionalism with a pragmatic touch' will revive the rusty discourse on US constitutionalism, and his conclusions form a sound basis for a comprehensive and progressive reform agenda.' Dr. Rainer Nickel, Institut für Öffentliches Recht/Institute for Public Law, Goethe-Universität Frankfurt am Main and Former Schlesinger Scholar and Visiting Professor at Cornell Law School
'Written in clear and persuasive prose, Mark Kende's very compelling narrative raises provocative questions about the role of constitutions and courts to effect social and political change. His thoughtful comparative analysis of the rights provisions in the South African and American constitutional frameworks provides the reader with a novel perspective by which to examine contemporary constitutional issues like religion, social and economic rights, and gay marriage. As Kende points out, although there are marked differences, the United States and South Africa have a shared history of racial segregation and tyranny, which both societies have endeavored to overcome through constitutional mechanisms, including an innovative constitutional jurisprudence. Drawing on his impressive knowledge of both constitutional systems, Kende highlights the possibilities and the limitations that constitutions can generate regarding structural societal change. American constitutional law has spawned an extraordinary volume of scholarly works, and a significant literature on the South African Constitution has emerged since the first constitution was adopted there in 1993. Kende's volume is the first to provide a detailed comparative perspective, highlighting differences and similarities that will be of tremendous value to public law, comparative constitutional law, and international human rights scholars.' Penelope Andrews, Professor of Law and Director of International Programs, Valparaiso University School of Law
'Discusses the South African Constitutional Court's rulings abolishing the death penalty …' The Chronicle of Higher Education
'Constitutional Rights in Two Worlds: South Africa and the United States is a rich addition to legal commentary on comparative constitutionalism … it furthers the case for the development of progressive constitutionalism and enhances the value of international human rights law.' Commonwealth Law Bulletin