Abstract

Justice Moseneke has presciently identified two interrelated dilemmas at the heart of South Africa’s project of transformative constitutionalism: one concerning constitutional authority following the historic rejection of parliamentary supremacy; and the other concerning constitutional normativity following the adoption in 1996 of a comprehensive Bill of Rights. This essay advances two key arguments: First, that the rejection of parliamentary supremacy has conventionally been understood in terms of a false opposition between ‘parliamentary’ and ‘constitutional’ supremacy. And second, that proponents of strong judicial review have paid insufficient attention to three core dangers of judicial supremacy: the displacement of self-government, the reproduction of the problem of sovereignty and the usurpation by the judiciary of the role of pouvoir constituent. This striking reversal in conceptions of normativity and authority rests on a distinctive constitutional account of popular sovereignty under which the will of the People is the source of normativity while the courts, as adjudicators of reason, are the highest legal authority. The paradox of this constitutional logic is that in order to justify the anti-democratic consequences of strong judicial review, rights-based reasoning will increasingly need to be justified in terms of the will of the People with attendant gravitational consequences for theories of adjudication. To achieve Justice Moseneke’s call for an equitable balance between democratic will and constitutional supremacy – and thereby maintain a robust rights-based constitutionalism – South African judges and legal scholars will need to grapple more squarely with the twin dangers of judicial supremacy on the one hand, and the essentially contested nature of constitutional rights on the other.