TOWARDS JURISTOCRACY

Ran Hirschl

Towards Juristocracy
The Origins and Consequences of
the New Constitutionalism

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts, and London, England 2004
Copyright © 2004 by the President and Fellows of Harvard College
All rights reserved
Printed in the United States of America

Library of Congress Cataloging-in-Publication Data

Hirschl, Ran.
Towards juristocracy : the origins and consequences of the new constitutionalism /
Ran Hirschl
p. cm.
ISBN 0-674-01264-X (alk. paper)
1. Political questions and judicial power. 2. Constitutional law. I. Title.

K3367.H57 2004
342—dc22 2003056678
 Contents

Introduction 1

1 Four Constitutional Revolutions 17

2 The Political Origins of Constitutionalization 31

3 Hegemonic Preservation in Action 50

4 Constitutionalization and Judicial Interpretation of Rights 100

5 Rights and Realities 149

6 Constitutionalization and the Judicialization

of Mega-Politics 169

Conclusion: The Road to Juristocracy and the

Limits of Constitutionalization 211

Notes 225

Legal Decisions Cited 261

Acknowledgments 271

Index 273
As Wine and oyl are Imported to us from abroad; so must ripe
Understanding, and many civil Virtues, be imported into our minds
from Foreign Writings, and examples of best Ages, we shall else
miscarry still, and come short in the attempts of any great
Enterprise.
John Milton, The Character of the Long Parliament
 Introduction

Over the past few years the world has witnessed an astonish-
ingly rapid transition to what may be called juristocracy. Around the globe, in
more than eighty countries and in several supranational entities, constitu-
tional reform has transferred an unprecedented amount of power from rep-
resentative institutions to judiciaries. The countries that have hosted this ex-
pansion of judicial power stretch from the Eastern Bloc to Canada, from
Latin America to South Africa, and from Britain to Israel. Most of these
countries have a recently adopted constitution or constitutional revision
that contains a bill of rights and establishes some form of active judicial re-
view. An adversarial American-style rights discourse has become a domi-
nant form of political discourse in these countries. The belief that judicially
affirmed rights are a force of social change removed from the constraints of
political power has attained near-sacred status in public discussion. National
high courts and supranational tribunals have become increasingly impor-
tant, even crucial, political decision-making bodies. To paraphrase Alexis de
Tocqueville’s observation regarding the United States, there is now hardly
any moral or political controversy in the world of new constitutionalism
that does not sooner or later become a judicial one.1 This global trend to-
ward juristocracy is arguably one of the most significant developments in
late-twentieth- and early-twenty-first-century government.2
The emergence of this new method of pursuing political goals and manag-
ing public affairs has been accompanied and reinforced by an almost un-
equivocal endorsement of the notion of constitutionalism and judicial re-
view by scholars, jurists, and activists alike. According to the generic version
of this canonical view, the crowning proof of democracy in our times is the
growing acceptance and enforcement of the idea that democracy is not the
same thing as majority rule; that in a real democracy (namely a constitu-
1
2 Introduction

tional democracy rather than a democracy governed predominantly by the

principle of parliamentary sovereignty), minorities possess legal protections
in the form of a written constitution, which even a democratically elected
assembly cannot change. Under this vision of democracy, a bill of rights
is part of fundamental law, and judges who are removed from the pressures
of partisan politics are responsible for enforcing those rights. In fact, Ameri-
can constitutional scholars often argue that the foundation of the United
States was based on precisely this understanding of constitutional democ-
racy. As Ronald Dworkin, perhaps the most prominent proponent of this
view, observes, every member of the European Union as well as other “ma-
ture democracies” (in Dworkin’s words) subscribe to the view that democ-
racy must protect itself against the tyranny of majority rule through con-
stitutionalization and judicial review.3 Even countries such as Britain, New
Zealand, and Israel—described fairly recently as the last bastions of West-
minster-style parliamentary sovereignty—have recently embarked on a
comprehensive constitutional overhaul aimed at introducing principles of
constitutional supremacy into their respective political systems.
This sweeping worldwide convergence to constitutionalism, many theo-
rists contend, stems from modern democracies’ post–World War II commit-
ment to the notion that democracy entails far more than a mere adherence
to the principle of majority rule. Not least, we are often reminded, it reflects
these polities’ genuine commitment to entrenched, self-binding protection
of basic rights and civil liberties in an attempt to safeguard vulnerable groups
and individuals from the potential tyranny of political majorities. Accord-
ingly, the seemingly undemocratic characteristics of constitutions and judi-
cial review are often portrayed as reconcilable with majority rule or simply
as necessary limits on democracy. In short, judicial empowerment through
the constitutionalization of rights and the establishment of judicial review
now appear to be the widely accepted conventional wisdom of contempo-
rary constitutional thought.
The constitutionalization of rights and the corresponding establishment of
judicial review are widely perceived as power-diffusing measures often asso-
ciated with liberal and/or egalitarian values. As a result, studies of their po-
litical origins tend to portray their adoption as a reflection of progressive so-
cial or political change, or simply as the result of societies’ or politicians’
devotion to a “thick” notion of democracy and their uncritical celebration of
human rights. Yet most of the assumptions regarding the power-diffusing,
redistributive effects of constitutionalization, as well as the assumptions re-
 Introduction 3

garding its predominantly benevolent and progressive origins, remain for

the most part untested and abstract.
Even critics of the view that constitutionalism is an all-out “good thing”
have not paid much attention to the actual political origins or conse-
quences of judicial empowerment through constitutionalization. Instead,
these critics have been almost exclusively preoccupied with the well-
rehearsed normative debate over the “countermajoritarian” nature of judi-
cial review and the “democratic deficit” inherent in transferring important
policy-making prerogatives from elected and accountable politicians, parlia-
ments, and other majoritarian decision-making bodies to the judiciary.4 In-
deed, one can count on the fingers of one hand the works that use concrete
empirical and inductive inquiry to question the democratic credentials of
constitutionalism and judicial review.
Surprisingly, Ronald Dworkin, perhaps the champion proponent of con-
stitutionalization and judicial review on normative grounds, agrees that ulti-
mately “the proof of the pudding is in the eating.” Democracy, he argues, is
fundamentally concerned with treating people as equals. If courts can do
this as effectively as representative institutions elected by universal suffrage,
it is irrelevant whether in doing so they overrule majority will. None of
Dworkin’s six books on constitutionalism cite any empirical work on the ori-
gins and consequences of constitutionalization and judicial review.5 None-
theless, Dworkin admits that there is “no alternative but to use a result-
driven rather than a procedural-driven standard for deciding [the judicial
review question]. The best institutional structure is the one best calculated
to produce the best answers to the essentially moral question of what the
democratic conditions actually are, and to secure stable compliance with
those conditions.”6
I could not agree more. Once we have settled on a given normative mean-
ing of the term “social justice” (be it a collectivist-egalitarian, individualist-
libertarian, or any other understanding of the term), the question of democ-
racy versus constitutionalism in pursuit of social justice becomes an empiri-
cal question: What type of fundamental governing principle—parliamentary
sovereignty, constitutional supremacy, welfare state, neoliberal macroeco-
nomics, or any other overarching principle—has produced or is likely to
produce practical outcomes closest to that meaning of social justice? In other
words, the index of democracy vis-à-vis constitutionalism and/or judicial
activism is not the character of constitutionalism or judicial review per se,
but rather the nature of its substantive outcome. Likewise, an inquiry into
4 Introduction

the concrete sociopolitical vectors behind specific incidents of constitu-

tionalization would not only explore a rarely traveled scholarly terrain; it
would also yield illuminating insights concerning the questionable demo-
cratic credentials of constitutionalism and judicial review.
The preoccupation of prominent scholars who shape the contours of con-
temporary debate is not the only reason for the dearth of research con-
cerning the origins and consequences of constitutionalization. Scholars of
constitutional law and politics also tend toward parochialism regarding the
constitutional arrangements and practices of other countries. Most exist-
ing studies on the political origins and consequences of judicial power are
based on the United States’ exceptional, if not downright idiosyncratic, con-
stitutional legacy. Several important critical assessments of the 1982 con-
stitutionalization of rights in Canada have appeared over the past decade.7 A
few other single-country studies have examined the significant political role
of national high courts in advanced democracies that have adopted a variety
of administrative and judicial review procedures during the postwar dec-
ade.8 In addition, several very fine studies have assessed the utility of consti-
tutional engineering in the former Eastern Bloc countries,9 and a spate of
scholarship concerns judicial politics in Western Europe and the EU.10 How-
ever, with a few notable exceptions,11 genuinely comparative studies of the
origins and consequences of constitutional transformation and judicial em-
powerment are rare, and those that do exist often lack coherent methodol-
ogy. In short, despite the fact that courts now play a key role in dealing
with the most contentious social and political issues, the field of compara-
tive judicial studies in general, and the study of the political origins and
consequences of judicial empowerment in particular, remain relatively
underresearched and undertheorized.
In an attempt to move beyond the abstract rhetoric and parochialism that
have all too often dogged the academic debate over constitutionalism, in this
book I examine the political origins and consequences of constitutional rev-
olutions in four countries: Canada (which adopted the Canadian Charter of
Rights and Freedoms in 1982); New Zealand (which enacted the New Zea-
land Bill of Rights Act in 1990); Israel (which adopted two new Basic Laws
protecting a number of core civil liberties in 1992); and South Africa (which
adopted an interim Bill of Rights in 1993, a final Bill of Rights in 1996, and a
new Constitutional Court in 1995). Drawing on a systematic analysis of
these four recent constitutional revolutions, I address three major questions:
 Introduction 5

1. What are the political origins of the recent constitutionalization trend?

That is, to what extent is the expansion of judicial power through the con-
stitutionalization of rights and the establishment of judicial review a re-
flection of a genuinely progressive revolution in a given polity? Or, con-
versely, is it a means by which preexisting sociopolitical struggles in that
polity are carried out?
2. What is the real impact of the constitutionalization of rights and the for-
tification of judicial review on national high courts’ interpretive attitudes
toward progressive notions of distributive justice, and what are the extra-
judicial effects of constitutionalization on the actual advancement of such
notions?
3. What are the political consequences of judicial empowerment through
constitutionalization, and what are the implications for twenty-first-century
democratic government of the unprecedented judicialization of politics that
proceed through the constitutionalization of rights and the establishment of
judicial review?

In short, this study aims to put the political origins and consequences of
constitutionalization to the test.

Beyond the American Experience

“For the past two centuries,” writes critic Daniel Lazare, “the Constitution
has been as central to American political culture as the New Testament was
to medieval Europe. Just as Milton believed that ‘all wisdom is enfolded’
within the pages of the Bible, all good Americans, from the National Rifle
Association to the ACLU, have believed no less of this singular document.”12
Indeed, remarkably profound symbolic and practical effects are attributed to
the American Bill of Rights and judicial review by scholars, legal practitio-
ners, and political activists. Over the past two decades, however, a number
of closely reasoned and well-researched critical studies have sought to revisit
the optimistic, albeit untested and abstract, court-centric consensus of the
post-Brown generation in American constitutional law scholarship. While
these studies successfully undermine the complacent view that constitu-
tional catalogues of rights and judicial review are unequivocally positive,
they draw almost exclusively on the experience of the American “rights rev-
6 Introduction

olution” and that country’s history of judicial review. It is remarkable how

rarely books and articles on American constitutional law and politics, for ex-
ample, refer to constitutions and bills of rights in other countries. As George
Fletcher notes, a striking feature of the American jurisprudential debate is its
provinciality. The arguments are put forward as though the American legal
system were the only legal system in the world.13 Indeed, many American
scholars of constitutional law and politics treat the term “constitution” as
though it were a proper name rather than a concept whose nature, origins,
and consequences could best be understood by examining and comparing a
variety of instances of constitutionalism. American parochialism with regard
to other countries’ constitutional arrangements and practices is especially
remarkable given the scope of the trend toward the adoption of constitu-
tional catalogues of rights, the fortification of judicial review, and the conse-
quent judicialization of politics that has recently swept the world. Despite an
increasing number of notable exceptions, American scholarship on constitu-
tional law and politics still tends to ignore comparable developments in
other countries.
The dearth of comparative research into the origins and consequences of
constitutionalization is not merely a problem in terms of aesthetics or intel-
lectual taste; it has important methodological implications. Relatively few
American constitutionalists have examined how this process has unfolded
outside the United States. This means that American critics of judicial review
have systematically failed to address a common observation made by propo-
nents of judicial review, namely that there is no experimental control for the
U.S. case. We know what the U.S. Supreme Court has done in the name of
judicial review, but we do not know what the relevant legislatures would
have done if the Supreme Court had eschewed or been deprived of this
power.
The American experience of active judicial review is nearing its bicen-
tennial. This long history makes a diachronic, quasi-experimental,
prelegislation-postlegislation empirical investigation into the impact of the
constitutionalization of rights and the establishment of judicial review in the
United States difficult, perhaps impossible, to conduct. This is not so of
countries with a relatively short experience of judicial review, where it is
possible to hold other variables to manageable levels. While the extremely
rich and diverse constitutional jurisprudence of the U.S. Supreme Court
over the past two centuries provides us with an abundance of data pertain-
ing to judicial interpretation and behavior, the American constitutional leg-
 Introduction 7

acy is perhaps the least appropriate example to use in assessing the function
of judicial review in the pursuit of social justice: there is no alternative do-
mestic model against which to measure the achievements of the U.S. Consti-
tution. Moreover, a study that concentrates solely on the singular American
constitutional legacy is necessarily going to produce idiosyncratic conclu-
sions not readily transferable to other political and legal contexts. In con-
trast, the fact that many countries have moved toward the constitu-
tionalization of rights and the establishment of judicial review over the past
few decades provides fertile terrain for investigating the political origins and
consequences of these changes.
Six broad scenarios of constitutionalization and the establishment of judi-
cial review at the national level have been commonly seen in the post–
World War II era:14
1. The “reconstruction” wave, in which judicial empowerment was a by-
product of political reconstruction in the wake of World War II. Examples
include the 1946 introduction of a revised constitution in Japan; the intro-
duction of a new constitution in Italy in 1948 and the consequent imple-
mentation of the Italian Constitutional Court in 1956; the adoption of the
Basic Law in 1949 and the establishment of the Federal Constitutional Court
in Germany; and the 1958 adoption of the French Constitution and the con-
sequent establishment of the Constitutional Council (Conseil Constitutionnel).
2. The “independence” scenario, in which the constitutionalization of rights
and the establishment of judicial review were part of decolonization pro-
cesses, primarily in former British colonies. A classic example of this pattern
was the 1950 proclamation of the new Indian constitution and the establish-
ment of the Supreme Court of India, the foundations of which had been laid
out by the Indian Independence Act of 1947. In addition, while for many
years Britain was unwilling to incorporate the provisions of the European
Convention on Human Rights (ECHR) into its own legal system (let alone
enact a constitutional bill of rights of its own), it enthusiastically promoted
the entrenchment of rights protected by the ECHR in the “independence
constitutions” of newly self-governing African states, as devices for protect-
ing established interests from the whims of independent majoritarian poli-
tics. The constitutionalization of rights in the Gold Coast (Ghana) in 1957,
Nigeria in 1959, and Kenya in 1960 (to mention just three examples) fol-
lowed this pattern.
3. The “single transition” scenario, in which the constitutionalization of
rights and the establishment of judicial review are the by-products of a tran-
8 Introduction

sition from a quasi-democratic or authoritarian regime to democracy. South

Africa adopted an interim Bill of Rights in 1993 and a final Bill of Rights in
1996, along with a Constitutional Court in 1995, as part of its transition to
full democracy in the mid-1990s. Almost all the newer democracies in
Southern Europe (Greece in 1975, Portugal in 1976, Spain in 1978) and
Latin America (Nicaragua in 1987, Brazil in 1988, Colombia in 1991, Peru in
1993, Bolivia in 1994) adopted bills of basic rights as part of their new con-
stitutions, as well as establishing some form of active judicial review.
4. The “dual transition” scenario, in which constitutionalization is part of
a transition to both a Western model of democracy and a market economy.
Obvious examples of this scenario include the numerous constitutional rev-
olutions of the postcommunist and post-Soviet countries. The most signifi-
cant of these were the pioneering establishment of the Polish Constitutional
Tribunal in 1986; the establishment of the Hungarian Constitutional Court
in 1989–90 and the Russian Constitutional Court in 1991; and the inaugura-
tion of judicial review in the Czech Republic and Slovakia in 1993.
5. The “incorporation” scenario, in which constitutionalization is associated
with the incorporation of international and trans- or supranational legal
standards into domestic law. Important examples include the incorporation
of the European Convention on Human Rights into Denmark’s domestic law
in 1993 and Sweden’s in 1995 (Sweden had already adopted judicial review
in 1979); and the recent passing in Britain of the Human Rights Act (1998),
which effectively incorporated the provisions of the ECHR into British con-
stitutional law—the first rights legislation in the United Kingdom for three
hundred years.
6. The “no apparent transition” scenario, in which constitutional reforms
have been neither accompanied by nor the result of any apparent funda-
mental changes in political or economic regimes. Some examples would be
the consititutional revolution and the corresponding establishment of active
judicial review in Sweden (1979) and Mexico (1994); the enactment of the
New Zealand Bill of Rights Act in 1990; the adoption of two new Basic Laws
in Israel protecting a number of core rights and liberties; and the adoption of
the Canadian Charter of Rights and Freedoms in 1982.
Each of these types of constitutional reform poses its own puzzles for
scholars of public law and judicial politics. It is the “no apparent transi-
tion” scenario of constitutional revolution, however, that I find the most in-
triguing from a methodological standpoint. The recent constitutional revo-
lutions in Canada, New Zealand, and Israel, for example, provide nearly
 Introduction 9

ideal testing ground for identifying the political origins and consequences of
the constitutionalization of rights and the fortification of judicial review,
for several reasons. First, all three countries have undergone a major consti-
tutional reform over the past two decades that introduced such changes;
yet, unlike many former Eastern Bloc countries, for example, the dramatic
constitutional changes in all three countries were not accompanied by, nor
did they result from, major changes in political regime. In these countries,
therefore, it is possible to disentangle the political origins of constitu-
tionalization from other possible explanations and to distinguish the impact
of judicial empowerment by looking at changes in judicial interpretation
and the judicialization of politics. Second, the constitutional revolutions in
Canada, New Zealand, and Israel took place in societies deeply divided along
political, economic, and ethnic lines. A study of these three countries there-
fore allows us to assess the significance of preexisting sociopolitical struggles
in the move toward judicial empowerment through constitutionalization in
each polity. Third, the recent constitutional overhaul in Canada, New Zea-
land, and Israel marked a departure from the Westminster model of parlia-
mentary supremacy and the established British legal tradition of judicial re-
straint in these countries. This has provided the Canadian Supreme Court,
the New Zealand Court of Appeal, and the Israeli Supreme Court with the
necessary institutional framework to become more vigilant in protecting
basic rights and liberties. Indeed, these three national courts have reacted
with great enthusiasm to the constitutionalization of rights and the fortifica-
tion of judicial review in their respective domains by adjudicating many
landmark constitutional rights cases over the past decade. Fourth, all three
polities possess a strong British common law legal tradition. This common
inheritance eliminates variations in legal tradition as possible explanations
for differences in legal activity and judicial interpretation among the three
countries. Fifth, these countries represent different models of judicial review
and distinct variances in constitutional rights status while remaining within
the context of an established democratic tradition. Precisely because the re-
cent constitutional revolutions in Canada, New Zealand, and Israel have
taken place in established democracies, framers of the new constitutional ar-
rangements could not ignore the countermajoritarian tendency embedded
in constitutionalism and judicial review. Persisting political traditions of par-
liamentary sovereignty and democratic representation had to be taken into
account by those who initiated the constitutional overhaul in these coun-
tries. The result has been the development of a variety of innovative institu-
10 Introduction

tional mechanisms aimed at compensating for the countermajoritarian dif-

ficulty embedded in judicial review. The significance of formal institutional
factors can thus be assessed while accounting for variations in legal and po-
litical outcomes of constitutionalization as experienced by all three polities.
The widely celebrated South African constitutional revolution meanwhile
represents a most difficult case to scholars skeptical of the conventional
views concerning the progressive driving forces behind bills of rights and the
overwhelmingly positive effects of such bills. Prior to the enactment of the
1993 interim Bill of Rights (replaced by the final Bill of Rights in 1996),
there was perhaps no other developed country in the postwar world in
which the gap between popular will and constitutional arrangement was
so wide. In addition to issues of material inequality, the notorious apartheid
regime excluded over 80 percent of South Africa’s population from any
meaningful participation in the democratic political arena. The abolition of
apartheid in early 1991, the constitutionalization of rights in 1993, the first
inclusive national election in 1994, and the establishment of the Constitu-
tional Court in 1995 together mark a dramatic shift in the formal status of
the vast majority of nonwhite South Africans. Few would doubt the crucial
symbolic importance of these measures to the historically disenfranchised
groups in South Africa. The practical effects of South Africa’s constitutional
rights revolution, however, appear to be much more nuanced and ought to
be examined carefully. Moreover, from a methodological standpoint, “most
difficult cases” have an important merit: our confidence in a given set of
hypotheses is enhanced once it has proven to hold true even in the most
challenging cases. It is precisely for this reason that I have chosen to refer
to the South African constitutional revolution throughout the present
study and to examine some of its political origins and salient de facto conse-
quences, along with those of Canada, New Zealand, and Israel.

Outline of the Book

My discussion proceeds in three major steps. I begin in Chapter 1 by present-

ing an outline of the new constitutional framework in Canada, New Zea-
land, Israel, and South Africa, and by charting the effect of the recent
constitutionalization of rights on the size and scope of judicial review in
the four countries. This brief survey delimits the book’s parameters and pro-
vides a context for the discussion to follow. The second part of the book
(Chapters 2 and 3) is devoted to a comparative study of the political origins
of constitutionalization. In Chapter 2 I examine existing theories of constitu-
 Introduction 11

tional transformation that purport to explain the causal mechanisms behind

the constitutional entrenchment of rights and the establishment of judicial
review. These include evolutionist and functionalist approaches to constitu-
tional transformation; institutional economics theses, which see the devel-
opment of constitutions and judicial review as mechanisms to mitigate sys-
temic collective-action problems, such as commitment, information, and
enforcement problems; and, finally, micro-level, “thin” strategic behavior
models, which tend to employ party-based, “electoral market” logic to ex-
plain judicial empowerment.
I argue that none of these existing theories is based on a genuinely com-
parative systematic and detailed analysis of the political vectors behind any
of the actual constitutional revolutions of the past few decades. Moreover,
none accounts for the precise timing, scope, and nature of constitutional re-
form.
To address this puzzle, I develop a new explanation of judicial empower-
ment through constitutionalization as a form of self-interested hegemonic
preservation. My underlying assumptions in developing this explanation for
constitutionalization and judicial empowerment are: (1) the expansion of
judicial power is an integral part and an important manifestation of the con-
crete social, political, and economic struggles that shape a given political
system and cannot be understood in isolation from them; (2) the political
origins of constitutional reform cannot be studied in isolation from the polit-
ical origins of constitutional stalemate and stagnation; (3) other variables
being equal, prominent political, economic, and judicial actors are likely to
favor the establishment of institutional structures that will benefit them the
most; and (4) constitutions and judicial review hold no purse strings and
have no independent enforcement power, but nonetheless limit the institu-
tional flexibility of political decision-makers. Thus, voluntary self-limitation
through the transfer of policy-making authority from majoritarian decision-
making arenas to courts seems, prima facie, to run counter to the interests of
power-holders in legislatures and executives. The most plausible explana-
tion for voluntary, self-imposed judicial empowerment is therefore that po-
litical, economic, and legal power-holders who either initiate or refrain from
blocking such reforms estimate that it serves their interests to abide by the
limits imposed by increased judicial intervention in the political sphere. In
other words, those who are eager to pay the price of judicial empowerment
must assume that their position (absolute or relative) would be improved
under a juristocracy.
Specifically, I suggest that judicial empowerment through constitu-
12 Introduction

tionalization is best understood as the product of a strategic interplay be-

tween three key groups: threatened political elites, who seek to preserve or
enhance their political hegemony by insulating policy making in general,
and their policy preferences in particular, from the vicissitudes of democratic
politics while they profess support for democracy; economic elites, who
view the constitutionalization of rights, especially property, mobility, and
occupational rights, as a means of placing boundaries on government action
and promoting a free-market, business-friendly agenda; and judicial elites
and national high courts, which seek to enhance their political influence
and international reputation. In other words, I argue that strategic legal in-
novators—political elites in association with economic and judicial elites
who have compatible interests—determine the timing, extent, and nature of
constitutional reforms.
While the benefits of constitutionalization for economic libertarians and
judicial elites appear obvious, its appeal for hegemonic sociopolitical forces
and their political representatives may at first glance look questionable.
However, when their policy preferences have been, or are likely to be, in-
creasingly challenged in majoritarian decision-making arenas, elites that
possess disproportionate access to, and influence over, the legal arena may
initiate a constitutional entrenchment of rights and judicial review in order
to transfer power to supreme courts. Based on the courts’ relatively high
public reputation for professionalism and political impartiality, their record
of adjudication, and the justices’ ideological preferences, these elites may
safely assume that their policy preferences will be less effectively contested
under the new arrangement. Judicial empowerment through constitution-
alization may provide an efficient institutional solution for influential
groups who seek to preserve their hegemony and who, given an erosion
in their popular support, may find strategic drawbacks in adhering to
majoritarian policy-making processes. More “demographically representa-
tive” political processes are, in other words, a catalyst, not an outcome, of
constitutionalization. The constitutionalization of rights is therefore often
not a reflection of a genuinely progressive revolution in a polity; rather, it is
evidence that the rhetoric of rights and judicial review has been appropri-
ated by threatened elites to bolster their own position in the polity. By keep-
ing popular decision-making mechanisms at the forefront of the formal
democratic political process while shifting the power to formulate and pro-
mulgate certain policies to semiautonomous professional policy-making
bodies, those who possess disproportionate access to, and have a decisive in-
fluence upon, such bodies minimize the potential threat to their hegemony.
 Introduction 13

The third part of the book (Chapters 4, 5, and 6) assesses the major effects
of constitutionalization. The core argument I advance is that whereas their
impact on advancing progressive notions of distributive justice is often over-
rated if not outright negligible, the constitutionalization of rights and the
establishment of judicial review have a transformative effect on political dis-
course and the way fundamental moral and political controversies are artic-
ulated, framed, and settled. In Chapter 4, I present a systematic quantita-
tive-qualitative analysis of the interpretations given by national high courts
of the rights protected by the newly enacted bills of rights in the four new
constitutionalism polities at the center of this study. The analysis is based
on a survey of all national high court bills of rights jurisprudence in the
four countries from the date of enactment to the end of the 2002 adjudica-
tion year. This comprehensive comparative examination seeks to identify
a set of prevalent principles in contemporary judicial interpretations of con-
stitutional rights, and to offer a realistic assessment of the current poten-
tial for advancing progressive concepts of distributive justice through the
constitutionalization of rights and rights litigation. Special attention is given
to four key issues: criminal due process rights (classic procedural rights);
demarcation of the private sphere through jurisprudence concerning free-
dom of expression (classic “first generation” negative liberty) and formal
equality in the context of sexual preference (the hallmark of progressive
constitutional rights jurisprudence in the four examined countries); subsis-
tence social and economic rights, such as the right to health care, basic hous-
ing, education, social security and welfare, and an adequate standard of
living (classic “positive” or “second generation” rights); and freedom of as-
sociation and occupation in the context of labor relations (rights that can be
interpreted either as providing entitlements to wider state-controlled legal
protection for workers or as protecting the private economic sphere from
state intervention). This comparative examination charts the vacillation be-
tween a relatively generous judicial interpretation of expansive notions of
distributive justice and a narrower commitment to open markets, proce-
dural equality, and Lockean-style individual autonomy. Looking at these
four areas also allows us to compare judicial attitudes toward two concep-
tions of rights—one whose full realization entails greater state activity in
amending morally disturbing market failures in the realm of distributive jus-
tice, and another whose full realization calls for a broad definition of the pri-
vate sphere by way of halting the progress of the encroaching state. This
analysis should then enable us to distinguish types of policy arenas where
the constitutionalization of rights could plant the seeds of change.
14 Introduction

This systematic analysis of the four countries’ complete record of con-

stitutional rights jurisprudence reveals a clear common tendency to adopt
a narrow conception of rights, emphasizing Lockean individualism and the
dyadic and antistatist aspects of constitutional rights. Despite the open-
ended wording of the constitutional catalogues of rights in Canada, New
Zealand, Israel, and South Africa, the national high courts of all four coun-
tries tend to conceptualize the purpose of rights as protecting the private
sphere (whether human or economic) from interference by the “collective”
(often understood as the long arm of the encroaching state).
In Chapter 5, I present a rough sketch of the impact of constitu-
tionalization on the socioeconomic status of historically disenfranchised
groups in Canada, New Zealand, Israel, and South Africa. To this end, I
assess the impact of constitutionalization on the distribution of wealth in
these four polities. I then proceed to assess the impact of constitu-
tionalization on key measures of socioeconomic conditions, such as access to
education, housing conditions, and levels of health status as indices of social
change in the four countries. I conclude by contrasting the limited impact of
constitutionalization on enhancing the life conditions of the have-nots with
its significant contribution to the removal of so-called market rigidities and
the promotion of economic liberties in the four countries.
The examination of the impact of constitutionalization on patterns of
judicial interpretation (Chapter 4), as well as its extrajudicial effect on the
de facto socioeconomic status of the have-nots (Chapter 5), casts serious
doubt on the assumption that constitutionalizing rights and establishing
judicial review mechanisms should have an independent positive effect on
the socioeconomic status of historically disenfranchised groups. At the very
least, the evidence presented in these chapters suggests that there is much
to question regarding the claim that bills of rights have been or are likely to
be effective vehicles for creating a more egalitarian society. Whereas the
constitutionalization of rights has proved effective in expanding the bound-
aries and protection of the private sphere, it has utterly failed to promote
progressive or egalitarian notions of distributive justice in a meaningful way.
In an age of social and economic neoliberalism, constitutional rights appear
to have only a limited capacity to advance progressive notions of social jus-
tice into arenas such as employment, income distribution, health, housing,
and education, which require wider state intervention and more public ex-
penditure. However, when it comes to negative liberties—all of which re-
quire that the state maintain merely procedural fairness and refrain from
 Introduction 15

excessively interfering in the private sphere—the constitutionalization of

rights has the potential to plant the seeds of change.
In Chapter 6, I illustrate the impact of judicial empowerment through
constitutionalization on the way in which salient political problems are
framed and dealt with. To that end, I examine in detail the four coun-
tries’ constitutional jurisprudence pertaining to foundational nation-build-
ing processes (such as the future of Quebec and the Canadian federation,
and the deep secular-religious cleavage and the peace process in Israel), and
fundamental restorative justice dilemmas (such as the status of New Zea-
land’s Maori population and the question of reconciliation and reparation in
the wake of the apartheid era in South Africa). As these examples demon-
strate, the adoption of a constitutional catalogue of rights and the fortifica-
tion of judicial review provided the necessary framework for the formula-
tion of fundamentally political controversies in constitutional terms. This
framework serves to encourage the transfer to the courts issues that ought,
prima facie, to be resolved in the political sphere. Judicial empowerment
through constitutionalization thus offers a convenient refuge for politicians
to avoid or delay unwanted political outcomes. Conflicts involving conten-
tious political issues are treated as primarily legal questions rather than po-
litical ones, with the concomitant assumption that national high courts, in-
stead of elected representatives, should resolve them.
From the politicians’ point of view, the delegation of power to the courts
involves considerable long-term risks: erosion of the public image of na-
tional high courts as autonomous, apolitical decision-making bodies; oppo-
sition use of courts to fight governments; and above all the dilemma of
delegation—how to ensure that once the courts’ policy-making powers are
extended they will indeed produce judgments that reflect the ideological
preferences and serve the political interests of those who have granted pol-
icy-making to the judiciary. While a number of these problems have materi-
alized in some way in the four countries studied, none has proved to be a
serious threat to the well-orchestrated judicial empowerment game. An ex-
amination of the scope and nature of political jurisprudence in the four
countries suggests that consistent judicial divergence from the interests and
expectations of those who initiate and zealously advocate a transition to
juristocracy is unlikely. Nonetheless, the judicial sphere in these and many
other new constitutionalism polities continues to be generally more reputa-
ble than most elements in the political sphere.
In the conclusion I offer a few reflections regarding the real potential of
16 Introduction

constitutional catalogues of rights to protect and advance progressive con-

ception of social justice in a an emerging neoliberal economic order; the
changing nature of politics in the era of new constitutionalism; and the place
of judicial empowerment within a broader sociopolitical trend whereby pol-
icy-making authority is removed from majoritarian decision-making arenas,
insulated from “we the people,” and invested in semiautonomous, profes-
sional policy-making bodies that increasingly shape and control crucial as-
pects of our lives. I argue that the global trend toward judicial empower-
ment through constitutionalization should be understood as part and parcel
of a large-scale process whereby policy-making authority is increasingly
transferred by hegemonic elites from majoritarian policy-making arenas to
semiautonomous, professional policy-making bodies primarily in order to
insulate their policy preferences from the vicissitudes of democratic politics.
Through a comprehensive comparative inquiry into the origins and con-
sequences of four recent constitutional revolutions, I attempt to go beyond
the traditional single-country analysis that has characterized the study of
constitutional politics. In doing so I hope to make a powerful case against
the widely held conventional wisdom that the constitutionalization of rights
and the establishment of judicial review have benevolent and progressive
origins as well as significant redistributive, power-diffusing consequences. I
hope to incite renewed discussion that allows us to take a hard look at why
we are heading ever faster toward juristocracy—and what to expect when
we get there.
 CHAPTER 1

Four Constitutional Revolutions

Constitutional political events—whether these are formal like the

Magna Carta and the Glorious Revolution or informal like the New
Deal in America—define a nation’s character in symbolism that can-
not be fully appreciated at the time.
Ronald Dworkin, A Bill of Rights for Britain

Before we proceed to examine the political origins and conse-

quences of the recent constitutional transformation in Canada, New Zea-
land, Israel, and South Africa, it is useful to outline the fundamentals of the
new constitutional framework in these countries and to chart its effect on
the size and scope of judicial review.

Canada, 1982

Canada’s adoption of the Constitution Act 1982, which includes a bill of

rights entitled the Charter of Rights and Freedoms, marked the official patri-
ation of the Canadian constitution from the authority of the British Crown
after a 115-year-long process that began with the enactment of the British
North America (BNA) Act 1867.1 The Constitution Act of 1982 states that
the Charter is part of the supreme law of Canada, such that any laws incon-
sistent with it are “of no force and effect.” In addition, the Charter itself con-
tains detailed language intended to discourage courts from adopting narrow
interpretations of its guarantees. It contains provisions such as the protec-
tion of fundamental freedoms (including freedom of conscience, religion,
thought, expression, peaceful assembly, and association); political rights (in-
cluding the right to vote and to hold office); mobility rights (including the
freedom to reside anywhere in Canada and to travel, subject to reasonable
restrictions); the right to life, liberty, and security; the right to due process in
17
18 Four Constitutional Revolutions

criminal proceedings (including the right to be secure from unreasonable

search or seizure and arbitrary detention, equality before the law, and other
classic safeguards); equality rights; and language rights (including the of-
ficially equal status of English and French and minority-language education
rights). In its first Charter ruling (Law Society of Upper Canada v. Skapinker,
1984) the Supreme Court of Canada (SCC) declared that its position on ap-
plying the Charter to judicial review was similar to the U.S. Supreme Court’s
groundbreaking endorsement of judicial review in Marbury v. Madison
(1803). In 1992, ten years after the charter came into effect, the SCC’s Chief
Justice, Antonio Lamer, declared that “the introduction of the Charter has
been nothing less than a revolution on the scale of the introduction of the
metric system, the great medical discoveries of Louis Pasteur, and the inven-
tion of penicillin and the laser.”2
The rights protected by the Canadian Charter of Rights and Freedoms are
subject to two important limitations. First, section 1 (the “limitation clause”)
states that the rights protected by the Charter are guaranteed, subject to
“such reasonable limits prescribed by law as can be demonstrably justified in
a free and democratic society.” Simply put, if any limits are to be placed on
rights, the government must establish to the satisfaction of the courts that
those limits can be justified in a free and democratic society.3
Second, a significant limitation to rights and freedoms lies in section 33—
the “notwithstanding clause.” This clause enables elected politicians in
either the federal parliament or the provincial legislatures to legally limit
rights and freedoms under section 2 (fundamental freedoms) and sections 7
to 15 (due process and equality rights) of the Charter by passing overriding
legislation valid for a period of up to five years. This means that any invoca-
tion of section 33 essentially grants parliamentary fiat over these rights and
freedoms. This in turn means that both the federal parliament (in regard to
federal matters) and the provincial legislatures (in regard to matters within
provincial jurisdiction) are ultimately sovereign over such matters.
While it would be an exaggeration to suggest that the override clause
has become a political “dead letter,” as some have argued, it is fair to say that
it has not proved to be an effective mechanism in mitigating the counter-
majoritarian difficulty embedded in constitutionalism and judicial review.
Moreover, as explained in Chapter 6, the override clause—along with mech-
anisms such as section 1’s limitation clause, designed to maintain the funda-
mental principles of democratic governance—has failed to block legislative
deference to the judiciary or to impede the unprecedented judicialization of
politics in Canada during the past two decades.
 Four Constitutional Revolutions 19

In addition to providing entrenched constitutional status for basic rights,

the adoption of the Constitution Act 1982 revolutionized the status of judi-
cial review in Canada. By declaring a set of thirty acts and statutes as the
supreme law of Canada (including the BNA Act and the Constitution Act
itself), the Constitution Act marked a departure from a generally deferen-
tial, British-style mode of restrained judicial review by Canadian courts in
the pre-Charter era. Prior to 1982, judicial review was based primarily
on the principle of ultra vires on federalism grounds. The Constitution Act
introduced a new regime of entrenched constitutional provisions, rights,
and limitations as the primary basis for the exercise of judicial review in
Canada.
Five of the act’s provisions (the aforementioned sections 1 and 33, as well
as sections 24, 32, and 52) establish a formal structure of active judicial re-
view. The new regime also preserves the reference procedure, which allows
both the federal and provincial governments to refer statutes and “abstract”
constitutional questions to the SCC or the provincial courts of appeal for an
advisory opinion on their constitutionality.
From a quantitative perspective, the impact of the Charter of Rights and
Freedoms on judicial activism in Canada has been nothing short of revolu-
tionary. This becomes clear if we consider certain quantitative findings. First,
whereas constitutional law cases represented only 2.4 percent of the SCC’s
caseload between 1962 and 1971 and 5.5 percent between 1972 and 1981,
the proportion of constitutional cases almost quadrupled between 1982 and
1991—to 21.3 percent. Much of this increase can be attributed to the adop-
tion of the Charter, which accounted for over 80 percent (or 195 of 236 deci-
sions) of the Court’s constitutional law judgments during 1982–1991.
Second, the number of constitutional rights cases as compared to regular
civil cases on the SCC’s docket sharply increased during this same period.
While in 1975 (seven years prior to the adoption of the Charter) the num-
ber of constitutional rights cases accounted for approximately one-quarter
of the “regular” (ordinary, non–constitutional law) civil cases decided by
the SCC, in 1989 (seven years after the adoption of the Charter), the num-
ber of constitutional rights cases outnumbered regular civil cases heard by
the Court by approximately 120 percent.
Third, during the first two decades of the Charter’s existence (from April
1982 to December 2002), 20 percent of the SCC’s decisions (440 of 2,195)
involved the Charter; moreover, since 1987, the proportion of Charter cases
has never fallen below 21 percent and represents an average of 26 percent
of all decisions. These figures are rapidly converging with those of the U.S.
20 Four Constitutional Revolutions

Supreme Court caseload, one-third of which has been made up by Bill of

Rights cases in the post-Brown era (1954 to the present).
Fourth, the SCC used the Charter to strike down a total of 36 federal and
32 provincial statutes in whole or in part during the first two decades of the
Charter’s existence. For example, the Court’s decision in M v. H (1999),
which stated that section 15(1) of the Charter entitled same-sex couples
to sue for spousal support on the same basis as common-law opposite-sex
couples, triggered the adoption of comprehensive legislative amendments
to over sixty federal statutes to extend benefits and obligations to same-sex
couples in wide variety of arenas. The overall record of a 16 percent rate
of statute nullification (71 of 440 Charter cases) contrasts sharply with the
Court’s previously restrained exercise of judicial review under the 1960
Bill of Rights. Under the latter, the Court struck down only one statute in
twenty-two years (1960–1982).4 As F. L. Morton and Rainer Knopff note in
their recent critique of judicial activism in Canada, if the nullification rate in
the Charter era is calculated based not on all Charter challenges but only on
those actually involving direct challenges to legislation, the rate of nullificat-
ion is in fact over 30 percent.5
The rapid growth rate of judicial activism and rights jurisprudence in Can-
ada, however, cannot be attributed solely to the enactment of the 1982
Charter. As will be shown in Chapter 2, the willingness of national political
actors to transfer policy-making authority from the political sphere to the
courts and the willingness of the judiciary to respond positively to demands
for activism are important reasons for the expansion of judicial power in
Canada during the last two decades.
A few institutional factors in addition to the adoption of the Charter have
facilitated the rise of judicial activism in Canada. First, in 1975, a statutory
change shifted the bulk of the SCC’s docket from the “appeals by right” cate-
gory to the “discretionary leave” category, thereby increasing the Court’s
discretion over which cases it would hear. Currently, the Supreme Court
justices, like their U.S. counterparts, have leverage in determining the scope
and nature of their agenda.
Second, like the United States, Canada has a decentralized model of judi-
cial review in which the constitutionality of laws may be determined by or-
dinary judicial courts. Under this system, almost all courts (provincial, fed-
eral, or Supreme) have the power of judicial review of constitutionality.
However, unlike the United States, judicial review in Canada is not limited
to review within the context of concrete adversarial litigation. The reference
procedure is a second way in which constitutional questions may be brought
 Four Constitutional Revolutions 21

before the court. Thus, the very nature of judicial review in Canada provides
a hospitable institutional environment for judicial activism.
Third, over the past two decades, the SCC has begun to liberalize the rules
of standing (locus standi) and to expand intervener (for example, amicus cu-
riae) status.6 In 1981, the Court declared that individuals could be granted
standing to challenge legislation simply by showing they had “a genuine in-
terest in the validity of the legislation and that there [was] no other reason-
able and effective manner in which the issue [might] be brought before the
Court.”7 In 1983, the Canadian Supreme Court formulated new rules that
gave attorneys general the automatic right to intervene in constitutional
cases. These changes helped legislatures, judges, and rights advocacy groups
alike to pursue the Charter’s judicialization capacity to its fullest.
In sum, the introduction of the Constitution Act in 1982, together with
the introduction of a number of institutional changes to the Canadian judi-
cial review system, has ushered in a new era in constitutional law and
politics in Canada. These changes have placed judicial activism and constitu-
tional rights jurisprudence in Canada on equal footing with the post-Brown
United States. And whereas Canada inherited the doctrines of parliamen-
tary supremacy and judicial restraint from Britain, there is little doubt that
in the Charter era Canada has moved closer to the United States in its
judicialization of politics. In many respects, Canada has in fact surpassed the
United States in terms of deference to the judiciary.

Israel, 1992

Like several other formerly British-ruled territories, Israel inherited the Brit-
ish common law tradition, with its strong emphasis on parliamentary su-
premacy. It thus remains without a written constitution or entrenched bill of
rights contained in one document. Instead, a web of eleven “Basic Laws”
serves as the formal core of Israeli constitutional law. In general, these Basic
Laws do not take precedence over other legislation. Nevertheless, some core
provisions of this set of laws are immune from manipulation by a simple
parliamentary majority.8 Until 1992, the Basic Laws did not include an en-
trenched law protecting fundamental rights and liberties. As a result, in the
pre-1992 era, the Israeli parliament (the Knesset) retained formal legislative
powers that few parliaments in democratic countries (for example, in the
United Kingdom and New Zealand) held during the same period.
In the early 1990s, however, an ad hoc cross-party parliamentary coali-
tion representing Israel’s intelligentsia (consisting primarily of Israel’s secu-
22 Four Constitutional Revolutions

lar Ashkenazi bourgeoisie) reacted to the continuous decline in its popular

support by initiating and carrying out an institutional empowerment of the
judiciary. This scheme was driven primarily by its supporters’ attempt to en-
trench their constituencies’ policy preferences and safeguard them from the
vicissitudes of democratic politics. It enjoyed the active support of Israel’s
economic elites and the legal profession, and the tacit support of the major-
ity of Supreme Court judges.
This initiative culminated in the 1992 enactment of two fundamental
rights laws, Basic Law: Human Dignity and Liberty, and Basic Law: Freedom
of Occupation,9 as well as the amendment of Basic Law: The Government.
The latter was the first law to be fully entrenched, followed by the entrench-
ment of Basic Law: Freedom of Occupation. The two new Basic Laws estab-
lished the constitutional definition of Israel as a Jewish and democratic state,
thus reemphasizing and formalizing the duality that had already been ex-
pressed in Israel’s Declaration of Independence, in article 7a of Basic Law:
The Knesset, and in a series of Supreme Court landmark decisions.10 Like
the Canadian Charter of Rights and Freedoms, both of Israel’s new Basic
Laws protecting fundamental rights and liberties contain a limitation clause
forbidding infringement of the declared rights “except by a statute that befits
the values of the State of Israel, for a worthy purpose, and not exceeding
what is necessary.”11 In 1994, two years after its enactment, Basic Law: Free-
dom of Occupation was amended by the Knesset in the spirit of the Cana-
dian “notwithstanding” override clause to allow for future modifications by
ordinary laws in the instance of an absolute majority of Knesset members
declaring support for the amendment.12 Taken as a whole, these enactments
paved the way for an active judicial review process in Israel by granting the
Supreme Court the authority both to monitor Israel’s political arena closely
and to hold unconstitutional primary legislation enacted by the Knesset.
Although the two new human rights Basic Laws do not constitute an of-
ficial bill of rights, they are widely understood to fulfill the functions of such
a document. They protect the right of every citizen or resident of the state to
engage in any occupation, profession, or business, as well as rights to prop-
erty, due process of law, freedom of movement, life, personal freedom, pri-
vacy, and human dignity. It is generally agreed that the adoption of these
two new laws represented a constitutional revolution in Israel.
The Supreme Court of Israel’s (SCI) support of the new constitutional or-
der did not remain merely at the declarative level. In November 1995, the
Court released its historic ruling in the United Mizrahi Bank case—the “Israeli
 Four Constitutional Revolutions 23

Marbury v. Madison,” as observers of the Israeli legal system have described

it.13 Here, the SCI drew on the constitutional entrenchment of the right to
property, as specified in article 3 of the Basic Law: Human Dignity and Lib-
erty, virtually to invalidate—for the first time in Israel’s constitutional his-
tory—a Knesset law that intended to erase the heavy financial debts owed to
major banks by collective agricultural settlements in Israel. Several banks
filed a petition arguing that the new law was inconsistent with the property
rights provisions of Basic Law: Human Dignity and Liberty. Sitting in a rare
panel of nine judges, the Court declared that the property rights of creditors
had constitutional priority over primary legislation enacted by the Knesset.14
The SCI used this occasion to firmly establish its power to declare unconsti-
tutional acts and statutes that do not comply with the standards set out in
the new Basic Laws. The majority of justices held that the two new Basic
Laws had indeed ushered in a new era in the historic quest for a comprehen-
sive constitutional catalogue of rights and active judicial review in Israel.
They recognized that these laws had formal constitutional status and were
therefore superior to any ordinary legislation.15
As in Canada, the impact of the new Basic Laws on rights-based litigation
in Israel has been significant. During the period April 1992 to December
2002, Basic Law litigation accounted for approximately 11 percent (365 of
3,319) of the reported Supreme Court decisions. In 1995 alone, Basic Law
litigation accounted for almost a fifth of all reported Supreme Court rulings.
There has been a sharp increase in the use of “higher law” (primarily consti-
tutional law, rights, and “natural justice” jurisprudence) for decisions by the
SCI following the enactment of the new Basic Laws. Whereas in 1985 re-
ported higher law cases accounted for 5 percent of the Court’s docket, the
share of higher law cases more than quadrupled by 1997—five years after
the 1992 constitutional revolution. While in 1992, the SCI dealt with eight
new Basic Laws cases, it dealt with twenty-eight such cases in 1993 and
fifty-five in 1995. If we accept that rights-based litigation activity indicates a
judicialization of politics, there is little doubt that the trend in this direction
is growing vigorously in Israel.
Unlike the situation in Canada, mandatory appeals and appeals by right
on decisions of lower instances and other tribunals form a significant com-
ponent of the SCI’s agenda. In other words, the Court does not have control
over a substantive portion of its docket. However, in its complementary ca-
pacity as the High Court of Justice, the SCI sits as a court of first instance in
direct actions launched by individual stakeholders against public authori-
24 Four Constitutional Revolutions

ties as well as in matters where the Court considers it necessary to grant re-
lief in the interests of justice and in matters that do not normally fall within
the jurisdiction of any other court or tribunal. Originally, the Court de-
manded that a petitioner show possible harm to a direct and material per-
sonal interest. In 1988, however, the Court significantly liberalized the rules
of standing pertaining to direct individual petitions, effectively recognizing
the standing rights of public petitioners and lowering the barrier of non-
justiciability.16 In other words, sitting as the High Court of Justice, the SCI
has extensive jurisdiction over Israel’s policy-making sphere.
That said, the fact is that while standing rights and the Court’s jurisdiction
in its two capacities have not undergone dramatic change over the past
decade, the scope of political issues brought before the Court over this pe-
riod has broadened significantly since 1992. This suggests that the 1992
constitutionalization was a major catalyst in bringing about the unprece-
dented judicialization of politics in Israel. However, the relatively broad
standing rights and the fairly accessible High Court of Justice proceedings
likely account for the immediacy of the impact of the new Basic Laws on Is-
rael’s judicialization of politics.

