19 Conn. J. Int'l L. 617 (2003-2004)
The South African Constitutional Court's Construction of Socio-Economic Rights: A Response to Critics

handle is hein.journals/conjil19 and id is 625 raw text is: THE SOUTH AFRICAN CONSTITUTIONAL COURT'S
CONSTRUCTION OF SOCIO-ECONOMIC RIGHTS:
A RESPONSE TO CRITICS
Mark S. Kende
INTRODUCTION
The new South African Constitution has received praise and international
attention.' It provides numerous socio-economic rights which have been held to be
judicially enforceable by the South African Constitutional Court, such as the right
to housing2 and the right to health care.' The Constitutional Court, therefore, has
done exactly what the U.S. Supreme Court has said courts cannot and should not do
- enforce socio-economic rights.
American scholars typically criticize judicially enforceable socio-economic
rights as infringing on separation of powers and taxing judicial competency.- I
have argued elsewhere that this criticism is incorrect,6 as have other scholars,
perhaps most notably Harvard's Frank Michelman.'             This paper, however,
addresses a different criticism. Several South African scholars argue that the
Constitutional Court's decisions do not go far enough in clearly defining the
substance of the rights and in enforcing the rights vigorously. They argue that the
Court's   omissions   will   allow  the   South   African   government     to  delay
*   James   Madison  Chair Professor in  Constitutional Law, Drake  Law   School
(commencing Fall 2004). Thanks to Tom Huff, Heinz Klug, and Pierre de Vos for their assistance. An
abbreviated version of this paper was presented at the Annual Law & Society Meeting in Pittsburgh,
Pennsylvania in June 2003.
1.  See CASS R. SUNSTEIN, DESIGNING DEMOCRACY: WHAT CONSTITUTIONS Do (2001).
Sunstein comments that the South African Constitution is the most admirable constitution in the history
of the world. Id. at 261.
2.  Republic of South Africa v. Grootboom, 2000 (11) BCLR 1169 (CC).
3.  Minister of Health & Others v. Treatment Action Campaign & Others, 2002 (10) BCLR
1033 (CC). An informative article about the controversial man who runs the Treatment Action
Campaign (TAC), Zackie Achmat, was published last year. See Samantha Power, The AIDS Rebel,
NEW YORKER, May 19, 2003, at 54.
4.   Lindsey v. Normet, 405 U.S. 56, 73-74 (1972)(We do not denigrate the importance of
decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every
social and economic ill.) I address the difference between these judicial approaches in another paper,
Mark S. Kende, The South African Constitutional Court's Embrace of Socio-Economic Rights: A
Comparative Perspective, 6 CHAP. L. REV. 137 (2003).
5.  See, e.g., BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE CONSTITuTION 311-12
(1980).
6.  See Kende, supra note 4.
7.  See Frank L. Michelman, The Constitution, Social Rights and Liberal Political Justification,
1 INT'LJ. CON. L. 13 (2002).

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