On the venerable Balkinization blog, Guest blogger David Beatty asks if the U.S. Constitution is beloved or betrayed? While the American constitutional system still sets the standard for separation of powers, submission to the rule of law, and federalism, those outside the U.S. share a concern over what Beatty styles judicial politics and personality. Beatty writes:
It is more in the theory and practice of constitutional law that outsiders have come to the conclusion that American constitutionalism is not a practice to be emulated. One feature of the American model of constitutional democracy that many outsiders find particularly regrettable is how personal and partisan it has become, especially among the judges who sit on the Supreme Court.
While Beatty goes on to argue that this is regrettable and holds up South Africa as the model of the judicial function of rightly interpreting law and the facts of each case - what he styles a balancing approach - in reality this encourages the exact problem that Beatty accuses the U.S. Supreme Court of. The protections of law that the South African Supreme Court have carved out are the products of the judicial activism that has been so detrimental in the U.S., a la Roe v. Wade. The U.S. Supreme Court, as we all know, rarely finds common ground on how to interpret the Constitution. But at least they try. I'd rather have this than the real judicial politics and personalities driving in Beatty's South Africa Supreme Court counter-example. They are the ones drawing pre-ordained conclusions, unanchored from the shores of their own constitutional text.
It is beyond me why it is so hard to understand that we can add any protections we want to our Constitution. It's called an amendment.
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