New Zealand, 1990

As in the case of the British constitution, New Zealand’s constitution is not

contained in any single document. Until recently, New Zealand was consid-
ered by political observers to be one of the last bastions of the Westminster
system of government, with its embedded emphasis on parliament as the ul-
timate authority for the determination of legislation. Another powerful in-
fluence on New Zealand’s constitutional organization was the traditional
British distrust of American-style judicial review and of fundamental rights
and proclamations of social or state policy. In short, until the late 1980s,
New Zealand’s constitution replicated the British parliamentary system and
the British common law tradition in almost every respect.
Not surprisingly, then, the introduction of the New Zealand Bill of Rights
Act (NZBORA) in 1990 marked an abrupt change in the balance of power
among the judicial, legislative, and executive branches of government. The
preamble to the NZBORA declares that the act was adopted expressly to af-
firm, protect, and promote human rights and fundamental freedoms in New
Zealand. It also affirms New Zealand’s commitment to the International
Covenant of Civil and Political Rights (ICCPR). Though subject to some limi-
 Four Constitutional Revolutions 25

tations, the bill itself expressly secures a whole range of rights, including the
right to life and security of person; the right to be spared from torture or
cruel or degrading punishment; freedom of thought, conscience, and reli-
gion; and freedom of speech, assembly, and movement. The act protects the
rights of minorities as well as the rights of due process for alleged criminals—
including access to legal aid and rights relating to arrest, detention, search,
seizure, and a fair trial. In short, the NZBORA provides wide-ranging guar-
antees of human rights and makes a constitutional commitment to the pro-
tection and promotion of these rights.
Unlike the Canadian Charter of Rights and Freedoms, the new Israeli Ba-
sic Laws, and the South African Bill of Rights, the NZBORA is an ordinary
statute that does not formally empower the courts to nullify legislation in-
consistent with its provisions (section 4 of the bill). Nevertheless, the oper-
ational provisions of the bill were designed to reduce the likelihood of legis-
lation unreasonably infringing the rights protected by the NZBORA. In
practice, they provide the basis for active judicial review. Section 5 stipulates
that the rights and freedoms contained in the bill are subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society. Section 6 of the bill, which was described by New
Zealand’s Chief Justice as a “key and strong section” and “a weapon of jus-
tice of an effective nature and reach,” requires the courts to interpret an
ambiguous law in a manner consistent with the act.17 In addition, section 7
of the NZBORA requires the Attorney-General to advise the House of Repre-
sentatives whenever he or she believes that any provision in a bill intro-
duced to parliament would infringe a right. This procedure has been in-
voked several times since 1990, generally (with only one exception) having
the effect of preventing the provision being enacted. The application and
enforcement provisions of the NZBORA were complemented by the estab-
lishment in 2001 of the Human Rights Review Tribunal. This tribunal is au-
thorized to declare laws “inconsistent” with the right to freedom from dis-
crimination affirmed by the NZBORA and by the Human Rights Act 1993;
inconsistencies must be reported to the parliament, thereby bringing perti-
nent government action under the purview of these two laws.18 Taken to-
gether, these provisions have established a new model of judicial review in
New Zealand, which I call the preferential model.
This “compromise” model of judicial review has established itself over the
past decade in several common law countries with a long tradition of parlia-
mentary supremacy. It gives preference to legislation or court judgments
26 Four Constitutional Revolutions

that are consistent with the constitutional catalogue of rights and the stan-
dards set by international human rights covenants over legislation and judg-
ments that are not, and instructs legislators to avoid enacting laws that con-
tradict, prima facie, constitutional provisions protecting basic rights. This
model enables limited judicial review while maintaining the parliamentary
tradition of these countries.
In spite of the fact that the NZBORA does not allow for full-scale judi-
cial review, the New Zealand Court of Appeal (NZCA) has granted it a de
facto elevated constitutional status. In its first substantive NZBORA decision
(Flickinger, 1991), the NZCA declared that a generous legal interpretation
should be given to section 6 of the NZBORA (which requires that courts in-
terpret ambiguous laws in a manner consistent with the NZBORA).19 In a
landmark decision in 1994, the Court observed that lack of entrenchment
and constitutional status “makes no difference to the strength of the Bill of
Rights where it is to be applied.”20 Accordingly, it went on to minimize
the applicability of section 4 of the bill (the “ordinary statute” clause).21 In
the spirit of this decision, the Court drew increasingly on section 6 of the
NZBORA to overrule administrative acts in a wide array of public policy
areas that were inconsistent with the provisions of the bill and other consti-
tutional principles. In the five-year period 1997–2002 alone, central eco-
nomic issues (such as the export and marketing of New Zealand’s agricul-
tural products), issues pertaining to zoning in the context of establishing the
new Mixed Member Proportional Representation (MMP) electoral system,
and even questions of political defamation among national political lead-
ers, have all been susceptible to “section 6 scrutiny” by the NZCA. Further-
more, in its recent landmark ruling in Pora (2001), the Court drew on sec-
tion 6 of the NZBORA to virtually repeal—for the first time in New Zealand’s
constitutional history—legislation that retrospectively increased the mini-
mum nonparole period of imprisonment for murder.22
Another NZBORA-based mechanism of judicial review developed by the
NZCA has been the importation of the terms of international human rights
covenants into domestic law. Traditionally, international treaties and cove-
nants in common law countries have been held to be unenforceable until
they are expressly enacted in domestic law. The NZBORA, however, was ex-
plicitly intended “[to] affirm New Zealand’s commitment to the Interna-
tional Covenant on Civil and Political Rights.”23 Since the enactment of
the NZBORA, citations of customary and written international law by the
NZCA, as well as references to the decisions of international tribunals, have
 Four Constitutional Revolutions 27

significantly increased.24 Scholars of New Zealand’s constitutional law have

observed that the NZBORA has thus internationalized New Zealand’s rights
jurisprudence and imbued it with more explicitly ethical content. Not sur-
prisingly, then, the NZBORA has come to be recognized by scholars as finally
establishing an effective guarantee for the protection of fundamental rights
and liberties in New Zealand. Five years after the NZBORA came into effect,
Sir Ivor Richardson of the NZCA declared that “[f]uture historians may rec-
ognize the Bill of Rights as one of the most important statutes ever enacted
in New Zealand.”25
The fact that the NZBORA is a nonentrenched law coupled with New Zea-
land’s British-style tradition of judicial restraint has meant that the
judicialization of politics in New Zealand has occurred on a more moderate
scale than in the other three polities in this study. Nonetheless, from the
quantitative perspective, the impact of this act on the judicialization of poli-
tics in New Zealand has been significant. The use of “higher law” founda-
tions for decisions by the NZCA following the enactment of the NZBORA in
1990 has sharply increased. Whereas constitutional law cases accounted for
only a small fraction of the Court’s agenda in 1983 and 1985 (4 percent and
5 percent respectively), the share of reported higher law cases increased to
17 percent in 1993 and to 20 percent in 1997. Because the number of deci-
sions based on non-NZBORA constitutional law (primarily cases dealing
with the Treaty of Waitangi) has remained almost constant since the mid-
1980s, the growth in all higher law cases is attributable to the enactment of
the NZBORA.
Since 1990, Bill of Rights litigation has accounted for approximately 9
percent (233 of 2,587) of the reported Court of Appeal and High Courts de-
cisions. In 1995 alone, 16 percent of the NZCA’s reported judgments were
NZBORA cases. The increase in judicial review cases has also been significant:
these made up approximately 5 percent of recorded decisions by the Court
since 1990. Unlike its Canadian counterpart, the NZCA’s docket consists
mainly of appeals by right. The appearance of NZBORA-based litigation on
the Court’s agenda and its impact on the judicialization of politics in New
Zealand were therefore immediate.

South Africa, 1993–1996

Until the late 1980s, the South African judiciary was ineffective at best in its
hesitant efforts to challenge the apartheid regime. Since the termination
28 Four Constitutional Revolutions

of the apartheid era and the establishment of a new constitutional order

in South Africa, however, the South African Constitutional Court (SACC)
has become a major forum for dealing with South Africa’s dark political
past and, one hopes, brighter political future. The trend toward the
judicialization of politics following the constitutionalization of rights and
the fortification of judicial review has played a significant role in creating the
new South Africa. True, South Africa’s dramatic and long-awaited transition
to democracy is still in the formative stages. This prevents us from reach-
ing any definitive conclusions regarding the impact of constitutionalization
on this country’s political sphere. Nevertheless, signs of excessive legisla-
tive deference to the judiciary, along with the process of judicializing most
fundamental political challenges, can already be seen in postconstitutional
South Africa.
The formal aspects of the constitutional revolution in South Africa have
been widely documented. In February 1990 the government lifted the ban
on the African National Congress (ANC)—an act that brought white elites
and representatives of the black majority into public engagement for the
first time. The Convention for a Democratic South Africa (CODESA) was
launched in December 1991 to negotiate a democratic transition, but these
negotiations collapsed in mid-1992, followed by escalating violence and
mass social upheaval. In 1993, the negotiating parties entered a series of bi-
lateral negotiations that yielded an agreement on a two-phase transition to
democracy. The first stage involved the drafting of the 1993 interim consti-
tution, which came into force in April 1994. The second stage involved the
drafting of the 1996 final constitution by the Constitutional Assembly and
its approval by the Constitutional Court.
The interim constitution marked the legal foundation for the new South
Africa. Its enactment coincided with the inauguration of South Africa’s first
democratically elected government in May 1994. It remained in place until
the final constitution came into force in February 1997. The interim consti-
tution was the first instrument to establish a constitutional system for gov-
erning the country under a banner of national unity; likewise, it mapped
out a process for drafting the final constitution in the wake of the first
democratic elections. It included a chapter on fundamental rights and estab-
lished a new regime of active judicial review in South Africa, epitomized by
the new Constitutional Court, which was inaugurated by President Nelson
Mandela in February 1995. The Bill of Rights contained in the 1993 interim
constitution provided for an array of classic (so-called first-generation) indi-
 Four Constitutional Revolutions 29

vidual freedoms. It protected the right to equality, life, and privacy; proce-
dural due process; freedom of religion, thought, expression, assembly, and
association; freedom of movement and occupation; political rights; and the
right to fair labor practices, including the right to form and join labor unions,
to bargain collectively, and to strike.
The final constitution of 1996 reaffirmed the interim constitution’s com-
mitment to an entrenched catalogue of rights. Section 7, the first provision
in the final constitution’s chapter on fundamental rights (Chapter 2) states
that the Bill of Rights “is a cornerstone of democracy in South Africa. It en-
shrines the rights of all people in our country and affirms the democratic
values of human dignity, equality, and freedom . . . [T]he state must respect,
protect, promote, and fulfill the rights in the Bill of Rights.” The 1996 Bill of
Rights incorporates most of the provisions of the transitional Bill of Rights
and expands its boundaries to include a commitment on the part of the gov-
ernment to take all reasonable steps within its available resources to ensure
the provision of certain subsistence social rights. The 1996 Bill of Rights also
protects language and education group rights. Most provisions of the 1996
Bill of Rights are amenable to revision or revocation only by a two-thirds
vote of the National Assembly (in some cases a three-quarters vote), as well
as the support of at least six provinces. The rights protected by the 1996 Bill
of Rights are subject to a general limitations clause, section 36(1), which is
largely modeled on similar provisions in other international human rights
texts and national bills of rights (such as section 1 of the Canadian Charter).
The new SACC is comprised of eleven judges, who may serve for a non-
renewable term of twelve years but must retire at the age of seventy. Under
the 1996 constitution, the Court’s jurisdiction is restricted to constitutional
issues; it extends to the constitutionality of any national or provincial stat-
ute, regulation, ordinance, or administrative action, as well as to common
law or customary law principles. It has exclusive jurisdiction with regard to
the adjudication of disputes between organs of state in national and provin-
cial spheres; the constitutionality of any amendment to the constitution, a
priori review of any pending national or provincial legislation, and certifica-
tion of any provincial constitution; and the determination of whether parlia-
ment or the President has failed to fulfill a constitutional obligation.
As will be seen in subsequent chapters, the SACC immediately became
one of the major arenas for settling questions of transition to and consolida-
tion of multiracial democracy in the new South Africa. During the first eight
years of its existence (February 1995 to December 2002), the SACC dealt
30 Four Constitutional Revolutions

with 161 cases, most of which were of crucial constitutional significance. Bill
of Rights cases account for 53 percent (85 of 161) of all reported SACC cases;
landmark federalism and separation of powers judgments make up an addi-
tional 25 percent (40 of 161) of the SACC caseload. From the Court’s critical
appraisal of the new constitution to its outlawing of the death penalty, in
present-day South Africa there have been very few salient political contro-
versies not contemplated by the Court.

In sum, the adoption of constitutional catalogues of rights in Canada, New

Zealand, Israel, and South Africa ushered in a new constitutional era in
these countries. In each case, the constitutionalization of rights and the for-
tification of judicial review marked a shift from traditional principles of par-
liamentary sovereignty toward a new regime of constitutional supremacy
and active judicial review.
Judicial empowerment through the constitutionalization of rights and the
establishment of judicial review may shed light on an often-overlooked as-
pect of constitutional politics: the political origins of constitutionalization.
Although the adoption of a constitutional catalogue of rights provides the
necessary institutional framework for the judicialization of politics, it is cer-
tainly insufficient in and of itself to generate the high level of judicialized
politics seen in present-day Canada, New Zealand, Israel, and South Africa.
How then can the increasingly common transfer of power from majoritarian
policy-making arenas to national high courts through constitutionalization
be explained? The following chapters address this frequently overlooked
puzzle of the political origins of constitutionalization.
 CHAPTER 2

The Political Origins

of Constitutionalization

The very purpose of the Bill of Rights was to withdraw certain

subjects from the vicissitudes of political controversy, to place them
beyond the reach of majorities and officials and to establish them as
legal principles to be applied by the courts.
U.S. Supreme Court Justice Robert H. Jackson, West Virginia State
Board of Education v. Barnette (1943)

Conventional Theories of Constitutional Transformation

Extant theories of constitutional transformation may be grouped into three

major categories: evolutionist theories, functionalist explanations, and insti-
tutional economics models. Most scholars of constitutional politics agree
that there is a strong correlation between the recent worldwide expansion of
democracy and the contemporaneous global expansion of judicial power.
Indeed, with a few notable exceptions (such as Egypt and Pakistan, which
maintain relatively autonomous and influential national high courts), the
expansion of judicial power has taken place primarily in democratic polities.
Over the past three decades, three major waves that established and consoli-
dated democracy took place: in Southern Europe in the late 1970s; in Latin
America in the 1980s; and in Central and Eastern Europe in the early 1990s.
These movements brought with them an expansion of judicial power in
most of these new democracies, primarily through the constitutionalization
of rights and the establishment of relatively autonomous judiciaries and su-
preme courts armed with judicial review practices.
Indeed, by its very nature, the existence of a democratic regime implies
the presence of a set of procedural governing rules and decision-making
processes to which all political actors are required to adhere. The persistence
31
32 The Political Origins of Constitutionalization

and stability of such a system in turn requires at least a semiautonomous,

supposedly apolitical judiciary to serve as an impartial umpire in disputes
concerning the scope and nature of the fundamental rules of the political
game. Similarly, judicial review is a prerequisite of viable democratic gover-
nance in multilayered federalist countries (for example, the United States,
Germany, Canada, India, and Australia), and in emerging supranational pol-
ities (for example, the European Union). Moreover, the transition to and
consolidation of democracy entails the establishment of some form of sepa-
ration of powers between the major branches of government and between
the central and provincial or regional legislatures.
In short, the existence of an independent and active judiciary appears to
be a necessary condition for, and an inevitable by-product of, the prolifera-
tion of democracy during the second half of the twentieth century. The
expansion of judicial power has indeed been associated with political and
economic liberalization in postauthoritarian or quasi-democratic polities.
However, the democratic proliferation thesis has certain shortcomings. The
widespread transition to democracy cannot provide a coherent explanation
for the significant variations in judicial power among new democracies.
What is more, the expansion-of-democracy thesis fails to account for the
significant variations in the timing, scope, and nature of the expansion of ju-
dicial power among established democracies.

EVOLUTIONIST THEORIES. The evolutionist approach to legal change

stresses the inevitability of judicial progress and the importance of invisible
and endogenous macrofactors in explaining the expansion of judicial power
through constitutional reform. Some evolutionist theories suggest that legal
development is linked to a polity’s passage from one socioeconomic stage to
another. Early legal transformation theorists, such as Adam Smith, argued
that development of genuine contract and property concepts could only oc-
cur alongside the consolidation of agriculture. More recent evolutionist the-
ories of legal transformation emphasize cultural variations among societies
as a determinant of legal development.1 Other theories positing inevitable
judicial progress and legal development by stages have also emerged within
more general theories of economic and political development.2
The most widely held thesis associated with this approach defines the
trend toward the constitutionalization of rights and the fortification of judi-
cial review as an inevitable by-product of a new and near-universal prioritiz-
ation of human rights in the wake of World War II.3 According to this view,
 The Political Origins of Constitutionalization 33

the presence of an effective, written bill of rights is the crowning proof of

constitutional development. The greatest proof of democracy’s triumph in
our times, it is argued, stems from the increasing acceptance and enforce-
ment of the idea that democracy is not equivalent to majority rule; in a real
democracy, minorities should possess legal protections in the form of a writ-
ten constitution unchangeable even by parliament. According to this view, a
constitutional bill of rights is part of fundamental law. Judges, who are re-
moved from the pressures of partisan politics, are responsible for enforcing
such rights through active judicial review.
The conception of constitutional transformation that stems from the so-
cial contract school of thought views constitutions and judicial review as
procedural devices that free and equal people agree to voluntarily impose
upon themselves to protect their equal, basic rights.4 Realizing the occa-
sional temptation of popular majorities to adopt measures that infringe on
the basic rights of some members of the polity while not having an a priori
indication of whose rights might be restricted by such potential measures,
members of a polity might rationally choose to entrench the fundamental
rules of the political game and the basic rights of its participants by granting
a nonlegislative body that is insulated from majoritarian politics the power
to review legislation. In so doing, members of the polity (or its constitu-
ent assembly) provide themselves with precautions, or precommitments,
against their own imperfections or harmful future desires, and tie them-
selves into their initial agreement on the basic rules and rights that specify
their sovereignty.5 Proponents of this approach often regard the constitu-
tionalization of rights and the establishment of judicial review as reflecting
polities’ and politicians’ genuine “maturity” and deep commitment to a uni-
versal notion of human rights.
In its more empirically grounded variant, the evolutionist approach re-
gards the constitutionalization of rights and the establishment of judicial
review as fortifying the separation of powers among the executive, the legis-
lature, and the judiciary. According to this view, confidence in technocratic
government and planning has waned, and from this has grown a conse-
quent desire to restrict the discretionary powers of the state. The result
has been a diffusion of judicial power over the past several decades.6 In
its countermajoritarian guise, this approach stresses that by increasing “ac-
cess” for special interest groups, the constitutionalization of rights and the
establishment of active judicial review promote the diffusion of political
power, add veto mechanisms, restrict the maneuvering of policymakers, and
34 The Political Origins of Constitutionalization

limit the power of majorities in legislatures.7 According to this view, inde-

pendent courts, especially those armed with judicial review practices, not
only monitor untrustworthy executive and legislature bodies but also facili-
tate the political representation of diffuse but well-organized minorities.
This representation creates opportunities for certain groups to participate
in policy-making that might otherwise be closed to them in majoritarian
parliamentary politics.8 Proponents of this approach therefore regard the
constitutionalization of rights and the fortification of judicial review as the
outcome of successful efforts by well-organized minority groups to protect
themselves against the systematic threat of majoritarian political whims and
to increase their impact on public policy outcomes.

FUNCTIONALIST E X P L A N A T I O N S . Like the evolutionist approach,

functionalist (or systemic need-based) explanations cast constitutional
transformation as an organic response to pressures within the political sys-
tem itself. These explanations emphasize the absence of human agency and
the ineluctability embedded in any legal progress. They also recognize par-
ticular ways in which legal innovations can follow from demonstrations of
social need. The best-known functionalist explanations for legal change fo-
cus on increases in systemic efficiency as the end products of such change.
Some institutional economists, for example, posit a systemic efficiency-
driven process of legal transformation, in which inefficient legal rules would
more likely be litigated while new, efficient rules would persist once estab-
lished.9 Equivalent arguments have been made for legal changes in tort law
and contract law, and even in the legal organization of a society to allow for
modes of production that increase the rate of return on capital. Douglass
North and Robert Thomas’s analysis of the demise of feudalism in Europe il-
lustrates the logic of this argument. During the Middle Ages, feudalism re-
mained stable as long as land remained the scarce resource. Although lords
could offer more rights to laboring serfs, it was not in their interest to do
so. Following the Black Death, however, labor became the scarce resource.
Lords facing competition for labor for the first time attempted to lure work-
ers by offering them more attractive working conditions. This in turn stimu-
lated labor force mobility, thus destroying feudalism in Western Europe.10
In its most common version, the functionalist approach suggests that the
expansion of judicial power derives from a structural, organic political prob-
lem such as a weak, decentralized, or chronically deadlocked political sys-
tem. The less functional the political system is in a given democracy, the
greater the likelihood of expansive judicial power in that polity.11 Constitu-
 The Political Origins of Constitutionalization 35

tionalization is seen as the best possible way of overcoming political ungov-

ernability and ensuring the unity and “normal” functioning of such poli-
ties.12 In its “consociational” variant, the needs-based explanation of consti-
tutional transformation emphasizes political necessity in the development of
mechanisms such as mutual veto and proportional representation, charac-
terizing them as inevitable constitutional solutions that allow fragmented
polities to function. According to this logic, expansion of judicial power in
polities facing political polarization is the only institutional mechanism that
enables opposition groups to monitor distrusted politicians and decision-
makers.
The explanation commonly given for the unprecedented judicialization of
Israeli politics in recent years provides a perfect illustration of the idea that
systemic needs are the main cause of judicial empowerment. In a marked
change from the norms of Israel’s early decades of independence, the judi-
ciary, in particular the Israeli Supreme Court, has recently become one of
the most significant actors in Israel’s political arena. From the early 1990s
onward, the Court has increasingly exercised its power at the expense of
politicians and administrators. The Court has gained the authority to review
primary legislation, political agreements, and administrative acts; it moni-
tors almost every aspect of public life in Israel. Israeli society is characterized
by deep social and cultural cleavages13 as well as by a political deadlock be-
tween the two major electoral blocs dating back to the late 1970s. According
to the systemic needs explanation of judicial empowerment, this structural
inability to deal with the social and cultural rifts besetting Israeli society and
the stalemate faced by Israel’s majoritarian politics corroded the authority of
the Knesset and the government. This in turn led to the systemic depend-
ency of the Israeli polity on a dominant, seemingly apolitical body of profes-
sional decision-makers: the Supreme Court judges.14
Another functionalist (or systemic needs-based) explanation emphasizes
the general proliferation in levels of government and the corresponding
emergence of a wide variety of semiautonomous administrative and regula-
tory state agencies as the main driving forces behind the expansion of judi-
cial power over the past few decades. According to this thesis, independent
and active judiciaries armed with judicial review practices are necessary for
efficient monitoring of the ever-expanding administrative state. Moreover,
the modern administrative state embodies notions of government as an ac-
tive policy-maker, rather than a passive adjudicator of conflicts. The state
therefore requires an active, policy-making judiciary.15
Along the same lines, scholars of judicial politics view the rapid growth
36 The Political Origins of Constitutionalization

of supranational judicial review in Europe as an inevitable institutional re-

sponse to complex coordination problems deriving from the systemic need
to adopt standardized legal norms and administrative regulations across
member-states in an era of converging economic markets.16 A similar stan-
dardization rationale may explain what may be called the incorporation
scenario of constitutional reform. In this view, the constitutionalization of
rights and the establishment of judicial review in member-states of suprana-
tional economic and political regimes (the European Union, for example), as
well as signatory states to transnational trade and monetary treaties, oc-
curred through the incorporation of international and trans- or suprana-
tional legal standards into domestic law. Recent examples of this scenario of
constitutionalization include the incorporation of the European Convention
on Human Rights provisions into Danish law in 1993, into Swedish law in
1995, and into British law through the enactment in Britain of the Human
Rights Act 1998—the first rights legislation introduced in the United King-
dom in three hundred years.

While the constitutional evolution and functionalist theories just outlined

account for some factors involved in the development of juristocracy, none
analyzes the specific political vectors behind any of the constitutional revo-
lutions of the past several years in a comparative, systematic, and detailed
way. Moreover, none of these theories accounts for the precise timing of
constitutional reform. If we apply these theories to a concrete example, they
consistently fail to explain why a specific polity reached its most advanced
stage of judicial progress at a specific moment and not, say, a decade earlier.
Like the democratic proliferation thesis, both the constitutionalization in
the wake of World War II thesis and its corresponding constitutionalization
as precommitment argument fail to account for the significant variations
in the timing, scope, and nature of constitutionalization. It is hard to see,
for example, why members of the Canadian polity in 1982, or members of
the Israeli polity a decade later, chose to take steps against their own imper-
fections in the year they did and not earlier or later. What is more, the
constitutionalization as precommitment argument is based on a set of hypo-
thetical and speculative presuppositions concerning the origin of constitu-
tions and judicial review that at the very best provide an ex post facto nor-
mative justification for their adoption. Moreover, if a given polity is indeed
structurally ungovernable, it is difficult to see how the successful entrench-
ment of a bill of rights and the establishment of judicial review in that polity
 The Political Origins of Constitutionalization 37

can be explained, given the failed earlier attempts to enact a constitutional

catalogue of rights. Furthermore, both legal evolution and systemic needs-
based theories of judicial transformation tend to ignore human agency and
the fact that legal innovations require legal innovators—people who make
choices as to the timing, scope, and extent of legal reforms. Both explana-
tions overlook the crucial self-interested intervention by political power-
holders who are committed to judicial expansion in an attempt to shape the
institutional setting to serve their own agendas.

INSTITUTIONAL ECONOMICS MODELS. Another utilitarian ap-

proach—the institutional economics-derived theory of constitutional trans-
formation—sees the development of constitutions and judicial review as
mechanisms to mitigate systemic collective-action concerns such as commit-
ment, enforcement, and information problems. One such explanation sees
the development of constitutions and independent judiciaries as an efficient
institutional answer to the problem of “credible commitments.”17 Political
leaders of any independent unit want to promote sustainable long-term eco-
nomic growth and encourage investment that will facilitate the prosperity of
their polity. Two critical preconditions for economic development are the
existence of predictable laws governing the marketplace and a legal regime
that protects capital formation and ensures property rights. The entrench-
ment of constitutional rights and the establishment of independent judicial
monitoring of the legislative and executive branches are seen as ways of in-
creasing a given regime’s credibility and enhancing the ability of its bureau-
cracy to enforce contracts, thereby securing investors’ trust and enhancing
their incentive to invest, innovate, and develop.
Indeed, as Max Weber noted, the fundamental building block of every
successful capitalist market is a secure “predictability interest.”18 Without
this, potential investors lack the incentive to invest. Scholars have shown
how entrenched legal rights that enhance investors’ trust have led to
economic growth in various historical contexts. Douglass North and Barry
Weingast, for example, have illustrated how limitations on rulers’ power in
early capitalist Europe increased legal security and predictability, thereby al-
lowing certain polities to borrow capital from external lenders, who were
protected by law from the seizure of their capital.19 More recent empirical
studies have established a statistical link between the existence of institu-
tional limitations on government action (rigid constitutional provisions and
judicial review, for example) and rapid economic growth.20
38 The Political Origins of Constitutionalization

A second institutional economics explanation suggests that judicial re-

view may constitute an efficient “fire alarm” mechanism for monitoring the
bureaucracy.21 Legislators routinely delegate discretion over public policy
programs to bureaucrats but must try to ensure that these bureaucrats im-
plement the programs as they were intended. Investments in measures that
enhance judicial independence are accordingly interpreted as efforts by ex-
ecutive branch leaders to avoid the high costs of constant central supervision
of bureaucratic agencies (or a “police patrol” mechanism). Adopting a de-
centralized “fire alarm” monitoring model allows those who feel they have
been treated unfairly to sue through the courts. In a similar vein, recent
studies have emphasized the utility of judicial review as a mechanism for
conveying information to legislatures about judicial policy preferences vis-à-
vis legislative policy preferences as well as information concerning the ac-
tual effects of legislation.22 The information-conveying function of judicial
review is likely to increase in cases of a priori, abstract judicial “preview”
such as that exercised by the French Conseil Constitutionnel or by the Cana-
dian Supreme Court in the reference procedure.23
Even if the constitutionalization of rights and the establishment of judi-
cial review do indeed mitigate problems of information, commitment, and
enforcement, as suggested by these institutional-economics-driven explana-
tions for judicial empowerment through constitutionalization, however,
these explanations fail to explain how prosperous democratic polities man-
aged to successfully address commitment and enforcement problems prior
to the establishment of judicial review. Nor do they demonstrate why a cer-
tain polity would choose to adopt such efficient mechanisms at a particular
point in time.

Thinking Critically about the Political Origins of

Constitutionalization: The Strategic Approach
and the Hegemonic Preservation Thesis

A realist, strategic approach to judicial empowerment focuses on various

power-holders’ self-interested incentives for deference to the judiciary. It
makes four preliminary assumptions. First, legislative deference to the judi-
ciary and judicial empowerment through constitutionalization do not de-
velop separately from the concrete social, political, and economic struggles
that shape a given political system. Indeed, the expansion of judicial power
is an integral part and an important manifestation of those struggles and
 The Political Origins of Constitutionalization 39

cannot be understood in isolation from them. Second, when studying the

political origins of constitutionalization (as well as the political origins of
other institutional reforms), it is important to take into account events that
did not occur and the motivation of political power-holders for not behaving
in certain ways. In other words, the political origins of constitutional reform
cannot be studied in isolation from the political origins of constitutional
stalemate and stagnation. Third, political and legal institutions produce dif-
ferential distributive effects: they privilege some groups and individuals over
others. Other variables being equal, prominent political, economic, and ju-
dicial actors are therefore likely to favor the establishment of institutional
structures most beneficial to them. And fourth, because constitutions and
judicial review hold no purse strings and have no independent enforcement
power but nonetheless limit the institutional flexibility of political decision-
makers, the voluntary self-limitation through the transfer of policy-making
authority from majoritarian decision-making arenas to courts seems, prima
facie, to run counter to the interests of power-holders in legislatures and ex-
ecutives. Unless proven otherwise, the most plausible explanation for vol-
untary, self-imposed judicial empowerment is therefore that political, eco-
nomic, and legal power-holders who either initiate or refrain from blocking
such reforms estimate that it will serve their interests to abide by the limits
imposed by increased judicial intervention in the political sphere.
Political power-holders may profit from an expansion of judicial power in
a number of ways. First, from the politicians’ point of view, delegating pol-
icy-making authority to the courts may be an effective means of reducing
decision-making costs as well as shifting responsibility, thereby reducing the
risks to themselves and to the institutional apparatus within which they op-
erate. If delegation of powers can increase credit and/or reduce blame attri-
buted to the politician as a result of the policy decision of the delegated body,
such delegation can be beneficial to the politician.24 The removal of policy-
making power from legislatures and executives and its investiture in courts
may become attractive for political power-holders when disputes arise that
they consider undesirable as open public debates, primarily because they
present no-win political dilemmas (such as the dispute over abortion policy
in the United States, the debate over same-sex marriage in Canada, or the
question of “who is a Jew” in Israel). As Mark Graber and others have
shown, ruling national coalitions in the United States have been inclined to
defer to the U.S. Supreme Court primarily when they have reached a politi-
cal deadlock, faced a no-win decision, or have been unwilling or unable to
40 The Political Origins of Constitutionalization

settle contentious public disputes in the political sphere. Deference to the ju-
diciary, in other words, is derivative of political, not judicial, factors.25
Second, when politicians seek to gain public support for contentious
views by relying on national high courts’ public image as professional and
apolitical decision-making bodies, or when they regard public disputes in
majoritarian decision-making arenas as likely to put their own policy prefer-
ences at risk, diverting responsibility to the courts may become an attractive
option. The threat of losing grip on pertinent policy-making processes and
outcomes may be a strong driving force behind attempts to transfer power
to courts. Accordingly, a strategic, political-power-oriented explanation for
voluntary, self-imposed judicial empowerment through the constitu-
tionalization of rights and the establishment of judicial review suggests that
political power-holders who either initiate or refrain from blocking such
reforms estimate that it enhances their absolute or relative political power
vis-à-vis rival political actors. Political actors who voluntarily establish in-
stitutions that appear to limit their institutional flexibility (such as consti-
tutions and judicial review) may assume that the clipping of their wings un-
der the new institutional structure will be compensated for by the limits it
might impose on rival political elements. In short, those who are eager to
pay the price of judicial empowerment must assume that their position (ab-
solute or relative) would be improved under a juristocracy. Such an under-
standing of judicial empowerment through constitutionalization as driven
primarily by strategic political considerations may take a “thin” or a “thick”
form.
The thin version employs party-based “electoral market” logic to explain
judicial empowerment. In their seminal work of 1975, William Landes and
Richard Posner argued that, other variables being equal, legislators favor the
interest groups from which they can elicit the greatest investment through
lobbying activities. A key element in maximizing such investment is the
ability of legislators to signal credible long-term commitments to certain
policy preferences. An independent judiciary’s role in this regard is comple-
mentary to parliamentary procedural rules—it increases the durability of
laws by making changes in legislation more difficult and costly. A judi-
ciary that is overtly subservient to a current legislature (or expressly biased
against it) can nullify legislation enacted in a previous session (or in cur-
rent legislation), thereby creating considerable instability in legal regimes. In
such legally unstable settings, selling legislation to powerful interest groups
may prove difficult from the politicians’ point of view. The potential threat
 The Political Origins of Constitutionalization 41

of instability or loss of mutual profits and power may therefore result in sup-
port for judicial empowerment vis-à-vis legislatures.26
Observing variations in the degree of judicial independence among indus-
trial democracies, Mark Ramseyer develops Landes and Posner’s argument
into an “electoral market” model, which suggests that judicial independence
correlates to the competitiveness of a polity’s party system.27 When a ruling
party expects to win elections repeatedly, the likelihood of judicial empow-
erment is low. Since rational politicians want long-term bargains with their
constituents, they lack the incentive to support an independent judiciary
when their prospects of remaining in power are high. However, when a
ruling party has a low expectation of remaining in power, it is more likely
to support an independent judiciary to ensure that the next ruling party
cannot use the judiciary to achieve its policy goals. In other words, under
conditions of electoral uncertainty, the more independent courts (or other
semiautonomous regulatory agencies) are, the harder it will be for the suc-
cessive government to reverse the policies of the incumbent government.28
Therefore, in Japan, for example (where a single party ruled almost uninter-
ruptedly for more than four decades following World War II), judicial inde-
pendence is weaker than it is in countries where there is an acknowledged
risk that the party in power might lose control of the legislature in each
election.
The electoral market thesis is quite insightful when it is used to ana-
lyze the politics of constitution-making processes during periods of regime
change and political transition. Judicial review, argues Tom Ginsburg, is a
solution to the problem of uncertainty in constitutional design. By provid-
ing “insurance” to prospective electoral losers, judicial review can facilitate
transition to democracy.29 As Pedro Magalhaes notes, “When the political
actors that dominate the constitution-making process expect to lack control
over legislatures in the future, judicial review of legislation may emerge as
an institution designed to protect their interests.”30 The transition to democ-
racy in Spain and Portugal in the mid-1970s, for example, was characterized
by lack of a single core of postauthoritarian political power, thereby lead-
ing to the rapid adoption of strong constitutional review mechanisms. In
Greece, by contrast, the postauthoritarian constituent process was domi-
nated by a single party (Constantine Karamanlis’s New Democracy), which
enjoyed over 70 percent of the seats in the assembly and did not have to
worry about elections following the approval of the new constitution. “The
result,” notes Magalhaes, “was that Greece, with similar authoritarian and
42 The Political Origins of Constitutionalization

civil law legacies as Spain and Portugal, and involved in an almost simulta-
neous democratic transition, remained the only southern European democ-
racy without constitutional review of legislation.”31 The same rationale may
explain the substantial increase in the power and autonomy of the Supreme
Court of Mexico in 1994 as a calculated attempt by the then ruling party
(Partido Revolucionario Institucional, or PRI) to lock in its historic influence
over Mexico’s political sphere before the PRI’s increasingly popular political
rivals (and eventually winners of the 2000 presidential election) were able
to gain control over the country’s crucial policy-making arenas.32
In a similar vein, the literature on the political origins of other relatively
autonomous agencies (such as central banks, for example) suggests that the
autonomy of these agencies in advanced industrial countries is simply a
function of government politicians’ time horizons. The longer the horizon of
their time in power, the more government politicians will desire the greatest
possible control over economic policy. This implies a consequent loss of in-
dependence for the agency in question. By this logic, short horizons or
forthcoming elections can lead politicians who fear losing their office to in-
crease central bank independence in order to limit the future options of
their political opponents.33
While the electoral market (“thin”) strategic explanation contributes sig-
nificantly to an understanding of the conditions under which judicial em-
powerment is more likely to occur, especially at times of political transition,
it still does not provide a full understanding of constitutionalization and the
accompanying emergence of judicial review. For one, this model does not
provide a full explanation for the rise of judicial power in the premier case
of modern constitutionalization—the pre-electoral market, late-eighteenth-
century United States. More importantly, this model is based on a somewhat
simplistic perception of politics as limited to the partisan electoral market.
Such a minimalist understanding of politics does not capture the full picture
of constitutional politics in ethnically or culturally divided “new constitu-
tionalism” polities (e.g., Canada or South Africa), or in countries such as
Israel, India, Egypt, or Turkey (to name but a few examples) where the fun-
damental tension between secularist, cosmopolitan values and religious par-
ticularism has been at the forefront of political struggle for decades. The po-
litical hegemony and cultural propensities of ruling elites and the urban
intelligentsia in these and other fragmented polities have been constantly
challenged by alternative worldviews, belief systems, and policy prefer-
ences. These nuanced and complex political struggles cannot be easily re-
duced to a thin view of politics as dominated by risk-averse politicians oper-
 The Political Origins of Constitutionalization 43

ating under conditions of political uncertainty at times of regime change.

Third, the electoral market model ignores influential economic stake-
holders’ and judicial elites’ own contribution to the constitutionalization of
rights and the establishment of judicial review.
As will be discussed in more detail in the next chapter, the 1992 con-
stitutional reform in Israel was initiated and carried out by an ad hoc cross-
party coalition of leading Knesset members. Those supporting this reform
included not only long-standing rivals from the country’s two largest politi-
cal parties—the Likud (Unity) party, which was in power in 1992, and the
Labor party, which was the main opposition party in 1992—but also repre-
sentatives of the leftist opposition party Meretz and parliament members
who represented the policy preferences of the secular bourgeoisie. Clearly,
this example demonstrates that the reductive partisan competition model
fails to account for certain social and cultural forces. A more nuanced expla-
nation of the political origins of constitutionalization is necessary if we are
to fully understand judicial empowerment in countries where it has oc-
curred. Our explanation must ignore neither agency nor the role of eco-
nomic and judicial elites, and it must reflect the political reality in internally
fragmented, rule-of-law polities in a “thick” way that captures a broader
picture than the mere electoral market aspect of politics.
Such a “thick” strategic explanation, which I term the hegemonic preser-
vation thesis, suggests that judicial empowerment through constitu-
tionalization is best understood as the by-product of a strategic interplay
between three key groups: threatened political elites who seek to preserve
or enhance their political hegemony by insulating policy-making processes
from the vicissitudes of democratic politics; economic elites who may view
the constitutionalization of certain economic liberties as a means of promot-
ing a neoliberal agenda of open markets, economic deregulation, anti-
statism, and anticollectivism; and judicial elites and national high courts that
seek to enhance their political influence and international reputation. In
other words, strategic legal innovators—political elites in association with
economic and judicial elites who have compatible interests—determine the
timing, extent, and nature of constitutional reform. To be sure, demands for
constitutional change often emanate from various groups within the body
politic. However, unless hegemonic political and economic elites, their par-
liamentary representatives, and the judicial elite envisage absolute or rela-
tive gain from a proposed change, the demand for that change is likely to be
blocked or quashed.
When facing possible threats to their policy preferences in majoritarian
44 The Political Origins of Constitutionalization

decision-making arenas (such as a growing influence on the part of histori-

cally disenfranchised or underrepresented groups and interests in democrat-
ically elected policy-making bodies), elites who possess disproportionate ac-
cess to, and influence over, the legal arena may initiate a constitutional
entrenchment of rights in order to transfer power to supreme or constitu-
tional courts. Typically, such proconstitutionalization elites are made up of
the urban intelligentsia, the legal profession, and the managerial class. They
often represent historically hegemonic enclaves of political and economic
power-holders, who tend to adhere to an agenda of relative cosmopolitan-
ism, open markets, formal equality, and Lockean-style individual autonomy.
Based on the essential tendency of classic civil liberties to protect individual
freedoms, as well as on the courts’ record of adjudication and justices’ ideo-
logical preferences, these elites can safely assume that their policy prefer-
ences will be less effectively contested.
This type of hegemonic preservation through the constitutionalization of
rights or an interest-based judicial empowerment is likely to occur when the
judiciary’s public reputation for professionalism, political impartiality, and
rectitude is relatively high; when judicial appointment processes are con-
trolled to a large extent by hegemonic political elites; and when the courts’
constitutional jurisprudence predictably mirrors the cultural propensities
and policy preferences of these hegemonic elites. Under such conditions, ju-
dicial empowerment through the constitutionalization of rights and the es-
tablishment of judicial review may provide an efficient institutional means
by which political elites can insulate their increasingly challenged policy
preferences against popular political pressure, especially when majoritarian
decision-making processes are not operating to their advantage.
This counterintuitive argument has striking parallels in works concerning
the political origins of empowerment of other semiautonomous institutions,
such as central banks, environmental regulatory bodies, and supranational
treaties and tribunals. Variances in the capacities of early central banking
institutions in developing countries, for example, were shaped by the
changing financial interests of those in a position to voluntarily delegate au-
thority to central banks: government politicians and private banks.34 Simi-
larly, varying degrees of support by existing firms toward proposed environ-
mental regulatory policies can be explained by the different limits and costs
such policies impose upon new firms. Because environmental regulation
typically imposes more stringent controls on new firms, it restricts entry into
the marketplace and potentially enhances the competitive position of exist-
ing firms.35
 The Political Origins of Constitutionalization 45

A similar rationale for judicial empowerment at the supranational level

is put forward by the “intergovernmentalist” thesis concerning the evolu-
tion of the European Court of Justice (ECJ).36 According to this thesis, mem-
ber states choose to create (and selectively abide by the limits imposed by)
supranational institutions primarily because these institutions help them
surmount problems arising out of the need for collective action and also
help them overcome domestic political problems. National governments of
the EU member-states have not been passive, unwilling victims of the pro-
cess of European legal integration; they consciously transferred power to the
Court, and they have supported the Court when it has taken a proactive
stance. Moreover, the selective implementation of ECJ rulings by member-
states derives from domestic political considerations by national govern-
ments (such as a greater willingness to implement ECJ judgments that favor
certain constituencies whose political support is essential for governments
and ruling coalitions).
Other works have similarly suggested that in newly established democra-
cies in post–World War II Europe, governments committed to international
human rights regimes (the European Court of Human Rights, for exam-
ple) as a means of locking in fundamental democratic practices in order
to protect against future antidemocratic threats to domestic governance.37
Governments resorted to this tactic when the benefits of reducing future po-
litical uncertainty outweighed the “sovereignty costs” associated with mem-
bership in such supranational human rights enforcement mechanisms. The
same logic may explain the voluntary incorporation of major international
treaties and covenants protecting fundamental human rights and civil liber-
ties into embattled democracies’ constitutional law (as happened in Argen-
tina in 1994); or the constitutionalization of rights and the corresponding
establishment of full-scale constitutional review following years of political
instability and recurring military coups d’état (as happened in Thailand in
1997).38 Likewise, Miles Kahler has suggested that the precision of the North
American Free Trade Agreement (NAFTA), for example, was “part of the
Mexican government’s strategy to bind successor governments to its policies
of economic openness.”39 Hence, Andrew Moravcsik notes, “governments
may turn to international enforcement when an international commitment
effectively enforces the policy preferences of a particular government at
a particular point in time against future domestic political alternatives.”40
In other words, self-interested political incentives—rather than the altruis-
tic considerations of political leaders or universal commitment to a morally
elevated conception of human rights—provided the major impetus for the
46 The Political Origins of Constitutionalization

commitment by various countries to binding supranational human rights

and free trade regimes.
Under specific circumstances, then, political power-holders may choose to
enhance their position by voluntarily tying their own hands. Such a strate-
gic, counterintuitive self-limitation may be beneficial from the point of view
of political power-holders when the limits imposed on rival elements within
the body politic outweigh the limits imposed on themselves.
Influential proconstitutionalization political elites in rule-of-law polities,
however, do not operate in a political or institutional vacuum. To effectively
promote their judicial empowerment interests, they must secure the cooper-
ation of economic and judicial elites with compatible interests. Indeed, judi-
cial empowerment through the constitutionalization of rights may serve the
interests of influential coalitions of domestic economic elites—powerful in-
dustrialists and corporations—who gain added impetus toward less govern-
ment regulation and reduced social spending by global economic trends.
Most constitutional catalogues of rights place boundaries on government ac-
tion and protect the private sphere (human and economic) from unjustified
state intervention. Historically, the rights of landowners, big business, and
economic investors were secured long before the rights of workers or
women, let alone the poor. Moreover, the modern history of constitutional
rights jurisprudence suggests that national high courts also tend to concep-
tualize the purpose of rights as protecting the private sphere from interfer-
ence by the “collective,” often understood as the state and its regulatory in-
stitutions. Economic elites may therefore view the constitutionalization of
rights, especially property, mobility, and occupational rights, as a means of
removing market rigidities (such as trade barriers and collective bargaining),
promoting privatization and economic deregulation, or simply as a way of
fighting what their members often perceive to be the harmful large-govern-
ment policies of an encroaching state.
Under specific circumstances, international political economy factors
may also push domestic economic elites to advocate constitutionalization as
a means of placing economic liberties and rules allowing for free move-
ment of transnational capital beyond the reach of majoritarian control.41 For
example, the protection of the economic sphere, through the constitu-
tionalization of mobility, property, occupational, and trade rights as well
as the establishment of independent judiciaries that function as checks on
(often “unpredictable”) domestic politics and (often “arbitrary”) state ac-
tion, has long been viewed by transnational economic bodies such as the
World Bank, the World Trade Organization, and the International Mone-
 The Political Origins of Constitutionalization 47

tary Fund as a primary indicator of successful markets and sustained eco-

nomic growth.42 The incorporation into domestic law of these and other le-
gal norms endorsed by transnational trade and monetary regimes is often a
prerequisite imposed on countries striving to become members. New de-
mocracies (such as those in the former Eastern Bloc) that rely heavily on
foreign aid and investment are likely to bow to pressure from leading west-
ern democracies, economic corporations, or transnational governing bodies
to promote the rule of law by emulating the constitutional fundamentals
of liberal democracies. Adopting a constitutional catalogue of rights and es-
tablishing judicial review may therefore serve as a means to demonstrate
a willingness to accept the required legal standards for joining suprana-
tional economic regimes. The restriction of legislative power through the
constitutionalization of rights and the establishment of judicial review may
also enhance a given regime’s international economic credibility.
In short, the global trend towards constitutionalization concerns more
than preservation of increasingly threatened values of core social groups. As
Stephen Gill observes, “[n]ew constitutionalism is a macro-political dimen-
sion of the process whereby the nature and purpose of the public sphere has
been redefined in a more privatized and commodified way . . . it can be de-
fined as the political project of attempting to make trans-national liberalism,
and if possible liberal democratic capitalism, the sole model for future devel-
opment. It is therefore intimately related to the rise of market civilization.”43
The transfer of power to the courts may also serve the interests of a su-
preme court seeking to enhance its political influence and international
profile. As the recent strategic revolution in the study of judicial decision-
making has established, judges may be precedent followers, framers of legal
policies, or ideology-driven decision-makers, but they are also sophisticated
strategic decision-makers who realize that their range of choices is con-
strained by the preferences and anticipated reaction of the surrounding po-
litical sphere.44 Justices tend to vote strategically to minimize the chances
that their decisions will be overridden; if the interpretation that the justices
most prefer is likely to elicit reversal by other branches, they will compro-
mise by adopting the interpretation closest to their preferences that could be
predicted to withstand reversal.45 Accordingly, quite a few landmark deci-
sions of the U.S. Supreme Court have not been merely acts of professional,
apolitical jurisprudence (as doctrinal legalistic explanations of court rulings
often suggest) or reflections of its justices’ ideological preferences and values
(as “attitudinal” models of judicial behavior might suggest), but also a re-
flection of their strategic choices.
48 The Political Origins of Constitutionalization

