Challenges Flashcards
(26 cards)
What are the 5 challenges to the constitutional interpretation?
- The counter-majoritarian challenge
- Constitutional values
- Fostering a right culture
- Constitutional interpretation and social justice.
What is the counter majoritarian challenge about?
This challenge questions how unelected judges can overturn laws made by a democratically elected Parliament. It raises concerns about whether courts have the legitimacy to make decisions that go against the will of the majority.
Why is this a challenge?
While courts must protect constitutional rights, they are not intended to function as super-legislatures.
How can the counter challenge be fixed?
Determining where the line lies—and who decides where it lies—continues to be a complex and unresolved issue.
What is the constitutional values challenge about?
the challenge lies in how these values are used. Are they merely moral decoration, impressive-sounding but ultimately hollow references in legal decisions?
Why is this a challenge?
What can courts do to beat the allegations made by the critical legal studies about fundamental rights being lip service?
the judiciary must adopt a more ‘activist’
role with regard to the fundamental values during constitutional interpretation
What is activist constitutional approach?
Activist constitutional interpretation means that judges don’t just read the Constitution in a passive or technical way. Instead, they take an active role in promoting, protecting, and giving real meaning to the fundamental values in the Constitution. This means they must strengthen and apply these values in real situations that affect real people, not just for individuals, but for society as a whole including marginalized or disadvantage groups.
Which question does this interpretation approach raise?
Whose values shape the constitutional interpretation as SA is a multi cultural country
Why is this question asked?
Because people have different views when it comes to values like equality and non-sexism.
What can be done to fix this challenge?
We have to actually change the way interpretation is done, so that marginalised groups are actively included, respected, and allowed to speak for themselves in shaping what the Constitution means for everyone.
What is meant by fostering culture?
Fostering a rights culture means turning the rights in the Constitution into something real, lived, and meaningful for all South Africans. It’s about building a society where people believe in and live by the values of equality, justice, dignity, and freedom—not just talking about them.
How do Americans treat their constitution compared to SA?
When a new U.S. president is sworn in, they make a public oath to protect and defend the Constitution. Americans see it as something that unites them as a nation, just like the flag. It brings people together and is treated with deep respect and reverence.
How is this different to South Africans?
People often use the Constitution when it benefits them, but ignore it when it doesn’t. It is not respected.
What does Miller and Grey say about this?
say that for many Americans, the Constitution is more than just a legal document. It’s almost sacred—like a religious symbol.
What danger does South Africa currently face regarding its constitutional state?
he danger is that while constitutional values are emphasized, the state is collapsing in key areas like accountability, rule of law, service delivery, and active civil society, threatening the foundations of democracy.
What does it mean that constitutional values are used as “window-dressing”?
It means the values are showcased on the surface to look good, but in reality, they are not genuinely followed or implemented.
What did Griffin say about the American Constitution?
He said it’s treated as the ultimate guide to judge all political actions, so much that people often ignore everything else.
How did the apartheid government in South Africa treat the law?
It followed formal legal rules (like paperwork), but those rules lacked real justice or moral values.
What is the constitutional interpretation and social justice about?
How should courts interpret socio-economic rights (like housing and healthcare)? Should they be treated differently from other rights (like free speech and voting)?
What is the difference between the judicial activism and judicial self-restraint?
- Judicial activism = When courts actively enforce rights, making bold decisions that push for change.
- Judicial self-restraint = When courts limit their power, avoiding involvement in policy matters and leaving decisions to the government.
What perspectives people has based on their social class?
- People in wealthy areas often prefer judicial self-restraint, so courts don’t interfere too much in government policies.
- People in poor communities often prefer judicial activism, so courts step in to protect their access to housing, healthcare, and basic necessities.
should the courts overrule the parliament when interpreting the social justice rights?
- Courts should not take over policymaking, because they are not experts in budgets and government planning.
- However, courts should also not simply approve everything the government does.
- If the government ignores socio-economic rights, courts must step in to enforce them.
- If courts do nothing, the Bill of Rights loses its power and just becomes words on paper.
In addition to protecting and promoting rights, what must courts do?
- Today’s governments must not only protect rights but actively help people improve their lives.
- The state should not just take action to prevent harm, but also create opportunities for its citizens.
