Constitutional Rights in Two Worlds: South Africa and the United States

by Mark S. Kende

Overview

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 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.

Product Details

ISBN-13:	9780521171762
Publisher:	Cambridge University Press
Publication date:	06/30/2010
Edition description:	New Edition
Pages:	336
Product dimensions:	6.00(w) x 8.90(h) x 0.90(d)

About the Author

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 2002–3. 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 and 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 Notre Dame Law Journal. He is also the co-author of a casebook, Theater Law, and was one of the authors of Courting the Yankees: Legal Essays on the Bronx Bombers.

Table of Contents

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.

Editorial Reviews

"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 Africa 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 comperehensive 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

From the Publisher