Short-term policy considerations represent merely one possible motiva-

tion for strategic behavior by courts. Supreme Court judges may also be
viewed as strategic actors to the extent that they seek to maintain or en-
hance the Court’s institutional position vis-à-vis other major national deci-
sion-making bodies.46 Courts may realize when the changing fates or prefer-
ences of other influential political actors, as well as gaps in the institutional
context within which they operate, might allow them to strengthen their
own position by extending the ambit of their jurisprudence and fortifying
their status as crucial national policy-making bodies.47 As recent studies
have shown, the establishment of an international rule of law in Europe
was driven in no small part by national judges’ attempts to enhance their
independence, influence, and authority vis-à-vis other courts and political
actors.48
Expansion of judicial power through the constitutionalization of rights
and judicial review may also support the interests of a supreme court seek-
ing to increase its symbolic power and international prestige by fostering its
alignment with a growing community of liberal democratic nations engaged
in judicial review and rights-based discourse. In this respect, note that the
past several decades have seen an accelerating trend toward intercourt bor-
rowing and the establishment of a globalized, non-U.S.-centered judicial
discourse. This trend has been described by Mary Ann Glendon as “a brisk
international traffic in ideas about rights” carried on through advanced in-
formation technologies by high court judges from different countries.49 In
its first landmark rights decision (Makwanyane, 1995—determining the un-
constitutionality of the death penalty), the South African Constitutional
Court examined in detail landmark rulings from Botswana, Canada, the Eu-
ropean Court of Human Rights, Germany, Hong Kong, Hungary, India,
Jamaica, Tanzania, the United Nations Committee on Human Rights, the
United States, and Zimbabwe. As one commentator recently noted: “Consti-
tution interpretation across the globe is taking on an increasingly cosmopoli-
tan character, as comparative jurisprudence comes to assume a central place
in constitutional adjudication.”50 In short, according to Anne-Marie Slaugh-
ter, “Courts are talking to one another all over the world.”51 Similarly, judi-
cial empowerment through constitutionalization may elevate the symbolic
status of a fairly cohesive professional stratum of judges, law professors,
human rights organizations, litigation-oriented nongovernmental organiza-
tions (NGOs), top lawyers, and law firms. Not surprisingly, the legal profes-
sion has been one of the major advocates of judicial empowerment.
 The Political Origins of Constitutionalization 49

The support of influential political elites remains the key factor in judicial
empowerment through constitutionalization. Supreme courts in relatively
open, rule-of-law polities would prefer to have an enhanced political influ-
ence and international profile. Likewise, economic elites have a near-per-
manent interest in extended protection of the private sphere and entrench-
ment of economic freedoms. It is political power-holders who are least likely
to provide constant support for constitutionalization and the correspond-
ing expansion of judicial power, because these changes are likely to lessen
their room for political maneuvering. Thus, political power-holders—not
economic or judicial elites—are the primary catalyst and driving force be-
hind constitutionalization.
Judicial power does not fall from the sky; it is politically constructed. I be-
lieve that the constitutionalization of rights and the fortification of judicial
review result from a strategic pact led by hegemonic yet increasingly threat-
ened political elites, who seek to insulate their policy preferences against the
changing fortunes of democratic politics, in association with economic and
judicial elites who have compatible interests. The changes that emerge re-
flect a combination of the policy preferences and professional interests of
these groups.
Given that there are at least three distinct groups whose ability to gain
power and influence is contingent on judicial empowerment through the
constitutionalization of rights, it becomes evident that the hegemonic pres-
ervation explanation does not depend on the existence of any systemic so-
cial need. Nor does it assume any necessary evolution in a progressive direc-
tion. This explanation is not deterministic, but actor-oriented; and, unlike
extant microfoundational theories of judicial independence, it does not de-
pend on the competitiveness of the party system. While most existing theo-
ries of constitutional transformation focus on universal or organic macro-
explanations for this increasingly common phenomenon, a realist approach
to constitutionalization emphasizes human agency and specific political
incentives as the major determinants of judicial empowerment. Such an
approach suggests that the expansion of judicial power through the con-
stitutionalization of rights and the establishment of judicial review reflects
appropriation of the rhetoric of social justice by threatened elites to bolster
their own position in the ongoing political struggles of a specific polity. In
the next chapter, I illustrate the hegemonic preservation thesis in action
in four new constitutionalism polities—Israel, Canada, New Zealand, and
South Africa.
 CHAPTER 3

Hegemonic Preservation in Action

“When I use a word,” Humpty Dumpty said in a rather scornful

tone, “it means just what I choose it to mean—neither more nor
less.”
“The question is,” said Alice, “whether you can make words mean
so many different things.”
“The question is,” said Humpty Dumpty, “who is to be master—
that’s all.”
Lewis Carroll, Through the Looking Glass and What Alice Found There

The 1992 Constitutional Revolution in Israel

The recent history of constitutional politics in Israel presents a near-ideal

illustration of my explanation of judicial empowerment. The hands that
guided the 1992 constitutionalization of rights and the establishment of ju-
dicial review in Israel were entirely visible; the process was steered by an ad
hoc cross-party coalition of politicians representing Israel’s historically hege-
monic (albeit increasingly challenged) secular Ashkenazi elite in associa-
tion with economic and judicial elites who had compatible interests. This
triadic strategic alliance, of which the political component was the most
active, determined the timing, scope, and nature of the 1992 constitutional
revolution. It has also been the major coalition opposing the constitu-
tionalization of subsistence welfare rights and the creation of a more demo-
cratically representative Supreme Court. It was driven primarily by a self-
interested agenda—not by its members’ subordination to some invisible
evolutionist or structural forces nor by their devotion to some elevated vi-
sion of human rights or national unity.
The 1992 constitutional entrenchment of rights and the establishment of
judicial review in Israel were initiated and supported by politicians repre-
50
 Hegemonic Preservation in Action 51

senting Israel’s secular Ashkenazi bourgeoisie, whose historic political hege-

mony in crucial majoritarian policy-making arenas (such as the Knesset)
had become increasingly threatened. The political representatives of this
group found the delegation of policy-making authority to the Court an ef-
ficient way to overcome the growing popular backlash against its ideological
hegemony and, perhaps more important, an effective short-term means of
avoiding the potentially negative political consequences of its steadily de-
clining control over the majoritarian decision-making arena. A brief survey
of the key events that have shaped Israel’s constitutional history since the
establishment of the state is necessary in order to understand this claim.
The state of Israel was founded on May 14, 1948, as a “Jewish and Demo-
cratic” state. As we have seen in earlier chapters, the major constitutional
challenge Israel has faced since its foundation has been the creation of an
ideologically plausible and politically feasible synthesis between these two
seemingly contradictory terms (especially given that approximately one-
fifth of Israel’s citizenry consists of non-Jews).1 And as we have seen in
Chapter 1, even within the Jewish population itself, the exact meaning of
Israel as a Jewish state has been highly contested with a secular, relatively
cosmopolitan lifestyle and ideological preferences striving to maintain their
hegemony vis-à-vis embedded symbols of Jewish tradition, religiosity, and
exceptionalism. While historically the Orthodox stream of the Jewish reli-
gion has long enjoyed the status of being the sole branch of Judaism for-
mally recognized by the state, a series of landmark Supreme Court of Israel
(SCI) rulings over the past several years have altered the long-standing sta-
tus quo.2
Throughout its existence, Israel has also struggled with social divisions
based on ethnicity and national origin. There are the fissures between
Mizrahi or Sephardi Jews (mostly Jews of North African and Mediterranean
origin) and the generally better-off Ashkenazi Jews (mostly Jews of Euro-
pean descent). Further social heterogeneity comes from Israel’s vibrant im-
migrant community, with approximately one million immigrants who ar-
rived from the former Soviet Union during the 1990s forming the majority.
A sizable minority of Jewish immigrants also came from Ethiopia. Their re-
ception opened the polity up to charges of skin-based racism for the first
time. The final twist of variety in this divided polity is the growing commu-
nity of non-Jewish foreign workers residing in Israel (estimated at 300,000
or more), approximately two-thirds of whom have entered the country
illegally.
52 Hegemonic Preservation in Action

The 1948 Declaration of Independence of the State of Israel created

temporary governmental institutions. A Constituent Assembly was simulta-
neously formed and invested with the power to draft a constitution that
would eventually establish permanent governing institutions. In 1949, the
Constituent Assembly changed its name to the Knesset and established itself
as the legislative body of the state of Israel. After a year of debates over the
merits of a constitution, it became apparent that the religious parties were
opposed to the idea of an entrenched constitution because it would invest
the ultimate source of sovereignty in the citizenry rather than in God or
Jewish law. Mapai—the primary component of today’s Labor Party and the
unchallenged secular ruling party at the time—was also unwilling to pro-
ceed with drafting a constitution, partly to avoid jeopardizing the tenuous
secular/religious coalition government, but primarily because Mapai lead-
ers, notably David Ben-Gurion, had no political incentive to transfer policy-
making authority to the judiciary and no desire to impose any limitations on
their own power. Thus, to preserve political power while simultaneously
pursuing a constitutional dialogue, in 1950 the first Knesset adopted a com-
promise known as the Harari Resolution. This enabled the Knesset both to
evade its obligation to compose a written constitution and to preserve its
power to enact one through the adoption of a series of Basic Laws. The reso-
lution stated: “The constitution shall be composed of individual chapters in
such a manner that each of them shall constitute a basic law in itself. The in-
dividual chapters shall be brought before the Knesset . . . and all the chapters
together will form the State Constitution.”3
In the years leading up to 1992, the Knesset passed nine Basic Laws,
concerning primarily the powers vested in the various branches of govern-
ment.4 None of these laws provided any entrenched constitutional protec-
tion of basic rights and liberties, just as none formally established any type of
judicial review. In the absence of a civil rights tradition and the necessary
constitutional framework for actively reviewing primary legislation, the Su-
preme Court was limited in the pre-1992 era to judicial interpretation of ad-
ministrative acts, informed by an “implied bill of rights” doctrine.5
Beginning in the late 1950s, numerous attempts were made by civil liber-
tarian politicians and interest groups to pass a bill of rights. Until 1992, all of
these attempts failed. Standard explanations for Israel’s repeated failure to
enact a bill of rights before 1992 include the British colonial legacy of parlia-
mentary sovereignty, steady opposition from the religious parties, and the
lack of consensus among Israel’s Jewish secular and religious populations re-
 Hegemonic Preservation in Action 53

garding Israel’s definition as a Jewish and democratic state (terms that many
believe to be mutually exclusive and that therefore deny, prima facie, any
meaningful protection of religious minority rights by a constitutional bill of
rights).
While these explanations are persuasive, they reveal only part of the pic-
ture. The British tradition was far more pervasive in India than in Israel, yet
at the same historical moment of Israel’s founding, the new Indian Congress
was enacting a detailed and wide-reaching constitution. Moreover, every
country that has adopted substantive judicial review, from eighteenth-cen-
tury America to twentieth-century South Africa, has done so in opposition
to a prior tradition—including, most recently, Canada in 1982, New Zealand
in 1990, many former Eastern Bloc countries in the early 1990s, and the
United Kingdom in 1998.
In Israel, the religious parties’ opposition to the constitutional entrench-
ment of rights was certainly not insurmountable. At least until the mid-
1980s, they were a minority, whose opposition could have been overcome
by combining several factions of the majority secular forces. The difficulty
in defining Israel as both Jewish and democratic proved not to be a ma-
jor stumbling block to a bill of rights; this dual definition has not changed
since the state’s foundation, and in fact was reentrenched by the Basic Laws
adopted in 1992. The most plausible explanation for the failure to enact a
bill of rights in Israel before 1992 is that political power-holders in the pre-
1990s legislature were disinclined to delegate power to the judiciary as long
as their political hegemony and control of parliament remained almost un-
challenged. That constitutional reforms have taken place since 1992 in spite
of the continued presence of the long-standing obstacles just mentioned
suggests that the political incentives driving the parliamentary representa-
tives of the primarily Ashkenazi secular elite were what changed.
During the first three decades of Israel’s independence, when its control of
Israeli politics was virtually undisturbed, Ben-Gurion’s Mapai opposed the
adoption of a bill of rights and repeatedly championed the democratic char-
acter of parliamentary sovereignty and majority rule. Highly critical of the
constitutional role of the Supreme Court in the United States, Ben-Gurion
said in a frequently cited speech: “Do we need a Constitution like the Amer-
icans? By all means let us profit from the experience of others and borrow
laws and procedures from them, provided they match our needs . . . [I]n a
free state like . . . Israel there is no need for a bill of rights . . . we need a bill
of duties . . . duties to the homeland, to the people, to aliyah, to building the
54 Hegemonic Preservation in Action

land, to the security of others, to the weak.”6 In a debate about due process
and emergency regulations, Ben-Gurion went on to say: “Every jurist
knows how easy it is to weave juridical cobwebs to prove anything and re-
fute anything . . . as a law student I know that no one can distort any text
and invent far-fetched assumptions and confusing interpretation like the ju-
rist.”7 As Gary Jacobsohn notes, “for historians and legal scholars, even
those inclined to resist cynicism, it is relatively easy to accept the allegations
of Menachem Begin, then the leader of the minority Herut movement, that
Ben-Gurion’s opposition to a constitution was fundamentally attributable to
his fear of losing all or some of his power.” As Begin pointed out in a debate
in the First Knesset, “if the Constituent Assembly legislates a constitution,
then the government will not be free to do as it likes.”8
In short, as long as Israel’s secular Ashkenazi elite remained virtually un-
challenged in their control of parliament, they had no reason to under-
mine their position by delegating power to the judiciary through the en-
trenchment of rights and the establishment of judicial review. This led to a
constitutional stalemate, which persisted from the early 1950s until the late
1980s.
But as Israel’s secular Ashkenazi bourgeoisie and its political representa-
tives increasingly lost their grip on Israeli politics, their attitude toward
judicial review changed. In the early 1990s, a group of Knesset members,
representing a primarily secular, neoliberal ideological agenda, reacted to
the continuous decline of their popular support by forming an ad hoc cross-
party parliamentary coalition that initiated and carried out an institutional
empowerment of the judiciary. Draft legislation was submitted to the
Knesset by Knesset Member (MK) and law professor Amnon Rubinstein
(of the liberal, left-wing Meretz party, then in the parliamentary opposition)
in the summer of 1991, with the tacit assent of the Justice Minister Dan
Meridor (of the right-wing Likud party). This initiative culminated in the
1992 enactment of two basic civil rights and liberties laws—Basic Law: Hu-
man Dignity and Liberty, and Basic Law: Freedom of Occupation—as well as
the amendment of Basic Law: The Government.9 These enactments paved
the way for active judicial review in Israel by awarding the Supreme Court
the authority both to monitor closely Israel’s political arena and to rescind
any “unconstitutional” primary legislation enacted by the Knesset.
A comprehensive survey of parliamentary records reveals that of the lead-
ing group of 32 MKs who consistently advocated and supported the new
laws in the Knesset pre-enactment debates (from the preliminary debates in
 Hegemonic Preservation in Action 55

April-May 1991 to their official enactment in March 1992), 18 were Labor

MKs, 8 were Likud MKs, and 6 were Meretz MKs (a rare cross-party coali-
tion)—all of whom supported a clear secular, neoliberal agenda and many of
whom held legal qualifications.10 Of the original 32 supporters, 28 voted
consistently against increasing state funding for various religious and ultra-
Orthodox educational institutions, 25 voted consistently for the privatiza-
tion of various public services (including the commodification of Israel’s
electronic media, health, telecommunication, and banking services), and 26
were professionals (lawyers, doctors, managers, and so on). The 21 MKs
who consistently opposed the adoption of the new Basic Laws in the pre-en-
actment parliamentary debates were all representatives of either the ortho-
dox religious parties, the extreme right-wing parties, the communist party,
or the Arab-Israeli population.11
What were the political origins of this historic constitutional break-
through and the astonishing change of heart among the major political rep-
resentatives of Israel’s secular bourgeoisie? Whereas Israel’s historically he-
gemonic secular Ashkenazi bourgeoisie has faced a continuous decline in its
political representation since the early 1980s, marginalized groups, such as
residents of peripheral development towns and poor urban neighborhoods
(mainly Mizrahi Jews and blue-collar immigrants from the former Soviet
Union), Israeli-Arabs from ethnically mixed towns, and lower-income reli-
gious groups, have steadily gained political power during this period (see Ta-
ble 3.1). The constant exclusion of these marginalized groups from privi-
leged localities, networks, resources, and opportunities has reinforced their
opposition to the historically dominant Ashkenazi bourgeoisie. In addition,
Israel experienced an unprecedented 20 percent population increase be-
tween the mid-1980s and the early 1990s, with the absorption of more than
800,000 immigrants, most of them from the former Soviet Union.12 Over
the period 1989–1991 alone, and in accordance with Israel’s Law of Return,
more than 450,000 newly arrived immigrants became members of the Is-
raeli citizenry, thus gaining rights to vote and fully participate in Israel’s pub-
lic life. Not surprisingly, these new immigrants have gradually begun to take
part in Israel’s political life, establishing new political parties that represent
their particular interests (for example, in the fields of employment, educa-
tion, and housing).
In the late 1980s and early 1990s, the levels of segregation and inequal-
ity in Israeli society rose to unprecedented heights, further alienating these
marginalized groups from the (largely) Ashkenazi establishment. Israel’s
56 Hegemonic Preservation in Action

Gini Index (0 = perfect equal income distribution) worsened, from 0.222 in

1982 to 0.298 in 1991 to 0.314 in 1994 and to a record high of 0.356
in 2000, making Israel’s wealth distribution one of the three most unequal
among western countries (third only to New Zealand and the United
States).13 The demographic distribution of poverty has also remained un-
changed since Israel’s establishment: the cities with the largest populations
of ultra-Orthodox Jews, Arab-Israelis, new immigrants from the former
Soviet Union, and Mizrahi Jews (not to mention undocumented foreign
workers) remain those with the highest levels of poverty. In some Arab-Is-
raeli villages and townships, ultra-Orthodox communities, and in so-called
development towns (whose residents are almost exclusively Mizrahi Jews
and blue-collar immigrants from the former Soviet Union), the level of pov-
erty has grown to over 40 percent. The unemployment rate in these towns
has risen sharply, to about 20 percent, twice Israel’s average, as many textile
and manufacturing factories in peripheral areas have closed their doors. In
1991, unemployment among the second-generation Ashkenazi population
stood at 4.9 percent, but it was 13.2 percent among the second-generation
Mizrahi population. In that year, 72 percent of the second-generation Ash-
kenazi population worked in white-collar occupations, while among the
second-generation Mizrahi population, this figure was 46 percent. In 1975,
25 percent of the Israeli-born Ashkenazi population were college graduates,
compared to 6 percent of the Mizrahi population; in 1992, the ratio was al-
most the same, although levels were higher: 41 percent and 11 percent re-
spectively.14
These and other socioeconomic and demographic developments have
brought about a growing antagonism among peripheral groups toward the
core elites. Some Mizrahi Orthodox rabbis have garnered wide popular
support in poor neighborhoods, becoming political spokesmen who pub-
licly challenge Israel’s relationship with the non-Orthodox diaspora Jewry
worldwide and, more important, the rule of (secular) state law. A clear man-
ifestation of this trend was reflected in the 1995 assassination of Prime Min-
ister Yitzhak Rabin (a representative and symbol of the Ashkenazi secular
bourgeoisie) by a young religious Mizrahi Jew from a poor neighborhood.
The assassin was backed by a Halakhic verdict issued by Orthodox rabbis
who opposed the peace process led by Rabin—a process that had enjoyed
wide support among the secular bourgeoisie.15
Antagonism toward the core values and policy preferences of the Ashke-
nazi secular high-income elite rapidly found its way into the Knesset. This
 Hegemonic Preservation in Action 57

can be seen in the number of seats won by parties that represent, by and
large, the policy preferences of marginalized minority groups in Israeli soci-
ety, as compared to seats won by Knesset members who represent the policy
agenda of the secular bourgeoisie (Labor, Meretz, the Liberal Party’s section
of Likud, and others).
As Table 3.1 indicates, the bloc of Knesset members representing the secu-
lar bourgeoisie’s policy preferences consists mainly of the Labor Party (iden-
tified mainly with the secular Ashkenazi establishment), Meretz (identified
mainly with the secular urban intelligentsia and the Kibbutzim), and the
segment of the Likud party identified with populist secularism and a deregu-
latory economic policy. This bloc lost more than one-third of its relative
combined electoral power between 1981 and 1999 (from 95 MKs in 1981
to 62 in 1996 and 58 in 1999).16 This continuous decline of the secular
bourgeois power base has been accompanied by a dramatic increase in the
electoral power of parties representing disadvantaged minorities in Israeli
society. Together, parties representing marginalized groups in Israel more
than doubled their combined electoral power between 1981 and 1999 (from
25 MKs in 1981 to 58 in 1996 and 62 in 1999). The Shas party alone (repre-
senting Orthodox religious Mizrahi residents of development towns and
poor urban neighborhoods) increased its power impressively, from 4
Knesset seats in 1984 (63,600 votes) to 10 in 1996 (260,000 votes) and 17
in 1999 (430,000 votes), making it the third largest party in the fifteenth
Knesset and leaving it only two seats shy of the Likud’s 19 seats.17 Shas’s im-
pressive electoral success was quickly translated into powerful policy-mak-
ing positions in the government and the public service. For over a decade
(from 1988 to May 1999), Shas had control over both the Ministry of Labor
and Social Affairs and the strategically powerful Ministry of Interior (re-
sponsible for local government, budgetary allocations for Israel’s municipali-
ties, and the population administration that controls the registration of new
immigrants). Shas was the second largest partner (after the Labor Party) in
the new governing coalition established by Ehud Barak following the 1999
election, and its ministers held four crucial policy-making portfolios, includ-
ing National Infrastructure, Labor and Social Affairs, and the Ministry of
Health. Drawing on its increasing political power, Shas has been able to
secure government funding for its increasingly popular semiautonomous
education network. The results of Israel’s 1996 and 1999 elections clearly
illustrate that parties representing the Arab-Israeli population, immigrants
from the former Soviet Union, Orthodox religious voters, and Mizrahi resi-
 58 Hegemonic Preservation in Action

Table 3.1 Number of Knesset seats won by different categories of parties (total = 120)

Number of seats 1981 1984 1988 1992 1996 1999

Knesset members representing a secular bourgeoisie policy agenda

Labora 47 44 39 44 34 21b
Likud Knesset members 43 35 33 24 15 15
representing a secular bourgeois
policy agendac
CRM/Shinui/Meretz 3 6 10 12 9 16
Other Knesset members 2 4 4 6
representing a secular bourgeois
policy agendad
Total 95 89 82 80 62 58
Knesset members representing the policy preferences of “peripheral” groups
Religious partiese 13 17 18 16 23 27
Right-wing partiesf 3 6 7 11 10 4
Arab and Communist lists 4 6 6 5 9 10
Ex-Soviet immigrants listsg 7 10
Likud, Labor, and other Knesset 5 6 7 8 9 11
members identified primarily
with Mizrahi Jews’ policy
agendah
Total 25 35 38 40 58 62

Source: Adapted from the official results of Israel’s 1981, 1984, 1988, 1992, 1996, and 1999 national
elections.
a. The Labor Party’s list for the 1996 general elections, for example, included Knesset members
representing policy preferences of Mizrahi Jews in development towns and poor neighborhoods (e.g.,
E. Ben-Menahem and A. Peretz) as well as a Knesset member representing the small community of
Ethiopian Jews (A. Masalla). However, as the Labor Party has in general long been associated with
the policy preferences of the secular Ashkenazi bourgeoisie, I count all Labor’s Knesset members in
this category. Moreover, all of the above three MKs lost their seats on the Labor Party’s list for the
1999 general elections.
b. Following the 1999 general elections, the Labor Party held 26 seats in the 15th Knesset.
However, at least 5 Labor Party MKs represented the policy preferences of Mizrahi Jews in
development towns and poor neighborhoods (e.g., the Gesher faction).
c. Note that the Likud (Union) party was established as an alliance between Herut (Freedom—a
nationalist party) and the Liberal Party and has been headed by a group of ideologically diverse
personalities. Therefore, Likud has always been a very loose alliance between politicians officially
committed to different and sometimes opposing policy preferences. The section of Likud that
represents the policy agenda of the secular right-wing bourgeoisie has included leading figures such
as A. Sharon, D. Meridor (who joined the Center Party in 1999), E. Olmert, L. Livnat, T. Ha’Negbi, R.
Rivlin, R. Milo (who joined the Center Party in 1999), M. Arens, U. Linn, Y. Aridor, S. Erlich, Y.
Modai, M. Nissim, G. Pat, Z. Shoval, A. Sharir, P. Grupper, Y. Horowitz, and others who represent
 Hegemonic Preservation in Action 59

Table 3.1 (continued)

explicitly secular, neoliberal policy preferences. Note also that most of Likud’s leading figures since the
party’s establishment have been secular Ashkenazi leaders—including, among others, M. Begin, Y.
Shamir, M. Arens, A. Sharon, and B. Netanyahu.
d. For example, Ometz, Yahad, The Third Way (1996), Center Party (1999).
e. This category includes the National Religious Party (NRP), Aguda parties, Shas, and Tami (in
1981 and 1984).
f. This category includes Tehiya and Tzomet (for 1996, Tzomet is included in the Likud vote), Kach
(1984), Moledet (since 1988), and National Union in 1999. See text note 16 for the classification of
Tzomet.
g. Israel Ba’Aliyah in 1996 and 1999, and Israel Beiteinu in 1999.
h. This category includes primarily Likud Knesset members explicitly identified with the policy
preferences of Mizrahi Jews in development towns and poor neighborhoods. This section comprises,
inter alia, the Levi-Magen faction, which was established in the mid-1980s and eventually left the
Likud in 1995 to form Gesher (Bridge). Gesher formed a united list with the Likud before the 1996
elections and got 7 seats as part of the Likud list. In 1997, however, Gesher left the coalition, accusing
Netanyahu’s government of ignoring the policy preferences of blue-collar Mizrahi voters. In the 1999
general elections, the Gesher faction was part of the Labor Party’s list and won 3 seats. The new One
Nation party, led by MK A. Peretz (who left the Labor Party in 1998 after accusing the party of
ignoring the needs of poor Mizrahi workers), won 2 seats in the 1999 general elections.

dents of peripheral development towns have become significantly stronger

as an electoral force.
A similar pattern is evident in another important majoritarian decision-
making arena in Israel: municipal elections. The 1989, 1993, and 1998 mu-
nicipal elections reflected a weakening of power for the two dominant par-
ties in an arena they had long monopolized. Candidates representing the
policy preferences of religious voters have become influential political actors
in several urban centers traditionally dominated by the secular Ashkenazi
establishment as well as in numerous development towns and peripheral lo-
cal authorities. The high point of this trend was the election in 2003 of the
ultra-Orthodox Torah Jewry candidate as the Mayor of Jerusalem. Another
illustration of the gradual change in Israel’s power structure is the fact that
in the summer of 2000, the Knesset elected a Mizrahi politician, Moshe
Katsav (who was born in Iran and raised in a peripheral development
town), for the primarily ceremonial position of State President. What makes
this appointment all the more indicative of Israel’s changing political power
structure is the fact that Katsav defeated Shimon Peres, a veteran Labor poli-
tician and the “old establishment” candidate for the post, and replaced Ezer
Weitzman, another representative of Israel’s Ashkenazi elite and a nephew
60 Hegemonic Preservation in Action

of Haim Weitzman, one of Israel’s founding fathers and its first President. In
sum, this electoral trend represents a large-scale backlash against the coun-
try’s dominant, mainly Ashkenazi, secular bourgeois core, a group that,
since the country’s establishment, has managed to alienate most peripheral
groups through socioeconomic policies that have intensified Israel’s internal
ethnic and class divisions.
Well aware of the backlash eroding its hegemony, representatives of the
Ashkenazi secular bourgeoisie in the Knesset initiated and promoted Israel’s
1992 constitutional revolution in order to transfer the main locus of political
struggle from parliament, local government, and other majoritarian deci-
sion-making arenas to the Supreme Court, where their ideological hege-
mony is less threatened. Until the early 1980s, the dominance of the Ashke-
nazi secular bourgeoisie in the Knesset and the fact that its ideological and
policy preferences enjoyed an uncontested hegemonic position created a
strong disincentive to delegate policy-making authority from the Knesset to
the Supreme Court. When this platform began to erode in the mid-1980s,
the incentive structure gradually changed. By 1992, judicial empowerment
had become an increasingly attractive alternative means of maintaining the
dominance of the Ashkenazi elite.
The intentional empowerment of the judiciary was also supported by
leading economic figures in Israeli society, mainly powerful industrialists
and economic conglomerates who have used Basic Law litigation since 1992
to promote their own material interests. These forces joined the representa-
tives of the high-income stratum and Israel’s managerial class to create an
influential coalition, which initiated and advocated the delegation of policy-
making authority to the judiciary. The Ashkenazi secular bourgeoisie was
motivated by serious popular challenges to its political and cultural hege-
mony and its growing political vulnerability in parliament vis-à-vis repre-
sentatives of marginalized groups in the Israeli society. The economic elite
supported the delegation of power to courts as a means of liberalizing Israel’s
economic policies and to fight what its members understood to be a highly
regulated market with “large government” economic policies that did not fit
the emerging neoliberal global economic order.
Almost all of Israel’s leading economic figures believed that the country’s
centrist economic structure required liberalization and viewed constitu-
tionalization as an effective means of achieving that goal. Aharon Dovrat
(at the time the chairman of Klal, Israel’s largest economic conglomerate),
Dan Proper and David Moshevitz (then among the owners of two of Israel’s
 Hegemonic Preservation in Action 61

top food production conglomerates), Al Schwimer (businessman and

founder of Israel’s aviation industry), and many other top industrialists and
businessmen strongly supported (both verbally and financially) the con-
stitutionalization campaign. Also among the forces that publicly supported
Israel’s constitutional revolution were the country’s major economic organi-
zations, including the Chambers of Commerce and Manufacturing. MK
Uriel Linn (Likud), one of the vocal advocates of the 1992 constitutional
revolution, was appointed president of the Chambers of Commerce Union
in January 2003. Indeed, the proconstitutionalization stance of Israel’s eco-
nomic elite is not surprising given the American experience of “market
friendly” constitutional jurisprudence. The U.S. Supreme Court—the most
frequently cited producer of constitutional rights jurisprudence in the west-
ern world—has long been a zealous guardian of economic liberties and has
maintained its historic position on the right of the American spectrum of
economic thought.
As in other western countries, there has also been a sustained attempt
by economic elites in Israel in recent years to dismantle the country’s local
version of the Keynesian welfare state and to install market-oriented eco-
nomic policies. Over the past two decades, the developing Israeli economy,
funded to a large extent by foreign aid and other external financial re-
sources, has gradually weakened the economic authority of the Histadrut
(Israel’s major labor union) in favor of private business interests.18 As a re-
sult, the Israeli economy has been moving rapidly toward a neoliberal struc-
ture that reflects and promotes an individualist, limited government and a
free-market worldview. Characteristic changes of this process include the
historic commodification of the health-care market (a new Medicare Law
was passed by the Knesset in 1994); the dramatic rollback of the state from
the social welfare arena; the privatization of media and telecommunication
services; the privatization of state-owned banks (including Israel’s largest
bank, Bank Ha’Poalim, in August 1997) and publicly owned industrial con-
glomerates (including the dramatic shrinkage in the late 1980s and the sub-
sequent privatization of Koor, Israel’s largest industrial megaconglomerate);
the emergence of private medical services and private higher education in-
stitutions; the gradual deregulation of the land, land actuary, and pension
funds markets; the removal of state monopoly over agricultural exports; the
deregulation of the foreign currency market (completed in May 1998); and
the extensive liberalization of the capital markets and the accompanying re-
moval of barriers on the borrowing of foreign capital and on foreign owner-
62 Hegemonic Preservation in Action

ship of corporate assets in Israel. Beginning in the late 1980s, the local mar-
ket has been opened up to multinationals and imported goods, marketing
and consumption patterns have become “Americanized,” and a “stock ex-
change culture” has arisen. Indeed, the Israeli stock market has become one
of the most important and widely referred to public institutions (much like
many of its counterparts in the West) and more than quadrupled its overall
value from early 1989 to early 1994 alone. In short, the free-market values
of individualism, consumerism, and economic liberalization have gained the
status of cultural totems.
These transitions have been accompanied by changes in the traditional
power bases of the labor movement and a reorganization of the Histadrut.
The reorganization resulted in a sharp drop in labor union membership and
a corresponding decline in the Histadrut’s (and the historic labor move-
ment’s) political significance. Patterns of political competition and political
marketing have also been Americanized, mainly due to the amendment of
Basic Law: The Government in 1992, which allowed for the establishment
of a new electoral system in Israel. The shift toward a neoliberal ethos in
present-day Israel is also evident in the labor and welfare spheres. It is esti-
mated that over 500,000 foreign workers have entered Israel since the late
1980s. Of these, approximately one-third did so lawfully. As of 2003, there
were 300,000 foreign workers in Israel, accounting for about 10 percent
of Israel’s civilian labor force—the highest proportion of foreign employ-
ees in the developed world. According to the State Comptroller’s office, over
70 percent of these workers receive less than minimum wages.19 The num-
ber of unregulated human-power agencies and private employment ser-
vices has increased, circumventing of statutory labor provisions by individ-
ual and special labor contracts labor has proliferated, collective bargaining
agreements have become less common, the status of the right to strike has
been eroded, and minimum-wage and other mandatory social security
laws are no longer rigorously enforced. Alongside these changes, a so-called
structural unemployment of approximately 10 percent has established it-
self in recent years. All these phenomena are indicators of Israel’s move-
ment toward a variant of the neoliberal market economy over the past two
decades. And it was precisely this pervasive “Thatcherite,” proliberalization
worldview that fuelled Israel’s economic elite in its vocal support for con-
stitutionalization.
A clear illustration of the shift to the market-friendly, “small state” im-
pulse behind the 1992 constitutionalization of rights in Israel can be seen
 Hegemonic Preservation in Action 63

in the last-minute exclusion from the purview of the two new Basic Laws
of provisions protecting a number of subsistence social and economic rights,
as well as workers’ rights to unionize, bargain collectively, and strike. Re-
acting to an outcry by several leading academics committed to a traditional
Keynesian welfare state agenda (most notably, by renowned labor law pro-
fessor Ruth Ben-Israel of Tel-Aviv University), the initiators of the constitu-
tional reform added to the proposed laws tentative provisions protecting
workers’ freedom of association and the unqualified right to humane social
and economic living conditions. However, an invisible hand eliminated the
added provisions just before the final version of the new laws was submitted
for legislative approval. Responding to socialist critics, the government
pledged to amend the new laws at a later stage so as to include the elimi-
nated provisions or even to enact a complementary law, Basic Law: Social
Rights. However, none of these proposals have come to fruition. This meant
that workers’ rights were left unprotected under Israel’s new constitutional
order while employers’ rights were granted formal constitutional protection
(see my detailed discussion of this issue in Chapter 4). Moreover, this meant
that no positive constitutional obligation was placed on the government to
promote the provision of basic health care, housing, or education to all.
The coalition that sought to delegate power to the judiciary was also
strongly supported by the Israeli legal elite, almost all of whom belong to the
same social stratum as, and have close ties with, the secular Ashkenazi polit-
ical establishment. Prominent figures in Israel’s legal academy, Israel’s top
lawyers, and most of the Supreme Court justices (led by then–Deputy Chief
Justice and now Chief Justice Aharon Barak) took a strongly positive posi-
tion in the debate over the entrenchment of rights and the establishment
of judicial review and enthusiastically supported efforts to delegate power
to the judiciary.20 Prominent constitutional law professors Uriel Reichman
and Baruch Bracha led the constitutionalization campaign within the legal
academy. As early as 1986, they established a not-for-profit organization
called Constitution for Israel, which sought to promote the idea of compre-
hensive constitutional reform. Throughout the late 1980s, Reichman,
Bracha, and several other constitutional law professors drafted a series of de-
tailed proposals for changing Israel’s system of government from a parlia-
mentary to a constitutional democracy. These proposals served as the basis
for the two new Basic Laws adopted in 1992 as well as for the amendment of
Basic Law: The Government. Almost all of the draft proposals pertaining to
the constitutionalization of rights and the fortification of judicial review had
64 Hegemonic Preservation in Action

been submitted to Justice Barak for comments and tacit approval prior to
their release. The proposals, which had gained some of the Supreme Court
justices’ implicit approval, were also forwarded for review to prominent
constitutional law scholars such as Owen Fiss, Cass Sunstein, and others. A
special conference was held at Yale Law School (where Justice Barak has
had close academic ties for over two decades) to discuss the apparent merits
and disadvantages of the various constitutionalization proposals in light of
Israel’s complex political and social reality.
Not surprisingly, the adoption of the two new Basic Laws in 1992 was met
with enthusiasm by Israel’s judicial elite. Aharon Barak, generally viewed
as the judicial mastermind behind the 1992 constitutional revolution, has
stated on numerous occasions that the enactment of the two new Basic
Laws marked the beginning of a new era in Israel’s constitutional history.
“Like the United States, Canada, Germany, and other leading constitutional
democracies,” he asserted, “we now have a constitutional defense for Hu-
man Rights. We too have the central chapter in any written constitution, the
subject-matter of which is Human Rights . . . We too have judicial review of
statutes which unlawfully infringe upon constitutionally protected human
rights.”21
Until 1992, the Knesset retained formal legislative powers that only a
few parliaments in democratic countries held during the same period; after
the enactment of the new Basic Laws in 1992, the balance of powers be-
tween the branches changed, enabling the Supreme Court to begin scruti-
nizing legislative and administrative acts. The transition to juristocracy in
the post-1992 era has not been merely theoretical. As we have seen in
Chapter 1, the constitutional revolution brought about a dramatic increase
in the frequency and expansion in scope of judicial review as well as a sig-
nificant acceleration of the judicialization of politics.
The seemingly counterintuitive voluntary delegation of authority from
the Knesset to the judiciary through the entrenchment of rights and the
establishment of judicial review decreased the significance of majoritarian
politics in determining the public policy agenda. The locus of political strug-
gle was gradually transferred to an ostensibly apolitical arena, where the
ideology of the “enlightened public”—the ruling elite of Israel and its secu-
lar, cosmopolitan, Ashkenazi constituency—has traditionally enjoyed clear
dominance. This alliance between the Supreme Court, Israel’s neoliberal
economic elite, and the secular bourgeoisie initiated the constitutional revo-
lution and the transition to juristocracy, not only as a way to advance hu-
 Hegemonic Preservation in Action 65

man rights in Israel or as a solution to a systemic ungovernability crisis, but

also (if not primarily) as a means of protecting the hegemony of the alliance
and promoting the policies favored by its members.

Factors Facilitating the Delegation of Power to Courts

In general, three factors may facilitate conscious judicial empowerment and

reduce the short-term risk of those who voluntarily hand policy-making au-
thority over to the judiciary. The first of these factors is a sufficient level of
certainty among those initiating the transition to juristocracy that the judi-
ciary in general, and the Supreme Court in particular, are likely to produce
decisions that will serve their interests and reflect their ideological prefer-
ences. As will be seen in subsequent chapters, the adjudication of the Israeli
Supreme Court poses only a minimal threat to the interests and ideological
preferences of those who initiated the formal expansion of judicial power in
Israel. Indeed, the SCI—either as a result of its members’ ideological prefer-
ences or their strategic behavior, or some combination of these and other
factors—has long been inclined to rule in accordance with Israel’s national
metanarratives and its prevailing ideological and cultural propensities. The
adjudication of the SCI, and perhaps more important, the ideological prem-
ises and historical metanarratives upon which its adjudication tends to be
based, are much closer to the shared values of Israel’s urban, secular, well-
off Ashkenazi bourgeoisie than to the values and interests of any other
group in Israeli society. As numerous works have shown, the SCI has a rela-
tively poor record in terms of protecting the rights of the Arab-Israeli citizens
of Israel, let alone the rights of Arab residents of the Occupied Territories.22
With a few notable exceptions, it has affirmed and legitimized state action
against Arab citizens and noncitizens, including actions in clear violation
of international law norms and treaties, in the name of protecting Israel’s
national security interests. As Ian Lustick observes, the Court’s jurispru-
dence on these matters “hardly makes a dent in the massive array of institu-
tionalized procedures and laws which bar Arab citizens (not to say non-citi-
zens) from anything approaching equal access to economic resources or civil
rights.”23
On the socioeconomic front, the Court tends to interpret the newly en-
acted Basic Laws from a neoliberal perspective, which advocates immuniz-
ing the economic sphere against state intervention. As I show in Chapter 4,
its decisions have reflected the prevailing social and economic ideology that
66 Hegemonic Preservation in Action

privileges individualism, efficiency, and nominal equality, and that calls for
the removal of “market rigidities” and for the state’s withdrawal from labor
relations, as well as from collective social and welfare spheres. The Court’s
standard line of interpretation entirely ignores positive social rights and,
predictably, privileges individual liberty over collective rights.
Moreover, according to recent interpretive studies, the imagined “enlight-
ened public”—a frequently used criterion by which the reasonableness of
specific acts is assessed by the SCI—closely conforms to the characteristics of
the secular Ashkenazi bourgeoisie and their ideological preferences.24 These
studies also suggest that the Court’s conception of the rule of (secular) law,
with its deep-rooted orientation toward western liberalism and formal rea-
soning, necessarily precludes the potential accommodation of alternative hi-
erarchies of traditional or religious interpretation.
The Court’s reluctance to grant support to “peripheral” interests also de-
rives from its stake in retaining its status as the one and only legitimate in-
terpreter of Israel’s laws vis-à-vis the perceived menace of alternative inter-
pretation systems—such as the traditional rabbinical authorities, which are
well established within the ultra-Orthodox and ultranationalistic communi-
ties in Israel and are now gaining support among poor Mizrahi populations
in peripheral areas as well. The deep reluctance of the Supreme Court to rec-
ognize the legitimacy of alternative (primarily religious) interpretation sys-
tems is one of the main reasons for its appeal to the secular urban bourgeoi-
sie, the managerial class, and these groups’ political representatives.
A second factor that reduces the short-term risk for political elites who
delegate power to the courts is their general control over the personal
composition of national high courts. Compared with the United States, for
example, the appointment of judges in Israel is, at least formally, an inde-
pendent process. Judges (including Supreme Court justices, currently four-
teen in number—twelve permanent appointees and two adjunct judges)
are selected by a nine-member appointments committee, which consists
of the president of the Supreme Court and two other justices of that court,
two practicing lawyers who are members of the Israel Bar Association, two
members of the Knesset elected in a secret ballot by majority vote, and two
ministers, one of whom is the Minister of Justice (who also chairs the com-
mittee and must approve the appointments). In practice, however, since the
establishment of the state, almost all of the appointments committee’s mem-
bers have been representatives of the secular elite. Moreover, almost all of
Israel’s justice ministers over the last two decades have supported a clear lib-
 Hegemonic Preservation in Action 67

eral and deregulatory agenda. Furthermore, all nine political figures (repre-
senting five different political parties) who served as justice ministers during
the past two decades were among the main initiators and supporters of the
1992 constitutional revolution in Israel.25 The incumbent minister—Yosef
Lapid—is one of the more outspoken antireligious politicians in Israel.
As one would expect, Israel’s judicial elite is similar to the country’s tradi-
tionally hegemonic social and economic forces in its demographic character-
istics. Of the thirty-six judges who served on the Court during the country’s
first forty-five years, all were Jews and thirty were Ashkenazi.26 The very
first Arab-Israeli Supreme Court judge was appointed for a twelve-month
limited term in March 1999 and left the bench in 2000. Another Arab-Israeli
jurist was appointed Acting Supreme Court judge in April 2003. Moreover,
until recently the occupant of the customary chair reserved for a religious
Justice on the Supreme Court was a tort law professor born in Germany,
whose views were more in line with what the Court has often described as
the secular, western “enlightened public” than Orthodox Judaism, much
less other minorities in the Israeli society.27
Not surprisingly, the SCI accepted its institutional empowerment enthusi-
astically and reacted with a strong inclination to use its legitimacy and its
newly gained policy-making authority to promote the economic, political,
and cultural agenda of the social forces that had initiated the constitutional
revolution. In a series of landmark decisions in the aftermath of this revolu-
tion, the SCI has pursued a distinctly antireligious, if not libertarian, agenda.
As will be seen in subsequent chapters, in its recent constitutional adjudi-
cations the SCI has advanced an explicitly anticollectivist and deregulatory
interpretation of the new Basic Laws. Moreover, the Court’s recent constitu-
tional jurisprudence also establishes a clear pattern of favoring secular or
secularizing solutions to highly contested matters pertaining to the secular-
religious rift. Several highpoints of this line of antireligious adjudication
(all of which are discussed in detail in subsequent chapters) have been the
subjection of the adjudication of all rabbinical courts, including the Great
Rabbinical Court, to the constitutional principles stated in the two new Basic
Laws and to a corresponding review by the Supreme Court; the overturn
of a series of rulings by the rabbinical court system pertaining to personal
status, family law, and religious education; the Court’s series of rulings de-
claring unconstitutional (on equality grounds) the exclusion of women and
non-Orthodox representatives from religious councils and the electoral
groups that selected candidates for religious councils;28 the Court’s redefini-
68 Hegemonic Preservation in Action

tion of “prayer rights” in holy sites, including the abolition of a centuries-

old practice that allowed men only to hold prayer services at the Western
Wall; and landmark rulings protecting certain rights to formal equality
for those with nontraditional sexual preferences. The two pinnacles of the
Court’s distinctly antireligious establishment adjudication have been the full
recognition of non-Orthodox conversions to Judaism performed in Israel
and abroad (thereby altering one of the cornerstones of the historic status
quo concerning religious matters); and the close constitutional scrutiny of
an arrangement that had been in place since the establishment of the state
whereby Orthodox yeshiva students received draft deferments.
But the SCI’s antireligious adjudication has not been limited to matters of
religious establishment. In 1995, the Court stated that political agreements
are justiciable and may be nullified on constitutional as well as natural jus-
tice grounds. Accordingly, the Court declared void a coalition agreement be-
tween the Labor Party and the Shas Orthodox Party (which had not been
made public prior to the elections) that considered potential legislative reac-
tion to antireligious judicial activism.29 This agreement was practically im-
posed on the Labor Party leadership as Shas’s precondition for joining the
Rabin government. A few months later, the Court ordered the prime minis-
ter to discharge a minister and a deputy minister—prominent members of
Shas—who had been accused of conducting unlawful acts.30 In a similar
spirit, the Court went on to nullify a series of governmental policies and
budgetary provisions supported by the increasingly powerful Mizrahi Or-
thodox parties that aimed at enhancing the political voice and socioeco-
nomic status of these parties’ constituencies.31 In short, the Supreme Court
has offered Israel’s threatened secularist-libertarian elites a safe haven
amidst the growing influence of traditionally peripheral groups in Israel’s
majoritarian policy-making arenas.
A third factor that reduces the short-term risk for those who voluntarily
hand power over to courts is the existence of widespread public trust in the
political impartiality of the judiciary. The appearance of consistent political
dependence bias would collapse the distinction between law and politics on
which the fundamental legitimacy of the separation of powers system de-
pends.32
As Table 3.2 indicates, in the years prior to the 1992 constitutional revolu-
tion, the SCI enjoyed a high level of legitimacy in Israeli public opinion
compared to other important public bodies. According to a 1991 study con-
ducted by the International Social Science Program (ISSP), which investi-
 Hegemonic Preservation in Action 69

Table 3.2 Degree of national legitimacy of leading Israeli institutions before 1992

Positive Positive and Negative

contribution negative contribution
Institution (%) (%) (%)

Israeli Defense Force 94.9 4.0 1.1

State Comptroller 91.1 7.0 1.9
Supreme Court 83.6 10.2 2.1
Police 75.2 19.9 4.8
Knesset 57.7 32.8 9.6
Government 51.6 35.8 12.6
Media 37.3 40.7 22.0
Parties 25.1 25.9 29.0

