Contemporary challenges Flashcards
(13 cards)
What are contemporary challenges?
the real-life problems and debates we face today when trying to apply and understand the Constitution.
When can contemporary challenges rise?
- The counter-majoritarian difficulty
- The constitutional values
- Fostering a rights culture
- Constitutional interpretation and social
justice
What is meant by the counter-majoritarian difficulty?
The counter-majoritarian difficulty is the problem of balancing judicial power with democratic rule. It asks whether it’s right for unelected judges to strike down laws or decisions made by elected officials, who represents the will of the majority.
Why is this a tension in a democracy?
Because democracy is based on majority rule, but constitutional courts can block majority decisions to protect constitutional rights.
What justifies the power of the courts to override majority decisions?
The Constitution is a product of public agreement and includes rights that must be protected, even from democratic majorities.
What does Michelman (1988) say about the judiciary’s role?
udges have a “situational advantage” in hearing voices from the margins—meaning they can protect minority or vulnerable groups better than politicians can.
What democratic values are also at stake in this issue?
Majority rule and the separation of powers—courts must respect these while protecting constitutional rights.
What are the unresolved questions about judicial power?
How far should courts go in reviewing laws?
Is the Constitution just what judges say it is?
What role should civil society and the public play?
Who draws the line between legal interpretation and political decision-making?
- What is the constitutional values challenge about?
What is meant by activist constitutional interpretation?
The court must be active. To avoid proving the CLS critics right, courts must be more active—meaning they shouldn’t just mention values, they must actually use them to guide real decisions. This approach is called activist constitutional interpretation.
- What is meant by the fostering of culture as a challenge in SA?
many people use the Constitution only when it benefits them, and ignore it when it doesn’t. It becomes a tool for personal or political gain, not a guide for fairness and justice.
Fostering a rights culture means encouraging everyone to understand, respect, and protect the constitutional rights. This helps to build a society where the Supreme Constitution is revered as a key symbol of nationhood.
What is the difference between judicial activism or judicial self-restaint?
Judicial activism means judges take a strong role in pushing for justice.
Judicial self-restraint means judges hold back and let government decisions stand unless they’re clearly wrong.
