Toward a Relational Constitutionalism
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Description
The South African Constitution explicitly instructs its interpreters to look to the rulings of other nations and to those of international tribunals for guidance. This cosmopolitan stance is an admirable example of the wisdom of constitutional judgments in the new South Africa. Taking such a stance, I dare say that you will find a great deal to emulate—in the United States and elsewhere. But in taking this stance you will, I imagine, draw as much wisdom from the mistakes of other nations as from their successes. Justice Ackermann, whose work is honoured here, has described South African constitutionalism as appropriately 'reactive' to the history of apartheid. But negative lessons are not only home-grown. In a cosmopolitan effort to give meaning to such notions as liberty, equality and human dignity, it is appropriate to be sensitive and reactive to the limitations of others' visions. South Africa is as much the pioneer as the follower in our shared quest for constitutional democracy, and so we will all profit as it exposes and corrects for the blind spots of other jurisdictions. Although there is much to be proud of in the United States constitutional tradition, I invite your attention to two areas in which our constitutional vision seems to me deficient and South Africa's; seems superior. Reading the work of Justice Ackermann and other participants in the development of the emerging constitutional tradition in South Africa, it is difficult to avoid the thought that the United States' constitutional vision is deficient in its failure to develop a concept of human dignity that can inform the elaboration of human rights. I argue that this failure has to do with our inability to understand and learn from the reactive character of our constitution as reconstituted after the Civil War and the abolition of slavery. I honour South Africa's ability to face and learn from past abuses. And I encourage reactive constitutionalism—in the United States as well as in South Africa—as a way of understanding the importance of dignity to democratic theory. Reviewing South Africa's constitutional jurisprudence also prompts the thought that we in the United States have failed to make a sufficient constitutional commitment to nurturing and giving resonance to multiple democratic voices. I argue that the just elaboration of constitutional principles requires attention—of the kind the South African Constitutional Court has paid—to multiple voices and perspectives. And, relying on a feminist critique of patriarchy and other forms of subordination, I discuss the difficulty—and the crucial importance—of recognizing and nurturing political voices that might otherwise remain subordinate. My arguments in each of these areas are supported by comparison of the different analyses of the South African Constitutional Court and the United States Supreme Court of the constitutionality of laws criminalizing consensual sodomy.
Source Publication
Dignity, Freedom and the Post-Apartheid Legal Order: The Critical Jurisprudence of Laurie Ackermann
Source Editors/Authors
A.J. Bernard-Naudé, Drucilla Cornell, François du Bois, Jan Glazewski
Publication Date
2008
Recommended Citation
Davis, Peggy C., "Toward a Relational Constitutionalism" (2008). Faculty Chapters. 304.
https://gretchen.law.nyu.edu/fac-chapt/304