Source: Adapted from Gad Barzilai et al., The Israeli Supreme Court and the Israeli Public (Tel-Aviv:
Papyrus, 1994) [Hebrew]. The data rely on a scientific poll that was conducted by the authors in July
1991 among a representative sample of the adult Jewish population in Israel. See Barzilai et al., 67–73
and 207–224 for further analysis.

gated the level of citizens’ trust in the rule of law and the court systems in
their countries, Israel ranked number one, ahead of America, Britain, and
Germany.33 Almost 70 percent of Israelis expressed high levels of trust in
their legal system.34 In another comprehensive public opinion survey con-
ducted in 1994, 85 percent of Israelis expressed high levels of trust in the SCI
(second only to the Israeli Defense Force), whereas only 41 percent and 21
percent of Israelis expressed high levels of trust in the Knesset and Israel’s
political parties respectively.35 This widespread public trust in the courts’ im-
partiality (as contrasted with political actors’ vested interests) has encour-
aged political actors to transfer political controversies to the legal arena.
Although these factors may encourage conscious judicial empower-
ment by reducing the short-term risks to those who voluntarily hand over
policy-making authority to national high courts, we should note an impor-
tant caveat. Political power-holders tend to be myopic: they seek to ad-
vance their particular short-term interests without much regard for the
potentially unfavorable long-term consequences to the institutional appara-
tus within which they operate. Moreover, they often underestimate the
unfavorable long-term consequences of the policies they advocate, espe-
cially when their immediate gain as a result of adopting these policies is sig-
nificant. Politics, however, is an ongoing, multidimensional, and reflective
environment, which may yield unintended consequences even in cases of
70 Hegemonic Preservation in Action

the most carefully designed institutions and policies. At least one such possi-
ble unintended long-term consequence of the judicialization of politics
through the constitutionalization of rights and the establishment of judicial
review comes to mind: the threat to the judiciary’s public image as politically
impartial.
While the delegation of policy-making authority to courts increases the
courts’ formal capacity for active participation in the political arena in the
short term, the abrupt change in the balance of power between the judicial
branch and other branches of government may have a negative long-term
effect on the popular legitimacy accorded to the courts’ decisions. Courts
have historically enjoyed professional autonomy and a large measure of
protection from political interference. However, as they exercise their newly
awarded authority, they may come to be seen as active political bodies at-
tempting to forward their own political agendas, rather than neutral arbi-
ters. The delegation of power to courts may therefore pose a long-term
threat to the legitimacy, impartiality, and independence of the judiciary.
In Israel, the negative impact of the judicialization of politics on the Su-
preme Court’s legitimacy is already beginning to show its mark. Over the
past decade, the public image of the SCI as an autonomous and politically
impartial arbiter has been increasingly eroded, as political representatives of
minority groups have come to realize that political arrangements and public
policies agreed upon in majoritarian decision-making arenas are likely to be
reviewed by an often hostile Supreme Court. As a result, the Court and its
judges are increasingly viewed by a considerable portion of the Israeli public
as pushing forward their own political agenda, one identified primarily with
the secular-liberal sector of Israeli society.
Opposition to the Court’s adjudications seldom comes from the secular
bourgeoisie or from proponents of the emerging neoliberal economic order
in Israel. Rather, most political opposition to the Court so far has come from
representatives of peripheral minorities, mainly orthodox religious circles
and poor Mizrahi Jews, who accuse the Court of forwarding its own political
agenda. In August 1996, for example, Aharon Barak was accused by reli-
gious circles in Israel as being “the driving force behind a sophisticated cam-
paign against Jewish life in Israel.” They added, “We must not waste our
shells. We must take off the gloves and argue with him up front. To present
him as he really is, as one who is creating a ‘judicial revolution.’”36 And in
the summer of 1997 police and orthodox Jews clashed in Jerusalem after
the Supreme Court decision in the Bar-Ilan Road affair, which suspended a
 Hegemonic Preservation in Action 71

government ban on vehicular traffic on a busy thoroughfare that marks the

boundary between secular and Jewish Orthodox neighborhoods in Jerusa-
lem during the Jewish Sabbath.37
Another major controversy erupted in the fall of 1997 over the Court’s
rulings that established the right of women and non-Orthodox Jews to serve
on religious councils. The deep resentment of the Orthodox religious
community toward the Israeli judiciary further intensified in 1999, follow-
ing the conviction of former MK Arieh Deri (then the leader of Shas) on
charges of bribery, fraud, and breach of fidelity by the Jerusalem District
Court. This conviction (which led ultimately to Deri’s resignation from the
political leadership of Shas) was characterized by Shas’s leaders as the out-
come of a secular Ashkenazi establishment conspiracy against the whole
Mizrahi Orthodox community. Fierce verbal attacks on the judiciary by
Orthodox Mizrahi religious leaders resumed in the wake of the Supreme
Court’s rejection of Deri’s appeal in the summer of 2000. In response to this
decision, Shas’s leadership declared that the closure of the Deri case was
“the signal for the start of the Mizrahi Jewry’s revolution” and that the Su-
preme Court’s decision was “another twist of the knife that has been stuck
in the Mizrahi body for fifty-two years.”38
In February 1999, following a Supreme Court decision that expressed
dissatisfaction over the delay in convening the mixed religious councils,
an unprecedented uprising against the secular legal establishment in Israel
in general and the Supreme Court in particular erupted in Orthodox cir-
cles. The uprising reached its zenith when some 250,000 people attended a
mass demonstration against the Court in Jerusalem. The demonstration was
headed by most of the Orthodox religious leaders in Israel.39 In his public
speech at this event, Rabbi Ovadia Yosef, the spiritual leader of Shas and the
most important Mizrahi religious leader in Israel, went so far as to declare,
“The justices of the Supreme Court are wicked, stubborn, and rebellious . . .
they are empty-headed and reckless . . . they violate Shabbat . . . and they
are the cause of all the world’s torments . . . The justices are slaves who now
rule us . . . they are not worthy of even the lowest court . . . Any seven-year-
old boy is better versed in the Torah than they are.”40
Rabbi Yosef also attacked Justice Minister Tzakhi Ha’Negbi, one of the
supporters of the new Basic Laws, calling him an “enemy” who “loves those
people and made them judges. Did they hold elections? Who says the nation
wants wicked judges like these?” Rabbi Moshe Gafni, an ultra-Orthodox
MK, stated that the Court’s interpretation of the 1992 Basic Laws was “a
72 Hegemonic Preservation in Action

complete fraud” and vowed that “these are the last Basic Laws that will pass
the Knesset.” Menachem Porush, one of the Ashkenazi ultra-Orthodox reli-
gious leaders, threatened the court, saying that “if after this demonstration
the Supreme Court is not convinced to cease involvement in church-state is-
sues, there will be war . . . The people who were here are ready to invade
any space.”41
These clashes between the Court and religious groups highlight Ortho-
dox Jewish concerns that the Court will erode religious authority in areas
where religious and civil laws are in conflict. In the political arena, leaders of
several minority groups have called for the Knesset to alter the Basic Law:
Judiciary in order to limit the scope of the Court’s adjudication. However,
placing such a limit on the Court’s adjudication would run counter to the
interests of influential elites in the Israeli polity, and there have not yet
been any legislative amendments in this area. Moreover, in December 1999,
the Knesset passed a resolution recognizing the need for judicial review of
laws, and called on political figures to exercise personal restraint in their
dealings with judicial authorities and to respect the independence of the
courts. Not surprisingly, the resolution was initiated by MKs Dan Meridor
(Center Party) and Amnon Rubinstein (Meretz), and was supported by an
ad hoc coalition representing Israel’s secular population; all the religious
parties opposed it.
Another telling illustration of the fierce opposition to the Supreme Court
in religious circles (as well as the tight cooperation between Israel’s judicial
elite and its secular bourgeoisie) is the recent failure of a proposal to estab-
lish a new, more democratically representative constitutional court in Israel.
Reacting to the series of antireligious rulings by the Supreme Court over the
past decade, in late 2001 a number of Knesset members representing radical
right, ultra-Orthodox, and Mizrahi constituencies put forward a motion to
establish a new constitutional court, which would remove constitutional
matters from the jurisdiction of the current Supreme Court and whose com-
position would proportionally reflect the demographics of Israeli society.
Rather than being comprised strictly of professional judges, the proposed
court would have included academics, Jewish and Muslim religious court
judges, and a representative of immigrants from the former Soviet Union.
The motion failed to garner a parliamentary majority and was ultimately re-
jected by a margin of 59 to 37 Knesset members. Not surprisingly, the oppo-
sition to the bill came from a cross-party coalition of Knesset members rep-
resenting secular, liberal, and fairly cosmopolitan agendas. It was led by
 Hegemonic Preservation in Action 73

Justice Minister Meir Shetreet (Likud) and Ophir Paz (Labor), the chairman
of the Knesset Constitution, Law, and Justice Committee. All Likud and La-
bor ministers, as well as the supposedly hawkish (albeit secular, Ashkenazi,
and affluent) prime minister Ariel Sharon, voted against the proposed bill.
Though the government had decided to oppose the bill, six ministers—all
representing radical right and ultra-Orthodox parties—defied this decision
and voted in favor of the motion.
Following the defeat of the proposed bill, its supporters issued a series of
public statements, lambasting Chief Justice Barak, who had lobbied vigor-
ously against the bill. Minister Avigdor Liberman of the extreme right-wing
National Union Party wrote that when he saw the Court spokeswoman sit-
ting in the Knesset reporting directly to Barak on every MK that entered the
plenum, he understood “the network of pressure and threats that the palace
of justice was applying to the public’s representatives.” Another sponsor of
the bill, MK Yigal Bibi (NRA), suggested that “Aharon Barak extorted politi-
cians . . . there was a bitter, violent fight here, whose outcome destroys Is-
raeli democracy.”42 Bibi also accused Justice Minster Shetreet and MK Paz of
setting up a “war room” with Barak to pressure MKs into opposing the bill—
charges that were vehemently denied by the furious Shetreet and Paz.
Studies of the dynamics of public support for the U.S. Supreme Court
have shown that an active and occasionally controversial Supreme Court
can maintain a high level of stable aggregate public support.43 According to
these studies, the U.S. Court “would enter precarious turf only if it were to
rule against the tide of public opinion at an extremely frequent rate.”44 In-
deed, recent public opinion polls suggest that in spite of the U.S. Supreme
Court’s crucial role in determining the outcome of the 2000 presidential
election—perhaps the most glaring example of the judicialization of politics
in the United States—the American public continues to view the Court as a
relatively impartial and apolitical decision-making body. In short, due to the
diffuse nature of public support for established national high courts, the po-
litical sphere’s occasional deference to the courts is not likely to erode the ju-
diciary’s legitimacy.
There can, however, be little doubt that the unprecedented and continu-
ous involvement of the SCI in almost every aspect of Israel’s public life, the
Court’s increasing identification with specific social sectors in the Israeli
polity, and the overt resentment among religious circles toward the Court
in general and toward Chief Justice Barak in particular have eroded the
SCI’s public image as an apolitical decision-making body. The decline in the
74 Hegemonic Preservation in Action

Court’s legitimacy indicates that over the long term the ruling elites’ attempt
to draw on the judiciary’s widespread legitimacy to maintain their political
hegemony may prove to be a double-edged sword.
In sum, the empowerment of courts in Israel through the constitutional
revolution of 1992 marked an abrupt change in the balance of power be-
tween the judiciary, the legislature, and the executive. While the legislative
and executive branches of government enjoyed clear dominance as Israel’s
most important policy-making arenas until the late 1980s, in Israel’s post-
constitutional revolution era, there is scarcely a public policy question that
does not sooner or later turn into a judicial question. At first glance, this shift
may seem to run counter to the interests of the legislature and the execu-
tive. In practice, however, the judicial empowerment and judicialization of
politics in Israel can best be understood as a planned strategy on the part of
Israel’s ruling elite and its bourgeois constituency—a relatively coherent so-
cial class of secular neoliberals of European origin, composed of politicians,
businesspeople, and professionals striving to maintain their political hege-
mony. This social stratum and its political representatives initiated and car-
ried out the 1992 constitutional revolution primarily in order to insulate and
enhance their policy preferences vis-à-vis the vicissitudes of democratic pol-
itics in Israel. The primary political motivation for this initiative was a strong
interest in preserving the political and cultural hegemony of the ruling elite
and its secular bourgeois constituency, as well as entrenching Israel’s con-
tested western, relatively cosmopolitan identity. Indeed, the constitutional
revolution of 1992 generated an extensive judicialization of politics in Israel
and enhanced values and policies favored by those who initiated the re-
forms at the expense of the ideological and policy preferences of peripheral
groups. Relying on the one hand on the SCI’s reputation for rectitude and
political impartiality and, on the other hand, on the Court’s inclination to
rule in accordance with the values of the “enlightened public,” the forces
behind Israel’s constitutional revolution were able to transfer sensitive polit-
ical and cultural issues to the legal arena and reduce some of the growing
costs they were being obliged to pay in complying with the rules of the game
of proportional political representation. While the delegation of policy-
making authority to the judiciary has brought short-term political relief to
Israel’s ruling elite and its bourgeois constituency, the unprecedented
judicialization of politics has also led to a gradual politicization of the law,
thus unintentionally planting the seeds for a long-term erosion of both the
judiciary’s legitimacy and the ruling elite’s future institutional maneuvering
room.
 Hegemonic Preservation in Action 75

The Hegemonic Preservation Thesis in Canada,

New Zealand, and South Africa

My explanation for the conscious judicial empowerment witnessed in Israel

may shed light on the political rationale behind judicial empowerment
through constitutionalization in other countries as well. Let us consider the
hegemonic preservation thesis as it may apply to the constitutional politics
of Canada, New Zealand, and South Africa.

The Political Origins of the Canadian Charter

As described earlier, the legislative power of the Canadian Parliament and

the provincial legislatures enjoyed few formal restrictions prior to 1982. The
enactment of the Constitution Act 1982, which included the Charter of
Rights and Freedoms, began a new era in Canadian constitutional law and
politics.
The passage of the Constitution Act 1982 was the culmination of a long
and arduous political battle. Its origins may be traced to the rise of Quebec
nationalism in the 1960s. From the mid-1960s to the early 1980s, Justice
Minister and later popular Prime Minister Pierre Elliot Trudeau (a bilingual
former Montreal lawyer and law professor) was the most vocal and influen-
tial advocate of a constitutional bill of rights. Trudeau was a civil libertarian
sincerely committed to protecting individual rights. However, his fight for
constitutionalization was not merely a reflection of his commitment to an
elevated vision of civil liberties, but also part of a broader strategic response
to the growing threat of Quebec separatism and other potentially power-dif-
fusing demographic changes in Canadian society.45 The federal government
expected the proposed constitutionalization of rights and fortification of ju-
dicial review to encourage national unity in a number of ways. Such a bill
would presumably shift national political debate away from regional con-
cerns and growing calls for expanded group and province-based self-deter-
mination and toward universal questions of individual rights. The federal
government also anticipated that Trudeau’s proposed constitutional over-
haul might succeed in subordinating provincial legislation (such as Que-
bec’s) to core policy standards interpreted by a national institution, the Su-
preme Court.
Political pressure to entrench individual rights in the Canadian constitu-
tion has existed in Canada since at least the 1930s. Examples include the
“implied bill of rights” doctrine developed by the Supreme Court of Canada
76 Hegemonic Preservation in Action

(SCC) in the Alberta Press case,46 the nonentrenched Bill of Rights of 1960,47
and the mini-charter of rights included in the Victoria Charter of 1971.48
However, all the pre-1982 attempts to grant entrenched constitutional sta-
tus to basic rights failed, mainly due to federal power-holders’ disinclination
to replace the traditional governing principles of parliamentary sovereignty
with principles of constitutional supremacy as long as their political hege-
mony and control of central policy-making mechanisms remained almost
unchallenged. However, the rise of Quebec nationalism in the mid-1960s,
and especially the victory of the separatist Parti Québécois government un-
der the charismatic leadership of René Lévesque in 1976 (which led to the
Quebec referendum of 1980), changed the political incentive structure.
The immediate catalyst for the final round of constitutional negotiations
that led to “patriation” and the entrenchment of rights in 1982 was the
Quebec referendum on sovereignty association. In May 1980, the separatist
Parti Québécois government, led by Premier Lévesque, sought to negotiate
sovereign political status for Quebec while preserving economic association
with the rest of Canada. Quebec voters ultimately rejected Lévesque’s plan
in a referendum, but the idea of patriating the constitution was given new
momentum by the referendum campaign. Federalists attempted to fight
the separatist movement in Quebec, calling for constitutional renewal as
a means of both placating and promoting the concerns of francophone
citizens of Quebec. This new momentum enabled Prime Minister Trudeau
to initiate unilateral patriation of the constitution in spite of a constitu-
tional convention requiring provincial consent for such an amendment.
In October 1981, following extensive negotiations between Trudeau and
the provincial premiers, all the provinces except Quebec accepted the pro-
posed constitutional provisions, and in April 1982, the Constitution Act
1982 came into effect, marking the beginning of a new constitutional era in
Canada.
Like most scholarship on the expansion of judicial power in Israel, main-
stream studies of the expansion of judicial power in Canada in the 1980s
tend to stress the deep commitment of political leaders (primarily Prime
Minister Trudeau) to the protection of fundamental civil liberties through
judicial review, as well as functional necessity (in this case, political ungov-
ernability) as the major catalysts for the adoption of the Charter. Because it
expressed the common values of Canadians, the Charter was seen as an in-
strument for promoting national unity. Judicial review had been pushed to
the center of the policy-making arena due to the political decision-makers’
 Hegemonic Preservation in Action 77

inability to cope with a range of contentious problems that were generated

by the organic nature of Canadian federalism.
Nevertheless, there is broad consensus among critical scholars of Cana-
dian constitutional politics that the enactment of the Charter was, at least in
part, a self-interested maneuver initiated by elites who found majoritarian
politics not to their advantage at that particular time.49 According to these
studies, the enactment of the Charter did not stem from the humanitarian
or democratic impulses of its sponsors. Rather, it stemmed primarily from
the desire to preserve the institutional and political status quo and to fight
the growing threats to the anglophone establishment and its dominant
Protestant, business-oriented culture presented by the Quebec separatist
movement and other emerging demands for provincial, linguistic, and cul-
tural autonomy (which stem in turn from dramatic changes in Canada’s
sociodemographic composition over the past five decades).
As was the case in Israel, New Zealand, and South Africa, calls for the
adoption of an American-style constitutional catalogue of protected civil
liberties in Canada were strongly supported by an influential coalition of
neoliberal economic forces (mainly powerful domestic industrialists and
American economic conglomerates), who viewed the constitutionalization
of rights as a means to promote economic deregulation. Fierce political resis-
tance prevented the inclusion of a property clause in the Charter. However,
a few years later, the very same coalition successfully advocated the en-
trenchment of business-friendly economic freedoms, liberalized trade rules,
and a new foreign investment regime in the form of the transnational
NAFTA (primarily NAFTA’s Chapter 11), thereby circumventing the lack of
an explicit property clause in the Charter.50 As recent studies have shown,
economic corporations have been by far the most active organized interest
litigants in the past two decades, drawing on Charter provisions to chal-
lenge regulations governing banking, international trade, foreign ownership
of economic enterprises, and consumer and environmental protection regu-
lations.51
In addition, in spite of Canada’s long-standing image as a generous wel-
fare state, the global trend toward neoliberalism has not left the Canadian
economy untouched. Whereas until the early 1980s the Keynesian eco-
nomic orthodoxy had provided the underlying intellectual paradigm for
Canada’s economic and social welfare policy, over the past two decades the
resurgent neoliberal worldview has become the social and economic model
of thinking. This has been translated into sharp cuts in governmental bud-
78 Hegemonic Preservation in Action

gets allocated to welfare, unemployment benefits, health care, and educa-

tion, and has resulted in the state’s pullback from formerly state-controlled
public services and in an increasing commodification of the remaining ser-
vices. As will be seen in subsequent chapters, the constitutionalization of
rights has posed no impediment to these developments. In fact, the opposite
is true.
As in Israel, the goals of entrenching the central government’s policy pref-
erences and liberalizing the economy were achieved in Canada partly by
means of a deliberate delegation of policy-making power to the SCC by rep-
resentatives of established interests in the national executive and legislature.
As with the 1992 constitutionalization of rights in Israel, the Canadian Char-
ter and the SCC have not served as decentralizing institutions that perform a
checking or blocking function. Instead, threatened elites—who have easier
access to and greater influence upon the legal arena—have transferred pol-
icy-making authority from majoritarian decision-making arenas to the Su-
preme Court primarily in order to preserve their hegemony. A few examples
will help to illustrate this pattern.
To begin with, we might consider Trudeau’s “change of heart” between
the early 1960s and the mid-1970s. In a talk given to the Canadian Political
Science Association in 1964, when he was still a law professor, Trudeau
praised the Canadian constitution for doing without American-style “frills”:

The authors of the Canadian federation arrived at as wise a compromise and

drew up as sensible a constitution as any group of men anywhere could
have done. Reading that document today, one is struck by its absence of
principles, ideals, or other frills; even the regional safeguards and minority
guarantees are pragmatically presented, here and there, rather than pro-
claimed as a thrilling bill of rights . . . By comparison [to the United States],
the Canadian nation seems founded on the common sense of empirical pol-
iticians.52

But a few years later, as Minister of Justice in Lester Pearson’s government,

Trudeau became fully committed to an entrenched bill of rights; and once he
took the reins as prime minister, he became the driving force behind the
adoption of the Charter and the fortification of judicial review.
In 1971, Trudeau and the provincial premiers reached an agreement to
revise the constitution and entrench a charter of rights (known as the Victo-
ria Charter). This agreement ultimately failed because of the objections of
Quebec and Alberta. The opposition of these provinces to the proposed con-
 Hegemonic Preservation in Action 79

stitutional reform was certainly not insurmountable, as the 1982 constitu-

tionalization saga illustrated only a decade later. However, as the separatist
threat was still in its formative stages, the plan’s failure removed constitu-
tional reform from the center stage of Canadian politics until 1976, when
the election of a separatist government in Quebec provoked additional de-
mands for constitutional reform.
Or consider the opposition of Trudeau’s government to the inclusion of
the “notwithstanding clause” in the Charter. As mentioned in this book’s in-
troduction, this clause (section 33) establishes formal limitations on the
rights and freedoms protected by the Charter by enabling elected politicians
in either the federal parliament or the provincial legislatures to legally limit
rights and freedoms protected by the Charter’s fundamental freedoms, due
process, and equality rights provisions by passing a renewable overriding
legislation valid for a period of up to five years. In other words, any invoca-
tion of section 33 essentially grants parliamentary fiat over these rights and
freedoms. This means that both the federal Parliament (with regard to fed-
eral matters) and the provincial legislatures (with regard to matters within
provincial jurisdictions) are ultimately sovereign over these affairs.
One would assume that Trudeau and his ministers, as elected politicians,
would advocate, if not initiate, the adoption of the notwithstanding clause
as a means of retaining legislative power—or at least as a way to mitigate the
tension between rigid constitutionalism and fundamental democratic gov-
erning principles. However, such a clause was not part of Trudeau’s original
plan for constitutional reform. In fact, throughout the federal-provincial
negotiations leading up to the adoption of the Constitution Act 1982,
Trudeau’s government zealously advocated an unconditional transition to
juristocracy. Only when it became clear that leading provincial premiers
would not endorse the proposed constitutional pact unless a notwithstand-
ing clause was adopted did Trudeau reluctantly accept the inclusion of such
a provision. It is now generally agreed that without this compromise
(reached early in November 1981), the Charter would not have been
adopted.
In contrast to its opposition to the inclusion of the notwithstanding
clause, Trudeau’s government insisted on enacting section 23, which im-
poses detailed obligations on provincial governments to provide minority
language education facilities at public expense, thus parrying Quebec’s
attempts to make immigrants to the province enter the French educational
system. This section (along with all other Charter provisions dealing with
80 Hegemonic Preservation in Action

language rights) has been formally excluded from the purview of the Char-
ter’s override clause and is therefore not subject to legislative override. The
enactment and judicial interpretation of this section clearly were part of
the Canadian federal government’s constitutional war against the separatist
movement in Quebec in general and the famous Bill 101 in particular.53
As in Israel, the delegation of authority to the SCC has been tied to the
Court’s inclination to rule, by and large, in accordance with hegemonic
ideological and cultural propensities. Based on a customary constitutional
convention, the judges of the SCC are nominated to the bench according to
a provincially representative formula, whereby three justices represent On-
tario, three come from Quebec, two from the western provinces (one is usu-
ally from British Columbia), and one from the Maritime provinces. The se-
lection and nomination process itself, however, is controlled exclusively by
the federal government and the prime minister. Appointees to the bench
and to the chief justiceship are virtually handpicked by the prime minister
and his or her advisors. Judges selected through this explicitly political nom-
ination process are not likely to hold policy preferences that are substantially
at odds with those held by the rest of the political elite.54
According to a long-standing constitutional convention, the person ap-
pointed to the position of Chief Justice of Canada is the most senior Su-
preme Court judge serving at the time of vacancy. In 1973, when his judicial
empowerment plan began to crystallize, Trudeau took the liberty of ignor-
ing this convention and appointing Justice Bora Laskin to the top judicial
position in spite of the fact that Laskin had joined the bench only three years
earlier. By the time of his appointment as Chief Justice, Laskin had already
established his reputation as a vigorous advocate of judicial activism, na-
tional unity, and centralized federal policy-making. Bora Laskin’s appoint-
ment paid enormous dividends to those who selected him: his chief
justiceship (1973–1984) lasted through the most tumultuous period in mod-
ern Canadian politics and was a true watershed in terms of judicial activism
and the transformation of the Court into one of the major policy-making
bodies in present-day Canada.
Indeed, in its federalism jurisprudence over the past several decades, the
SCC has generally tended to adopt values and policies favored by the na-
tional government at the expense of the provinces’ political autonomy. By
overturning many of the Judicial Committee of the Privy Council’s decen-
tralizing rulings concerning the federal-provincial distribution of legislative
powers, the SCC had already fortified the federal government’s powers prior
 Hegemonic Preservation in Action 81

to the constitutional revolution of 1982. Most of the Court’s centralizing rul-

ings throughout the 1960s and 1970s drew on an expansive reading of the
BNA Act’s section 91 (which establishes the federal government’s residual
and overarching responsibility to enact laws and regulations for the “peace,
order, and good government” of the country)55 as well as on an expansive
reading of section 91’s “trade and commerce” clause (which grants the fed-
eral government exclusive legislative powers in regulating trade and com-
merce) combined with a narrow reading of the provinces’ legislative powers
in the areas of “property and civil rights” (section 92(13) of the BNA Act)
and “matters of local nature” (section 92(16) of the BNA Act).56
This general trend has not changed dramatically over the past few dec-
ades. Over the 1997–2002 period alone, for example, the federal govern-
ment won seventeen significant victories and lost only three substantive
appeals to provincial governments. During the same period, the provinces
had twelve significant statutes and regulations struck down.57 Taken as a
whole, it would be fair to say that the Court’s federalism jurisprudence over
the past few decades has turned it into a centralizing policy-making body,
primarily by transcending traditional (provincial) jurisdictional boundaries
into a “one rule fits all” policy regime. Its rulings reflect and promote a set
of cultural propensities, moral standards, and policy preferences imposed
from the center on an otherwise exceptionally diverse, multiethnic, multi-
linguistic polity with thirteen provinces and territories stretching from the
Atlantic to the Pacific to the Arctic Ocean. Moreover, as my analysis in
Chapter 4 indicates, the chief beneficiaries of Charter politics and litigation
have been hegemonic ideas of “negative” liberty rather than progressive no-
tions of distributive justice.58
A clear manifestation of the central government’s tacit (if not explicit) en-
couragement of judicial activism is the gradual transfer of the struggle over
Quebec’s political future from pertinent majoritarian decision-making are-
nas to the SCC. The Court has indeed become an important, if not the most
important, decision-making arena for dealing with the question of Quebec
secessionism. As will be shown in subsequent chapters, in all of its deci-
sions concerning the Quebec question the SCC has expressed an explicit
antisecessionist impulse. In one of the most important judgments in its his-
tory (detailed in Chapter 6), the Court ruled in 1998 that a potential unilat-
eral secession by Quebec would be unconstitutional under both domestic
and international law. At the same time, the Court upheld the federal policy
of enhancing the status of language and education rights of linguistic minor-
82 Hegemonic Preservation in Action

ities, be these the rights of francophones living outside Quebec or anglo-

phones living in Quebec.
As in Israel, the voluntary delegation of authority to the SCC has de-
pended, among other things, on the Court’s reputation for expertise, recti-
tude, and political impartiality. Unlike the Israeli experience, however, there
seems to have been only a minor decline in the perceived legitimacy of the
SCC (at least among anglophone Canadians) over the past fifteen years in
spite of the Court’s emergence as a major policy-making body. A compre-
hensive public opinion survey conducted in 1987, for example, found that
no fewer than 90 percent of anglophone and 70 percent of francophone re-
spondents said they had heard of the Charter, and a substantial majority
within each group thought the Charter was “a good thing for Canada.” In
another public opinion survey conducted in 1999, more than 87 percent of
the respondents said they were aware of the Charter and 82 percent thought
it was “a good thing for Canada.”59 Almost 80 percent of the respondents in
the same survey said they were somewhat or very satisfied with the SCC’s
performance. Moreover, both in 1987 and in 1999, more than 60 percent of
the respondents thought that the courts were the most reliable institution in
Canada and should have the final say when a law or administrative act was
found to be in conflict with Charter provisions.60 A public opinion survey
conducted in July 2001 found that although seven in ten Canadians be-
lieved SCC rulings to be influenced by partisan politics and felt that the
Court was likely “to line up on the side of the federal government because
the judges were appointed by it,” an overwhelming majority strongly ap-
proved of the Court.61 That said, public support for the Court appears to be
less susceptible to populist criticism in the historic bastions of English Can-
ada (Ontario and the Maritime provinces) than in Quebec and in the west,
where uproars over excessive judicial activism and legal elitism are fairly
common.
In sum, in spite of the significant dissimilarities between the Canadian and
Israeli sociopolitical scenes and their constitutional legacies, there are strik-
ing parallels in the political rationales that have supported judicial empow-
erment through constitutionalization in the two countries.

The Origins of the 1990 Rights Revolution in New Zealand

Just fifteen years ago, New Zealand’s political system was described by lead-
ing political scientists as “a virtually perfect example of the Westminster
 Hegemonic Preservation in Action 83

model of democracy” and “the only example of the British majoritarian de-
mocracy system left.”62 The enactment of the New Zealand Bill of Rights Act
(NZBORA) in 1990 marked an abrupt change in the balance of power be-
tween the judiciary, the legislature, and the executive in what had been
important policy-making arenas until the late 1980s, and symbolized the
demise of the “last Westminster system.”63 Along with other new civil liber-
ties laws, the Bill of Rights Act was intended to fence off a set of fundamen-
tal freedoms from the vicissitudes of New Zealand’s increasingly volatile po-
litical system.64 The driving force behind the 1990 constitutionalization of
rights in New Zealand was provided by a coalition of economic actors who
were pushing for neoliberal economic reforms, together with disparate sec-
tions of elites seeking to preserve and enhance their power vis-à-vis the
growing presence of “peripheral” interests in majoritarian policy-making
arenas.
New Zealand fully inherited the doctrine of parliamentary supremacy in
1947 when Britain removed its last constraints on New Zealand’s legislative
powers. Along with the British Westminster system of government, New
Zealand’s pre-1990 constitutional organization was heavily influenced by
the traditional British distrust of American-style judicial review and of fun-
damental rights and proclamations of social or state policy. In short, until the
late 1980s, New Zealand’s constitution replicated the British parliamentary
system and the British common law tradition in almost every respect.
After decades of almost undisturbed consensus in favor of white hege-
mony and an expanded welfare state, New Zealand’s stable political system
began to change in the early 1970s, when a combination of newly emerging
interests and changing international economic conditions started to make
its presence felt in New Zealand’s majoritarian policy-making arenas. First,
the traditional ties between New Zealand and Britain began to erode in the
early 1970s, as Britain—the destination of the bulk of New Zealand’s ex-
ported goods during the 1950s and 1960s—edged closer to economic union
with Europe.65 Reacting to this change, New Zealand’s economic elite was
forced to shift away from its traditional ties with Britain in order to search
for new markets in the Pacific basin. This was reflected in the signing of the
1983 Closer Economic Relations (CER) agreement with Australia, similar bi-
lateral free trade agreements with Singapore and Hong Kong, and New Zea-
land’s joining multilateral economic groups such as the Asia-Pacific Eco-
nomic Conference (APEC) and the South Pacific Forum. New Zealand also
gradually transformed the nature of its domestic mass production—from a
84 Hegemonic Preservation in Action

primarily agricultural emphasis on wool, meat, and dairy to an emphasis on

fisheries, tropical fruits, and incoming tourism. In order to fund this over-
haul of New Zealand’s production structure, the government had to borrow
huge amounts of money from international sources, and public spending
had to be cut back drastically. The abandonment of the local version of the
welfare state and the transition to a neoliberal economic order became inev-
itable.66
As a result, between 1984 and 1994 New Zealand underwent radical eco-
nomic reform, moving from what had likely been the most protected, regu-
lated, and state-controlled system of any capitalist democracy to a nearly
opposite position at the open, neoliberal, free-market end of the spec-
trum. Indeed, the sweeping transition from orthodox Keynesianism to
“Thatcherite” neoliberalism in New Zealand has become the textbook case
of such transitions in the international political economy literature.
This historical shift in New Zealand’s economic policy was marked by the
introduction of a new nexus of laws that restricted the government’s ability
to intervene in the economy and in the private sphere more generally. Two
pinnacles of this new legislative framework (in addition to the NZBORA
1990 itself) were the Employment Contracts Act (1991), which repealed
New Zealand’s previous legislative industrial-relations framework (that had
been in place for nearly a hundred years) in an attempt “to promote an ef-
ficient labor market”; and the Fiscal Responsibility Act (1994), which set out
generic principles for neoconservative fiscal policy, “including that govern-
ment expenditure should not exceed its revenue over a reasonable period of
time.”67
The state’s wholesale retreat from the economic sphere brought about ex-
tensive deregulation and privatization of New Zealand’s telecommunication,
transportation, forestry, and tourism industries; wholesale removal of barri-
ers on import and export of goods and services; removal of subsidies from
the manufacturing, food processing, and agricultural sectors; large-scale lay-
offs in the public sector; the commodification of numerous social services,
including fundamental welfare, education, housing, and health care ser-
vices; a severe erosion of labor unions and collective bargaining; and active
encouragement of foreign investment and ownership. These far-reaching
reforms, introduced over several years, all shared the characteristic ideologi-
cal and rhetorical underpinnings of neoconservative economics at its ex-
treme. Not surprisingly, during the same period, New Zealand witnessed a
dramatic rise in the level of economic inequality; an unprecedented increase
 Hegemonic Preservation in Action 85

in the proportion of foreign ownership of corporate assets, media, and public

services; and a sharp drop in trade union membership.
In the political arena, these changes were shaped by and reflected in the
rise of new political parties representing an explicit neoliberal stance (for ex-
ample, the libertarian New Zealand Party, which has quickly become the
third political power in New Zealand), the adoption of “market friendly”
economic positions by the conservative National Party, and a quick conver-
sion to neoliberalism by the established Labour Party. Indeed, by the late
1980s, writes Raymond Miller, Keynesian social democratic doctrines had
been so discredited by the Labour government “as to be deemed by one
commentator to be virtually ‘irretrievable’.”68
As in a number of formerly social democratic countries, the new genera-
tion of New Zealand’s Labour leaders—party leader David Lange (a lawyer),
deputy leader Geoffrey Palmer (a law professor), and other leading figures
in the 1984–1990 Labour government—were university educated and pro-
fessionally trained. “Unlike earlier generations of Labour leaders,” notes
Miller, “they were imbued with that mixture of personal ambition, individ-
ualism, and social liberalism” often associated “with the upwardly mobile
middle class.”69
The rise of neoliberalism in New Zealand during the 1980s was accompa-
nied by the growing presence of “peripheral” interests on New Zealand’s
public agenda. Consider, for example, the following demographic facts.
In the late 1970s, over 90 percent of New Zealand’s population identified
themselves as being of European descent. By the mid-1990s, however, less
than three-quarters of New Zealanders indicated that they were of Euro-
pean descent. During the past two decades, this group not only declined as a
proportion of the population but also fell in absolute numbers. Over
the same period, New Zealand’s other major ethnic groups increased sig-
nificantly both in size and as proportions of the population. By 1995, New
Zealand’s Maoris made up over 15 percent of the population. From less than
1 percent in 1945, the combined figure for people originating from the
Pacific islands and people of Asian descent rose to 2.2 percent in 1971, to 5.2
percent in 1986, to 9.6 percent in 1996, and to just over 11 percent in 2001,
each group making up over 5 percent of New Zealand’s population. Over the
past two decades alone, the Maori and Pacific Islander populations have
both grown by more than 50 percent. And between 1980 and the late 1990s,
New Zealand’s Asian population grew by more than 250 percent, primarily
as a result of increased immigration. Between 1955 and 1975, New Zealand
86 Hegemonic Preservation in Action

granted citizenship to less than 20,000 applicants (approximately 2,000 per

year); in contrast, over 450,000 new citizenship applications were granted
between 1976 and 2000, with an annual average of over 18,000.
In addition to these demographic changes, by the late 1980s there was a
growing public awareness among the Maori of the significance of the Treaty
of Waitangi (the 1840 pact between Maori chiefs and the British that opened
the way for European colonization) and of unresolved Maori grievances,
especially over the unjust expropriation of their land. This led to the ex-
pansion in 1985 of the Waitangi Tribunal’s jurisdiction, enabling the inclu-
sion of Maori grievances pertaining to the post-1840 era (rather than griev-
ances pertaining to the post-1975 period only, as permitted by the Treaty of
Waitangi Act 1975).70 Vocal Maori demands for compensatory redistribution
of land, fisheries, natural resources, and so forth, as well as honorable treat-
ment of the Maori language and heritage, coincided with growing demands
from established immigrants from the Pacific Islands, Asia, and the Mediter-
ranean for the adoption of multicultural policies in education and language,
and with calls from environmentalist, feminist, and militant antinuclear
movements for the accommodation of their policy preferences.
As in Israel, these new interests rapidly found their way into New Zea-
land’s parliament. Over the past several decades, Maori representation in
New Zealand’s parliament increased from only 3 percent to 15 percent (their
approximate proportion of New Zealand’s population). The representation
of Pacific Islanders (6 percent of the population) and Asian (5 percent) has
also been improved. The Green Party became a meaningful political force,
primarily in the 1980s and early 1990s. In the ten elections held between
1943 and 1969, only two minor parties won 2 percent or more of the na-
tional vote on seven occasions. By contrast, in the ten elections between
1972 and 1999, ten different minor parties reached at least 2 percent of the
vote on a total of twenty-two occasions. In addition, the militant Mana
Motuhake faction, founded in 1980, became the principal contender for
four designated Maori electorates in the pre-MMP electoral system. Overall,
the minor parties’ average vote share rose from 7.5 percent in the period
1943–1969 to 19.5 percent in 1972–1999. Consequently, the average share
of the popular vote gained by the winning party (either the socialist Labour
Party or the populist National Party) fell from 48.1 percent to 42.5 percent.71
In the 1996 national elections, for example, the two largest parties received
a joint 62 percent of the vote (National—33.8 percent, Labour—28.2 per-
cent) as compared with 91 percent in 1975 and 79 percent in 1984. The
 Hegemonic Preservation in Action 87

breakdown of support for the two major political parties was accompanied
by a sharp increase in the degree of electoral volatility (fluctuations in voting
results between elections) and by a marked decline in the membership of
the major political parties. Whereas in 1963, 89 percent of the voters voted
for the same party that they had supported in 1960, the comparable figure
for the 1987 and 1990 elections was 64 percent.72 And whereas in the 1960s
and 1970s both major parties claimed over 200,000 members each in elec-
tion years, by the 1990s the National Party, for example, was reported to
have fewer than 50,000 ordinary members during election years, with the
Labour Party claiming even fewer. Needless to say, these developments trou-
bled social conservatives and increased the threat to established interests.
The push toward judicial empowerment followed.
In 1968 Geoffrey Palmer, then a young academic, had in his own words
“recently returned from studying the mysteries of the United States Consti-
tution.” He warned against a Bill of Rights on the grounds that it was not
needed, would catapult the judiciary into political controversy, and would
be “contrary to the pragmatist traditions of our politics.”73 But two decades
later, when the white bourgeoisie’s control over New Zealand’s major pol-
icy-making arenas was challenged, that same speaker—now Sir Geoffrey
Palmer—in his capacity as Minister of Justice in the two-term Lange Labour
government (1984–1989) and later as Prime Minister (1989–1990) initiated
and championed the empowerment of New Zealand’s judiciary through the
enactment of the 1990 New Zealand Bill of Rights Act.
In the second half of the 1980s, the very same politicians who introduced
comprehensive neoliberal economic reform in New Zealand in 1984,74 as
well as other politicians representing the policy preferences of the country’s
white, urban, high-income constituents, reacted to the changing economic
and demographic conditions and the growing popular political pressure on
New Zealand’s majoritarian policy-makers by initiating and carrying out
what scholars have described as “the rights revolution of New Zealand,” the
hallmark of which was the 1990 enactment of the NZBORA.75
The White Paper proposed by the Labour government in 1985 advocated
a fully entrenched bill as supreme law, controlling parliamentary legisla-
tion through judicial review. It documented the limited nature of existing
checks on parliamentary and executive power, appealing to New Zealand’s
obligations under the International Covenant on Civil and Political Rights
(ICCPR). The authors considered the proposed bill a vital check on New Zea-
land’s legislature and executive power. However, the White Paper bill failed
88 Hegemonic Preservation in Action

to garner political support, and by late 1987 it was evident that public opin-
ion was against the proposed Bill of Rights. This fierce opposition forced
Geoffrey Palmer to abandon his original proposal for an entrenched bill; in-
stead, he introduced a nonentrenched version—the New Zealand Bill of
Rights Act 1990. This was introduced in October 1989 and became law on
August 28, 1990. Given the ideological preferences that surrounded the
Bill of Rights initiative, it is not surprising that in spite of the Justice and
Law Reform Committee’s suggestion that social rights be included in the
NZBORA,76 their inclusion was successfully opposed by Palmer, and these
rights were ultimately omitted from the NZBORA. In contrast, even the
explicit inclusion of property rights guarantees in the bill did not prevent
Palmer from saying that “unless the New Zealand system pays better atten-
tion to the taking of property, international law issues could arise that could
have serious consequences. Furthermore, the effect on the investment cli-
mate is not likely to be favorable.”77
The NZBORA, although not entrenched, has gained sufficient legal
and political authority to allow the courts to exercise most of the powers of
scrutiny and control that they would have had under a system of full-scale
judicial review. As we have seen in earlier chapters, the New Zealand Court
of Appeal (NZCA) has taken the liberty of expanding the scope of review
power that has been delegated to it by the nonentrenched bill by according it
a de facto entrenched status. Drawing on this expansive interpretive ap-
proach, the NZCA has gradually become one of the country’s most sig-
nificant policy-making bodies, dealing with the most salient moral dilemmas
and political controversies on New Zealand’s public agenda.78
The Court’s generous interpretation of its judicial review powers under
the NZBORA reflects the current Chief Justice Dame Sian Elias’s view, ex-
pressed prior to her elevation to the bench, that “it is time to recognize that
the notion of arbitrary parliamentary sovereignty represents an obsolete
and inadequate idea of the New Zealand Constitution.”79 The bill’s de facto
entrenched status appears to match the expectation of Geoffrey Palmer,
the act’s author, that the Bill of Rights, although formally nonentrenched,
would gradually acquire sufficient legal and political authority to allow the
courts to exercise at least some of the powers of scrutiny and control that
they would have had under a system of full-scale judicial review. Indeed, as
Palmer has recently stated, the Bill of Rights “has been more effective than
many had thought it would be.”80
In sum, the enactment of the NZBORA, along with other new laws, such
 Hegemonic Preservation in Action 89

as the Human Rights Act of 1993 and the Privacy Act of 1993, was intended
not only to elevate New Zealand’s traditional set of classic civil liberties
to the status of prime constitutional rights, but also to empower New Zea-
land’s judiciary by delegating policy-making authority from parliament to
the NZCA. Not surprisingly, the judicial elite and the oligarchy of wealth
and political power, seeking to preserve their hegemony and to increase
their impact on policy-making outcomes, quickly endorsed the constitu-
tional change. Opposition to the enactment of the NZBORA came mainly
from leftist opponents of privatization and from Maori activists who per-
ceived the measure as a threat to the status of the Treaty of Waitangi and the
success of future Maori land claims.

