Thursday, December 07, 2006

US Supreme Court Justices Debate

Reading a report on Slate of a debate between US Supreme Court Justices Stephen Breyer (moderate) and Antonin Scalia (right wing) one cannot but be impressed by the quality of the reporting. How many journalists in South Africa would be able to report on the South African Constitutional Court Justices in this manner? Maybe Carmel Rickard, at a push.

4 comments:

Michael said...

Agreed, Lithwick is a marvellous legal journalist. (It helps that she had a law degree from Stanford, and practiced for a while). Also, try to imagine public debate like that between Scalia and Breyer between, say, Sachs and Ncgobo of our court. Unthinkable!

mal said...

To what extent does this specific debate about originalism have meaning in South Africa today?

We are very close to the point of origin of our Constitution. Presumably the debate about the ideas of its originators, and the attempt to reproduce the ideas of the originators (Scalia), and whether that attempt is even important (Breyer), is small to non-existent. After all, some of the people who co-wrote our Constitution are justices of the Constitutional Court.

Pierre de Vos said...

Interesting question! In Makwanyane the CC did not reject the notion of original intent despite the controversies in the US exactly because they were so close to the founding moment. But I do think in the long run originalism is a dangerous thing because it creates the myth that a constitution is fixed in time and only has one meaning tha will last for ever. As Karl Klare has pointed out our Constitution has a certain historical self consciousness which means we can acknowledge that it is a forward looking document that will or can be used to address future problems not yet envisaged. For example s 9(3) prohibits all forms of unfair discrimination even those kinds we might not recognise yet as unfair. One day, say, we might realise that short people are terribly victimised and create a category of dsicrimination for them....

Michael said...

One need not be a Justice Scalia or Thomas to believe that “originalism” in some form is unavoidable, so long as one is purporting to apply any document written in the past to a situation arising in the future. For if the intent of the people who drafted the document is to be deemed utterly irrelevant, does not the notion that one applying THAT constitution become meaningless? Take “unfair” discrimination. Of course the range of discrimination that might one day come to be seen as “unfair” may come to cover, as in your example, “shortism.” The drafters deliberately did not establish a numerus clausus.

But the intent of the founders, as expressed in the text, must surely set SOME limit upon permissible interpretation. (To “apply” a text entails subjecting the interpretive process to the discipline of the words that appears in the text.) The verb “discriminate” must, for example, denote, however loosely, the human activity of differentiating. It would be absurd to suggest that a future court could rightly read the word “discriminate” to refer to other human activities, like, say, “conjugating”, or, “ice-skating.” Granted, it is astonishingly difficult to establish, at a philosophical level, how words can actually be bearers of meaning. But for better or worse, the whole enterprise of law is founded of this myth of textual determinacy.