The Origins of South Africa’s Constitutional Revolution

Yet more evidence to confirm the hegemonic preservation thesis is found in

the struggle of South Africa’s white ruling elite during the late 1980s and
early 1990s to ensure the inclusion of an entrenched Bill of Rights and active
Constitutional Court in the post-apartheid political pact in South Africa.81
South Africa’s human rights record was nothing short of appalling for the
better part of the last century. The notorious apartheid regime symbolized
one of the last bastions of European colonialism and white supremacy in
the post–World War II era. It is a well-documented, undisputed fact that
until the early 1990s the National Party–controlled political system in South
Africa functioned so as to entrench the privileges of white inhabitants while
depriving black South Africans of even the most basic human rights.
Explicitly discriminatory policies included: the Population Registration Act
(1950), which classified every citizen into one of four racial categories (Afri-
can, Coloured, Indian, or White); the prohibition of interracial sex and
marriage; a strict racial segregation in the entire public domain; large-scale
forced removals in thriving multiracial neighborhoods; bans on any mean-
ingful political participation for nonwhites; the creation of the notorious
Bantustans (effectively impoverished rural ghettoes); and the almost exclu-
sive allocation of material resources to white communities (who form
approximately one-seventh of the population). These policies and many
others similar in nature promoted and reflected a reality of severe political,
legal, social, and economic inequality between white and black South
Africans.
Until 1990, when President F. W. de Klerk lifted the ban on the African
90 Hegemonic Preservation in Action

National Congress (ANC) and released its most prominent leader, Nelson
Mandela, from prison, South Africa had excluded the vast majority of
its population from participation in democratic politics, favoring instead a
strict and select parliamentary sovereignty. Prior to the adoption of the post-
apartheid constitutional order, South Africa had had three previous consti-
tutions, adopted in 1910, 1961, and 1983. These constitutions showed little
or no awareness of the multiethnic and multilingual nature of South African
society, catering almost exclusively to the white, Christian, Afrikaans minor-
ity instead. Indeed, prior to the enactment of the 1993 interim Bill of Rights
(replaced by the final Bill of Rights in 1996), very few countries in the post-
war era had seen a wider and more tragic gap between popular will and con-
stitutional arrangements than that which prevailed in South Africa. Up until
the democratic election of 1994, South Africa excluded over 80 percent of its
population from any meaningful participation in democratic politics while
strictly adhering to parliamentary sovereignty.
Calls for entrenched rights and for the establishment of active judicial re-
view were strongly and consistently opposed by South Africa’s ruling elites
throughout the twentieth century. Until the late 1980s, the National Party
(NP) leaders insisted that a bill of rights should not form part of any future
constitutional order in South Africa, arguing that an emphasis on individual
interests would be inconsistent with the political and religious tradition of
Afrikanerdom, which preferred to emphasize the state and other supposed
communitarian values over individual interests. The long-standing antago-
nism toward judicial review echoed former Boer President Paul Kruger’s fa-
mous century-old declaration that the power of the courts to test legislation
was “a principle invented by the Devil!”82
Accordingly, the South Africa Amendment Act 1958 provided that “no
court of law shall be competent to enquire into or to pronounce upon
the validity of any law passed by parliament.” Prime Minister Hendrick
Verwoerd rejected calls for the adoption of an entrenched bill of rights by
the Natal Provincial Council, stating that it would be unthinkable, as “no
suggestion was made as to how right could be effectively guaranteed with-
out sacrificing the sovereignty of Parliament.”83 The passage of the 1961
Republican Constitution secured the dominance of parliamentary sover-
eignty. Section 59 specifically incorporated the language of the South Africa
Amendment Act, thus constitutionalizing the exclusion of the courts from
substantive review and explicitly limiting any judicial review over substan-
tive legislative enactments affecting the language clause, which guaranteed
 Hegemonic Preservation in Action 91

the equality of English and Afrikaans. A similar attitude toward the con-
stitutionalization of rights and the establishment of judicial review was re-
flected in the 1983 constitution.
By the early 1980s, however, apartheid had entered a crisis born of its
own contradictions and of new pressures emanating from a changing world.
Domestically, the excessive costs of enforcing apartheid through a maze of
social controls amidst continued violence and economic recession rendered
it an unworkable scheme. As white professionals began to emigrate in the
1970s and 1980s, the country encountered shortages in the skills necessary
to operate its sophisticated economy. In spite of the large presence of multi-
national corporations, which had always viewed South Africa as something
of a gold mine (both literally and metaphorically), pressure from the inter-
national community in the form of economic and diplomatic sanctions sent
a signal to the National Party that the pursuit of steps toward the abolition of
at least some of their apartheid policies was necessary.
The adoption of the 1983 Constitution marked the first step in this direc-
tion. In the face of increasing internal resistance and international isolation
in the early 1980s, the South African government looked to the political re-
cuperation of the “Indian” and “coloured” communities (but not the huge
African majority) as a means of broadening its social base. The outcome of
this shift in policy was the adoption of the 1983 Constitution, which ex-
tended the franchise to “Indians” and “coloureds” in a tricameral legisla-
ture, with its jurisdiction distributed according to a vague distinction be-
tween “particularistic” and “general” affairs. However, two mechanisms
ensured that power remained safely in the hands of the dominant white
party. First, the running of government was effectively centralized under an
executive State President who had extraordinary powers in both the execu-
tive and the legislative arenas. Second, all significant decisions within the
legislature (the election of President, for example) would automatically be
resolved by the 4:2:1 ratio of white, “colored”, and “Indian” representatives,
which ensured that even if the “Indian” and “colored” Houses of Parliament
voted in unison, the will of the white House would prevail. Resistance from
the two targeted communities, as well as an escalation of rebellion in the
black community, sealed the fate of the 1983 Constitution. The attempt to
preserve white hegemony amidst an uprising of the black African majority
while maintaining the principle of parliamentary supremacy was put to rest,
and the idea of constitutional entrenchment of rights and the establishment
of judicial review was rediscovered by the white elites.
92 Hegemonic Preservation in Action

Within a few years, it became clear that the days of legalized racial segre-
gation were numbered. Cut off from flows of international capital, the
South African economy began to shrink during the 1980s, driving the
government to seek to rehabilitate itself in the eyes of the Western world.
Meanwhile, the collapse of communism in the Eastern Bloc deprived the
ANC of its main sources of political, financial, and military support. Driven
by their intertwined self-interests, the two sides forged a relatively peaceful
political transition that granted black majority rule in return for “a contin-
ued place for whites in South Africa’s economic sun.”84
When it became obvious that the apartheid regime could not be sus-
tained by repression, the incentives of political and economic power-holders
among the white minority rapidly changed, and a sudden conversion to
the supposed virtues of a bill of rights followed. The call to institute a bill
of rights came from the old enemies of constitutionalization—the National
Party government and other political representatives of the white minority,
who suddenly appeared to discover the charms of entrenched rights and
judicial review while hastily abandoning their historic commitment to par-
liamentary sovereignty. By reconciling themselves to the idea of an en-
trenched constitution that would include a constitutional catalogue of rights
and a constitutional court with powers of active judicial review, the apart-
heid government hoped to maintain some of the privileges enjoyed for so
many decades by whites. Conscious judicial empowerment through con-
stitutionalization followed.85
In April 1986, only two years after publicly declaring that a bill of rights
would be inconsistent with the political and religious tradition of
Afrikanerdom, Minister of Justice H. J. Coetsee asked the South African Law
Commission to investigate the subject of “group and human rights.” The re-
sulting research was made public in March 1989 when the Law Commission
released a widely disseminated Working Paper, in which it recommended
that South Africa should adopt an entrenched bill of rights. A further In-
terim Report on Group and Human Rights was published by the Law Com-
mission in August 1991, in which it reiterated its support for the idea of
adopting an entrenched bill of rights and included a draft charter for discus-
sion.86 The commission in this way hoped to bolster some of the privileges
reserved for so long for mostly white elites. Ironically, the Law Commission,
on which not a single black person was represented, concluded its report by
declaring, “No matter who governs this country, it goes without saying that
if we are to avoid dictatorship—even the dictatorship of a democratic major-
 Hegemonic Preservation in Action 93

ity—we need such a bill.”87 The quick abandonment of the anti–bill of rights
rhetoric by the National Party and other representatives of the white elite
was completed in February 1990 when President F. W. de Klerk officially an-
nounced in Parliament that a future constitution would need to include a
bill of rights as proposed in the Law Commission’s Working Paper.
As we have seen in Chapter 1, the lifting of the ban on the ANC brought
white elites and the black majority into public engagement for the first time.
The Convention for a Democratic South Africa (CODESA) was launched in
December 1991 to negotiate a democratic transition, but these negotiations
collapsed in mid-1992 and were followed by escalating violence and mass
social upheaval. In 1993, the parties entered into a series of bilateral negoti-
ations that yielded an agreement on a two-phase transition to democracy
through constitutional reform. The first stage was the drafting of the 1993
interim Constitution (which came into force in April 1994). The second
phase, which completed South Africa’s constitutional revolution, was the
drafting of the 1996 final Constitution by the Constitutional Assembly.88
By 1991, most white constituencies had accepted the idea of a bill of rights
in its entirety, adopting a view that called for the abandonment of traditional
parliamentary supremacy and the establishment of judicial review. The Na-
tional Party eventually published its own version of a “Charter of Funda-
mental Rights” in February 1993, keenly advocating a transitional bill of
rights that would constrain the power of the National Assembly and in
which the National Party would have a minority representation. The draft
proposal of the Charter stated that

the object of the Charter is not to create or regulate legal relations amongst
persons themselves. The main purpose of the Charter is to protect individu-
als against abuse of power by state authorities. It is not intended as a direct
source of rights and obligations among individuals themselves, for example,
for a dissatisfied employee to sue his employer on the grounds of alleged in-
fringement of his fundamental rights. The Charter is a standard with which
the acts of state authorities towards a citizen must comply.89

Both the 1993 interim Constitution and the 1996 final Constitution pos-
sess two distinct features that are unprecedented in South African constitu-
tional history. First, the Constitution entrenches constitutional supremacy
and a sovereign Bill of Rights. Legislative and executive acts of govern-
ment can now be declared invalid if they are found to violate fundamental
human rights. Second, the Constitution established a Constitutional Court
94 Hegemonic Preservation in Action

with final jurisdiction over constitutional matters. Roelf Meyer, the National
Party government’s chief constitutional negotiator, summed up the outcome
of the first stage of constitutionalization from the NP’s point of view: “we
wanted to build in an assurance that the Constitution be based on the princi-
ples of a constitutional state. We wanted individual rights and a Constitu-
tional Court. So we got what we wanted.”90
The real battle over the constitutionalization of rights in the new South
Africa revolved around three major bones of contention: the scope and na-
ture of property rights, workers’ rights, and minority language educational
rights under the final Bill of Rights. Throughout the pre-1996 negotiations,
the National Party and the Democratic Party (both holding a base of sub-
stantial business support) advocated the constitutional entrenchment of
the strongest possible protection of individual property rights (including ex-
plicit antiredistribution provisions) alongside the narrowest viable protec-
tion of workers’ rights to strike, unionize, and bargain collectively. The ANC
meanwhile advocated a constitutional guarantee for extensive land reform
through expropriation, thereby allowing for erosion of the traditional status
of property rights. It also argued that, given the stark power imbalances be-
tween employers and employees, employees’ rights to strike should be con-
stitutionally entrenched, whereas employers’ rights to lockout should not.
The long and arduous negotiations culminated in a package deal adopted
early in May 1996. The NP won out conclusively on the property rights
front, ensuring that the state was barred from implementing “arbitrary or
unreasonable” land redistribution measures.91 Moreover, any departure
from the Bill of Rights’ “property clause” was made subject to judicial scru-
tiny of its constitutionality vis-à-vis the Constitution’s “limitation clause”
(“limitation is reasonable and justifiable in an open and democratic soci-
ety”).92 Employers’ rights to lockout were not included in the final Bill
of Rights, but the Labour Relations Act continues to permit employers’
recourse to lockout. In return for these concessions, the NP accepted the
ANC’s insistence on the exclusion of any state duty to fund single-language
schools, particularly Afrikaans-language institutions, in post-apartheid
South Africa.93
The NP’s hard line and ultimate victory on the property clause front re-
minds us that the struggle against the apartheid regime was not limited
to voting and legal segregation—it also concerned economic and social in-
equality.94 Not only was South Africa legally racist, it also had one of the
world’s worst situations of material inequality, with the white minority (ap-
 Hegemonic Preservation in Action 95

proximately 15 percent of the population) owning 87 percent of the land

and earning on average eight times the income of the black African majority
(approximately 75 percent of the population), and with the top 5 percent of
the population consuming more than the bottom 85 percent, resulting in a
Gini coefficient of 0.61 (matching Brazil and Nigeria as major developing
countries with the highest levels of inequality).
The nexus of provisions and institutions established by the apartheid re-
gime divided the land of South Africa into zones of racial exclusivity, where-
by one-eighth of the land was set aside for black South Africans while the
remaining seven-eighths of the land was for the exclusive use of people clas-
sified as “other than Black.” This outrageously unequal land distribution
was accomplished, inter alia, by means of the forced and brutal relocation
of about 3.5 million people from the early 1960s until the mid-1980s. Fur-
thermore, economic resources were allocated in a deliberately discrimina-
tory manner through a program of institutionalized inequality that pur-
chased white prosperity at the expense of the vast majority of black South
Africans. State expenditure was heavily biased in favor of white inhabitants,
while the allocation of land and other natural resources ensured that whites
would always be those most favored by the allegedly “invisible hand” of the
market. The result was the creation of an orchestrated and self-perpetuating
imbalance in distribution of income among the different ethnic groups in
South Africa. In 1990, just a few months before the formal abolition of
apartheid, 95 percent of the productive capital in the country was held
by four white conglomerates. As Michael Mandel notes, this oligarchy of
wealth is one of the things the white elite attempted to protect through
“a classic property-protecting Bill of Rights.”95 In sum, the white elite and
its parliamentary representatives, faced with the inevitable prospect of an
ANC-controlled parliament, endorsed a bill of rights as a means of fencing
off certain aspects of their privilege from the reach of majoritarian politics.
Yet if the claim that anti-redistribution and pro–status quo interests in-
formed the entrenchment of a constitutional catalogue of rights and the es-
tablishment of judicial review in South Africa is correct, how can we ex-
plain the fact that by the early 1990s, even before de Klerk had committed to
a negotiated settlement and a bill of fundamental rights, Nelson Mandela
and the ANC had declared themselves converts to the idea of constitutional
limitations on sovereignty through the adoption of a constitutional bill of
rights? This was a far cry from the socialist action program of the Freedom
Charter advocated by the ANC throughout the era of apartheid.96 I would
96 Hegemonic Preservation in Action

suggest that this change can be explained by the ANC’s gradual transforma-
tion from a revolutionary opposition movement to a governing party (by the
time the 1996 constitutional pact was signed, the ANC had been in power
for over two years); and, more specifically, by international economic pres-
sure, together with the ANC’s need to prevent capital flight and to attract
foreign investment. Without a constitutional guarantee of property rights,
for example, the new regime in South Africa would have been unable to re-
assure domestic and international economic elites that regardless of sig-
nificant changes their predictability interest would remain secure. Massive,
almost unconditional public support also helped the ANC’s leadership to re-
nege on its long-term commitment to adopting a progressive, redistribution-
oriented constitutional regime.
However, the ANC did not “sell out” the revolution in South Africa, be-
cause the revolution never actually materialized. Instead, there was a nego-
tiated settlement, designed in no small part to head off the possibility of
revolution. As Ian Shapiro notes, “The political pact that led to the transi-
tion seems underwritten by an implicit social contract between the new po-
litical elite and those with economic power: the still overwhelmingly white
landed and business elites.”97 The ANC government has so far avoided put-
ting large-scale expropriation or increases in taxation on the table, it has not
advocated any significant redistribution of material wealth or land, it has not
interfered with the self-protection of gated communities, and it has tended
to toe the line as far as neoliberal economic reform is concerned. This has re-
sulted in an unemployment rate of nearly 30 percent (up from 17 percent in
1995) and growing disillusionment among South Africa’s poor black popu-
lation.98
The introduction in July 1996 of the Growth, Employment, and Redistri-
bution (GEAR) program (a set of explicitly neoliberal economic policies) as
well as the ANC government’s continued support for the strict constitutional
protection of negative liberties at the expense of positive subsistence rights
simply reflect the ANC’s commitment to “business-friendly” policies. The
GEAR strategy reinforced the government’s emphasis on fiscal restraint,
containment of inflation, and export promotion as ways to enhance com-
petitiveness. The liberalization of foreign exchanges, the privatization of
state enterprises, and the creation of a conducive and enabling environment
for foreign investment were all recognized as crucial economic goals. More-
over, GEAR recommended greater labor market flexibility, possibly via a
two-tier system involving the deregulation of semi- and unskilled work, and
 Hegemonic Preservation in Action 97

the exemption of small business from provisions of labor legislation. These

business-friendly measures have been accompanied by continuous erosion
in the political significance of the Congress of South African Trade Unions
(COSATU)—the single largest trade union, which aligned formally with the
ANC and the South African Communist Party—in an era in which the ANC
is no longer an opposition party.
Attempts by the political representatives of white settlers and domes-
tic elites to protect their joint interests through the constitutionalization of
rights, especially property rights, is not new to the African continent. As
recent work has shown, British colonial decision-makers and domestic elites
did not trust that the new political authorities in many soon-to-be-decolo-
nized African countries would protect the interests of their principal con-
stituencies—white settlers, urban intelligentsia, and foreign investors—and
were therefore eager to establish seemingly autonomous judicial systems
and land registration apparatus and to adopt entrenched constitutional cata-
logues of rights in these countries prior to completion of the decolonization
process.99 While for many years Britain was unwilling to incorporate the
provisions of the European Convention on Human Rights into its own legal
system (let alone to enact a constitutional bill of rights of its own), it did en-
thusiastically promote the entrenchment of European Convention rights in
the “independence constitutions” of newly self-governing African states as
devices for protecting established interests from the “whims” of indepen-
dent majoritarian politics. The constitutionalization of rights in the Gold
Coast (Ghana) in 1957, Nigeria in 1959, and Kenya in 1960 (to name only
three examples) followed this pattern.
Consider too the timing of the June 1991 constitutionalization of rights in
British-ruled Hong Kong, which took place less than two years after the
British Parliament had ratified the Joint Declaration on the Question of
Hong Kong, whereby Britain was to restore Hong Kong to China in July
1997; and the establishment of judicial review in Egypt in 1979 amidst a re-
surgence in Islamic fundamentalism, followed by the crucial role of the
Egyptian Supreme Constitutional Court in advancing a relatively liberal in-
terpretation of Shari’a (Islamic law) rules.100

As my analysis of the 1992 constitutional revolution in Israel and my brief

discussion of other constitutional reforms suggest, the constitutional en-
trenchment of rights and the establishment of judicial review do not de-
velop in isolation from a country’s central political struggles and economic
98 Hegemonic Preservation in Action

interests. To best serve their own interests, hegemonic political, economic,

and judicial elites attempt to shape the institutional structure within which
they operate. Constitutional reform is one such arena in which these power
struggles occur. Because entrenched rights and judicial review (like other
semiautonomous, professional policy-making institutions, such as central
banks, electoral committees, transnational trade organizations, suprana-
tional financial bodies, and judicial tribunals) are self-enforcing institutions
that usually limit the flexibility of political decision-makers, the actors who
voluntarily establish such institutions must have an interest in abiding by
such limits. Moreover, because bills of rights and judiciaries lack the inde-
pendent power to enforce their mandates, their authority depends mainly
on the degree to which elites find judicial empowerment beneficial to their
own political, economic, and cultural hegemony.
Governing elites in divided, rule-of-law polities face a constant struggle to
preserve their hegemony. Such elites are likely to advocate a delegation of
power to the judiciary when the following three conditions exist: when
their hegemony and control over crucial majoritarian decision-making are-
nas are increasingly challenged by peripheral groups and their policy prefer-
ences; when the judiciary in that polity enjoys a relatively high reputation
for rectitude and political impartiality; and when the courts in that polity are
generally inclined to rule in accordance with hegemonic ideological and cul-
tural propensities.
In many countries (such as Israel, New Zealand, and South Africa), the
intentional empowerment of the judiciary by threatened but still domi-
nant political powers has been strongly supported by influential coalitions of
domestic neoliberal economic forces that view the constitutionalization of
rights as a means of promoting economic deregulation, and by national high
courts seeking to enhance their political influence and international profile.
Indeed, the contemporaneous emergence of a neoliberal economic order
and the movement toward constitutionalization in these countries is any-
thing but accidental or fortuitous. On the contrary, the two trends go hand
in hand and in fact complement each other; they share a common adher-
ence to a “small government” worldview, a commitment to an expansive
conceptualization of the private sphere, and an uneasy attitude, even hostil-
ity, toward the less than predictable political sphere.
The causal mechanisms behind the trend toward constitutionalization and
judicialization in divided polities have not been adequately delineated by
the major theories of constitutional transformation. The democratic expan-
 Hegemonic Preservation in Action 99

sion, evolutionist, functionalist, new institutionalist, and electoral market

models cannot provide a full explanation for the recent history of constitu-
tional entrenchment of rights and judicial review in Israel, Canada, New
Zealand, and South Africa. My brief analysis here of constitutional politics in
these four countries reveals that their constitutional revolutions, while ad-
mittedly different from each other in scope and context, can be more pro-
ductively analyzed in terms of an interest-based hegemonic preservation ap-
proach—that is, judicial empowerment through the constitutionalization of
rights and the establishment of judicial review is often a conscious strategy
undertaken by threatened political elites seeking to preserve or enhance
their hegemony by insulating policy-making from popular political pres-
sures, and supported by economic and judicial elites with compatible inter-
ests. Moreover, the hegemonic preservation thesis serves as a reminder that
seemingly humanitarian constitutional reforms often mask an essentially
self-serving agenda. The constitutionalization of rights, in other words, is of-
ten not so much the cause or a reflection of a progressive revolution in a
given polity as it is a means by which preexisting and ongoing sociopolitical
struggles are carried out.
 CHAPTER 4

Constitutionalization and
Judicial Interpretation of Rights

From Kant and Faust to Rawls and Madonna, we have known that
autonomous individuality is best achieved by those whose material
needs have been secured. Negative freedom cannot secure those
needs. Negative liberty, which our legal regime and our rights talk
are about, is good if you have cash.
David Abraham, Are Rights the Right Thing?

Having reviewed the political origins of constitutional trans-

formation in Canada, Israel, New Zealand, and South Africa, in this chapter
I investigate the impact of constitutionalization of rights and fortification
of judicial review in these four polities on their national high courts’ atti-
tudes toward progressive notions of distributive justice. Constitutions and
independent courts are frequently viewed as providing necessary formal
safeguards against the often capricious political arena. Likewise, constitu-
tionalization of rights and establishment of judicial review are widely per-
ceived as having a significant positive impact on the status of rights and lib-
erties by providing national high courts with the necessary institutional
framework to become more effective in their efforts to protect the basic
rights of disadvantaged groups and individuals.
Canonical constitutional law scholarship tends to view the America’s Bill
of Rights and that country’s deeply rooted practice of active judicial review
as factors that have long held American political institutions to a paramount
commitment of protecting fundamental minority rights and individual free-
doms. But critical scholars who have focused on the history of the U.S. Su-
preme Court’s constitutional rights jurisprudence have suggested that the
Court’s actual record of rights jurisprudence is far less impressive than its
public image. According to their studies, the Court’s rights jurisprudence has
100
 Constitutionalization and Judicial Interpretation of Rights 101

been inclined to reflect and promote national metanarratives, prevailing

ideological and cultural propensities, and the interests of ruling elites and
economic power-holders.1
On the one hand, there is little doubt that at least for the better part of the
post-Brown era, the U.S. Supreme Court has been a stronghold of classic civil
liberties, such as freedom of expression and criminal due process rights. As a
result, these liberties have gained a near-sacred status in American mass cul-
ture unmatched in any other country’s. On the other hand, the widely cele-
brated U.S. Bill of Rights did not prevent the U.S. Supreme Court from
reconfirming the legal status of slavery and servitude before the Civil War2
or from blocking labor reform initiatives in the first decades of the twentieth
century.3 The Supreme Court did not protect Japanese Americans who were
held in detention camps during World War II,4 nor did the First Amendment
prevent the Supreme Court from upholding the persecution of Communist
Party members during the McCarthy era under a law that made it illegal to
“advocate, abet, advise, or teach the duty, necessity, desirability, or propriety
of overthrowing or destroying any government in the United States.”5 Nor
did the Fourteenth Amendment’s Equal Protection Clause prevent the Su-
preme Court from deciding that the poor were not qualified as a “suspect
class” under the legislation since they were not subject to overt discrimina-
tion and were neither an easily identified nor a politically powerless group.6
On numerous occasions the Court defended Article 1’s Contract Clause at
the expense of workers’ rights and labor standards. Similarly, it invalidated
gun control and public health laws in the name of protecting the National
Rifle Association’s and the tobacco industry’s rights. With these examples in
mind, it is fair to say that whereas its record of protecting classic civil liberties
over the past five decades is quite impressive—from Lochner to Buckley, from
U.S. v. Lopez to Shaw v. Reno—the U.S. Supreme Court has been anything
but a bastion of progressive notions of distributive justice.7 At any rate, most
works that examine the contribution of judicial review to the protection of
disenfranchised groups and individuals are preoccupied almost exclusively
with American constitutional history and with the United States’ Supreme
Court’s constitutional jurisprudence.
Drawing on a systematic analysis of the interpretations given by national
high courts of the rights protected by the newly enacted bills of rights in
Canada, New Zealand, Israel, and South Africa, in this chapter I seek to
identify a set of hegemonic principles in contemporary judicial interpreta-
102 Constitutionalization and Judicial Interpretation of Rights

tions of constitutional rights in the new world of constitutionalism. I then

attempt a realistic assessment of the current potential for advancing progres-
sive concepts of social justice through the constitutionalization of rights and
rights litigation.
The chapter is comprised of two major sections. I begin with a system-
atic quantitative-qualitative analysis of judicial interpretations of the newly
enacted bills of rights by national high courts in all four countries. The anal-
ysis is based on a complete survey of all high court bill of rights cases from
the date of enactment to the end of 2002. The object of this section is to de-
termine to what extent a “negative,” or noninterventionist, conception of
rights is upheld by the four national high courts at the expense of a more
“positive,” collectivist conception of rights.
I then proceed to examine recent constitutional jurisprudence in Canada,
New Zealand, Israel, and South Africa with regard to four key issues: crimi-
nal due process rights (classic procedural rights); demarcation of the pri-
vate sphere through jurisprudence concerning freedom of expression (clas-
sic “first generation” negative liberty) and formal equality in the context of
sexual preference (the hallmark of progressive constitutional rights jurispru-
dence in the four examined countries); subsistence social and economic
rights such as the right to health care, basic housing, education, social secu-
rity and welfare, and an adequate standard of living (classic positive or “sec-
ond generation” rights); and freedom of association and occupation in the
context of labor relations (rights that can be interpreted either as providing
entitlements to wider state-controlled legal protection for workers or as pro-
tecting the private economic sphere from state intervention).
This comparative examination will serve to chart the vacillation between
a relatively generous judicial interpretation of expansive notions of distribu-
tive justice (for example, positive rights claims, substantive equality, and
workers’ rights to unionize and strike) and a narrower commitment to pro-
cedural justice, removal of “market rigidities,” and an uninhibited Lockean-
style individual autonomy. What is more, looking at these four areas allows
us to compare judicial attitudes toward two conceptions of rights: those
whose full realization entails greater state activity in amending disturbing
market failures in the realm of distributive justice, and those whose full real-
ization calls for a broad definition of the private sphere by way of halting the
encroaching state. This analysis should then enable us to distinguish types of
policy arenas where the constitutionalization of rights could plant the seeds
of social change.
 Constitutionalization and Judicial Interpretation of Rights 103

The Macro-Quantitative Picture

The constitutionalization of rights in Canada, New Zealand, Israel, and

South Africa has significantly affected the respective agendas of the national
high courts in all four countries.
As Table 4.1 illustrates, bill of rights (BOR) litigation has accounted for a
significant portion of the courts’ agendas in these countries since their en-
actment of constitutional catalogues of rights. The volume of Charter litiga-
tion in the Supreme Court of Canada (SCC), for example, accounted for 20
percent of the Court’s docket during the last decade. While this percentage is
higher than the percentage of BOR cases heard by national high courts in
New Zealand and Israel (9 percent and 11 percent, respectively), the consti-
tutional jurisprudence of these other countries reflects a similar pattern.
A second interesting finding is the sharp increase in the ratio of con-
stitutional rights cases versus regular civil cases following the adoption of
constitutional catalogues of rights in the examined countries. While in 1975
(seven years prior to the adoption of the Canadian Charter) the number of
constitutional rights cases accounted for approximately one quarter of the
“regular” civil cases decided by the SCC, in 1989 (seven years after the
adoption of the Charter) the number of constitutional rights cases outnum-
bered nonconstitutional civil cases decided by the Court by approximately
120 percent. A sharp increase in the ratio of constitutional rights cases to
regular civil cases is also evident in the two other countries where such a
comparison was possible (New Zealand and Israel). It is also interesting to
note the significant difference between the rapid growth rate of rights juris-
prudence in Canada following the adoption of the Charter versus the lower
growth rate of rights jurisprudence following the constitutionalization of
rights in New Zealand and Israel. These differences may be explained by
the fact that in Canada, as in the United States, the Supreme Court has dis-
cretion over which cases it will hear, whereas in New Zealand and Israel a
significant percentage of the national high court’s docket consists of manda-
tory appeals and appeals by right on decisions by courts of lower instance
and tribunals. The SCC justices have greater institutional leverage in deter-
mining their docket, and they may therefore prioritize issues decided before
them.
It is also helpful to assess this recent constitutional jurisprudence in terms
of the types of rights that tend to be given a more generous interpretation
by the national high courts of the four countries. A well-known distinction
Table 4.1 General profiles of the four countries’ constitutional rights jurisprudence
Ratio of constitutional
rights cases to regular
Total number of BOR cases as Criminal due process civil cases (7th year
Constitutional reported BOR percent of reported rights cases as percent prior to enactment of
catalogue of cases (national cases (national high of reported BOR cases BOR to 7th year after
Polity rights high courts) courts) (national high courts) enactment of BOR)

Canada Canadian 440 20% 65% 0.24 : 2.17

Charter of (Apr. 1982– (440/2195)a (286/440)
Rights and Dec. 2002)
Freedoms
(1982)
New Zealand New Zealand 317 10% 71% 0.14 : 1.21
Bill of Rights (Sept. 1990– (317/3156)b (225/317)
Act (1990) Dec. 2002)
South Africa South Africa 101 12% 58% N/A
Bill of Rights (Feb. 1995– (101/842)c (58/101)
(1993, 1996) Dec. 2002)
Israel New Basic Laws 365 11% 57% 0.19 : 1.11
(1992): Hu- (Apr. 1992– (365/3319)d (208/365)
man Dignity Dec. 2002)
and Liberty;
Freedom of
Occupation

a. Includes all reported Supreme Court of Canada cases (April 1982 to December 2002).
b. Includes all reported Court of Appeal and High Court cases (September 1990 to December 2002).
c. Includes all reported Constitutional Court cases (180) and Supreme Court of Appeals cases (662) (February 1995 to December 2002). The
reported Bill of Rights cases account for 56% (101/180) of all reported Constitutional Court cases.
d. Includes all reported Supreme Court of Israel cases (April 1992 to December 2002).
 Constitutionalization and Judicial Interpretation of Rights 105

has been drawn by political theorists between negative (or “first genera-
tion”) rights, positive (or “second generation”) rights, and collective (or
“third generation”) rights in which negative rights are understood as free-
dom from interference; positive rights include freedom to act in a positive
way (entailing the provision by some individual of a valued service); and
collective rights refer to communal, rather than individual, entitlement to
public goods. Negative rights consist of fundamental freedoms (freedom of
speech, religious tolerance, freedom from arbitrary arrest, and so on). Posi-
tive rights traditionally include social rights, such as the universal right to
services meeting basic human needs (for example, health care, basic hous-
ing, education, social security and welfare, and an adequate standard of liv-
ing). The term “positive rights” is often used to describe these basic social
rights because they require the state to act positively to promote the well-
being of its citizens, rather than merely refraining from acting. Thus, a posi-
tive right is a claim to something, while a negative right is a call for the
prohibition of some action or the right not to be interfered with.8 Though
positive rights require a more interventionist state, they remain essentially
individualistic in their content inasmuch as it is the material welfare of each
and every individual that ought to be secured by these provisions.
Table 4.2 presents the results of a systematic analysis of interpretations of
newly enacted bills of rights in Canada, Israel, New Zealand, and South Af-
rica as given by national high courts in each of these countries. It is based on
a complete survey of all the reported high court BOR cases from the date of
enactment to the end of December 2002.
As the data presented in Table 4.2 show, the traditional distinctions be-
tween negative, positive, and collective rights continue to provide an orga-
nizing principle for understanding dominant patterns in the contemporary
constitutional jurisprudence of many capitalist democracies. In the constitu-
tional rights jurisprudence of all four countries, there has been a clear trend
toward minimal visible (redistributive and regulatory) state intervention
both in the economic sphere and in what judges consider to be the protected
bodily sphere.
At least five interesting comparisons can be drawn from Table 4.2. First,
negative rights litigation accounted for approximately 80 percent to 90 per-
cent of all BOR cases heard by national high courts in all four countries,
compared with the approximately 10 percent to 20 percent that dealt with
positive rights and collective rights litigation. Second, the success rate of civil
liberties and negative rights claims has ranged between 39 percent (Canada)
Table 4.2 “Negative” rights vs. “positive” and “collective” rights claims
BOR claims based primarily on negative rights/ BOR claims based primarily on positive rights/
formal equality rationalea collective rights rationaleb

Number of
Number of successful
successful BOR claims
Number of BOR claims at Number of at the
successful BOR the declarative As successful BOR declarative
As claims both at level but percent claims both at level but
percent of the declarative inconclusive at Total of all the declarative inconclusive Total
all BOR and the de the de facto success BOR and the de at the de facto success
Polity cases facto levels levelc rate cases facto levelsd levele rate

Canada 83% 118 19 39% 17% 13 7 28%

(351/423) (e.g., Egan) (137/351) (72/423) (e.g., Mahe) (e.g., (20/72)
Delgamuukw)
New 87% 103 11 43% 13% 5 2 18%
Zealand (264/303) (114/264) (39/303) (7/39)
South 78% 33 7 55% 22% 6 3 45%
Africa (73/93) (40/73) (20/93) (9/20)
Israel 89% 117 14 42% 11% 5 3 21%
(311/349) (131/311) (38/349) (8/38)

Note: Excludes cases that dealt exclusively with technical aspects of the BOR (e.g. application, jurisdiction, etc.).
Sources: The official collections of high court decisions for each of these countries are published several times a year under the following titles:
the Supreme Court Reports (S.C.R.)—Canada; Piskey Din (Supreme Court Decisions, in Hebrew)—Israel; the South Africa Law Reports; and the New
Zealand Law Reports. All the databases for this analysis are on file with the author. All decisions of the national high courts of the four countries
are available on the Internet at www.law.wits.ac.za (South Africa); www.court.gov.il (Israel); www.droit.umontreal.ca/doc/csc-scc/en/index.html
(Canada); and www.brookers.co.nz/legal/judgments/documents (New Zealand).
 a. This category includes BOR cases that were based primarily on both claims to negative rights and claims for a clear demarcation of the
boundaries of the private/economic sphere. More specifically, these BOR cases are primarily concerned with claims for freedom of expression,
property rights, freedom of movement, privacy, claims against state regulation of various economic activities, rights of persons arrested or
detained (excluding the right to publicly funded legal aid), claims against unreasonable search and seizure, rights of persons charged, formal
equality, the right to life, the right to die, the right not to be subjected to torture or cruel treatment, the right to refuse to undergo medical
treatment, etc.
b. This category includes BOR cases which were based primarily on claims for positive entitlements (e.g. to education, health care, housing,
running water, welfare and unemployment benefits, etc.), right to counsel and state funded legal aid, freedom of association in the labor
relations context, as well as collective rights such as minority language rights, education rights, indigenous peoples’ rights to self-
determination, affirmative action, etc.
c. This category includes BOR claims that were based primarily on a rationale of negative rights / formal equality, which received the Court’s
support at the abstract declarative level but not at the de facto level. For example, in the landmark decision in Egan v. Canada ([1995] 2 S.C.R.
513), the SCC ruled in a 5:4 majority that a law defining “spouse” so as to exclude homosexual couples unfairly discriminated against
homosexuals and violated section 15 of the Charter. This decision expanded the recognition in sexual preference as a legitimate basis for BOR
anti-discrimination/formal equality of opportunity claims. The specific discriminatory provision in question, however, was reinstated by the
“reasonableness” test of section 1.
d. This category includes BOR claims that were based primarily on a rationale of second-generation positive rights or third generation
collective rights, and received the court’s support both at the abstract declarative level and at the de facto level. In Mahe v. Alberta ([1990] 1
S.C.R. 342), for example, the SCC held that in accordance with s. 23 of the Charter (which guarantees minority language education rights), the
Alberta provincial government was responsible for actively providing and funding educational facilities and intensive instruction in French for
the francophone minority in that province, as well as for allowing proportional representation of French-speaking parents in the management
of their children’s French-language education.
e. This category includes BOR claims that were based primarily on a rationale of second generation positive rights or third-generation
collective rights, and received the Court’s support at the abstract declarative level but not at the de facto level. In Delgamuukw v. British Columbia
([1997] 3 S.C.R. 1010), for example, the SCC significantly expanded the judicial recognition of Aboriginal land rights in Canada, but at the
same time failed to grant any substantive protection of these rights, since it simultaneously established strict legal tests for ownership. The
result has been that the vast majority of Aboriginal people have already lost their rights and title to traditional lands, and are thus not entitled
to compensation, except in very particular circumstances.
108 Constitutionalization and Judicial Interpretation of Rights

to 55 percent (South Africa), whereas the success rate of positive rights and
collective rights claims has ranged between 18 percent (New Zealand) to 45
percent (South Africa). Third, the relative success rate of positive and collec-
tive rights claims were higher in Canada (28 percent) and South Africa (45
percent) than in New Zealand and Israel. This finding may be explained by
the fact that while second generation, positive rights are protected at least
implicitly by the constitutional catalogue of rights of all four countries, posi-
tive rights (such as the right to housing, health care, social security, and
education) are explicitly protected only in South Africa (sections 26–29 of
the 1996 Constitution), while collective rights (such as minority language
and education rights as well as certain rights of aboriginal peoples) are ex-
plicitly protected only in Canada (by sections 16–23 of the Canadian Charter
of Rights and Freedoms and by section 35 of the Constitution Act 1982).
In comparison, the constitutional scope of protection of such rights (eq-
uity rights, right to life) by the NZBORA is narrower and is confined to an
unqualified right to human dignity in the new Israeli Basic Laws. Fourth,
except in South Africa, where constitutional rights jurisprudence is still in a
formative stage, a relatively high success rate for negative rights claims is
combined with a relatively low success rate for positive rights and collective
rights claims in each country (for example, Canada, with 39 percent and 28
percent respectively; and New Zealand, with 43 percent and 18 percent re-
spectively). Fifth and finally, the difference in absolute numbers between
cases involving successful negative rights claims and cases involving success-
ful positive rights and collective rights claims is tremendous. Whereas nega-
tive rights claimants won 137 cases in the SCC between 1982 and 2002,
claimants for positive and collective rights had only 20 victories (or a ratio of
7 to 1). In South Africa, the figures are 40 to 9 (or a ratio of approximately
4.5 to 1), in New Zealand 114 to 7 (or a ratio of 16 to 1), and in Israel the
numbers are 131 to 8 (or a ratio of 16.5 to 1).

Criminal Due Process Rights

Criminal due process rights include constitutional guarantees against arbi-

trary detention or imprisonment, against unreasonable search and seizure
and the admissibility of illegally obtained evidence, and against retrospective
changes to the criminal code. They also establish constitutional protection of
the presumption of innocence, the right to remain silent, the right to coun-
sel, the right to be tried within a reasonable period of time, and the right to a
 Constitutionalization and Judicial Interpretation of Rights 109

fair trial or hearing. This core bundle of procedural rights also entails a set of
secondary procedural rights aimed at protecting detainees, suspects, and the
accused against abuses of power by the police and other state authorities.
As Table 4.1 illustrates, the greatest part of judicial activity under the
Canadian Charter of Rights and Freedoms, Israel’s new Basic Laws, the New
Zealand Bill of Rights Act, and the South Africa Bill of Rights have con-
cerned the questions of criminal procedure—questions that have also
formed the bulk of U.S. constitutional litigation for years. These include the
right to counsel; burden of proof; trial within reasonable time; admissibility
of improperly obtained evidence; and limitations on search and seizure to
name but a few. As Table 4.1 shows, 65 percent of the Charter cases decided
by the SCC between 1982 and 2002 were criminal due process and legal
rights cases. In New Zealand (1990–2002), South Africa (1995–2002), and
Israel (1992–2002) these figures were 71 percent, 58 percent, and 57 per-
cent respectively.9 In short, criminal due process cases tend to account for
the bulk of constitutional litigation in countries that have recently enacted
bills of rights.
This trend can be explained in a number of ways. First, it seems that fol-
lowing the enactment of any bill of rights, many criminal procedure cases
simply frame what would have previously been “ordinary” due process
cases in terms susceptible to bill of rights litigation. Second, in numerous
criminal appeals to higher courts, defense lawyers draw on procedural jus-
tice claims (often in lieu of convincing substantive arguments or evidence)
to defend their clients’ interests. Third, unlike many other arenas potentially
influenced by bills of rights, the implementation of constitutional due pro-
cess rights involves a relatively low number of intervening socioeconomic
variables that might obscure judicial interpretation. In other words, the dis-
tance between adjudication and implementation is shorter when it comes
to due process rights, as compared with courts’ fairly limited control over
the implementation of equality rights or freedom of expression guarantees.
Fourth, although members of traditionally disadvantaged groups have been
among the chief beneficiaries of the constitutionalization of criminal due
process rights, procedural rights are formal rather than substantive. There-
fore, some commentators would argue, their enforcement does not require
real change in the balance of power in society, let alone the adoption of
meaningful wealth redistribution schemes or of revolutionary notions of
substantive equality. Fifth, due process rights, which safeguard individuals
from state intrusion into their physical and mental privacy through guaran-
110 Constitutionalization and Judicial Interpretation of Rights

tees against unwarranted search and seizure, cruel and unusual punish-
ment, arbitrary arrest and detention, and so forth, are closer in their under-
lying rationale to the prevalent view of a neoliberal society, which welcomes
judicial intervention to protect the private sphere from a malevolent inter-
ventionist state.
From a qualitative perspective, criminal due process cases have been
celebrated as showcasing the new bills of rights’ success in protecting basic
rights in all four countries. Three such cases (G’nimmat, Nahamias, and Society
for Law Victims) are among the Israeli constitutional revolution’s most fre-
quently cited benchmarks.10 The G’nimmat case dealt with the constitution-
ality of a warrant of arrest until completion of proceedings, citing the guar-
antee of personal freedom in Basic Law: Human Dignity and Liberty. The
Supreme Court of Israel (SCI) held that the warrant of arrest that had been
issued against Mr. G’nimmat violated his basic right to personal freedom,
raising the standard of evidence required in order to detain suspects for a
long period of time prior to trial. In Nahamias, the Court protected the pri-
vate sphere and placed strict limitations on the use of covert surveillance
and wiretapping by the police. In the same spirit, in Society for Law Victims
the Court drew, inter alia, on the fundamental right to human dignity to de-
clare void an administrative regulation that allowed for the imposition of a
twenty-one-day imprisonment on defaulting debtors for failure to disburse
their debt within a reasonable amount of time.
In this context, it is important to note that despite the growing inclination
of the SCI to give the provisions of Basic Law: Human Dignity and Liberty a
generous interpretation when dealing with cases involving due process and
legal rights, the Court was much less vigilant at least until the late 1990s in
protecting the legal rights of security detainees and prisoners (almost all of
whom were Arab-Israelis and Arab residents of the Occupied Territories).11
For example, in 1993—less than a year after the adoption of Basic Law: Hu-
man Dignity and Liberty—the Court upheld a decision by the government
to deport 415 Hamas activists to Lebanon without allowing the deportees
the right to a fair hearing and in spite of provisions of the fourth Geneva
Treaty that explicitly prohibit any kind of collective deportation from mili-
tary occupied territories.12 In a series of rulings in the mid-1990s, the SCI
drew on the legal concept of necessity to uphold the legality of inhumane
treatment and systematic torture of Palestinian detainees by the Israeli secu-
rity services.13
The notion that fundamental due process and privacy guarantees ought to
 Constitutionalization and Judicial Interpretation of Rights 111

be respected even in situations involving national security concerns, how-

ever, has gradually established itself in SCI jurisprudence. In the 1999 GSS
(General Security Service) case—one of the SCI’s most important rulings over
the past decade—the Court relied upon Basic Law: Human Dignity and Lib-
erty (specifically section 4, which reads, “All persons are entitled to protec-
tion of their life, body and dignity” and section 5, which protects personal
freedom) to outlaw the use of “moderate physical pressure” on Arab-Israeli
and Palestinian detainees by the GSS.14 Upholding the justiciability of na-
tional security matters, the Court stated that every administrative authority
(including the GSS) wishing to interrogate a person must do so lawfully, un-
der statutory provisions.15 As there was no provision under current Israeli
law regulating the GSS’s operation, let alone authorizing its interrogators to
use special investigative powers (including the exercise of physical force),
the Court effectively turned the problem over to the Israeli legislature and
set out the task of authorizing GSS interrogations (by enacting a law that
would withstand the provisions of both the Basic Law and the Court’s re-
view). The Court added that a “reasonable investigation,” even under cir-
cumstances of crucial national security needs, was an investigation without
torture or the use of cruel, inhumane, and degrading treatment of the sus-
pect. This landmark ruling marked a de jure termination of the systematic
use of various techniques of torture on Arab-Israeli and Palestinian detain-
ees. Protecting the detainees’ private sphere (namely, their physical auton-
omy) was one of the major moral principles upon which the Court’s deci-
sion was based.
In a similar spirit, the Court ordered the Israeli security services to cur-
tail its use of the “administrative detention” procedure, whereby suspected
members of outlawed political and paramilitary organizations (primarily in
the Occupied Territories) were detained for months, and in some cases even
years, by the Israeli security services without trial or any other basic feature
of legal due process. Following this ruling, the SCI went on to order the im-
mediate release of several Lebanese citizens who had been detained in Israel
without trial or any other legal rights since 1987. (These detainees were be-
ing held as potential “bargaining chips” for future negotiations with funda-
mentalist Islamic groups in Lebanon.)16
The high point of this line of fairly progressive due process jurisprudence
was reached in late 1999, when a special bench of eleven Supreme Court
judges delivered a key decision striking down an expansive provision in the
Military Justice Law. Under this provision a soldier could be detained and
112 Constitutionalization and Judicial Interpretation of Rights

held under investigation by the military police for up to ninety-six hours

prior to being brought before a military judge. By a majority of 10 to 1, the
Court held that this provision conflicted with Basic Law: Human Dignity
and Liberty, as it infringed upon personal freedom in an unreasonable man-
ner. The right to personal freedom, the Court ruled,

[i]s not an “ordinary” constitutional right, but rather a constitutional right

of the first rank. It is a precondition for the implementation of other basic
rights . . . Detention by an administrative authority is the harshest impedi-
ment upon personal freedom . . . As opposed to imprisonment, is not im-
posed by court and is not based on judicial proceedings as a punishment for
the commission of an offence. Detention is imposed on a person at a time
when he is presumed innocent and on the basis of suspicion alone.17

Criminal due process cases are even more prominent in New Zealand.
The most influential and frequently cited NZBORA cases involve the crimi-
nal justice system, particularly regarding issues surrounding the right to le-
gal counsel; questions of arrest and detention, search and seizure, and ad-
missibility of evidence; and the right to a fair trial, including the right to be
tried without undue delay (sections 21–25).18 In the Kirifi and Butcher cases,
the Court of Appeal established the right to legal counsel.19 In the Noort
case, which dealt with the right to legal counsel before the administration
of breath/blood-alcohol tests, the NZCA further elevated the right to legal
counsel to the landmark status of a prime constitutional right.20 In Goodwin,
Te-Kira, and Pratt, the Court ruled that incriminating evidence is presum-
ably inadmissible unless the trial judge is satisfied that it is “fair and right” to
allow it.21 Other frequently cited NZBORA cases are Jefferies, R v. A, and
Grayson, which were based on section 21 of the NZBORA and established
strict limitations on the admissibility of evidence obtained by the police
in breaches of personal privacy through unreasonable search and seizure.22
In the Martin case, the Court of Appeal held that the accused’s trial was to
be thrown out for unreasonable delay attributable solely to prosecutorial in-
action.23 As we have seen in earlier chapters, the NZCA recently went on
to virtually repeal legislation that retrospectively increased the minimum
nonparole imprisonment period for murder.24
The NZCA’s ruling in the often-cited Simpson v. Attorney General deci-
sion (also known as Baigent’s case) demonstrates how the right to privacy and
criminal due process became constitutional rights after the enactment of the
NZBORA.25 In this case, which establishes one of the most important prece-
 Constitutionalization and Judicial Interpretation of Rights 113

dents proceeding from the Bill of Rights, a search warrant mistakenly identi-
fied Mrs. Baigent’s address as that of a suspected drug dealer. The police con-
stables were explicitly told by the Baigent family that they had the wrong
address and were also served a notice to this effect by Mrs. Baigent’s daugh-
ter, a barrister. Despite these warnings, the officers proceeded with their
search but found nothing incriminating. Mrs. Baigent then sued the Attor-
ney-General and the police with several causes of action, including a breach
of the NZBORA. The Court held that the officers had persisted unreasonably
and in bad faith with their search, even when they knew or ought to have
known that they had the wrong address. As redress, the Court ordered that
Mrs. Baigent be financially compensated for her distress.26 Baigent’s case thus
established a new public law remedy of monetary compensation from the
state for breach of privacy in relation to the legal rights protected by the
NZBORA.
Criminal due process constitutional rights jurisprudence is also prominent
in South Africa. In its historical judgment in the Zuma case—the first judg-
ment delivered by the South African Constitutional Court (SACC) after its
inauguration by President Nelson Mandela in February 1995—the Court
ruled that the new constitutional provisions concerning criminal due pro-
cess place a burden on the prosecution to prove that any confession on
which it wishes to rely was freely and voluntarily made.27 The practical
meaning of the Court’s decision in Zuma is that the state generally bears the
onus of proof in a criminal case. In two subsequent landmark decisions, the
Constitutional Court abolished capital punishment (Makwanyane) and out-
lawed corporal punishment, including juvenile whipping (Williams), as in-
human and degrading methods of punishment.28 Recently, the SACC ex-
tended the scope of its anti–capital punishment jurisprudence by holding
that no person residing in South Africa (including illegal aliens) may be
deported or extradited, with or without consent, to face capital charges in
another country without a safeguard granted by that country’s legal author-
ities against the death sentence.29 Similarly, the Court reaffirmed the uncon-
stitutionality of corporal punishment in the face of claims to religious free-
dom. It declared that outlawing such measures did not infringe upon the
right to freedom of religion for parents who had, in line with their religious
convictions, consented to what they termed the “corporal correction” of
their children by teachers in private denominational schools.30
In a series of landmark rulings over the past seven years, the SACC has
declared unconstitutional numerous criminal code and criminal procedure
114 Constitutionalization and Judicial Interpretation of Rights

provisions that imposed a “reverse onus” on the accused to prove his or her
innocence.31 These provisions were held to infringe upon the constitutional
right of an accused person to be presumed innocent. The SACC also recog-
nized the right of the accused to be tried within a reasonable time (Sander-
son); established the right to legal representation (Vermaas); defended the
right of the accused to access relevant police documents and to consult state
witnesses (Shabalala);32 and held that an indeterminate sentence imposed
on habitual criminals amounted to a cruel, unusual, and inhuman punish-
ment.33 Recently, the Court went on to establish an unconditional right to
appeal to a higher court any criminal conviction involving imprisonment.34
Finally, in the Motloutsi and Mistry cases, the Court established strict limita-
tions on the admissibility of evidence obtained by the police in breach of
personal privacy through unreasonable search and seizure,35 and declared
unconstitutional a law that empowered Ministry of Health inspectors to en-
ter and search premises and to seize and remove medicines from those
premises without a warrant.36
The list of important Canadian criminal due process cases is too long to re-
produce here.37 It is clear, however, that the significance of legal rights litiga-
tion extends far beyond the mere fact of their prevalence. Perhaps the best
example of the prominence of cases involving Charter-based due process
provisions on the SCC agenda can be seen in the Singh case (1985)—one of
the first Charter of Rights rulings issued by the SCC.38 At issue was Mr.
Singh’s claim that the procedures under the Immigration Act—the absence
of a right to a hearing to determine whether a person was entitled to stay in
Canada as a political refugee—violated section 7 of the Charter of Rights
(which protects the “right to life, liberty, and security of the person”). In a
landmark ruling, the SCC held that section 7 of the Charter required that
government procedures depriving persons of their life, liberty, or security be
procedurally fair. Some justices went on to declare that the due process
protections afforded by section 7 extended to “every human being who is
physically present in Canada.”39
Consider also the SCC ruling in Askov (1990), which dealt with the right to
be tried within a reasonable time.40 Here, the Court found a twenty-three-
month delay between committal and trial to be unreasonable and went on
to define a reasonable time lag between committal and trial as one not ex-
ceeding six to eight months. In a few later rulings the Court softened the
Askov guidelines to reflect more closely the realities of Canada’s criminal jus-
tice system. Nonetheless, the expansive interpretation in Askov of the right
 Constitutionalization and Judicial Interpretation of Rights 115

to be tried within a reasonable time has had far-reaching consequences over

the past decade on the granting of stay or withdrawal of unreasonably over-
due criminal charges.
An important and less frequently discussed example of the Charter’s im-
pact on criminal due process is the Stinchcombe case (1991), which dealt with
disclosure of evidence in criminal trials.41 An Alberta lawyer was charged
with breach of trust. During the police investigation, his secretary said things
that were beneficial to his case. However, she refused to speak to his lawyer.
The prosecution did not pass her comments along to the defense, as the
prosecution did not want the evidence to be heard in court. Knowing that
her remarks might assist the accused, the defense complained. The dispute
reached the SCC, which in a unanimous decision ruled that based on the
right to fair trial as well as the right of the accused “to present full answer
and defense” the prosecution must disclose all “relevant information” in its
possession (the content of which is subject to review by the trial judge),
even at the expense of significantly eroding the chances of obtaining a con-
viction.
Over the past two decades, the SCC has persistently fortified the status
of procedural rights, not only by protecting Charter-based due process rights
of people such as Mr. Singh, Mr. Stinchcombe, and Mr. Askov, but also by
acquitting defendants whose guilt was likely to be otherwise proven, but
whose cases involved a procedural error either during their investigation or
trial in the lower courts. Over the past decade alone, there were acquittals of
this nature for cases ranging from tax evasion, racketeering, and financial
misconduct to murder, manslaughter, sexual assault on children, rape, rob-
bery, and the importation of heroin.42 In a similar spirit, the SCC has sig-
nificantly expanded the purview of solicitor-client privilege (which accord-
ing to Chief Justice Beverley McLachlin is nothing short of “a principle of
fundamental justice and a civil right of supreme importance in Canadian
law”)43 and has recently started to block the extradition of Canadian resi-
dents facing serious criminal charges in foreign jurisdictions when applica-
tion at trial of reasonable procedural fairness standards is in doubt.44
The Feeney case illustrates the generous interpretation of procedural due
process rights guaranteed by the Charter in the SCC.45 In this case, a police
officer investigating a murder knocked on the door of Mr. Feeney’s place
of residence (an equipment trailer) and then entered. Finding Mr. Feeney
asleep, the officer woke him up and found bloodstains on his shirt. The po-
lice officer seized the shirt and took Mr. Feeney to a local police detachment
116 Constitutionalization and Judicial Interpretation of Rights

for further questioning. The officer had no warrant, and Mr. Feeney had no
lawyer. Based on the interrogation, a warrant to search the trailer was ob-
tained and additional incriminating evidence was found there the following
day. At the trial, the evidence against Mr. Feeney was admitted, and he was
declared guilty of second-degree murder. But Mr. Feeney appealed, citing
the Charter, claiming both unreasonable search and seizure and that he had
not been adequately advised of his right to counsel. In a split decision, the
Court ruled that “arrests made in private dwellings must be carried out
with respect for individual rights and especially the right to be secure against
unreasonable search and seizures.” Moreover, the Court ruled that when
the officer touched Mr. Feeney’s leg and ordered him to get out of bed,
Mr. Feeney’s Charter rights to retain and instruct counsel without delay
were engaged. The Court then applied the standard remedy prescribed by
the Charter for such violations and excluded the improperly attained evi-
dence—thereby overturning Mr. Feeney’s conviction.46
The trend toward a generous interpretation of procedural rights in re-
cent Canadian constitutional jurisprudence has led to other problematic
outcomes. Consider, for example, the SCC’s decision in the Seaboyer case
(1991). Section 276(1) of the Canadian Criminal Code prohibited the intro-
duction of evidence in sexual assault trials that “concern[ed] the sexual
activity of the complainant with any person other than the accused.” It
had been enacted in response to strong lobbying by women’s organizations,
which criticized common law rules permitting evidence of past sexual his-
tory on the grounds that such evidence had little probative value, led to bi-
ased and irrelevant moral judgment of the victim, and discouraged women
from reporting sexual assault because of the ordeal of being cross-examined
on their past sexual histories. Nonetheless, in Seaboyer the SCC struck down
section 276(1) on the basis that it violated the accused’s right, protected by
section 7 of the Charter, to present a full answer and defense to a charge.47
Using the same rationale, in the O’Connor case (1995) the Court struck
down restrictions on the accused’s access to the complainant’s private and
confidential counseling records in rape and sexual assault cases.48 The gov-
ernment reacted by enacting Bill C-46, which responds to the minority
opinion in O’Connor to reintroduce legislative restrictions on judicial and de-
fense access to a complainant’s private counseling records in sexual violence
cases. In its recent decision in the Mills case (1999), the Court upheld the
constitutionality of Bill C-46, giving precedence to the complainant’s consti-
tutional right to privacy over the accused’s constitutional right to present a
 Constitutionalization and Judicial Interpretation of Rights 117

full answer and defense to a charge.49 In other words, the right of the ac-
cused to a fair trial (procedural equality) was limited only in the interests of
protecting the right to privacy of other right bearers. Moreover, it was only
under immense political pressure from the federal government and feminist
activists that the Court overruled its highly controversial decision in the
O’Connor case.
Consider also the recent New Zealand Court of Appeal ruling in R v. M,
where the accused was charged with severe sexual assault on a woman who
visited New Zealand as a tourist. The alleged perpetrator was acquitted by
the Court merely because the victim refused to return to New Zealand for
the trial.50 In the victim’s country of origin, any female subjected to sexual
assault is ostracized; the victim thus feared that her return to New Zealand
would be questioned by her family and her experience subsequently discov-
ered. The Court noted that the alleged perpetrator would probably have
been convicted had the victim agreed to return to New Zealand. However,
the Court held that due weight should be given to the fundamental impor-
tance of the NZBORA guarantees of fair trial and the right to cross-examina-
tion of witnesses. In a similar vein, the NZCA ruled in another recent case (R.
v. T) that a blood sample that enabled positive DNA identification of an al-
leged perpetrator of rape of a severely handicapped woman had not been
taken in compliance with the Criminal Investigations (Blood Samples) Act
1995. Since it infringed upon the accused’s constitutional right to fair trial as
protected by the NZBORA, it was deemed inadmissible.51
Such potentially problematic decisions attributable to the prioritization
of procedural rights in constitutional rights jurisprudence are further illus-
trated in the SCC’s decision in the CIP case (1992).52 Here a company was
charged under occupational health and safety legislation with causing the
death of an employee and chose to invoke in its defense section 11(b) of the
Charter (the right to trial within a reasonable time). As a result, the trial was
adjourned several times for administrative reasons, and the case reached the
SCC almost two years after the charge was initially laid. The Court eventu-
ally decided that section 11(b) protected corporations as well as human be-
ings and that the delay in trial constituted a violation of the corporation’s
section 11(b) right. According to Justice William Stevenson, the purpose of
that law was to ensure that the accused (whether human or corporate) had
access to a fair trial. Human rights provisions are, therefore, not limited to
human beings, but include corporate entities as well.
In sum, these examples indicate that the protection of formal procedural
118 Constitutionalization and Judicial Interpretation of Rights

rights has become the signal triumph of constitutional rights adjudication

in all four countries. The effects of the new constitutional catalogues of
rights in Canada, Israel, New Zealand, and South Africa on the laws govern-
ing due process have been profound. The constitutionalization of rights in
these countries brought their respective national high courts into the heart
of debates about criminal justice, personal freedom, and human dignity. In
some matters, the four national high courts have followed, and sometimes
gone beyond, the U.S. Supreme Court in their interpretations of constitu-
tional standards governing search and seizure, inadmissibility of evidence,
the right to counsel and to speedy trial, and the like. However, the generous
interpretation given to due process constitutional provisions has not always
resulted in better judicial protection for vulnerable groups and individuals.
As some of the examples illustrate, courts may draw on due process consti-
tutional provisions to disallow legislative initiatives designed to protect vic-
tims of severe criminal offenses in the name of granting a moral priority and
an elevated constitutional status to due process rights. In other words, the
generous interpretation of due process rights has often overshadowed other,
equally important values.

Demarcating the Private Sphere

All four national high courts have drawn on the new constitutional rights
framework to issue a series of groundbreaking rulings that fortify and ex-
pand the boundaries of the private sphere in the context of freedom of ex-
pression and religion, freedom of movement, the right to privacy (including
reproductive freedom), and formal equality. Whereas the practical results of
some of these decisions may be contested on principled or consequentialist
grounds, most of these rulings reflect a deep judicial commitment to a small-
government worldview. Consider the following illustrations of the prevalent
“negative liberty” quality of several milestone judgments concerning free-
dom of expression and freedom from discrimination on the basis of sexual
preference.
From Texas v. Johnson to R.A.V. v. City of St. Paul, the concept of “con-
tent neutrality” has traditionally enjoyed a near-mythological status in
American freedom of expression jurisprudence.53 While the SCC’s adoption
of the “content neutrality” doctrine in freedom of expression cases has not
been as firm as the U.S. Supreme Court’s stance, it would be fair to say
that disseminators of hate propaganda, for example, have done quite well
 Constitutionalization and Judicial Interpretation of Rights 119

in Canada. Mr. Keegstra, for one, taught his Alberta high school students
that “Jewish people [were] evil, sadistic, money-loving child killers who
caused the world’s ills, sought to destroy Christianity, and fabricated the Ho-
locaust.” He was charged under the Criminal Code for “promoting hatred
against a section of the public distinguished by religion and ethnic origin.”
The Court found that Keegstra’s speech was indeed “invidious and obnox-
ious,” but that this was not reason to deny it protection under the Charter’s
freedom of expression provision.54 The Court wrote, “The content of a state-
ment cannot deprive it of the protection accorded by s. 2(b), no matter
how offensive it may be.” It further held that this section protected all mes-
sages, “however unpopular, distasteful or contrary to the mainstream.” The
Court thus found that the Criminal Code’s restrictions on hate speech, un-
der which Keegstra had been charged, limited his freedom of expression.
However, in a 4–3 decision, the Court ruled that the limit was justified un-
der the criteria set by section 1 and by the Oakes test and that the provisions
should therefore stand.
But even section 1 could not block Ernst Zundel, one of the world’s lead-
ing producers of Holocaust denial literature, from disseminating his neo-
Nazi hate propaganda. Mr. Zundel was charged under another section of the
Canadian Criminal Code for publishing a booklet entitled “Did Six Million
Really Die?” the central thesis of which was that the Nazis did not kill six
million Jewish people and that dissemination of this supposed fallacy was
part of a worldwide Jewish conspiracy. False news, such as hate literature,
might be undesirable or even harmful in some cases, the Court held in 1992,
but that was not sufficient reason to deny it prima facie protection as a form
of expression.55 Unlike its decision in Keegstra, however, the Court ruled that
the law restricting false news was too broad in its scope; it did not specify
any particular type of statement or harm to the public interest, and therefore
did not meet the standards set by the Oakes test.
The SCC employed a similar balancing approach in another controversial
freedom of expression case—R v. Sharpe (2001).56 Mr. Sharpe was charged
under the Criminal Code with two counts of possession of child pornogra-
phy and two counts of possession of child pornography for the purposes of
distribution and sale. Sharpe argued that the provisions under which he was
charged infringed upon his constitutionally entrenched right to freedom of
expression. The Crown conceded that the relevant provisions infringed sec-
tion 2(b) of the Canadian Charter of Rights and Freedoms but argued that
the infringement was justifiable under section 1 of the Charter. The Court
120 Constitutionalization and Judicial Interpretation of Rights

ruled that, taken as a whole, the said provisions reflected an appropriate bal-
ance between the potential harm to children and (pedophiles’) right to free
expression and should therefore be upheld. However, the Court added that
when child pornography is created, depicted, and held by the accused alone
and intended exclusively for personal use, it might be allowed as it poses rel-
atively little harm to children. To this extent, held the Court, the law ban-
ning the creation and possession of child pornography was disproportionate
in its effects, and the infringement of freedom of expression could not be
justified by section 1.
In the same spirit, the SCC has expanded the ambit of the Charter’s free-
dom of expression provision to protect commercial speech. A clear illustra-
tion of this trend can be seen in the SCC’s ruling in RJR MacDonald.57 At issue
was a governmental act that prohibited the advertising and promotion of to-
bacco products offered for sale in Canada and that required manufacturers
to add to their packaging an unattributed warning about the dangers of
smoking. Two tobacco companies successfully challenged the act in the Su-
preme Court, arguing that it was inconsistent with their right to freedom of
expression under section 2(b) of the Charter. The Court accepted the to-
bacco companies’ claim that the Charter’s freedom of expression provisions
protected commercial speech and defied, in principle, unreasonable regula-
tory consumer protection measures. In balancing the government’s duty to
protect the public health against the tobacco companies’ right to freedom of
expression, the Court held that the act was not “the least drastic means” for
accomplishing the objective of reducing the consumption of tobacco prod-
ucts. The Court also noted that when it came to regulation of commercial
speech, freedom of expression should be understood as entailing not just the
right to express one’s own ideas, but also the right not to speak and not to be
required to communicate someone else’s message (even when this “some-
one else” is a government whose concern is public health).
Like its Canadian counterpart, the NZCA has drawn on privacy and free-
dom of expression provisions of the NZBORA to minimize government cen-
sorship on sexually explicit expression. In 1999, for example, New Zealand’s
Customs submitted to the Board of Film and Literature Review two publica-
tions, the property of Mr. G. A. Moonen, featuring detailed descriptions of
sexual activity between men and boys as well as numerous photographs of
naked children, mostly boys. The board classified the said publications as
“objectionable” on the ground that they “tended to promote or exploit sex-
ual activity with young boys.”58 Accordingly, it became an offense to pos-
 Constitutionalization and Judicial Interpretation of Rights 121

sess the two publications. Mr. Moonen appealed the classification, contend-
ing that the board had failed to apply the NZBORA’s application and freedom
of expression provisions. The NZCA accepted Moonen’s argument and
held that the NZBORA’s freedom of expression provisions prevailed over the
Classification Act, that the board had not given due consideration to the pro-
visions of the Bill of Rights in interpreting the Classification Act, and that the
board’s classifications should impinge as little as possible on freedom of ex-
pression.
Several months later, the Board of Film and Literature Review again clas-
sified as “objectionable” two videos made by a fundamentalist Christian
production company in the United States and imported to New Zealand. The
videos portrayed homosexual relations as morally wrong and sinful, and
called for abstinence, not “safe sex,” as the appropriate public health re-
sponse to the world’s HIV/AIDS crisis. In its decision, the board stated that
the videos deliberately disseminated misinformation concerning homosexu-
ality and AIDS. The importer of the videos appealed the board’s ruling to the
High Court in Wellington and later to the NZCA.59 Applying its earlier ruling
in Moonen, the NZCA overturned the films’ classification as objectionable
and held that the NZBORA must be brought to bear in censorship decisions.
The Court stated, “The Bill of Rights was a limitation on governmental, not
private conduct. The balancing required under the [Classification] Act had
to take into account the right to freely impart and receive information under
section 14 of the New Zealand Bill of Rights Act 1990.”60
Applying similar reasoning, the South African Constitutional Court held
unconstitutional restrictions on the possession and dissemination of sexu-
ally explicit material. Until 1997, for example, section 2(1) of the Indecent
or Obscene Pornographic Matter Act prohibited the possession of indecent
or obscene pornographic material, which was defined to include photo-
graphic matter “depicting, displaying, exhibiting, manifesting, portraying, or
representing sexual intercourse, licentiousness, lust, homosexuality, lesbi-
anism, masturbation, sexual assault, rape, sodomy, masochism, sadism, sex-
ual bestiality, or anything of a like nature.” In Case (1996), the SACC found
that prohibiting possession of such material was far too broad, thereby con-
stituting an unreasonable invasion of personal privacy protected by section
13 of the Constitution.61 So widely had the act been framed that it covered
“reproductions of not a few famous works of art, ancient and modern, that
are publicly displayed and can readily be viewed in major galleries of the
world.” The minority judgment went a step further by holding that sexually
122 Constitutionalization and Judicial Interpretation of Rights

explicit expression was protected by the Constitution’s guarantee of freedom

of expression and that freedom of expression includes the right to “receive,
hold, and consume expression transmitted by others.”
The SACC went on to further fortify the status of the right to freedom of
expression in a recent high-profile case involving allegedly offensive anti-
Jewish statements broadcasted by a community radio station owned by the
Islamic Unity Convention (IUC). Jewish organizations filed a complaint that
led to an inquiry by the Independent Broadcasting Authority. The dispute
eventually reached the SACC.62 The Court declared unconstitutional a code
of conduct provision that allowed the Independent Broadcasting Authority
to prohibit the broadcasting of material “that is likely to prejudice relations
between sections of the population.” The prohibition was too sweeping and
intrusive, held the Court. It was not sufficiently detailed to guide broadcast-
ers in what they may or may not broadcast and therefore unreasonably in-
fringed upon the right to free expression.
A less obvious illustration of the deep judicial commitment to a negative-
liberty, small-government worldview is the spate of fairly progressive judg-
ments in Canada, Israel, New Zealand, and South Africa dealing with the di-
visive issue of discrimination on the grounds of sexual preference. Amidst
protest from vocal conservative and religious circles, all four national high
courts have drawn on new constitutional rights legislation to elevate sexual
preference to the status of “suspect category” in antidiscrimination claims.
The result has been that sexual preference now enjoys a status similar to
that of gender or ethnic origin in judicial scrutiny of apparently discriminat-
ing polities. In three landmark rulings in the 1990s, the SCC significantly ex-
panded the recognition accorded to sexual preference as a legitimate basis
for right to privacy and antidiscrimination/formal equality of opportunity
claims. In Egan (1995), the Court held that a law defining “spouse” so as
to exclude homosexual couples unfairly discriminated against homosexu-
als and therefore violated the Charter’s equality rights provisions (section
15).63 It then went on to hold in Vriend (1998) that Alberta’s Individual
Rights Protection Act contravened the Charter because it failed to include
sexual orientation as a prohibited ground of discrimination and ordered
that the words “sexual orientation” be read into the act, effectively expand-
ing its scope to cover lesbians and gay men.64 The de facto meaning of this
decision is that the state has an obligation to enact human rights legislation
that is broad enough to allow rights claims to be made concerning discrimi-
nation based on sexual orientation. In 1999, the SCC went on to hold that
 Constitutionalization and Judicial Interpretation of Rights 123

section 15(1) of the Charter entitled same-sex couples to sue for spousal
support on the same basis as common-law opposite-sex couples (M v. H).65
The Court’s decision in M v. H triggered the adoption of comprehensive leg-
islative amendments to over sixty federal statutes to extend benefits and ob-
ligations to same-sex couples in a wide variety of arenas.66
Similarly, the SCI ruled in El Al Airlines Ltd. v. Danilowitch (1994) that
the spouse of a homosexual steward at El Al Airlines was entitled to the
same benefits as the spouse of a heterosexual steward based on the right to
equal treatment implicit in section 1 of Basic Law: Human Dignity and Lib-
erty.67 A few years later, in the widely publicized Open Cards affair (1997),
the Court ordered the Education Minister to allow the airing of a television
program dealing with homosexual teenagers.68 On the program, part of Ed-
ucation TV’s Open Cards series, homosexual teens and the mother of a homo-
sexual boy told their stories to a teenage audience, followed by questions
and comments from the audience. The Minister of Education (Zvulun Ham-
mer, then the leader of the National Religious Party) delayed the broadcast,
as he considered its message immoral and inappropriate for an educational
medium. Following a petition by the Association for Civil Rights in Israel
(ACRI), in conjunction with the Lesbian Feminist Community and the Asso-
ciation for the Protection of Individual Rights of Homosexuals, Lesbians, and
Bisexuals in Israel, the Court held that homosexuality per se should not be
considered a “deviation” to be fought. The Court also pointed out that “edu-
cation” is a broad concept that certainly did not exclude the broadcasting of
the said program on Education TV.
In another high-profile decision concerning sexual preference released in
2000, the SCI held that the sameness principle holds not only in the employ-
ment arena but also in other social settings, including the family. Here, the
Court ordered the Population Administration to register a lesbian woman as
the adoptive mother of the son of her same-sex common-law spouse. Al-
though this decision was determined on the basis of a technical argument
(the couple already held a valid adoption order issued by a California court),
it implicitly expanded the sameness/formal equality argument to include
recognition of same-sex couples’ family-related rights.69
The NZCA also made a significant step in this direction. In its recent land-
mark ruling in the Quilter case (1998), for example, the Court ruled that the
exclusion of gay and lesbian couples from the status of marriage under the
Marriage Act 1955 is discriminatory and contradicts the NZBORA’s equality
rights provision.70 The SACC followed suit in its landmark 1998 decision in
124 Constitutionalization and Judicial Interpretation of Rights

the National Coalition for Gay and Lesbian Equality case. Here, sodomy laws
that criminalized private sexual conduct between consenting adults even
where it causes no harm to anyone else and a 1957 act that prohibited sex-
ual conduct between men in certain circumstances were declared to be in-
consistent with the equality rights provisions of the SABOR and discrimina-
tory against men in general and homosexual men in particular.71 The Court
also noted that such sodomy laws intruded upon the innermost sphere of
human life and therefore constituted a severe violation of the constitutional
right to privacy. In a 1999 judgment, the Constitutional Court further ex-
panded its interpretation of equality rights provisions pertaining to sexual
orientation by ruling that foreign same-sex partners of permanent South Af-
rican residents should be entitled to the same immigration and residence
rights as marital partners of heterosexual South African residents.72
In three recent judgments, the SACC continued this thread of progressive
rulings pertaining to sexual orientation. In the Satchwell cases (2002–2003),
the Court held unconstitutional sections of the Judges Remuneration and
Conditions Act that gave benefits to the spouses of heterosexual married
judges but not to same-sex life partners of judges.73 Drawing on section 9(3)
of the Constitution (prohibits unfair discrimination on the grounds of sexual
orientation and marital status) the SACC held that the pertinent provisions
should be read as according equal provision of benefits to same-sex life part-
ners of public service employees who have undertaken reciprocal duties of
support. In its unanimous ruling in Du Toit (2002), the Court went on to
hold unconstitutional statutory provisions that confined joint adoption of
children to married couples, thereby denying same-sex couples joint cus-
tody and guardianship rights.74 The restriction of joint adoption to married
couples, held the Court, constituted impermissible discrimination on the
grounds of sexual orientation and marital status.75 Finally, in J and B (2003),
the Court confirmed that section 5 of the Children’s Status Act (provides
that where a heterosexual married couple use the sperm or ovum of another
person to conceive a child through artificial insemination, that child will be
considered the legitimate child of the married couple) was inconsistent with
the Constitution’s equality rights guarantees.76 The Court ordered that the
section be read to provide the same status to children born from artificial in-
semination to same-sex permanent life partners as it provides to such chil-
dren born to heterosexual married couples.
The SCC’s decisions in the Vriend and M. v. H cases, those of the SACC in
Du Toit and in the two National Coalition for Gay and Lesbian Equality cases, as
 Constitutionalization and Judicial Interpretation of Rights 125

well as the NZCA’s ruling in Quilter and SCI’s decision in Danilowitch repre-
sent historic landmarks in these countries’ gay and lesbian communities’
continuing fight for recognition and equal treatment under the law.77 How-
ever, a closer look at these progressive rulings suggests that these decisions
fit a preexisting pattern of protecting negative liberties simply by redefin-
ing an individual’s sexual preference as an extension of his or her private
sphere. The conduct in question should therefore enjoy the same protection
from the public, the state, or an employer as any other personal trait.
While these landmark judgments have been crucial in enhancing the ev-
eryday lives of millions of historically discriminated-against people, the es-
tablishment of the “sameness” principle in the realm of sexual orientation
simply expands the scope of personal characteristics that ought to be recog-
nized as belonging to one’s protected private sphere. The outcome is that
sexual orientation, along with other personal characteristics, cannot serve as
the basis for differential treatment by the state and its organs.

Subsistence Social and Economic Rights

Subsistence social and economic rights (such as the right to basic health
care, housing, education, social security and welfare, and an adequate stan-
dard of living) stem from the universal right to services meeting basic hu-
man needs. It is generally agreed that the meaningful provision of such
rights requires the state to act positively to promote the well-being of its citi-
zens rather than merely refraining from acting.
Conservative and libertarian constitutional theorists argue that positive,
second generation social and economic rights are not really human rights
at all because they are not universal, paramount, or categorical; they are
impracticable and too expensive; and, most important, they imply a funda-
mental redistribution of goods, which ignores the fact that people may
already have property rights over resources that would have to be redistrib-
uted. Prominent liberal constitutionalists, such as Ronald Dworkin and
Michael Zander, argue on consequentialist grounds that economic, social,
and cultural rights have no place in constitutional catalogues of rights. Ac-
cording to these scholars, agreement on an appropriate and conclusive list of
second and third generation rights would be impossible, because people
would inevitably define positive entitlements that are in reality of different
orders (for example, subsistence rights versus expensive taste) as equally es-
sential to living a healthy and decent life.
126 Constitutionalization and Judicial Interpretation of Rights

Proponents of positive and collective rights provide at least two convinc-

ing counterarguments: the egalitarian principle argument and the basic needs
argument. According to the egalitarian principle argument, no person
should be worse off than others for arbitrary reasons that are beyond his or
her control (such as race, gender, genetic features, and in some cases resi-
dence). In order to neutralize the impact of brute luck, egalitarians argue,
the polity as a whole (through its local, national, or global governing bodies)
bears a moral and practical responsibility for providing the arbitrarily de-
prived groups and individuals with the material means for pursuing a decent
life. At the very least, arbitrarily disenfranchised groups and individuals hold
a positive right against the state requiring that steps be taken so that living a
decent life becomes a realistic possibility for all members of the polity. The
basic needs argument suggests in a nutshell that no one can fully enjoy or
exercise any classic negative right (for example, freedom of expression or
the right to property) in any meaningful way if he or she lacks the essentials
for a healthy and decent life in the first place. According to this argument,
basic needs, such as access to food and safe water, basic housing, education,
and health care, are both morally and practically more fundamental than
any given classic negative right.78 Likewise, the “capabilities approach” (an
approach to quality-of-life assessment pioneered within economics by Nobel
laureate Amartya Sen and later adopted by the highly influential “Human
Development Report” of the United Nations Human Development Program,
or UNDP)79 also stresses one’s ability to live a decent life, to be adequately
nourished, and to have access to health care and shelter as essential precon-
ditions to the enjoinment of any other rights and freedoms.80
Indeed, such subsistence social and economic rights are recognized in the
Universal Declaration of Human Rights (1948) and protected by a wide
range of international, regional, and specialized human rights conventions.
Such rights feature in a large number of national constitutions. The recogni-
tion of poverty and socioeconomic living conditions as a “suspect category”
in equality rights cases and the struggle to include positive entitlements to
subsistence social welfare within the scope of constitutional rights provi-
sions is far from sinking into constitutional oblivion in countries such as In-
dia, Belgium, and Portugal.81 Moreover, subsistence social and economic
rights enjoy wide acceptance, as practically applied by the International
Covenant on Economic and Social Rights, the Conventions and Recommen-
dations of the International Labour Organization, the European Social Char-
ter of the Council of Europe, and the European Community’s Charter of
Fundamental Social Rights, to name only a few examples.82
 Constitutionalization and Judicial Interpretation of Rights 127

Other critics argue that entrenching economic and social rights guaran-
tees through a constitutional catalogue of rights is inappropriate because
their enforcement through active judicial review would infringe on the sep-
aration of powers doctrine, a central tenet of democracy.83 In other words,
generous judicial interpretation of positive rights provisions entails deep ju-
dicial involvement in determining the allocation of society’s resources, a
task that ought to be reserved to other branches of government.
This formalistic argument, however, fails to address the counterargument
that effective distinction between negative rights and positive rights is
difficult to sustain, primarily because many rights traditionally labeled as
negative actually require some sort of public funding or state intervention.84
For example, the enforcement and preservation of property rights—a clas-
sic negative right—requires a detailed registration and protection apparatus
that has traditionally been sponsored by the state. And a full realization of
fundamental due process standards such as the right to counsel or the right
to be tried within reasonable time also requires significant public funding.
According to this view, many other seemingly negative rights would not ex-
ist if the government were unable to collect the taxes necessary to cod-
ify, protect, and enforce them. Therefore, the expenditure of collective re-
sources is required to protect both negative and positive rights.
True, the scope of resource redistribution necessary for funding property
registration or prison surveillance apparatuses is narrower than the large-
scale resource redistribution that may be required if we are to treat positive
subsistence entitlements seriously. However, if substantial public funding is
indeed a necessary precondition for protecting classic negative liberties as
well as basic subsistence rights, it is unclear why the constitutional en-
trenchment of the former type of rights is practically and morally superior to
the constitutional entrenchment of the latter type. Moreover, it is not clear
why we should assign the protection of negative rights to the justiciable
arena of the courts while leaving the protection and enforcement of positive
entitlements—such as the right to basic housing, education, health care, or
access to safe drinking water—to the exclusive discretion of legislatures and
executives.
However convincing the theoretical argument for rethinking the nega-
tive/positive rights division might be, courts and judges in the four new
constitutionalism polities examined in this study do not seem to accept its
fundamental logic. From provisions protecting the unqualified right to life
and to human dignity, to specific provisions protecting equality rights, sev-
eral sections of the constitutional catalogues of rights in Canada, New Zea-
128 Constitutionalization and Judicial Interpretation of Rights

land, and Israel can be interpreted by the national high courts of these coun-
tries as protecting fundamental subsistence social and economic rights. Such
positive rights, however, have been effectively deprived of their binding
force to the extent that they are not regarded by the high courts as essential
components of full citizenship. Unlike its counterparts, the South African
Constitutional Court seems to have contemplated its interpretive stand with
regard to the explicit recognition of certain social rights in the newly enacted
South African Bill of Rights.
While attempts to entrench social welfare rights have never gained politi-
cal momentum in its neighbor to the south, legislators and social rights ac-
tivists in Canada have attempted several times over the past two decades to
initiate the enactment of a complementary social charter explicitly requiring
the state to commit to basic health, education, and housing provisions. The
most important of these attempts was a “social union” provision included in
the Charlottetown Accord, which was defeated by a national referendum in
1992.85 At the same time, the SCC has rejected positive claims that would
have required the state to provide benefits to rights-holders, either directly
through a social program (for example, health care or unemployment bene-
fits) or indirectly, through social legislation that imposes obligations on pri-
vate actors (for example, minimum wage, pay equity, rent control). Accord-
ing to Chief Justice Antonio Lamer in Prosper (1994): “It would be a very big
step for this court to interpret the Charter in a manner which imposes a pos-
itive constitutional obligation on governments.”86 Social rights claimants
have repeatedly failed in their attempts to challenge the conception of the
state as leviathan embedded in the Court’s jurisprudence. Most of these at-
tempts have been based on the Charter’s equality rights (section 15). But in
its interpretation of this hotly contested section, the Court ruled that it “does
not provide for equality between individuals or groups within society in a
general or abstract sense, nor does it impose on individuals or groups an
obligation to accord equal treatment to others. It is concerned with the
application of the law.”87 Section 15 is thus confined to state action—“the
application of law”—and does not govern state inaction—for example, its
unwillingness to act to promote “equality between individuals or groups.”
Another example of the exclusion of social rights from the Charter is Finlay,
in which the Supreme Court held that the Canadian provinces “are not
obliged by the Charter or by any other constitutional document to provide a
minimum standard of welfare benefits equivalent to the basic requirements
of a person in need.”88
 Constitutionalization and Judicial Interpretation of Rights 129

In its recent ruling in the Gosselin case, the SCC went on to reject the argu-
ments of an unemployed Montrealer that section 7’s “right to security of the
person” prohibits cuts to welfare that deny recipients basic necessities and
that the Charter’s equality right provision entails substantive obligations to
provide adequately for disadvantaged groups relying on social assistance.89
By a 5–4 decision the Court held that the “right to security of the person”
does not guarantee an adequate level of social assistance by the state. In her
majority opinion, Chief Justice Beverley McLachlin stated:

The dominant strand of jurisprudence of s. 7 sees its purpose as protecting

life, liberty, and security of the person from deprivations that occur as a re-
sult of an individual’s interaction with the justice system and its administra-
tion . . . Thus far, the jurisprudence does not suggest that s. 7 places positive
obligations on the state. Rather, s. 7 has been interpreted as restricting the
state’s ability to deprive people of their right to life, liberty, and security of
the person . . . Although s. 45 [of the Quebec Charter of Human Rights and
Freedoms] requires the government to provide social assistance measures,
it places the adequacy of the particular measures adopted beyond the reach
of judicial review.

A somewhat different illustration of how positive duties are excluded

from the purview of the Canadian Charter’s equality rights provision is the
Adler affair.90 According to section 93(1) of the Constitution Act of 1867, the
provinces’ exclusive power to legislate with regard to education is subject to
a historical pact between Ontario and Quebec (reached prior to Canada’s
unification in 1867) whereby minority denominational schools at the time
of union were entitled to get funding from the provincial governments.
The practical implication of this provision has been that only Roman Catho-
lic schools in Ontario and Protestant schools in Quebec are entitled to get
public funding, as they were the only recognized minority denominational
schools in 1867. In 1996, the parents of children attending private Jewish
schools and independent Christian schools challenged Ontario’s education
funding scheme, which awards full funding only to private Catholic schools
(in addition to the entire secular public school system). The parents argued
that such a selective funding scheme violates their religious and equality
rights protected by the Charter and asked the Court to order the govern-
ment of Ontario to provide equal funding to non-Catholic denominational
schools. In rejecting the petitioners’ request, the SCC held that failure to
fund denominational schools not recognized by section 93 did not breach
130 Constitutionalization and Judicial Interpretation of Rights

the Charter’s freedom of religion or equality rights, as the original intent of

section 93(1) was to preserve the unique culture of Roman Catholics in On-
tario and Protestants in Quebec at the time of union. This provision, the
Court stated, is the product of a “historical compromise which was a crucial
step along the road leading to Confederation. Without this ‘solemn pact,’
there would have been no Confederation . . . Given that the appellants can-
not bring themselves within the terms of s. 93’s guarantees, they have no
claim to public funding for their schools.”91
Two interesting exceptions to the SCC’s narrow interpretation of positive
rights (at least at first glance) are Schachter (1992) and Eldridge (1997). In
Schachter, the Court held that the right in section 15(1) to equal benefit of
the law is a positive right, requiring “special considerations in the remedial
context.”92 In Eldridge, the Court interpreted section 15(1) as requiring the
state to ensure that disadvantaged members of society have the resources to
take full advantage of benefits provided by the government to the general
population.93 A closer look, however, reveals that in the specific circum-
stances of these two cases the Court was concerned only with imposing lim-
its on how the state can act if it decides to act. The decisions do not require
the state to act in the first place. In other words, the negative character of the
Charter’s equality rights remains largely unaltered in the wake of Schachter
and Eldridge.
Unlike the Canadian Charter, the new South African constitutional cata-
logue of rights explicitly protects positive social and economic rights, such as
the right to housing (section 26); the right to health care, food, water, and
social security (section 27); and the right to education (section 29). All of
these positive rights provisions, however, do not imply a right to housing,
health care, or education per se, but ensure only that reasonable measures
are taken by the state to make further housing, health care, and education
available and accessible. This construction of “weak” positive rights requires
the government to take reasonable measures, within its available resources,
to achieve the progressive realization of each of these rights by establishing
practicable programs of land reform, housing, education, and health care.
An understanding of the SACC’s interpretation of the constitutional pro-
visions protecting positive social rights requires a brief survey of the socio-
economic inequality in South Africa in the years preceding constitu-
tionalization. During the apartheid era, an intricate panoply of statutory
provisions divided the land of South Africa into zones of racial exclusivity,
whereby only 12.5 percent of the land was set aside for blacks (who com-
 Constitutionalization and Judicial Interpretation of Rights 131

prise about 70 percent of the South African population) while the remaining
87.5 percent of the land was set aside for the exclusive use of people classi-
fied as “other than Black.” The right of blacks to enter “white” urban areas
so as to take up employment was severely constrained. Pockets of urban
land were further demarcated for the exclusive ownership and occupation
of designated racial groups by the infamous Group Areas Act (which was en-
acted in 1966 and repealed in 1991). This land policy was implemented by
means of the forced and brutal relocation of about 3.5 million people from
the early 1960s to the mid-1980s.94 Furthermore, economic resources were
deliberately malapportioned through a program of institutionalized inequal-
ity that purchased the prosperity of whites at the expense of the vast major-
ity of black South Africans, who lived in abject misery. In 2001, ten years af-
ter the formal abolition of apartheid, the average disposable income of black
South Africans was 13 percent of whites’. In the same year, the average dis-
posable income of “coloreds” was 28 percent of whites’, and Asian dispos-
able income was 42 percent of whites’. This outrageously unequal distribu-
tion of wealth obstructs any meaningful attempt to establish social justice in
South Africa, and will continue to do so unless some sort of substantive re-
distribution scheme, imposing financial restitution for past wrongs and in-
creased public spending in order to ensure access to basic education, health
care, housing, and employment to all black South Africans, is adopted.
Recognizing the need to protect positive social rights, the Constitutional
Court in the Soobramoney case stated:

We live in a society in which there are great disparities in wealth. Millions

of people are living in deplorable conditions and in great poverty. There is a
high level of unemployment, inadequate social security, and many do not
have access to clean water or to adequate health services. These conditions
already existed when the Constitution was adopted and a commitment to
address them, and to transform our society into one in which there will be
human dignity, freedom and equality, lies at the heart of our new constitu-
tional order . . . This commitment is also reflected in various provisions of
the Bill of Rights and in particular in sections 26 and 27 which deal with
housing, health care, food, water, and social security.95

However, when the opportunity finally arose to go beyond abstract rhetoric

and expand the boundaries of state duty to include the provisions of basic
health care to all (an expansion that would have required the adoption of
resource redistribution), the Court was much less generous in its interpreta-
132 Constitutionalization and Judicial Interpretation of Rights

tion of the new positive rights provisions. In Soobramoney, the Court dis-
missed the appeal of a chronically ill patient who was refused admission to
the dialysis program of a state hospital. Mr. Soobramoney’s claim was based
on the unqualified right to life (section 11), and on the constitutional right
to health care (section 27), which, among other things, prohibits the refusal
of emergency medical treatment. The Court held that the right not to be re-
fused medical treatment means that a person who suffers a sudden catastro-
phe and requires immediate medical attention cannot be denied ambulance
or other emergency services. The Court also found that the KwaZulu-Natal
government did not have sufficient funds to cover the costs of long-term di-
alysis treatment and went on to uphold the hospital policy of admitting only
those patients who can be cured within a short period of time. In short, the
Court upheld the policy of subjecting positive rights to availability of re-
sources.
This narrow interpretation of positive rights provisions by the SACC is
further illustrated by the Gauteng School Education Bill case.96 In 1995, the
Gauteng provincial government drafted a school education bill. Among its
provisions were guarantees of negative liberties, such as freedom of religion
and conscience, including the right not to attend religious education classes
or engage in religious practices; but there were no guarantees of positive
rights. Members of the provincial parliament petitioned the Constitutional
Court to review these provisions, arguing that section 32(c) of the interim
Constitution, which protected minority education rights, imposed positive
obligations on the state to establish, where practicable, minority schools, not
merely to refrain from infringing on minority education rights. Dismissing
this claim, the Constitutional Court held that section 32(c) of the interim
Constitution did not place a positive duty on the state to establish minority
education institutions, but rather protected negative rights such as those
provided for by the Gauteng School Education Bill. It held also that the sec-
tion protected the right of an individual to establish and maintain minority
educational institutions. According to Chief Justice Ismail Mahomed, “s.
32(c) provides a defensive right to a person who seeks to establish minority
educational institutions, and it protects that right from invasion by the State,
without conferring on the State an obligation to establish such educational
institutions.”97
What appears to be a turning point in the SACC’s interpretation of posi-
tive rights provisions, however, is the Court’s recent ruling in the Grootboom
case—a landmark decision that dealt with the enforceability of social and
 Constitutionalization and Judicial Interpretation of Rights 133

economic rights and redefined the scope of the state’s obligations under sec-
tion 26 of South Africa’s Bill of Rights, which grants everyone the right to
adequate housing.98 A group of 900 homeless people living in dismal cir-
cumstances in Wallacedene, an informal and unrecognized settlement in the
Western Cape province, were granted the right not to be forcibly evacuated.
In a unanimous decision, written by Justice Zak Yacoob, the Court ordered
government authorities to refrain from bulldozing the settlement despite
the fact that it was formally unrecognized as a settlement. The Court went
on to note that the new South African Constitution obliges the state to
act positively to ameliorate the plight of the hundreds of thousands of South
Africans living in deplorable conditions throughout the country. The state
must also foster conditions that enable citizens to gain access to land on an
equitable basis. Having said that, the immediate practical outcome of the
case was essentially a call on the government to refrain from acting (bull-
dozing the unrecognized settlement), not a call to act. What is more, the
Court went on to recognize that ameliorating the basic life conditions of
millions of poor South Africans is an extremely difficult task given the pre-
vailing conditions, and it reiterated that the Constitution does not oblige
the state to go beyond its available resources or to realize these rights imme-
diately.99
Another new direction in the SACC’a positive rights jurisprudence was
set recently by the Court’s groundbreaking ruling in the Nevirapine saga
(Minister of Health v. Treatment Action Campaign). In a widely publicized
judgment released in July 2002, the Court drew on section 27 of the Bill of
Rights (the right to health care, subject to available resources) to order the
South African government to provide the drug Nevirapine to all pregnant
women who carry HIV/AIDS in order to reduce the risk of transmitting the
deadly disease to their unborn children.100 The government had refused to
sponsor an across-the-board distribution of the drug, citing inconclusive sci-
entific data concerning its effectiveness as well as budgetary constraints. Ac-
cordingly, it restricted the distribution of Nevirapine to eighteen pilot sites
across the country. The government’s stringent HIV/AIDS policy was an in-
fringement of the constitutional right to health care, held the Court. “The
decision to adhere to the eighteen sites during the whole of the research pe-
riod . . . is unreasonable and infringes the rights of all those who would oth-
erwise have had access to this particular form of health care,” Justice Arthur
Chaskalson ruled. “The drug is available to the government at no charge; its
administration is simple, efficacious, and potentially lifesaving.”101 Although
134 Constitutionalization and Judicial Interpretation of Rights

the Court drew primarily on equal protection reasoning, it remains to be

seen whether this potentially revolutionary judgment is interpreted in fu-
ture court rulings as an ordinary equal protection ruling (the drug was avail-
able in several sites across the country but not in others) or as having wider
implications on the provision of health care and other subsistence social and
economic rights as legally enforceable rights.
Whereas the SACC has been openly contemplating its position with re-
gard to subsistence rights, such rights have had minimal success in New Zea-
land (see Table 4.2 above). During the pre-enactment public debate over the
content and status of the Bill of Rights, the Palmer government resisted the
attachment of basic social and economic rights to the bill it had just initiated.
The Justice and Law Reform Committee suggested the inclusion of key eco-
nomic and social rights, but government officials labeled these rights “non-
justiciable by nature” because they “fell to political rather than judicial pro-
cess, and to include them would have made the legislation unmanageable.”
But the government did not care to elaborate on the grounds for this exclu-
sion of social rights from the NZBORA. They preferred to leave the question
of positive versus negative rights unresolved by arbitrarily assigning positive
rights (for example, basic subsistence rights) to the political realm and nega-
tive rights (such as the right to private property) to the justiciable arena of
the courts.
A recent example of the exclusion of social rights from the NZBORA is the
Lawson case.102 The plaintiff asserted that her rights were breached by a pol-
icy whereby responsibility for renting of houses formerly owned by the state
was transferred to Housing New Zealand (a semiprivate entity), which pro-
gressively increased rents to approximate market value, whereas formerly
rent had been subsidized. She alleged that in determining its social objec-
tives for housing, the government failed to have proper regard for the Inter-
national Convention on Economic, Social, and Cultural Rights as well as
other international covenants protecting social rights; and that the govern-
ment’s decision was in breach of her right to life enshrined in section 8 of the
NZBORA. But the NZCA rejected all of the plaintiff’s claims, stating that

[t]he housing of lower income New Zealanders, the better use of housing
stock and the means by which assistance could be better targeted across the
wide range of tenants were all matters involving political judgments on the
allocation of economic resources, the management of a valuable public as-
set and the provision of social services in which complex economic and so-
 Constitutionalization and Judicial Interpretation of Rights 135

cial considerations and trade-offs were involved . . . When such matters are
considered . . . the Courts should be less inclined to intervene . . . The plain-
tiff’s claim requires the kind of value and policy judgments and a degree of
social obligation which should properly be addressed by legislatures and re-
sponsible organs of government in a democratic society, not by courts.103

In a similar spirit, the Court of Appeal recently rejected a request for the
state to intervene and protect the freedom of religion of the Centrepoint re-
ligious community in New Zealand. The request of the plaintiffs in the Men-
delssohn affair was based on the alleged statutory duty of the state under the
NZBORA to protect New Zealand residents’ freedom of religion. As such, it
posed a direct challenge for the Court’s continuous exclusion of positive
constitutional rights from the purview of the NZBORA. In a rather blunt
statement, the Court held that

Sections 13, 14, 15, 17, and 20 of the New Zealand Bill of Rights Act 1990
did not impose positive duties on the state in any relevant sense. Those
rights were affirmed against acts of the branches of the state; the duty of the
government and others bound by the Bill of Rights was not to interfere un-
reasonably with the individual’s right to religious freedom. There was no
tenable basis for the causes of action based on failure to take positive steps
to protect the plaintiff’s freedom of religion.104

Recently, the NZCA dismissed another major attempt to expand the pur-
view of NZBORA provisions to include basic social rights. In 1999, the New
Zealand government announced its intent to disestablish numerous institu-
tions and facilities for children with special educational needs. The par-
ents of fifteen such children challenged the new program on constitutional
grounds, claiming that New Zealand’s Education Acts of 1964 and 1989, as
well as section 19 of the NZBORA (which guarantees freedom from unlaw-
ful discrimination) impose a duty on the government to provide free educa-
tion for children of school age as well as a corresponding duty not to discrim-
inate against children in need of special education. In a lengthy judgment
released in February 2003, the Court drew on “relevant discrimination”
grounds to reject the parents’ principled arguments and held that New Zea-
land’s pertinent public education legislation does not establish the freestand-
ing right of children with special educational needs to the same free educa-
tion as other children. The only breach committed by the government was
that of a requirement of three months’ notice to disestablish certain special
136 Constitutionalization and Judicial Interpretation of Rights

education services. The Court drew on formalistic grounds (lack of oral ar-
gument to supplement the extensive written submissions) to avoid a head-
on address of the NZBORA-based challenge.105
The same antistatist impulse has dominated the Israeli legal arena since
the enactment of the new Basic Laws. Although positive rights have been
widely recognized by international covenants and treaties, all attempts by
various political activists in Israel to challenge the dominant antistatist con-
ception of human rights in court or parliament have failed. A rare coalition
of religious and neoliberal Knesset members effectively defeated a proposal
to enact a third new Basic Law, which would have granted constitutional
status to various social rights and guaranteed humane living conditions to
every citizen or resident. A narrow legal interpretation of the meaning of
human dignity as defined by the already existing Basic Law has also contrib-
uted to the institutional disregard for positive rights in Israel.106
In 1994, Chief Justice Aharon Barak of the SCI specified guidelines for the
interpretation of the new Basic Law: Human Dignity and Liberty.107 Accord-
ing to Barak, fundamental human dignity in this new Basic Law should be
understood to include formal equality of opportunity, due process of law,
freedom to pursue one’s own life plan, the right to own property, freedom
from state intrusion into one’s physical and mental privacy, and the recogni-
tion that each individual is a moral being. Under this definition, however,
the protection of basic human dignity translates primarily into a legal right
to noninterference—a negative right. Barak explicitly noted, “Social human
rights such as the right to education, to health care, and to social welfare are,
of course, very important rights, but they are not, so it seems, part of ‘hu-
man dignity’.”108
In practice, the Court has consistently refused to grant constitutional sta-
tus to positive entitlements. In 1996, Israel’s Supreme Court explicitly de-
clared that the rights to basic education and child care (pertaining to devel-
opmentally challenged children) have no constitutional grounding in Basic
Law: Human Dignity and Liberty or, for that matter, in any other constitu-
tional source in Israel. The Court held that the state is not constitutionally
obliged to provide its citizens with any sort of basic education or even any
equality of opportunity in education.109 In the Court’s words:

A constitutional right requires a constitutional source to that right. Basic

Law: Human Dignity and Liberty does not anchor the right to education.
The claim that human dignity includes the right to education presumes a
wide model of the right to dignity which implies great difficulties. This wide
 Constitutionalization and Judicial Interpretation of Rights 137

model entitles the individual to a right vis-à-vis the government for better
life. Therefore, the right to education cannot be deduced from the general
right to human dignity.110

In an ironic variation on this position, the Court ruled in 1997 that based
on Basic Law: Human Dignity and Liberty, alligators in a zoo have the right
to be kept and removed under “humane” conditions.111 No one doubts, of
course, the importance of this decision and its positive implications for the
improved treatment of animals. It is somewhat odd, however, that alligators
enjoy the constitutional right to basic “humane” living conditions while hu-
man beings are still not constitutionally entitled to this basic right. More-
over, in a curious coincidence, another ruling from the SCI declared that the
right to grow a beard is protected by Basic Law: Human Dignity and Liberty
regardless of one’s religious beliefs, since a beard is considered an integral
part of one’s identity and being.112 In other words, while the right to basic
education for developmentally challenged children or equal funding to mi-
nority religious services fall outside the purview of Basic Law: Human Dig-
nity and Liberty, the right to keep one’s beard is protected by this law.
In spite of a clear pattern of systematic discrimination and inequality in al-
location of government resources between Jews and ethnic minorities in Is-
rael (primarily Arab-Israelis), the Court went on to reject claims from Arab-
Israeli municipalities against discrimination in governmental funding of ed-
ucational programs and other social services.113 For example, though non-
Jewish religious communities make up approximately 20 percent of the Is-
raeli citizenry, roughly only 2 percent of the total budget of the Ministry of
Religious Affairs is spent on them. In a 1998 judgment the Court rejected a
petition from the non-Jewish religious communities in Israel to declare per-
tinent provisions of the Budget Law (1998) unconstitutional on the grounds
that the petition was too broad and required the Court to intrude upon min-
isterial prerogatives.114 In another recent ruling, the SCI denied a petition for
immediate equalization in the allocation of government funds to educa-
tional enrichment programs targeted at academically weak students from
low socioeconomic backgrounds, despite the fact that the Ministry of Educa-
tion admitted to having subsidized such programs in the amount of $900 per
Jewish pupil while spending a meager $20 per Arab pupil.115 The Court ac-
cepted instead a vague commitment by the ministry for accomplishing a
proportional allocation of the funds (20 percent of the overall funds to Arab
pupils) within a five-year time frame, thereby deeming superfluous a princi-
pled discussion of the question of the state’s duty to ensure parity in educa-
138 Constitutionalization and Judicial Interpretation of Rights

tional allocations for the Arab sector. Not surprisingly, then, a decade after
the constitutionalization of rights in Israel the gap in access to education be-
tween Israel’s Jewish population and Arab minority has remained as wide
and as visible as it has ever been.116
Nowhere is the failure of the constitutional revolution to promote sub-
stantive equality between Arabs and Jews in Israel more obvious than in
the case of the unrecognized Arab villages. Despite the fact that many of
these villages existed prior to the establishment of the State of Israel, they
were declared illegal by state authorities when the lands on which they
were built were rezoned as nonresidential and ownership was claimed by
the state. Most estimates place the number of inhabitants of these areas, pri-
marily Arab Bedouin, at approximately 70,000. Their villages are afforded
no official status: they are excluded from government maps, they neither
have local councils nor belong to other local governing bodies, and they re-
ceive few or no government services (such as access to electricity, water,
telephone lines, and educational and health services). Consequently, the ba-
sic living conditions in these villages are dismal. In addition, the government
uses a combination of house demolitions, land confiscation, denial of ser-
vices, and restrictions on infrastructure development to drive residents from
their homes. Official government practice has been to relocate residents to
designated areas in order to use the land for creation and expansion of Jew-
ish cities and towns.
Until recently, all of the many attempts by local and international human
rights organizations to use Basic Laws litigation to change the status of the
unrecognized villages have failed. In 2001—a decade after the constitu-
tionalization of the right to human dignity and fifty-three years after the
establishment of the State of Israel as a Jewish and democratic state—the
Supreme Court hesitantly afforded quasi recognition to unrecognized vil-
lages by ordering the planning authorities to submit a plan to include a pre-
viously unrecognized neighborhood within the boundaries of a recognized
Bedouin village in Western Galilee.117 In another noteworthy development
the Court ordered the Ministry of Health to build six mother and child
health clinics in a heavily populated Bedouin township where no such clinic
had previously existed.118 However, like the SCC’s rulings in Schachter and
Eldridge, the decision was not based on a positive-rights rationale, nor did it
impose any duty on the state to act in the first place; if the Ministry of Health
chooses to provide a given service it must take the necessary steps to make
the same service available to all pertinent communities.
 Constitutionalization and Judicial Interpretation of Rights 139

While judges in Israel have seen fit to exclude social rights and other
positive entitlements from their definitions of human dignity, the Court held
that the Basic Law: Human Dignity and Liberty does strengthen some indi-
vidual property rights. In a libertarian spirit, judges and members of the
Israeli legal academy have recently suggested that taxation in general (and
income tax in particular) contradicts a person’s or a corporation’s basic free-
dom to own property. In other words, redistribution of wealth through taxa-
tion violates one’s basic freedom and dignity. The new Basic Law thus em-
powers courts to examine and abolish (if necessary) any existing and new
tax laws enacted by the Knesset.119
As we have seen in Chapter 1, in its historic ruling in United Mizrahi Bank,
the Court drew on the constitutional entrenchment of the right to prop-
erty, as specified in article 3 of the Basic Law: Human Dignity and Liberty, to
virtually invalidate—for the first time in Israel’s constitutional history—a
Knesset law that was aimed at erasing the heavy financial debts owed to ma-
jor banks by collective agricultural settlements in Israel.120 In its decision, the
Court noted forcefully:

The right to property is the cornerstone of the liberal system. It occupies a

central place in liberal ideology, as security for the existence of other rights
. . . Indeed the right to property promises the individual financial freedom.
It enables interpersonal cooperation. It enables a person to activate the au-
tonomy of his personal will. Thence arises the connection between the pro-
tection of property and the protection of human dignity.121

This combination of rulings effectively denies developmentally challenged

children any legal recourse against discriminatory education policy while it
simultaneously allows a corporation to sue the government for return of
any taxes it has levied on profits. These somewhat odd priorities further il-
lustrate potentially distorted legal implications following from the hege-
monic conception of constitutional rights as merely negative rights aimed at
protecting the private sphere from the long arm of the encroaching state and
its regulatory laws.

Workers’ Rights

Constitutional provisions protecting freedom of association, occupation, and

expression can be interpreted in the context of labor relations either as
providing collective positive entitlements to wider state-underwritten legal
140 Constitutionalization and Judicial Interpretation of Rights

protection for workers (for example, workers’ right to associate, to join labor
unions, to bargain collectively, or to strike), or as protecting the private
sphere from state intervention by granting priority to economic association
and free bargaining over state regulation. An examination of the recent
constitutional jurisprudence dealing with these issues in the four countries
that stand at the core of this study may help us assess the direction that judi-
cial interpretations of constitutional rights have taken. To this end, I have
tracked movement on these issues along a continuum, from a relatively
wide scope of protection for labor-related regulatory policies and positive
entitlements on one end to a neoliberal commitment to minimal state inter-
vention in an autonomous private sphere on the other.122
The right to freedom of association is protected by section 2(d) of the
Canadian Charter. Therefore, with the enactment of the Charter in 1982,
many saw constitutional litigation as an efficient strategy to halt the legisla-
tive rollback of labor rights. Until very recently, however, unions have peti-
tioned the SCC on numerous occasions for the constitutional protection of
picketing, strikes, and collective bargaining and have lost every time. In each
of these decisions, the SCC chose to adopt a very narrow interpretation of
freedom of association, defining it as merely an individual right completely
devoid of any meaning that might allow a group of workers to band together
against their employer.
The most important cases to deal with freedom of association in the Cana-
dian context are known as the 1987 labor trilogy.123 In these three cases,
unions claimed that the Charter’s guarantee of freedom of association pro-
tected them from legislative restrictions on strikes. The result of the trilogy
was a definitive statement by the Court that freedom of association did not
provide any protection for the right to strike as a legitimate means of either
protecting the interests of workers or pursuing the fundamental purposes of
their association in unions. In the Alberta Reference case, for example, Justice
Gerald Le Dain wrote in his presentation of the majority decision:

The rights for which constitutional protection is sought—the modern rights

to bargain collectively and to strike—are not fundamental rights or free-
doms. They are the creation of legislation, involving a balance of competing
interests . . . Freedom of association is a freedom belonging to the individual
and not to the group formed through its exercise. The group can exercise
only the constitutional rights of its individual members on behalf of those
members. If the right asserted is not found in the Charter for the individual,
it cannot be implied for the group merely by the fact of association.124
 Constitutionalization and Judicial Interpretation of Rights 141

This interpretation was confirmed in subsequent cases and even extended

to exclude collective bargaining from constitutional protection under sec-
tion 2(d) of the Charter.125 While this position is logically valid, it is never-
theless difficult to see why the right to strike and the right to bargain collec-
tively lie beyond the Charter’s freedom of association provisions and “are
the creation of legislation, involving a balance of competing interests” any
more than, say, the right to private property, movement, or freedom of oc-
cupation. In all these decisions, the SCC adopted a significantly narrower
conception of workers’ rights than the European Court of Human Rights in
Strasbourg and consciously ignored workers’ collective need to associate in
order to overcome their vulnerability as individuals when negotiating with
their employers.126
Whereas the right to strike was not granted constitutional protection un-
der the Canadian Charter, the right not to associate, raised by antiunionists,
has been elevated by the Court to the status of a constitutional right. Ac-
cording to the SCC’s ruling in Lavigne (1991), section 2(d) of the Charter im-
plies an employee’s individual right not to become member of a representa-
tive labor union, despite the potentially detrimental effects of such reading
of section 2(d) on fundamental principles of collective bargaining.127 True,
the Court recently upheld in a 5–4 majority the constitutionality of a provi-
sion of Quebec’s labor relations legislation that required construction work-
ers to register as members of a representative trade union as a necessary pre-
condition for obtaining professional competency certificates.128 However, a
closer look at this decision reveals that all four dissenting opinions as well as
one of the majority opinions (Justice Frank Iacobucci) reiterated that in
principle such mandatory membership requirements infringe on the Char-
ter’s individual right not to associate. Unlike the four dissenting opinions,
however, Justice Iacobucci held that the membership requirement met the
criteria set by section 1 of the Charter and should therefore be upheld. In
other words, five Supreme Court judges held that the requirement infringed
on the Charter right. Justice Iacobucci, in allowing the requirement under
section 1, tipped the balance, with the result that the interpretation of the
Charter’s freedom of association guarantee as protecting the right not to as-
sociate was ultimately upheld.
A true exception to the SCC’s traditionally narrow interpretation of the
right to unionize is the Court’s recent ruling in Dunmore (2001).129 Here, the
Court held unconstitutional a rather blunt Ontario labor relations provision
adopted in 1995 that excluded agricultural workers in that province from
the purview of protective trade union and collective bargaining legislation.
142 Constitutionalization and Judicial Interpretation of Rights

The Court reiterated that “the purpose of s. 2(d) of the Charter is to allow
the achievement of individual potential through interpersonal relationship
and collective action” and that “ordinarily, the Charter does not oblige the
state to take affirmative action to safeguard or facilitate the exercise of fun-
damental freedoms.” However, the Court also stated that

in order to make the freedom to organize meaningful in this very particular

context, s. 2(d) of the Charter may impose a positive obligation on the state
to extend protective legislation to unprotected groups. The distinction be-
tween positive and negative state obligations ought to be nuanced in the
context of labor relations, in the sense that excluding agricultural workers
from a protective regime contributes substantially to the violation of pro-
tected freedoms.130

It remains to be seen whether this ruling indeed marks a genuine change in

the SCC’s attitude toward unionism and collective bargaining or whether
the provision’s sheer bluntness led the Court to support workers’ right to
unionize in this particular case.
Note too that while the collectivist aspects of workers’ rights have, by and
large, been excluded by the SCC from the purview of Charter protection, the
SCC has been inclined to be more generous in its interpretive attitude to-
ward labor when dealing with workers’ freedom of expression rights (for ex-
ample, in the context of so-called secondary picketing).131 True, in one of its
first Charter rulings (Dolphin Delivery, 1986) the SCC rejected a union’s claim
that the common law rule prohibiting many forms of picketing interfered
with the Charter guarantees of freedom of speech and association.132 The
union’s claim was rejected, inter alia, on the grounds that the Charter was
“set up to regulate the relationship between the individual and the govern-
ment. It was intended to restrain government action and to protect the indi-
vidual.” The employer in this case was private, so there was no “element of
governmental intervention.”133
In two more recent rulings, however, the Court revisited the issue and
revised its controversial ruling in Dolphin Delivery so as to extend freedom of
expression constitutional protection to peaceful secondary picketing by
workers.134 In the first of these decisions (U.F.C.W. v. KMart Canada, 1999),
the Court noted: “Peaceful consumer leafleting by a few individuals is very
different from a picket line. It seeks to persuade members of the public to
take a certain course of action. It does so through informed and rational
discourse, which is the very essence of freedom of expression.”135 In the sec-
 Constitutionalization and Judicial Interpretation of Rights 143

ond case (R.W.D.S.U v. Pepsi-Cola Canada, 2002), the Court went on to state:
“Whether picketing should be enjoyed should not depend on who is carry-
ing the picket signs or indeed, whether the communication is conveyed by a
placard or as a pamphlet. Such distinctions operate to deprive union mem-
bers of expressive rights available to other members of the public. We can
find no persuasive reason to deprive union members of an expressive right
as common law that is available to all members of the public.”136
This type of reasoning should come as no surprise. After all, in the context
of peaceful secondary picketing, for example, workers’ rights have more to
do with demarcation and fortification of one’s individual autonomy through
peaceful expression of his or her views than with maintaining collectivist as-
pects of labor relations such as unionism and collective bargaining. As we
have seen, the SCC has never shied away from protecting fundamental neg-
ative liberties in such circumstances. What is more, as far as the court of
public opinion is concerned, it would have been puzzling had the Court ex-
tended the Charter’s freedom of expression provision to protect Mr. Zundel’s
hate propaganda but not striking workers’ rights for peaceful leafleting.
As of 2003, the body of constitutional rights jurisprudence in South Africa
does not include a sufficient number of cases to allow us to assess the inter-
pretive approach the SACC has taken with regard to labor relations, the
right to strike, and so on. However, the SACC rulings in South African Na-
tional Defence Union (SANDU) v. Minister of Defense (1998) and, more re-
cently, in National Education Health and Allied Workers Union (NEHAWU)
v. University of Cape Town (2002) and National Union of Metal Workers of
South Africa v. Bader Bop Ltd. (2002) suggest that it is taking workers’ rights
much more seriously than its counterparts in Canada, Israel, and New Zea-
land.137 In SANDU, the Court declared unconstitutional a provision of the
Defense Act that prohibited members of the Defense Force from becoming
members of a trade union or engaging in any form of public protest as de-
fined in the act.138 The Court held that although members of the Defense
Force may not be employees in the full contractual sense of the word, their
conditions of enrollment in many respects mirror those of contractual em-
ployees. Soldiers are therefore entitled to form a representative body to look
after their employment interests. The Court added that prohibiting partici-
pation in acts of public protest violated the right to freedom of expression of
Defense Force members. In NEHAWU, the Court drew on the constitutional
right to fair labor practices to hold that the transfer of a workforce to a new
employer does not extinguish the workers’ rights and obligations flowing
144 Constitutionalization and Judicial Interpretation of Rights

from their original contracts of employment, unless all involved parties have
agreed otherwise.139 In its complementary ruling in National Union of Metal
Workers, the Court ruled that the relevant provisions of the Labour Relations
Act do not prevent members of a minority union from engaging in lawful
strike, provided such a union is sufficiently representative of the pertinent
workforce.140
Like her Canadian colleagues, a prudent Israeli lawyer representing strik-
ing workers would not advise her clients to turn to their country’s Supreme
Court to seek constitutional protection of their collective rights. In recent
years, the SCI has adopted an even narrower interpretation of workers’
rights than its Canadian counterpart. This trend can best be illustrated by
considering changes in the liability of trade unions in tort. Until the late
1980s, the Israeli legislature granted labor unions and individual workers
full immunity for lawful strikes and lockouts, based on the pre-1980s as-
sumption that breach of contract is the only tort for which trade unions are
liable.141 Since the 1980s, however, claims for damages have been submitted
to courts against strikers based on civil wrongs, such as misappropriation of
personal property, negligence, or trespassing. A newer and narrower inter-
pretation of the freedom to strike has emerged, holding strikers liable in tort
for damages that were caused to third parties even by lawful strikes. It
was held in one case that striking is a relative freedom that can be limited
not only whenever public interests are threatened but also whenever the
rights of third parties to “reasonable economic expectations” are threat-
ened.142 In more recent tort cases, strikers have been held responsible for
causing breach of contract and breach of statutory duty between the em-
ployer and third parties in spite of these workers’ officially recognized im-
munity.143 In a landmark ruling in 1995, the SCI dramatically decreased
labor’s collective bargaining power by declaring the right to strike as a non-
constitutionally protected right after defining the right to freedom of associ-
ation in a labor union as a merely individual right, not a collective one.144
Another illustration of the selective, neoliberal interpretation of constitu-
tional rights in the context of the labor market is seen in the SCI’s interpreta-
tion of freedom of occupation. As discussed earlier, Basic Law: Freedom of
Occupation protects the right of every citizen or resident of the state to en-
gage in any lawful occupation, profession, or business. Given the ambiguity
of the law’s wording, the range of rights it protects is potentially quite wide.
Nonetheless, the new Basic Law has been selectively interpreted by the SCI
to protect the autonomy of the economic sphere and employers’ rights at
the expense of employee rights.
 Constitutionalization and Judicial Interpretation of Rights 145

For example, one right that has gained constitutional status under the ju-
dicial interpretation of the new law is the employer’s right to hire and dis-
miss workers. While this interpretation establishes the constitutionality of
the employer’s right, it does not recognize that employees might possess an
equally important right to be employed. Stated differently, freedom of occu-
pation upholds employers’ rights to dismiss workers, but not employees’
rights to keep their jobs. In Chief Justice Barak’s words: “Freedom of occu-
pation is not the right to be employed, nor the right to work. Freedom of
occupation is also not the right not to be dismissed from a job; tenure in a
job does not derive from freedom of occupation but from freedom of con-
tract. Freedom of occupation is the freedom to employ or not to employ.”145
Moreover, according to Barak, government regulation of prices, wages, and
employment condition (for example, through setting minimum wage stan-
dards or statutory ceilings on working hours) may amount to violation of
the right to freedom of occupation.146
Other rights that can protect employees and job seekers are also ignored.
For example, the Court’s interpretation of the new Basic Law: Freedom of
Occupation does not include a complementary constitutional obligation for
employers (or the state) to create economic, geographic, or social condi-
tions for full employment or to provide access to employment opportunities.
This lack of commitment to meeting employees’ needs demonstrates an in-
grained bias, guaranteeing freedom of occupation to employers while con-
signing the fate of employees and job seekers to fickle market forces.
The SCI, however, has interpreted freedom of occupation as a means of
preserving certain boundaries between the autonomous economic sphere
and the interventionist state. In one of the first cases that dealt with this
new Basic Law, the Court ruled that the state’s mandatory licensing and
payment requirements for companies providing erotic telephone conversa-
tion services were unconstitutional on the basis of both the principle of free-
dom of occupation and the proportionality requirement in article 4 of the
new law.147 It is no wonder, then, why the owners of the Israeli Playboy TV
channel immediately turned to the SCI, claiming a “severe violation of free-
dom of expression and freedom of occupation,” after the Knesset adopted a
law banning the televising of pornographic material on all local television
channels. In a similar spirit, the SCI went on to question the constitutional-
ity of legislation restricting two insurance companies from entering the pri-
vate pension funds market, basing their position on the notion of free eco-
nomic enterprise as embedded in Basic Law: Freedom of Occupation.148 This
same antistatist sentiment surfaced yet again in another important SCI deci-
146 Constitutionalization and Judicial Interpretation of Rights

sion, which nullified a section of a new Knesset law regulating the licensing
of investment consultants based on their freedom of occupation.149
The picture has been similar in New Zealand. The scope of section 17 of
the NZBORA declaring everyone’s right to freedom of association was re-
cently questioned in Capital Coast Health.150 Representatives of a company
under threat of strike by its union workers contacted its employees directly,
warned them of the financial consequences of strike action, and threatened
them with the hiring of nonunionized replacement workers. The union
representing the workers applied to the Court, claiming a breach of its free-
dom of association and its exclusive representative status. But the Court ap-
proved the company’s measures, holding that an employer was entitled to
warn employees of the financial consequences of strike action and of the
steps that it intended to take in order to minimize the costs of a strike. The
Court further held that the direct threat to the workers did not amount to
negotiating with staff and that the employer could not therefore be said to
have breached the workers’ rights to freedom of association.151
In sum, unlike the relatively progressive interpretation of workers’ rights
by the SACC, the judicial interpretation of constitutional provisions protect-
ing freedom of association and freedom of occupation in Canada, New Zea-
land, and Israel is based on an individualist worldview. This neoliberal posi-
tion emphasizes the autonomy of the economic sphere and its property
rights and at the same time calls for the state’s withdrawal from all labor re-
lations and collective social and welfare spheres.

The constitutional rights revolutions in Canada, New Zealand, Israel, and

South Africa are still in their formative stages. Although it is still too early to
identify prevalent patterns of judicial interpretation of constitutional rights,
I believe some general provisional conclusions can be drawn from the analy-
sis presented in this chapter.
First, these four countries’ records of constitutional rights jurisprudence
reveal a clear common tendency to adopt a narrow conception of rights, em-
phasizing uninhibited Lockean individualism and the dyadic and antistatist
aspects of constitutional rights. Despite the open-ended wording of the con-
stitutional catalogues of rights in Canada, New Zealand, Israel, and South
Africa, the national high courts of all four countries tend to conceptual-
ize the purpose of rights as first generation liberties protecting the private
sphere (human and economic) from interference by the collective (often
understood as the state and its regulatory institutions). National high courts
in these countries thus tend to regard state regulation as a threat to human
 Constitutionalization and Judicial Interpretation of Rights 147

liberty and equality, and more so than the potentially oppressive and ex-
ploitative social relations and institutions of the so-called private sector.
Moreover, the same constitutional rights provisions are often given a gener-
ous interpretation by these courts in the context of negative rights claims,
but a much narrower interpretation in the context of positive rights. That
being said, a significant difference remains among the four countries in
terms of absolute numbers, relative success rates, and substantive jurispru-
dence; positive rights claims found greater support overall in Canada (pri-
marily in the context of minority language education rights) and South Af-
rica (primarily in the context of fundamental subsistence rights) than in
New Zealand and Israel. This may be a reflection of the more explicit protec-
tion of these rights in the Canadian and South African constitution, a re-
flection of the relatively more progressive social ideology in these countries,
or some combination of these and other factors.
Second, the comparison of all four countries’ high court BOR cases—
in conjunction with an examination of recent constitutional jurisprudence
dealing with criminal due process rights, rights demarcating the private
sphere (for example, freedom of expression and the right to privacy), subsis-
tence social and economic rights, and freedom of association and occupa-
tion—effectively demonstrates that constitutional rights are never inter-
preted or implemented in a vacuum. Judicial interpretation depends to a
large extent on the ideological atmosphere as well on the economic and so-
cial conditions within which it operates. While the wording of bills of rights
is deliberately open-ended, their interpretation in present-day capitalist de-
mocracies often reflects and promotes ideological processes that limit the
range of meanings that are likely to be attributed to them by policy-makers.
This selective interpretation stands in sharp contrast to the more common,
optimistic view that sees bills of rights as enduring shields against volatile
temporary changes in the ideological metanarratives that surround them.
Third, the findings presented here may help us assess the prospects for
advancing progressive notions of distributive justice through the constitu-
tionalization of rights and rights litigation. All of the fundamentals of neo-
liberal social and economic thinking (such as individualism, deregulation,
commodification of public services, and reduced social spending) owe their
origins to the same concepts of antistatism, social atomism, and strict protec-
tion of the private sphere that are currently enjoying dominance in the
discourse of rights. As we have seen, national high courts in the world of this
new constitutionalism are inclined to support claims for procedural justice
and less state interference with the private sphere and are generally hostile
148 Constitutionalization and Judicial Interpretation of Rights

toward claims for positive entitlements, substantive equality, state regula-

tion, and workers’ rights. Even progressive adjudications with regard to
sexual preference—the hallmark of progressive constitutional rights juris-
prudence in many western democracies—have been based on the same logic
that conceptualizes constitutional rights as primarily negative rights of non-
intervention. I therefore suggest that BOR litigation might reduce social in-
justice primarily where it is congruent with the prevailing conceptualization
of rights as protecting and expanding the boundaries of the private sphere.
In sum, the impact of constitutionalization on the creation of meaningful,
enduring protection of the lower socioeconomic echelons of capitalist soci-
ety is often overrated. Judicial interpretations of constitutional rights appear
to possess a very limited capacity to advance progressive notions of distribu-
tive justice in arenas such as employment, health, housing, and education—
arenas that require greater state intervention and more public expenditure
and wealth redistribution. However, as far as negative liberties are con-
cerned, especially those freedoms associated with the protection of privacy
and personal autonomy, formal equality, economic activity, movement, and
property—all of which require that the state refrain from interfering in the
private human and economic spheres—the judicial interpretation of rights is
inclined to be much more generous and thus has the potential to plant the
seeds of social change.
 CHAPTER 5

Rights and Realities

Everybody knows that the dice are loaded.

Everybody rolls with their fingers crossed.
Everybody knows the war is over.
Everybody knows the good guys lost.
Everybody knows the fight was fixed:
The poor stay poor; the rich get rich.
That’s how it goes.
Everybody knows.
Leonard Cohen, Everybody Knows

Profound extrajudicial effects, both symbolic and practical,

are often attributed to constitutional rights and constitutional rights juris-
prudence. It is generally agreed that the recognition of the rights of histori-
cally disenfranchised minority groups has had an important symbolic effect
for these groups. As race and gender scholar Patricia Williams put it, “[f]or
the historically disempowered, . . . rights imply a respect that places one in
the referential range of self and other, that elevates one’s status from human
body to social being.”1 In the same spirit, most scholars of American consti-
tutional law agree that the U.S. Supreme Court’s historic decision in Brown
v. Board of Education stands even to this day as a beacon of hope for the
poor and the disadvantaged. According to Austin Sarat, one of the founders
of the critical law and society movement in the United States, “Brown was an
occasion for the ideological rebirth of America, an occasion that tells a story
of struggle and liberation and points the way for a new engagement with
the problem of how men and women of different backgrounds and races
might live together as equals.”2 According to Owen Fiss, an enthusiastic
proponent of a worldwide proliferation of constitutional rights and judicial
review as an effective path to social justice, the American Bill of Rights pro-
149
150 Rights and Realities

vides a unique source for the successful litigation of rights in America, the
most successful manifestation of which is Brown v. Board of Education,
which “eradicated the caste structure” in America.3 Williams further elabo-
rates on the motivational and emotional effects of rights-based constitu-
tional recognition: “‘Rights’ feels so new in the mouths of most Black peo-
ple. It is still so deliciously empowering to say. It is a sign for and a gift of
selfhood . . . [T]he concept of rights, both positive and negative, is the
marker of our citizenship, our participatoriness, our relation to others.”4
What is more, the constitutionalization of rights is said to nurture a cul-
ture of liberty in a society and to increase public awareness of fundamen-
tal civil liberties. In Ronald Dworkin’s view, the enactment of a bill of rights
in Britain, for example, would not only force the British courts “to take
rights seriously,” but would promote the enhancement of a “culture of
liberty beyond the courtroom.” Litigation provides a highly visible forum
where rights claims can resonate beyond the courtroom through increased
media coverage and academic writing and through greater public awareness
of “liberty issues.” Thus, the enactment of a bill of rights would help shape
“the community’s shared sense that individual privacy and dignity, and free-
dom of speech and conscience are crucially important.”5 Harold Laski notes
that “bills of rights are, quite undoubtedly, a check upon possible excess in
the Government of the day. They warn us that certain popular powers have
had to be fought for, and may have to be fought for again. The solemnity
they embody serves to set the people on their guard. It acts as a rallying
point in the State for all who care deeply for the ideals of freedom.”6
Still, the question remains: What is the actual impact of the constitu-
tionalization of rights and the establishment of judicial review on advancing
progressive notions of distributive justice? As we have seen in Chapter 4, the
effects of constitutionalization on prevalent patterns of judicial interpreta-
tion of rights have been much more nuanced than the firm, but mostly un-
tested and abstract, conventional wisdom would have us believe. On the
one hand, the constitutionalization of rights has proven fairly effective in
enhancing the legal status of and public awareness to procedural justice,
freedom of expression, and formal equality. On the other hand, courts have
been far less accommodative toward claims for positive entitlements, sub-
stantive equality, redistribution of resources, and workers’ rights.
What is more, the practical impact of constitutionalization on closing the
socioeconomic gap between the haves and have-nots—the traditional win-
ners and losers of capitalism—has been at best negligible. The constitu-
 Rights and Realities 151

tionalization of rights in Canada, New Zealand, Israel, and South Africa has
achieved little or no real change in arenas such as wealth redistribution,
minority political representation, and the equalization of life conditions. The
constitutionalization of rights has proven virtually futile in mitigating, let
alone reversing, wide-ranging social and economic processes of deregula-
tion, privatization, reduced social spending, and the removal of “market ri-
gidities.” It has failed to promote the notion that no one can fully enjoy
or exercise any classic civil liberties in any meaningful way if he or she
lacks the essentials for a healthy and decent life in the first place.7 It has
done little to combat the widening disparities in fundamental living condi-
tions within and among polities. In fact, the constitutionalization of rights
has been associated with precisely the opposite ethos, placing private own-
ership and other economic freedoms beyond the reach of majoritarian
politics and state regulation and thereby planting the seeds for greater, not
lesser, disparity in essential life conditions. Even the modest progress in the
socioeconomic status of the lower echelons of capitalist society has not been
accomplished through the constitutional or judicial spheres, but through
the political sphere. Such scattered and sporadic improvements in the sta-
tus of the worse-off have been essentially “self-referential” (that is, as
compared to past socioeconomic rankings of the same group) rather than
“other-referential” (that is, relative to other groups ranked higher on the so-
cioeconomic scale).

Some Methodological Difficulties

Before attempting to outline the actual redistributive effects of constitu-

tionalization, we should consider certain methodological difficulties in-
volved. First is the question of multiple causality: disentangling the contri-
bution of constitutionalization from that of other societal and institutional
factors is an almost impossible task. It is difficult to isolate the results of other
factors—social, economic, or political—from those social changes that di-
rectly or indirectly result from the constitutionalization of rights. Even in
cases where it seems the bill of rights has had a significant social impact, it is
difficult to tell how much other variables have had to do with the change.
To point out the complexities of measurement is not to say, however, that
an empirical measurement of the impact of constitutionalization on social
change is of no value. If, as some advocates of constitutionalization argue,
the adoption of a constitutional catalogue of rights is of significant help to
152 Rights and Realities

disadvantaged minorities beyond the symbolic level, then the advantage

should be identifiable. As Gerald Rosenberg notes in The Hollow Hope with
regard to his “constrained court” thesis, the claim that constitutionalization
of rights has a significant impact on forwarding progressive notions of dis-
tributive justice becomes stronger with each additional instance in which
a causal link can be identified.8 Conversely, the fewer domains in which
such links can be found, the less likely it is that that the effect of constitu-
tionalization is as significant as suggested by the conventional view.
A second difficulty is the scope of the study. A comprehensive examina-
tion of each and every potential de facto extrajudicial impact of constitu-
tionalization in a given country (let alone four countries) would require a
large group of researchers armed with almost unlimited time and research
budgets and would probably yield a series of volumes, reaching thousands of
pages, and even at that might be incomplete. Obviously, such an ambitious
evaluation is beyond the scope of this (or indeed any other) study. Never-
theless, by comparing prelegislation and postlegislation data pertaining to
the allocation and distribution of resources, capabilities, and opportunities
among those groups whom constitutional rights purport to help, we can be-
gin to answer the question of whether the constitutionalization of rights and
the transition to juristocracy more generally have the potential to plant the
seeds of a more egalitarian society.
The third methodological difficulty involved in assessing the real impact
of constitutionalization on distributive justice is the question of the appro-
priate time span. Critics of the constraint court thesis argue that even if
the data presented by Rosenberg and others on the protracted implementa-
tion of groundbreaking judgments is successful in undermining the hyper-
bolic assertions on the efficacy of litigation, it fails to take into account the
long-term incremental effect of rulings such as Brown. Precisely because
courts lack immediate enforcement and implementation power, the effec-
tiveness of their rulings in bringing about social change ought to be mea-
sured through a relatively long period of time, preferably several decades.
Such longitudinal studies of impact, however, inherently increase the
problem of multiple causality: the longer the time span of the study, the
more difficult it is to disentangle the contribution of constitutionalization to
social change from that of other pertinent factors. Furthermore, even the
most comprehensive longitudinal study to date of the incremental long-
term effects of landmark court rulings on social policy (Malcolm Feeley and
Edward Rubin’s impressive study of the long-term impact of court rulings on
 Rights and Realities 153

prison reform in the United States) is confined to the realm of procedural

justice.9 It does not refer to any effects of rights jurisprudence, immediate or
incremental, on eradicating historically rooted patterns of social and eco-
nomic inequality through a meaningful redistribution of resources and op-
portunities. In fact, proponents of the rights model cannot point to any deep
and enduring evidence that bills of rights, rights litigation, or jurisprudence
has ever been responsible for long-lasting and effective redistribution of re-
sources and opportunities, let alone sustained equalization of basic living
conditions. In fact, quite often the opposite is true. In zealously protecting
the private sphere, the constitutionalization of rights has served as effective
means for shielding the economic sphere from the potential hazards of regu-
lation and redistribution.

Negative Liberties and Neoliberal Realities

Skeptical views as to the real impact of constitutionalization on social

change may be traced back to the debates preceding the adoption of the U.S.
Constitution. Securing free expression, “whatever fine declarations may be
inserted in any constitution respecting it,” argued U.S. Founder Alexander
Hamilton in his critique of bills of rights in the Federalist Papers, “must alto-
gether depend on public opinion, and on the general spirit of the people and
of the government.”10 In the same spirit, Justice Learned Hand once stated:
“I often wonder whether we not rest our hopes too much upon constitu-
tions, upon laws, and upon courts. These are false hopes; believe me these
are false hopes. Liberty lies in the hearts of men and women; when it dies
there, no constitution, no law, no court can save it; no constitution, no law,
no court can even do much to help it. While it lies there it needs no constitu-
tion, no law, no court to save it.”11 In other words, some of the early framers
of the American Constitution as well as a few of the Bill of Rights’ more re-
cent interpreters believed that a rights-supportive culture in addition to a
written bill of rights is a necessary condition for the actual protection of civil
liberties.
Further developing the major thrust of the rights-supportive culture argu-
ment, Robert Dahl suggests that in maintaining democratic political institu-
tions, constitutional arrangements—and bills of rights in particular—are less
important than the existence of favorable sociocultural conditions.12 Re-
sponding to William Riker’s constitution-centric approach, Dahl asserts that
“[c]onstitutional rules are not crucial, independent factors in maintaining
154 Rights and Realities

democracy . . . [T]o assume that this country [the U.S.] remained democratic
because of its Constitution seems to me an obvious reversal of the relation; it
is much more plausible to suppose that the Constitution has remained be-
cause our society is essentially democratic.”13 The rights-supportive culture
argument is also complemented by the more general “social capital” argu-
ment. According to Robert Putnam and others, the sociocultural factor (that
is, the existence of a vibrant civil society and a democratic civic tradition),
rather than the institutional factor, is the most important variable in under-
standing why democracy works better in specific places.14 In a nutshell, the
rights-supportive culture thesis emphasizes hospitable civic traditions and
sociocultural conditions, rather than formal institutional settings, as the cru-
cial factor in making constitutional democracy work.
Any sober attempt to assess constitutional rights’ actual capacity to ad-
vance progressive notions of social justice within a broader sociocultural
context must therefore pay close attention to the ideological affinity be-
tween the prevalent conception of rights as essentially negative liberties and
the presently ubiquitous neoliberal, small-state social and economic world-
view. Deregulation and privatization, free and “flexible” markets (meaning
markets with low or no wage and welfare safety nets, disincentives for col-
lective bargaining, minimal job security, and removal of trade shields), eco-
nomic efficiency and fiscal responsibility (the latter often perceived as a call
for reduced public spending on social programs while corporate welfare
remains largely untouched) are all fundamentals of the present-day ortho-
doxy of economic neoliberalism. Likewise, hyperindividualism, solipsism,
and a dyadic view of society are among the fundamentals of social new
liberalism. These objectives are rooted in concepts of antistatism, anti-
collectivism, and social atomism that inform the current hegemonic dis-
courses of rights.15
The prevalent culture of rights not only leads people to see in others
the limitation of their freedom, thereby promoting a morally distorted con-
ception of human relations in which “my fulfillment, my freedom and my
self-realization depend upon my self-assertive capacity to place limits on
yours”;16 it also exponentially multiplies the occasions for clashes of rights
and impedes mutual understanding and the discovery of common ground,
thereby trivializing core democratic values.17 The dominant notion of rights
as negative freedoms is based on a simplistic view of society: that it is com-
posed of an unencumbered, autonomous, and self-sufficient private sphere
whose members’ full realization of freedom is constantly threatened by the
 Rights and Realities 155

long arm of the encroaching state. It calls on the state to refrain from inter-
fering in the private sphere, thereby precluding the conceptualization of
rights as constituting positive duties on the state to actively amend morally
disturbing disparities in the allocation of resources and opportunities
through the provision of basic life conditions to all.
At the heart of this skeptical view of individual rights’ capacity to mitigate
or reverse social and economic neoliberalism lies the realization that law
may be an effective means for inducing social change only when the domi-
nant ideological ambience encompassing it is conducive to such change.
Any substantial ideological divergence between the law and its relevant so-
cial and political surroundings will result in the law’s being rendered ineffec-
tive as a means of achieving social change. Accordingly, the inextricable link
between the prevalent conception of rights as negative liberties and the cur-
rent antistatist macroeconomic creed essentially precludes the advancement
of progressive notions of distributive justice. Put bluntly, there is minimal
chance of diminishing the stark disparities in life conditions within and
among polities in the neoliberal age while drawing on a conception of rights
that sees the protection of the private sphere as its ultimate goal and that re-
gards state regulation and statutory decommodification of social services as
greater threats to human liberty and equality than the potentially oppressive
and exploitative social relations and institutions of an expanded “private”
sphere.
As we have seen in previous chapters, the global trend toward social
and economic neoliberalism has significantly affected the four countries at
the center of this study. In each of these countries there has been a sus-
tained attempt over the past few decades to dismantle the local version of
the Keynesian welfare state in favor of more market-oriented, “small state”
economic policies. New or looming budgetary deficits have been used to le-
gitimate a pullback of the state from the social welfare and labor arenas.
Industrial, taxation, trade, and social policy initiatives have been used as
political instruments to reestablish the complete dominance of the market in
civil society. Deregulation, commodification of social services, near-sacred
protection of economic liberties, and loose enforcement of cogent labor
and welfare laws have become ubiquitous. In Canada, New Zealand, and
Israel, these developments were accompanied and reinforced by a political
vocabulary that denigrated government and promoted the virtues of fiscal
responsibility and self-reliance.18 Increased foreign ownership of essential
industries and services, mass (and at times conspicuous) consumption, and
156 Rights and Realities

an all-encompassing (and debilitating) Americanization of popular culture

have been establishing themselves as norms. Meanwhile, a stock-exchange
culture and a cult of efficiency have gained a near-sacred status in profes-
sional policy-making circles as well as in academia and the popular media.
In short, a practical and ideological assault on substantive equality has be-
come standard. The constitutionalization of rights has not impeded these de-
velopments. Consider the following facts.
Over the past two decades, Israel’s Gini coefficient rose from 0.222 in
1982, to 0.298 in 1991, to 0.314 in 1994, and to a record high of 0.356 in
2000, making Israel one of the three most unequal countries in the west in
terms of wealth distribution (third only to New Zealand and the United
States).19 According to the United Nations’ UNDP Human Development Report
2002, the share of income of Israel’s richest quintile was equivalent to almost
eleven times that of the poorest quintile during the 1985–2000 period. Ac-
cording to Israel’s Central Bureau of Statistics’ Income Survey 2003, the gap
between the rich and the poor continued to grow in 2001–2002. As of De-
cember 2002, the share of income of Israel’s richest 10 percent was more
than thirteen times that of the poorest 10 percent. In 2002 alone, the richest
one-fifth of the Israeli population received 52 percent of all disposable in-
come (compared with just over 43 percent in 1988, four years prior to the
adoption of the new Basic Laws), while the poorest one-fifth received ap-
proximately 4 percent of all disposable income (compared with approxi-
mately 5 percent in 1988). And by 2000, over one-third of Israel’s house-
holds (34.1 percent) were living below the official poverty line, compared
with only 28 percent in 1988. A 2002 report by the Knesset’s Society and
Welfare Committee confirms that Israel has become the second or third
most unequal society in the west and that over two-thirds of capital assets
and holdings in Israel are concentrated in the hands of less than 10 percent
of the population.20 As for the ethnic basis of economic inequality, where
the average monthly income of all urban wage earners in 2000 was 100,
that of native Israeli of Ashkenazi descent was 139, that of native Israeli of
Mizrahi descent was 95, and that of an Arab-Israeli wage earner was 65.21 In
other words, as of 2000 a Jewish wage earner of Ashkenazi descent made
approximately 1.5 times more than a Jewish wage earner of Mizrahi descent
and approximately twice as much as an Arab Israeli wage earner.
In 2000, eighteen years after the adoption of the Charter, the richest one-
fifth of the Canadian population received 44.5 percent of all income (com-
pared with 41.7 percent in 1981, one year prior to the adoption of the Char-
ter), while the poorest one-fifth of the populace got only 4.5 percent (no real
 Rights and Realities 157

change since 1981). Canada’s richest 10 percent collected 28 percent of the

country’s total income in 2000, up from 26 percent in 1990 and 25 percent
in 1980. The poorest 10 percent saw their income share hold steady at 1.6
percent.22 Studies that consider ownership of land, houses, and financial as-
sets show that the top quintile of the Canadian population now owns or
controls over 75 percent of the country’s wealth (as compared to 64 percent
in 1981), while the remaining four-fifths of the populace share less than
25 percent (36 percent in 1981).23 This growing gap in the distribution of
wealth is even more dramatic if we compare the poorest 10 percent and
richest 10 percent of the populace. In the mid-1970s, the richest 10 percent
of Canadian families had an average market income of 15 times more than
the poorest 10 percent. By 1997, the richest 10 percent were making over 80
times more than the poorest 10 percent. This growing inequality is illus-
trated by the rise in Canada’s Gini coefficient, from 0.315 in 1981 to 0.340 in
1991 to 0.353 in 1999.24 A 2002 study by Statistics Canada confirmed that
the gap between rich and poor Canadians widened between the mid-1980s
and the end of the 1990s. Only the upper tenth of the population has in-
creased its share of total net worth over the past twenty years.25 Accord-
ing to the same study, the vast majority of middle- and low-income families
had no more in savings to protect themselves against unexpected financial
hardship at the end of the 1990s than their counterparts did in the mid-
1980s.26
The failure of constitutionalization to block the trend toward greater dis-
parity in income distribution has been even clearer in New Zealand. Indeed,
New Zealand has become the most unequal country in the entire developed
industrial world in terms of income distribution. As indicated by the UNDP
Human Development Report 2002, New Zealand’s richest quintile’s share of in-
come was equivalent to 17.5 times the income of New Zealand’s poorest
quintile during the 1985–2000 period. By 2000, for example, the lowest
quintile’s share of total income had dropped to just over 2.5 percent (com-
pared with approximately 4.5 percent in the late 1980s), while the richest
quintile’s share of total income was just below 50 percent (as compared with
approximately 40 percent in the late 1980s). The data also show a decline in
the household income of welfare beneficiaries, from 72 percent of mean
household income in 1988 to 58 percent in 1999. The overall picture reveals
unprecedented cuts in social benefits and extensive privatization of formerly
state-controlled public services. This new reality is demonstrated by the
sharp rise in the Gini coefficients—from 0.287 in 1985 to the highest coef-
ficient of any of the Organization for Economic Cooperation and Develop-
158 Rights and Realities

ment (OECD) countries, 0.398 in 2000 (the steepest increase in inequality of

any OECD country over this period).27 A similar pattern of growing income
disparity has established itself in all but two OECD countries over the past
three decades, as has the neoliberal rhetoric justifying such disparities—re-
gardless of the degree of formal constitutional protection of equality rights
among these countries.
Similarly, the constitutionalization of rights has had little impact on the
vast socioeconomic gap in South Africa. As of mid-2002, South Africa’s Gini
coefficient had barely shifted. At 0.58, among the world’s hundred most
populated countries only that of Brazil is higher. As the UNDP Human Devel-
opment Report 2002 indicates, South Africa’s richest quintile still received 65
percent of total income during the 1985–2000 period, while the poorest
quintile’s share of total income during that period was just below 3 per-
cent—a ratio of 22.5 to 1. According to the Human Rights Index of the
United Nations, the lifestyle enjoyed by white South Africans in 2000 was
equivalent to that of Canadians or New Zealanders, while black South
Africans lived under conditions similar to their counterparts in Congo and
Equatorial Guinea. Moreover, according to a June 2001 report by Statistics
South Africa, the poorest 40 percent of households received only 11 percent
of total income, while the richest 10 percent of households received over 40
percent of total income. Ten years after the abolition of formal racial segre-
gation and eight years after the constitutionalization of rights in South Af-
rica, race continues to be the most significant explanatory variable for these
disparities in wealth distribution.
A particularly distressing measure of the failure of constitutional cata-
logues of rights to promote substantive equality is their negligible impact on
the ratio of women’s income to men’s income in the four countries. Recent
data indicates that even when all other pertinent factors are equal, women’s
average earnings remained at 65 to 85 percent of men’s in the same profes-
sion.28 While there was a slight improvement in this statistic over the past
three decades in all four countries, in each case this change began prior to
the constitutionalization of equality rights and does not appear to be a result
of the constitutional reform in these countries. In all four countries women
account for approximately two-thirds of the workers in the low income–un-
skilled jobs category and approximately half of the workers in the mid-
income jobs category, but they make up less than one-third of the workers
in high income–professional jobs—a situation that has not changed since
constitutionalization. In short, the constitutional entrenchment of equality
rights has not significantly reduced gender-based discrimination in the job
 Rights and Realities 159

market. Despite the constitutionalization of equality rights in the four exam-

ined countries, female workers with equal qualifications still make an aver-
age of only about two-thirds to three-quarters of their male colleagues’ sala-
ries. In sum, the evidence suggests that constitutionalization has had little or
no impact on mitigating historically rooted patterns of socioeconomic dis-
parities.
Campaigners for better living conditions for the poor and historically
disenfranchised had hoped that things would change for these groups in
the years following constitutionalization. However, there is no systematic
evidence that the constitutionalization of rights in Canada, New Zealand, Is-
rael, and South Africa has significantly (or even moderately) improved the
status of historically disenfranchised groups in terms of access to education,
basic housing, and health care, let alone employment or wealth. Indeed,
most longitudinal statistical surveys suggest that historically disenfranchised
groups still leg behind badly in these pertinent socioeconomic measures.
In 1981, a year before the enactment of the Charter of Rights and Free-
doms in Canada, 37 percent of aboriginal people and 20 percent of non-
aboriginals left school after having completed less than nine grades. In 2000,
eighteen years after the constitutional recognition of aboriginal people’s
rights, 25 percent of the aboriginal population left school after less than
nine years, as compared with 12 percent of the nonaboriginal population (a
ratio of roughly 2 to 1, similar to 1981).29 At the other end of the educational
ladder, 2 percent of the aboriginal population in Canada held a university
degree in 1981 as compared with 8 percent of the nonaboriginal population.
In 2000, this gap had widened. In the same period, the gap between aborigi-
nal and nonaboriginal people’s high school completion narrowed, but only
slightly.
While there has been an improvement in access to education and educa-
tional attainments by Maori and non-Maori populations in New Zealand be-
tween 1987 and 2000, much of the improvement in Maori educational sta-
tus is “self-referential” (that is, compared to Maori educational attainments
in the past), rather than “other-referential” (relative to non-Maori educa-
tional status).30 In 2000, for example, only 7 percent of the Maori popula-
tion held some sort of university degree in 2000 as compared with just un-
der 30 percent of the non-Maori population. A decade after the adoption of
the NZBORA, a third of the Maori population had no educational qualifica-
tions whatsoever, as compared with 10 percent of the non-Maori population
(a ratio of 3.3 to 1, as compared with a ratio of only 2.2 to 1 in 1987, three
years prior to the enactment of the NZBORA). In 2000, approximately 60
160 Rights and Realities

percent of the Maori population had only an elementary school education

or had no formal education at all, while only 23 percent of the non-Maori
population had such a limited educational record in the same year.
In Israel, too, the gap between Jewish and Arab schools, for example, has
remained visible on every level in spite of the 1992 constitutionalization of
rights. According to Israel’s State Comptroller’s Report (2000) and a special
report prepared by Human Rights Watch in late 2001, an average of 9 per-
cent of Arab students aged 15–16 dropped out of school each year through-
out the 1995–2000 period, as compared with approximately 4 percent of
Jewish students of the same age. Of those aged 16–17, close to 40 percent
of Arab students dropped out, as compared with 9 percent of Jewish stu-
dents.31 Arab schools also lag far behind Jewish schools in the social service
programs they provide to their students. As of 2001, only 25 percent of Arab
schools offer career and vocational services, as compared with 75 percent of
Jewish schools. In 2001, the average number of pupils per teacher stood at
24 in Arab schools and 12 in Jewish schools.32 Arab children of preschool
age make up about 30 percent of the general preschool population, yet there
are far fewer government resources available to them than to Jewish tod-
dlers. Moreover, many preschool educational facilities in Arab communities
are dilapidated and overcrowded and lack special education and counseling
services, libraries, and sports facilities. In 2000 the Labor and Welfare Minis-
try sponsored the development of 64 day-care centers, 17 of which were lo-
cated in Jewish settlements in the Occupied Territories. Not one of the cen-
ters was in an Arab village.
Reports issued by the U.S. Department of State indicate that government
spending is proportionally far lower in predominantly Arab areas than in
Jewish areas.33 Yet despite the clear pattern of discrimination and inequality,
attempts by domestic and international human rights organizations to draw
on new Basic Laws–based constitutional litigation to fight discrimination
against Arab-Israeli municipalities in governmental funding of educational
programs and other social services have failed.34 In short, despite the initial
hopes of the Arab minority in Israel, the constitutional entrenchment of
rights in Israel does not appear to have improved the access of Arab-Israelis
to education.
Likewise, the constitutionalization of rights in Canada, New Zealand, Is-
rael, and South Africa has failed to reduce the stark disparities in housing
conditions and levels of health between established and disenfranchised
groups in the four countries. In Canada, despite the recognition of aboriginal
 Rights and Realities 161

peoples’ rights by the Charter, aboriginal housing has remained in a bad

state, falling in all respects below the standards that prevail elsewhere in
the country; in some respects the situation has worsened in the Charter
era. A recent study by Statistics Canada shows, for example, that aboriginal
households are more than 90 times more likely than other Canadian house-
holds to be living without a piped-in water supply. Houses occupied by ab-
original people are twice as likely to need major repairs, and almost 20 per-
cent are already in poor condition. In 2000, the average number of persons
per dwelling in Canada was 2.7, but this figure was 3.7 for aboriginal people
(3.4 in 1981). The story is not much different in New Zealand. A widely pub-
licized report by New Zealand’s Ministry for Maori Development indicates
that the disparity in housing conditions between Maori and non-Maori has
persisted at roughly similar levels over the approximately twelve years since
the adoption of the 1990 NZBORA.35
The racially based disparities in housing conditions and health status in
present-day South Africa are so great that no survey could capture its full
scope. Detailed and reliable data pertaining to the conditions in which the
vast majority of black South Africans lived during the apartheid years are
hard to obtain. That said, more recent data suggest that the present situation
is far from encouraging. As of 2002, over 30 percent of South Africa’s black
population were not expected to survive to the age of forty, and over 60 per-
cent were not expected to reach the age of sixty. Approximately 15 percent
of the black population had no access to safe water, sanitation, or basic
health services. Over a third of the black population were living in tents,
huts, and other forms of temporary housing. The life expectancy of black
South Africans was fifty-seven years while that of whites was seventy-five.
The infant mortality rate stood at 70 per 1,000 live births among blacks, as
compared with 9 per 1,000 live births among whites. As of 2002, there were
over 240 cases of tuberculosis per 100,000 blacks as compared with merely 4
cases per 100,000 whites. South Africa also has the world’s fastest growing
HIV/AIDS epidemic, with approximately 5 million people already HIV-in-
fected and an estimated 1,500 new cases daily. Blacks constitute over 99 per-
cent of these cases.
The right to life, education, health care, housing, food, water, and social
security are all protected by the South African Bill of Rights. Recognizing the
great disparities in wealth and the dismal housing and health conditions in
thousands of black communities, the Constitutional Court declared its full
commitment to promoting substantive equality in South Africa.36 Yet, as we
162 Rights and Realities

have seen in Chapter 4, despite its rhetoric of restorative justice the Court
has never even considered the option of fighting the great disparities in
housing and health status by recommending the introduction of some kind
of revolutionary distributive measures. So far, the judiciary has almost in-
variably supported the legislature’s position on any issues regarding land
and asset redistribution (or lack of same). Not surprisingly, the black popula-
tion’s attitude toward the SACC has been ambivalent.37
Land redistribution as restitution for dispossession of native lands during
the apartheid era has also proved to be an inefficient method for closing the
gaps in housing conditions in the new South Africa. Until the early 1990s, a
series of legislative acts enacted during the heyday of apartheid ruled out
any meaningful land ownership by nonwhites. The outcome of these poli-
cies was that 87 percent of the land in South Africa was held by whites.
Given these stark inequalities in land ownership, the redistribution of land
would have been a promising first step, however modest, on the way toward
creating a more egalitarian South Africa.
In 1994, the Redistribution of Land Rights Act established the Constitu-
tional Land Court and the Commission on Restitution of Land Rights. The
Land Court’s mission was to settle cases previously vetted and evaluated by
the Commission on Restitution. The various forms of compensation offered
to claimants included the return of original lands, ownership of other lands,
financial remuneration, or preferential access to government housing. Of
the 65,000 claims for restitution submitted by December 1998 (the deadline
set for submitting claims), fewer than 3,500 had been settled as of January
2003. Less than 2 percent of these settlements involved actual land redistri-
bution (rather than meager financial remuneration). Given these facts, we
can safely say that all other variables being equal, the independent effect of
constitutionalization on closing the substantive gaps in living conditions in
South Africa and elsewhere has been, and will most likely continue to be,
negligible.
What has been the impact of constitutionalization on another fundamen-
tal building block of democracy—political representation of visible minori-
ties? Appropriate political representation of historically underrepresented
groups may be seen as one of the most crucial steps in improving the status
of these groups. Under a system of representative democracy, the people
rule by electing others to make decisions for them. Parliament as an elected
assembly of the people’s representatives should ideally represent the various
demographic characteristics of the people. In practice, however, this has
 Rights and Realities 163

rarely been the case. The vast majority of parliament members in most
western democracies during the last two centuries have been affluent white
men aged fifty and over who represent, and are representative of, the
particularistic interests of the upper classes and their dominant ideological
preferences.38 Constitutional rights and judicial review have not proven ef-
ficient mechanisms for overcoming these systematic inequalities in political
representation.
As is well known, on numerous occasions conservative forces drew on
the American Bill of Rights to block attempts to enhance the political repre-
sentation of visible minorities in the United States. In Buckley v. Valeo
(1976), for example, the Court struck down campaign finance reform that
put spending limits on political candidates and so-called third parties on the
ground that such limits violate the First Amendment’s guarantee of free
speech.39 In Shaw v. Reno (1993) the U.S. Supreme Court ruled that con-
gressional districts created to maximize minority representation might be
unconstitutional on equal protection grounds.40 Applying this principle, the
Court in 1995 struck down a redraw of Georgia’s eleventh congressional dis-
trict designed to maximize black representation, therefore calling into ques-
tion the validity of hundreds of majority-minority congressional, state, and
local districts created during that decade.41 In Bush v. Vera (1996) the Court
went on to hold unconstitutional on equal protection grounds a Texas redis-
tricting plan that had created two majority-black districts and a majority-La-
tino district.42 One of the high points of the U.S. Supreme Court’s battle
against minorities’ political representation came in 1999 in the Department
of Commerce case, when the Court invalidated a plan by the Clinton adminis-
tration to use statistical sampling techniques in conducting the year 2000
decennial census in order to correct the chronic and growing problem of
undercounting (and therefore underrepresentation) of racial minorities in
past decennial censuses.43 In its landmark ruling in Bush v. Gore (2000), the
Court once again gave priority to formal equality considerations over fair
representation considerations.44
As in the United States, the Canadian single-member-district electoral
system erects substantial barriers to direct representation of most minority
groups in the Canadian House of Commons. These barriers exist mainly
because of zoning problems and because minorities often lack substantial
geographical concentration. Asian-Canadians (over 12 percent of the total
population) and African- and Caribbean-Canadians (4 percent of the total
population) are rarely represented at all, let alone proportionally, in the
164 Rights and Realities

House of Commons. All proposals introduced in recent years to reserve seat

quotas for Canadian First Nations and other visible minorities both in the
House of Commons and in provincial legislatures (for example, the 1991
proposal to designate aboriginal electoral districts or the representation pro-
visions of the 1992 Charlottetown Accord) have failed.45
As we have seen in Chapter 3, the parliamentary representation of histor-
ically underrepresented groups in Israel has consistently improved over the
last two decades. The Knesset representation of Arab-Israelis (about 20 per-
cent of Israel’s population) increased from 5.8 percent in 1981 to 11 percent
in 1999; the percentage of MKs representing religious and orthodox-reli-
gious Jewish populations (about 25 percent of Israel’s population) rose from
9 percent in 1981 to 24 percent in 1999; and Mizrahi Jews (about 40 percent
of Israel’s population) increased their representation in the Knesset from 26
percent in 1981 to a proportional 40 percent in 1999. The picture is similar
with regard to other democratically elected bodies in Israel, such as munici-
palities. All of these changes, however, began over a decade prior to the en-
actment of the new Basic Laws in 1992.
Indeed, as suggested in previous chapters, judicial empowerment through
constitutionalization in Israel (as well as in numerous other new constitu-
tionalism countries) was a reaction to or a preventive measure against the
increasing presence of historically marginalized interests and policy prefer-
ences in crucial majoritarian policy-making arenas. Judicial empowerment
was not a reflection of this presence. In other words, more demographically
representative political processes are among the catalysts, not the outcomes,
of constitutionalization. After all, how else can we explain the near-miracu-
lous conversion to constitutional rights and active judicial review among
white South African elites? Facing the inevitable abandonment of “ethnic
democracy” and the adoption of meaningful universal suffrage practices,
South Africa’s elites found in constitutionalization a response to these omi-
nous changes.
Whereas the constitutionalization of rights has had a minimal effect on
reducing material inequality, it has played an important role in eroding
the legal status of one of the most significant “market rigidities”—collective
bargaining through trade unions. As shown in Chapter 4, the interpretation
of constitutional provisions protecting freedom of association and freedom
of occupation in Canada, New Zealand, and Israel is based on a neoliberal,
individualist worldview that emphasizes the autonomy of the economic
sphere and that calls for the state’s withdrawal from labor relations and from
 Rights and Realities 165

collective social-welfare concerns. By narrowly defining the right to free-

dom of association as an individual right, national high courts in these four
countries denuded it of any meaning that might allow a group of workers to
stand together against their employer. As a result, the right to strike, for ex-
ample, has been excluded from the boundaries of the right to freedom of as-
sociation in these countries.
Not surprisingly, the new constitutionalism has emerged while workers’
collective bargaining power has declined. While in Canada there was a rela-
tively modest decline in the rate of trade unionism over the period of the
study (43 percent in 1977; 38 percent in 1995), there was a sharp drop in
the percentage of workers who were unionized in New Zealand, South Af-
rica, and Israel from 1985 to 2000 (see Figure 5.1). According to the 1998–
99 Report of the U.N. International Labour Organization (ILO), there was
an astonishing 75.7 percent drop in trade union membership in Israel be-
tween 1985 and 1995—the steepest drop in labor union membership in
the world during this period. Whereas in 1987 (five years prior to the enact-
ment of the new Basic Laws), more than 85 percent of Israel’s wage earners
were unionized, by 1999, only 24 percent were unionized. In real numbers,
membership in labor unions, which once reached over 1.7 million, stood at
less than 600,000 by 2000. Likewise, union membership in South Africa
(currently at 35 percent of those employed in the wage economy) has been
declining over the last decade, primarily as a result of job layoffs and declin-
ing employment, including those sectors that were previously heavily
unionized, such as mining. New Zealand meanwhile witnessed a dramatic
drop of almost 50 percent in trade union membership between 1985 and
1997—the second sharpest drop in labor union membership in the world
over this period. In 1985, 43.5 percent (685,000 workers) of New Zealand’s
wage earners were unionized. By 1999, this percentage had dropped to
about 20 percent (360,000 workers). The ILO’s statistics indicate, then, that
in the years since constitutionalization, there has been a sharp drop in both
the number of strikes and lockouts and in the number of workers participat-
ing in strikes and lockouts in all four countries.
There is little doubt that the de facto status of those classic economic free-
doms that libertarians often depict as core rights has changed dramatically in
the four examined countries following constitutionalization.46 In each of
these countries constitutionalization provided a legal framework for litigants
representing private and corporate economic interests to challenge various
forms of what is often portrayed as excessive state intrusion into the suppos-
166 Rights and Realities

Percent
90

80

70 Constitutionalization of Canada
freedom of association New Zealand
60 Israel
South Africa
50

40

30

20
−5 −3 −1 1 3 5 7 9 11
Year

Figure 5.1 Union membership as percentage of wage earners

(Source: ILO Reports, 1999–2002)

edly autonomous economic sphere. As we have seen in previous chapters,

these attempts to challenge state regulation were for the most part success-
ful and served as an important contributing factor to a change in the status
of economic liberties in the four countries.
The general picture of this change in economic liberties is best captured by
changes in the four countries’ ratings of overall economic freedom by in-
ternational surveys. Such surveys are published by a variety of think tanks,
including Freedom House (an internationally renowned civil-libertarian
organization), the Heritage Foundation (a right-wing American research
institute), the Cato Institute (a libertarian American think tank), and several
other research institutions. These international surveys base their assess-
ments of the de facto status of economic freedoms on criteria such as the
freedom to hold property, the ownership of foreign currency, the propor-
tion of foreign ownership of economic enterprises and corporate assets, the
maintenance of bank accounts abroad, the level of private investments, the
freedom to trade internationally, government consumption and expendi-
ture as a percentage of GDP, and income tax rates.
Figure 5.2 presents the changes in the combined ratings of de facto eco-
nomic freedoms (with the figure 10 meaning maximum economic freedom)
 Rights and Realities 167

10 = maximum
economic freedom

10

9
Constitutional reform
8

5 Canada
New Zealand
4 Israel
3 South Africa

2
−10 −5 −3 −1 1 3 5 7 9 11
Year

Figure 5.2 Combined economic freedom ratings

in the four countries from ten years prior to the constitutionalization of

rights to the latest year for which rating was available. The combined scores
for each country were calculated as the mean of the scores given to each
country by four independent international surveys of economic freedom.47
In all four countries the impact of constitutionalization on economic liber-
ties is clear: enhancement in the status of economic liberties follows the
constitutionalization of rights. In more general terms, the constitutional en-
trenchment of property, movement, and occupational rights appears to have
promoted greater economic liberty in each of the countries. Clearly the con-
stitutional entrenchment of rights in a given country is not the sole factor
promoting economic liberty in that country. However, we can safely say that
more often than not, the constitutionalization of rights has been a catalyst in
enhancing such liberties.

As Benjamin Disraeli reportedly said, “there are three kinds of lies: lies,
damned lies, and statistics.” Indeed, numbers fall short of capturing the en-
tire scope of the effects often attributed to the constitutionalization of rights.
Nevertheless, the data presented here can shed some light on the often ab-
168 Rights and Realities

stract and untested generalizations concerning the impact of constitu-

tionalization on the de facto status of the social groups that the bills of rights
of these four countries purport to help. In doing so, they may help reveal the
broader social trends behind constitutional transformation.
The data presented in this chapter, along with the comprehensive exami-
nation in Chapter 4 of contemporary trends in the judicial interpretation
of constitutional rights, suggest that simple and sweeping claims about the
unequivocally positive effects of constitutionalization on historically
marginalized interests ought to be viewed skeptically. As we have seen,
there is much to question regarding the claim that bills of rights have been
or are likely to be agents of effective reform in advancing progressive no-
tions of distributive justice. That the evidence of this is unclear is particu-
larly significant, since concern for these interests is a cornerstone for validat-
ing and enhancing judicial authority. Yet the data presented here point
in the opposite direction. Whereas the constitutionalization of rights does
have crucial importance in affirming marginalized identities and enhancing
the status of individual freedoms, its independent impact on ameliorating
the socioeconomic status of historically disenfranchised groups is often ex-
aggerated.
 CHAPTER 6

Constitutionalization and the

Judicialization of Mega-Politics

Nothing falls beyond the purview of judicial review. The world is

filled with law; anything and everything is justiciable.
Aharon Barak, Chief Justice of the Supreme Court of Israel

Though the impact of constitutionalization on forwarding

progressive notions of distributive justice is often overstated, there can be no
doubt that it has had a transformative effect on the political role of courts.
Over the past two decades, the national high courts of Canada, Israel, New
Zealand, and South Africa (as well as of many other countries) have become
major loci for dealing with the most fundamental political controversies a
democratic polity can contemplate. To paraphrase Alexis de Tocqueville’s
observation regarding the United States, there is now hardly any moral or
political controversy in these countries that does not sooner or later turn
into a judicial one.1
Relying on newly established constitutional framework and judicial re-
view procedures, political deference to the judiciary in these countries has
reached unprecedented heights. As in other countries throughout the new
constitutionalism world, the national high courts of Canada, New Zealand,
Israel, and South Africa have been increasingly called on to determine a
range of matters, from the scope of expression, religious freedoms, privacy,
and reproductive rights to fundamental separation-of-powers principles and
public policies pertaining to education, immigration, criminal justice, prop-
erty, and commerce, to name only a few heavily judicialized policy realms.
However, the expansion of the province of courts in determining political
outcomes has extended well beyond the now-standard concept of judicial
policy-making through constitutional rights jurisprudence and judicial re-
drawing of legislative boundaries among branches of government. Recently,
judicialization of politics has expanded to include the transfer to the judicial
169
170 Constitutionalization and the Judicialization of Mega-Politics

arena of foundational nation-building challenges (such as the future of Que-

bec and the Canadian federation, the deep secular-religious cleavage in Is-
rael, and the birth of multiracial democracy in South Africa) and fundamen-
tal restorative justice dilemmas (such as justice in the post-apartheid era in
South Africa and the battle over the status of indigenous peoples in “settler
societies” such as Canada and New Zealand). These emerging areas of judi-
cial intervention expand the boundaries of national high court involvement
in the political sphere beyond the ambit of common rights or federalism ju-
risprudence, taking the judicialization of politics to a point that far exceeds
any previous limit.
It is generally agreed that there is a close affinity between the existence
of a constitutional catalogue of rights in a polity and judicial activism on
the part of that polity’s judiciary. If the constitution does not list tangible and
defensible rights that individuals hold against the state, then judicial re-
view is based on limited ultra vires principles and is generally confined to
procedural matters. In these circumstances, intervention by the judiciary
in fundamental moral controversies or in highly political or politicized issues
is generally unlikely. The existence of a constitutional catalogue of rights,
by contrast, not only provides the necessary institutional framework for
courts to become more vigilant in their efforts to protect the fundamental
rights and liberties of a given polity’s residents, but also enables them to ex-
pand their jurisdiction to address vital moral dilemmas and political contro-
versies of crucial significance to that polity. What is more, the existence of a
constitutional framework for judicial activism may provide political actors
who are unable or unwilling to advance their policy preferences through
majoritarian decision-making arenas with an alternative institutional chan-
nel (the courts) for accomplishing their policy goals. Therefore, in coun-
tries where bills of rights and active judicial review procedures have been
adopted, one can expect a significant change in the frequency and scope of
exercise of judicial review and a corresponding intrusion by the judiciary
into the prerogatives of both legislatures and executives.
But however significant the presence of a constitutional framework may
be, it is not itself a sufficient condition for generating the depth and extent
of judicial intervention into the political sphere witnessed by the four poli-
ties under scrutiny in this study. Such an unprecedented level of political ju-
risprudence could not have developed without the support of influential po-
litical elites. As we have seen in earlier chapters, judicial empowerment
through constitutionalization and the corresponding transfer of policy-mak-
 Constitutionalization and the Judicialization of Mega-Politics 171

ing power from legislatures and executives to courts may become attractive
for elites who enjoy better access to and influence on the courts.
From the politicians’ point of view, however, the delegation of power to
the courts (or to other semiautonomous professional policy-making bodies,
such as central banks, supranational bureaucracies, and the like) poses a
major dilemma: how to ensure that once courts (or other such institutions)
are granted extended policy-making powers they will produce judgments
that reflect the ideological preferences and serve the political interests of
those who have handed policy-making over to the judiciary.2 This dilemma
is intensified when one considers that, unlike ministerial delegation of au-
thority to bureaucrats, constitutionalization may prove to be difficult or
impossible to reverse. History has shown that constitutions are difficult to
amend or reform after their enactment, to the extent that an entrenched
constitution seems to acquire a life of its own. While increasing judicial in-
trusion into the prerogatives of the legislature and the executive may pro-
vide a short-term institutional solution for influential elites that are increas-
ingly under threat, in the long term it may limit the room for institutional
maneuvering available to political power-holders. Hence, judicial empower-
ment through constitutionalization may ultimately create an undesirable
institutional setting for the ruling elites and their constituencies. What is
more, opposition or minority groups could also learn to use the new consti-
tutional framework to advance their policy preferences by presenting them
as rights claims. At least in theory, once granted authority, there is the risk
that courts might metamorphose into Dr. Frankenstein’s monster: un-
predictable and autonomous decision-making bodies whose judgments run
counter to the interests and expectations of their political advocates. But
how realistic is the threat of consistent counterestablishment judicial hyper-
activism in the long term?
In the first two sections of this chapter, I examine postconsti-
tutionalization political jurisprudence in Canada, Israel, New Zealand, and
South Africa with these questions in mind. Because constitutional dia-
logues, judicial review practices, and political discourses vary from country
to country, I discuss in detail an array of specific examples of judicialization
of highly contentious political controversies from each country. My analysis
suggests that when contemplating foundational political questions, these
countries’ national high courts—either as a result of their members’ ideolog-
ical preferences, or their strategic behavior, or some combination of these
and other factors—are strongly inclined to rule in accordance with national
172 Constitutionalization and the Judicialization of Mega-Politics

metanarratives and the interests and expectations of ruling elites. Indeed, as

Robert Dahl observes with regard to the U.S. Supreme Court, “it is unrealis-
tic to suppose that a Court whose members are recruited in the fashion of
the Supreme Court justices would long hold to norms of rights of justice that
are substantially at odds with the rest of the political elite.”3 The Supreme
Court may be “the forum of principle” in American life, as Ronald Dworkin
argues, but the principles that justices articulate, as Dahl and others point
out, are likely to be those favored by the governing elites. Political jurispru-
dence in the four countries studied here has certainly not been an exception
to this rule. Furthermore, as I demonstrate in the third section of this chap-
ter, when courts in these and other new constitutionalism countries do
occasionally “go astray,” such unsolicited manifestations of judicial inter-
vention in the political sphere seldom survive the stern reactive pressures
brought to bear by the political forces whose policy preferences or room for
political maneuvering was curtailed by overactive courts.

Judicialization of Foundational Nation-Building Questions

The judicialization of foundational nation-building processes—the transfor-

mation of national high courts into major decision-making bodies dealing
with fundamental questions concerning the very definition, or raison d’être,
of the polity as such—is common in fragmented polities facing deep ethnic,
linguistic, and religious cleavages that may result in political crises of ungov-
ernability or threats of political breakdown. The constitutional revolutions
in Canada, Israel, and South Africa (and to a lesser degree in New Zealand)
have had a dramatic impact on the transformation of these countries’ judi-
ciaries into central arenas for contemplating (and some would say redefin-
ing) their respective polities’ formative national narrative. A few textbook
examples of this increasingly common scenario of political jurisprudence
include the unprecedented involvement of the Canadian judiciary in deal-
ing with the political future of Quebec and the Canadian federation, the
highpoint of which has been the Supreme Court of Canada’s landmark rul-
ing in the Quebec Secession Reference (1998)—the first time in the history of
modern constitutionalism a democratic country tested in advance the legal
terms of its own dissolution; the wholesale transfer of the problems relat-
ing to the deep religious-secular cleavage in Israeli society to the judiciary
through the judicialization of the question “Who is a Jew?” and the corre-
sponding entanglement of the SCI in interpreting Israel’s fundamental
 Constitutionalization and the Judicialization of Mega-Politics 173

definition as a “Jewish and democratic state”; and the constitutional certi-

fication saga in South Africa—the first time a court refused to accept a na-
tional constitutional text drafted by a representative constitution-making
body. In all of these cases, national high courts were called on by powerful
political elements to assert their authority over the political sphere. In each
case, the courts adhered to the ideological propensities and policy prefer-
ences of those who initiated the transfer of power to the judiciary.
Perhaps nowhere has this trend been as clear as in Israel, with its
judicialization of formative nation-building questions. Although the judi-
cialization of such questions began before 1992, it has accelerated signifi-
cantly in the aftermath of the constitutional revolution. A clear manifesta-
tion of this trend is the transfer to the judiciary of the most fundamental
challenge the Israeli polity has faced since its foundation: the creation of
an ideologically plausible and politically feasible synthesis between Israel’s
commitment to both particularistic (Jewish) and universalistic (democratic)
values. Reaching such a synthesis is especially problematic given that ap-
proximately one-fifth of Israel’s citizenry (excluding the Palestinian resi-
dents of the West Bank and Gaza Strip) consists of non-Jews (primarily
Muslims, Christians, and Druzes). Even within the Jewish population it-
self, the exact meaning of Israel as a Jewish state has been bitterly contested.
Historically, the Orthodox stream of the Jewish religion has long enjoyed
the status of being the sole branch of Judaism formally recognized by the
state. In practice, however, opinions differ bitterly as to whether Jews are
citizens of a state, members of a nation, participants in a culture, or adher-
ents of a religion. Even within the latter interpretation—arguably the most
stable of these constructions—there are widely divergent beliefs and degrees
of practice.
As the historical political hegemony of Israel’s secular Ashkenazi elite and
its grip on the country’s important political decision-making forums have
become increasingly challenged, its willingness (if not eagerness) to transfer
these crucial questions from the political sphere to the Supreme Court has
increased. Based on the SCI’s record of adjudication and personal composi-
tion, as well as the ideological preferences of its justices, Israel’s secular Ash-
kenazi bourgeoisie can safely assume that its policy preferences on these for-
mative questions of collective identity will be less effectively contested in the
judicial sphere.
As expected, the Court has delivered the goods. Consider the following
examples. The Meatrael affair—one of the first post-1992 landmark cases
174 Constitutionalization and the Judicialization of Mega-Politics

dealing with the normative foundations of Israel—raised a prima facie con-

tradiction between the constitutional right to freedom of occupation and Is-
rael’s primary character as a Jewish state.4 Meatrael, a private company that
intended to import nonkosher meat products into Israel, appealed to the SCI
against the Ministry of Religious Affairs’ refusal to license the company to do
so. The company argued that the ministry’s refusal violated its constitutional
right to freedom of occupation. The ministry’s refusal was based on the
claim that Israel’s Jewish character was one of the state’s supreme constitu-
tional norms and thus had priority over any other norm. In its first decision
in the case, the Court declared the ministry’s refusal unconstitutional be-
cause it stood in contradiction to the principles of the new Basic Law and
thus infringed the company’s right to engage in any legal economic initia-
tive. Under pressure from the religious parties, the Basic Law was then
amended, in the spirit of the Canadian “override” clause, to allow for future
modifications by ordinary laws endorsed by an absolute majority of Knesset
members. Such an amendment, forbidding the import of nonkosher meat,
was subsequently enacted in 1994.
Based on the new 1994 “Meat Law,” the government renewed its refusal
to license the import of nonkosher meat. In response, Meatrael appealed to
the Supreme Court again, arguing for its right to engage in any legal eco-
nomic initiative and for the unconstitutionality of the Meat Law. This time
the Court ruled against the company, based on the reasonableness of the
new law, given the conditions for modification mentioned in the Basic Law.5
Behind this decision, however, lay immense political pressure on the Court
not to allow any further erosion of the idea of “Israel as a Jewish state” as
the highest constitutional norm. In spite of its somewhat anticlimactic end-
ing—the legislature ultimately managed to circumvent judicial scrutiny of
its decision—the Meatrael affair clearly illustrates the impact of the new Ba-
sic Laws on the contours of political discourse concerning the ideological
foundations of Israel. Indeed, prior to the adoption of the new Basic Laws, it
would have been unthinkable for the legislature to scramble to assert its will
in such matters and obviate a constitutional crisis in the courts.
In a follow-up ruling the SCI went on to harshly criticize the Central Rab-
binate for its continuous misuse of authority and blunt contempt of court
rulings in illegally denying kashrut certificates from kosher meat producers
trading with merchants of nonkosher foods.6 More important, the Court
stated that the Central Rabbinate and the entire rabbinical court system are
first and foremost statutory bodies created through state laws and that the
 Constitutionalization and the Judicialization of Mega-Politics 175

decrees and verdicts issued by these bodies must therefore conform to state
laws and constitutional norms, even when these laws and norms appear not
to be in line with religious norms. The potential implications of this state-
ment to the autonomy of the rabbinical court system are far reaching.
But the Meatrael saga and its aftermath was only the first round in a
wave of postconstitutionalization adjudications related to the deep secular-
religious cleavage in the Israeli polity. Armed with the provisions of the
new Basic Laws, appellants representing an explicitly secular policy agenda
have been successful in recent years in transforming the SCI into a promoter
of their policy preferences. Several illustrations of this trend include the
curtailment of the exclusive jurisdiction of rabbinical courts in matters of
personal status; the liberalization of prayer rights in Jewish holy sites; the
Court’s continuous questioning of the constitutionality of the draft defer-
ment arrangement; and the Court’s revolutionary answer to the question
“Who is a Jew?”
In the Bavli case (1995), the Court subjected the adjudication of all reli-
gious tribunals, including the Great Rabbinical Court, to general principles
of constitutional law. While the Court recognized the special jurisdictional
mandate awarded to Jewish, Muslim, Christian, and Druze courts by the
legislature, it nevertheless asserted its power to impose constitutional norms
on their exercise of authority.7 Rabbinical court officials have responded by
publicly asserting their resistance to the idea that the SCI, a secular entity,
possesses a mandate to review their sphere of adjudication, which rests on
religious law. Some have gone so far as to declare their intention to ignore
the Court’s ruling in Bavli, which they view as an illegitimate intrusion into
their protected jurisdictional sphere.
Based on its landmark decision in Bavli, the SCI went on to rule in Katz
(1996) that the rabbinical courts were not authorized to excommunicate or
ostracize an individual who refused to submit to the adjudication of a rab-
binical court in a civil matter. The majority opinion stated that since the rab-
binical court system was a public organ that existed by force of law and drew
its authority from the law, it could only exercise those prerogatives vested in
it by law.8 A year later, the Court overturned a rabbinical court decision that
held that a divorced father who had become religious was entitled to decide
where his children would be educated, even though his wife, who remained
secular, had been granted custody of the children.9 In 1998, the Court over-
turned yet another rabbinical court decision that had forced a divorcee to
send her son to a religious school at the demand of her ex-husband.10 In a
176 Constitutionalization and the Judicialization of Mega-Politics

similar spirit, the Court held in March 2001 that the rabbinical courts were
not authorized to rule on a request by a man to prohibit his ex-wife from let-
ting their children spend time with her lesbian partner.11 In 2002, the SCI
went on to overturn two rulings of the Great Rabbinical Court that gave un-
due preference to religious rules over general law when determining the
distribution of property between sides in personal status disputes.12
Yet another illustration of the wholesale judicialization of the secular-reli-
gious cleavage in post-1992 Israel, and the anti-Orthodox impulse that lies
at the heart of this process, can be seen in the Women of the Wall affair. The
Women of the Wall is a group of observant Jewish women who pray to-
gether in a minyan—a religious quorum traditionally reserved for men. This
form of worship is not acceptable to ultra-orthodox Jews when practiced by
women. It was therefore prohibited by the “Rabbi of the Wall,” a state-nom-
inated official authorized to regulate the prayer arrangements concerning
Jews at the Western Wall. In 1994, after several years of political delibera-
tion had failed to yield a solution to the problem of women’s prayer rights at
the Western Wall, the Court was called upon to resolve the dispute. In its
first ruling on this matter, the Court held that when the principle of gender
equality came into direct conflict with the religious beliefs of some groups
(as in this case), preference should be given to the religious groups in order
to avoid scenes of confrontation at the Western Wall, a holy site and a highly
volatile political area.13 However, the Court also urged the government to
find a fair solution to the problem—one that would balance religious-based
accommodations with women’s rights to equality. A government committee
was set up to find such a solution, but it failed to reach an agreement that
was acceptable to the parties involved.
The Women of the Wall then returned to the Court to reassert their prayer
rights based on the equality principle. This time, given the failure to achieve
a negotiated settlement in good faith, the Court reversed its original decision
and ruled in favor of the Women of the Wall.14 Given that prior to this deci-
sion the rules excluded women (Orthodox or otherwise) from conducting
minyan prayer services at the wall, the government was ordered to make
the technical arrangements that would enable the women to pray as they
wished while minimizing the disturbance to other worshippers. Following a
government appeal, an extended panel of nine judges revised the ruling yet
again in early 2003, instructing the government to designate the adjacent
Robinson’s Arch area of the wall plaza for women’s prayer.
In another historic decision, released in December 1998, the SCI harshly
 Constitutionalization and the Judicialization of Mega-Politics 177

criticized (based on the constitutional principle of equality as well as fun-

damental principles of administrative law) the validity of a fifty-year-old
arrangement under which Orthodox yeshiva students had received draft
deferments.15 According to long-standing practice, deferments had been de-
cided solely by the Defense Minister. A rare, expanded panel of eleven jus-
tices handed the matter to the Knesset, ordering it to create legislation
within a year to replace the existing system, which was based on ministerial
decrees rather than on primary legislation. Following this decision, a public
committee was appointed to propose amendments to the draft-deferments
arrangement that would be acceptable to all the relevant parties. Following
two extensions granted by the Court, the committee published its final rec-
ommendations for modest revisions to the traditional draft-deferments ar-
rangement. These were endorsed by the government and enacted as an in-
terim law in 2000. The new law (which still awards fairly broad draft
exemptions to ultra-Orthodox Jews) barely survived constitutional scrutiny
in early 2002 and was saved primarily because of its temporary standing. In
2002, the Knesset granted permanent status to the interim law, effectively
overriding the Court’s 1998 ruling. In any event, given the perennial inabil-
ity, or unwillingness, of Israel’s political elites to reach a consensus and the
availability of a constitutional framework that encourages deference to the
judiciary, it is highly unlikely that any new arrangement reached through
legislative means will go unchallenged in the courts.
Arguably the clearest example of the SCI’s deep entanglement with for-
mative questions of collective identity is its recent spate of rulings concern-
ing just who is a Jew and who qualifies for the right to return to Israel.16 As
explained earlier, the Orthodox stream of Judaism has been the sole branch
of Judaism formally recognized by the state. This exclusive status has en-
abled the Orthodox community to establish a near monopoly over the sup-
ply of public religious services as well as to impose rigid standards on the
process of determining who is defined as a Jew. This issue has crucial sym-
bolic and practical implications as, according to Israel’s Law of Return, Jews
who immigrate to Israel are entitled to a variety of benefits, including the
immediate right to full citizenship. Non-Jewish immigrants are not entitled
to these benefits. Since being Jewish is sufficient to qualify for citizenship,
the state’s self-definition as a Jewish state is inextricably caught up with de-
fining who is a Jew.
As in the case of draft deferral, the growing political deference to the judi-
ciary soon brought the question to the SCI. In 1989, when the constitutional
178 Constitutionalization and the Judicialization of Mega-Politics

revolution initiative was in its formative stages, the Court held that for pur-
poses of immigration, any person who converted to Judaism outside Israel,
whether under the auspices of an Orthodox, Conservative, or Reform reli-
gious institution, was automatically entitled to all the rights of an oleh (Jew-
ish immigrant), as stated in the Law of Return and the Citizenship Law.17 In
1995, the Court was once again drawn into the muddy waters of identity
politics. This time, the question before the Court was whether a non-Jewish
person who underwent non-Orthodox conversion in Israel was entitled to
automatic citizenship based on the right of return. The Court avoided giving
a clear answer while explicitly reaffirming its 1989 ruling validating non-Or-
thodox conversions made abroad.18
Following this ruling, an increasing number of non-Jewish persons resid-
ing in Israel (primarily foreign workers and non-Jewish immigrants from
the former Soviet Union) went abroad to pursue non-Orthodox conversion
in order to claim the benefits awarded by the state to new immigrants recog-
nized as Jews. In response, the Ministry of the Interior (controlled by the
ultra-Orthodox Shas party) renewed its refusal to recognize Reform and
Conservative conversions to Judaism made abroad. In November 1999, the
Court revisited the issue by stating that if the involved parties had failed to
reach a settlement by April 2000, an expanded panel of eleven judges would
address the conversion issue soon thereafter. No agreeable compromise was
reached by the deadline, and the Court resumed its deliberation on the issue
later that year. The judicialization of the conversion question culminated in
early 2002 with the Court’s historic decision to recognize non-Orthodox
conversions to Judaism performed both in Israel and abroad.19 In spite of the
judges’ continuous attempts to portray the judgment’s applicability as lim-
ited only to the specific group of petitioners (instead of an across-the-board
legitimization of non-Orthodox conversions), the ruling has been perceived
by the Israeli public as a significant step toward the ultimate legitimization of
non-Orthodox conversions and therefore as one of most glaring examples of
the Court’s anti-Orthodox line of adjudication.
Just as the intrinsic tension created by Israel’s simultaneous commitment
to particularistic and cosmopolitan values has troubled the Israeli polity for
decades, the struggle between anglophone and francophone Canadians over
the status of French language and culture and the question of the Canadian
polity and Quebec’s place in it have been the most fraught issues on Can-
ada’s public agenda since the inception of the Canadian confederation in
1867. The controversy intensified with the “Quiet Revolution” and the rise
 Constitutionalization and the Judicialization of Mega-Politics 179

of Quebec nationalism in the 1960s. Since the enactment of the Constitu-

tion Act 1982, the Supreme Court of Canada has become one of the most
important decision-making bodies with regard to the battle over French Ca-
nadians’ demands for greater political, cultural, and linguistic autonomy. In
nearly all of its important rulings on these matters, the SCC has sided with
the policy preferences of the federal government.
Consider the following examples. In the Patriation Reference (1981) the
SCC held that although a constitutional convention requiring provincial ap-
proval for any constitutional overhaul did exist, the federal government
could still unilaterally initiate a major constitutional reform because the pro-
vincial consent requirement was not formally entrenched in any constitu-
tional provision.20 A year later, the Court held in the Quebec Veto Reference
that there was no constitutional convention requiring unanimous provincial
consent or awarding Quebec a veto power.21 The Court also rejected Que-
bec’s claim to a special veto power based on the “distinct society” and the
“two founding peoples” arguments.22 In spite of this ruling, Quebec contin-
ued to maintain that its legislature had a right to veto constitutional provi-
sions. Drawing primarily on this perennial bone of contention, Quebec re-
mains the only Canadian province that has not endorsed the constitutional
arrangement of 1982.
The SCC’s antisecessionist impulse did not end with the Quebec Veto Refer-
ence. Two years after the adoption of the Charter of Rights and Freedoms, the
Court ruled in Quebec Protestant School Board (1984) that the education provi-
sions of Quebec’s Bill 101 (requiring that public education in Quebec be in
French only) contradicted section 23 of the Charter and should therefore
be struck down.23 This ruling echoed the Court’s pre-Charter ruling in the
Blaikie cases (1979–1981), where it upheld the federal bilingualism policy by
determining that the Quebec National Assembly’s production of only unof-
ficial English translations of its enactments did not meet the requirements
of section 133 of the Constitution Act 1867.24 In the spirit of the Quebec
Protestant School Board case,25 the Court went on in 1988 to rule that the pro-
visions of Quebec’s Bill 101 that required all public signs and advertisements
to be in French violated only the Charter’s freedom of expression guaran-
tee.26 It also held that the blanket use of an override declaration by the Que-
bec government (Bill 178) was an improper and invalid application of the
Charter’s override clause.
The Court’s support of anglophone elite political sentiment regarding fun-
damental nation-building questions has not been confined to the struggles
180 Constitutionalization and the Judicialization of Mega-Politics

generated by Quebec’s separatist aspirations. It extends to unequivocal ac-

ceptance of the federal government’s official bilingualism policy. Appropri-
ate recognition of Canada’s two major linguistic communities has been a
matter of crucial importance at every stage of Canadian constitutional devel-
opment and rights discourse. Accordingly, language rights in Canada are
protected by section 133 of the Constitution Act 1867 and by sections 16–23
of the Charter. The introduction of the latter provisions marked a fairly ex-
pansive conceptualization of Canadian citizenship entitlements for members
of French and English minority-language communities. This pattern is re-
flected in the amendment provisions of the Constitution Act 1982, which
require unanimous provincial support for changes to the constitution with
respect to language. Some would even argue that the very enactment of
these language-rights provisions was part of the Canadian federal govern-
ment’s constitutional battle against the separatist movement in Quebec in
general and against the contentious Bill 101 in particular. The SCC has
played a key role in promoting these policy preferences, from its reaffirma-
tion of the privileges of Roman Catholic schools protected under section 93
of the Constitution Act 1867 to its keen promotion of dual-language school
systems for francophones and anglophones throughout the country.
In the 1985 Manitoba Language Rights Reference, for example, the SCC de-
clared unconstitutional an 1890 Manitoba act that only English could be the
language of the legislature and the courts in that province, further stipulat-
ing that Manitoba be granted five years “to translate, re-enact, and publish”
all its legislation into French as well as English.27 In a similar vein, in its
landmark decision in Mahe v. Alberta, the Court held that in accordance
with section 23 of the Charter, the Alberta provincial government was re-
sponsible for actively providing and funding educational facilities and inten-
sive instruction in French for the francophone minority in that province, as
well as for ensuring proportional representation of French-speaking parents
in the management of their children’s French-language education.28 In its
recent decision in Aresenault-Cameron v. Prince Edward Island, the Court
reaffirmed its decision in Mahe, holding that section 23 mandates that pro-
vincial governments do whatever is practically possible to preserve and pro-
mote minority-language education.29 In this case, francophone children in
a town in Prince Edward Island had to endure a daily two-hour ride to
and from a French school in another town in order to receive education
in French. The SCI held that the imposition of this commute, instead of
funding on-site schooling in French, constituted an unreasonable constraint
upon the children’s parents’ section 23 rights.
 Constitutionalization and the Judicialization of Mega-Politics 181

But the most dramatic step (so far) in the transformation of the Canadian
judiciary into a major forum for dealing with issues concerning the rights
and status of French Canadians came with the recent referral of the Quebec
secession question to the SCC. Following a slim 50.6 percent to 49.4 percent
loss by the Quebecois secessionist movement in the 1995 referendum, the
Court was asked by the federal government, using the reference procedure,
to determine whether a hypothetical unilateral secession declaration by the
Quebec government would be constitutional.30 In the reference submitted
to the SCC, three specific questions were asked: (1) Under the Constitution
of Canada, can the National Assembly, legislature, or government of Quebec
effect the secession of Quebec from Canada unilaterally? (2) Does interna-
tional law give the National Assembly, legislature, or government of Quebec
the right to effect the secession of Quebec from Canada unilaterally? (In
other words, is there a right to self-determination in international law that
applies to Quebec?) and (3) If there is a conflict between international law
and the Canadian Constitution on the secession of Quebec, which takes
precedence?
In a widely publicized ruling in August 1998, the SCC held that unilateral
secession would be an unconstitutional act under both domestic and inter-
national law and that a majority vote in Quebec was not sufficient to allow
the French-speaking province to separate legally from the rest of Canada.
However, the Court also noted that if and when secession was approved by a
clear majority of people in Quebec voting in a referendum on a clear ques-
tion, the parties involved should then negotiate the terms of the subsequent
break-up in good faith. As for the question of unilateral secession under Ca-
nadian law, the Court’s ruling provided both federalists and separatists with
congenial answers. In strictly legal terms, the Court ruled that the secession
of Quebec would involve a major change to the structure of Canada that
would require an amendment to the Constitution. This in turn would re-
quire negotiations between the involved parties. On the normative level,
the Court stated that the Canadian Constitution was based on four equally
significant underlying principles: federalism, democracy, constitutionalism
and the rule of law, and the protection of minorities. None of these princi-
ples trumped any other. Hence, even a majority vote (that is, strict adher-
ence to the fundamental democratic principle of majority rule) would not
entitle Quebec to secede unilaterally. However, the Court stated that if a
clear majority of Quebecois voted “oui/yes” to an unambiguous question on
Quebec separation, this would “confer legitimacy on the efforts of the gov-
ernment of Quebec to initiate the Constitution’s amendment process in or-
182 Constitutionalization and the Judicialization of Mega-Politics

der to secede by constitutional means.” Such “a clear majority on a clear

question” would require the federal government to negotiate in good faith
with Quebec in order to reach an agreement on the terms of separation.
As for international law, the Court’s answer was much shorter and less
ambiguous: it found that although the right of self-determination of peoples
did exist in international law, it did not apply to Quebec. While avoiding the
contentious question of whether the Quebec population or part of it consti-
tuted a “people” as understood in international law, the Court held that the
right to unilateral secession did not apply to Quebec, as it was clear that
Quebecois were not being denied their rightful ability to pursue their “polit-
ical, economic, social, and cultural development within the framework of an
existing state,” nor were they a colonized or oppressed people.
The government of Quebec responded to the judgment by enacting a
bill stating that if a majority of “50 percent plus one” of those Quebecois
who cast ballots in a provincial referendum on the future of Quebec sup-
ported the idea of secession, this would satisfy the requirement for a “a clear
majority” set by the Court decision. The federal government, on its part, re-
sponded in late 1999 by proposing the “Clarity Bill,” which was enacted into
law in June 2000. In a nutshell, this states that only “a clear majority on
a clear question” would require the federal government to negotiate the
terms of separation with Quebec; that given the importance of the question
at stake, the term “clear majority” should mean more than “50 percent plus
one”; and that the federal government should reserve the right to determine
whether the question posed by the Quebec government in any future refer-
endum on this issue met the criteria of a “clear question.”
Without the political and cultural context to make sense of these events
and rulings, the non-Canadian reader may find this chain of judicial events
regarding the status of Quebec somewhat perplexing. However, one thing is
indisputable: over the past twenty years, the SCC has become one of the
most important public forums (if not the most important one) for dealing
with the highly contentious issue of Quebec’s status and its future relation-
ship with the rest of Canada. Drawing on the new constitutional framework
established by the Constitution Act 1982 and the SCC’s willingness (if not
eagerness) to play a central role in the Quebec saga, the involved parties
(primarily the federalists) were able to translate the question of Quebec’s
political status—arguably the most fundamental question pertaining to the
very being and raison d’être of the Canadian confederation in its current
form—into a judicial one.
 Constitutionalization and the Judicialization of Mega-Politics 183

Alternatively, we can consider the South African Constitutional Court’s

deep involvement in the creation of the new South Africa. Until the late
1980s, the South African judiciary had been largely ineffectual in its half-
hearted (at best) efforts to oppose the horrors of the apartheid regime. How-
ever, since the termination of apartheid in South Africa and the establish-
ment of the new political order, and especially since the inauguration of the
Constitutional Court in February 1995, the South African judiciary has be-
come deeply involved in matters arising from South Africa’s dark political
past as well as issues pertaining to its future as a nation. Immediately follow-
ing its establishment, the Constitutional Court became the major forum for
settling disputes over the national-provincial division of legislative powers
and appropriate limits on the power of the President. In its first two rulings
on the former issue—the Western Cape decision and the KwaZulu-Natal deci-
sion (both released within a year of the Constitutional Court’s inaugura-
tion)—the Court had to deal with the distribution of political jurisdiction in
the new South Africa. It maneuvered expertly between the desire to en-
hance the public profile of the democratically elected, ANC-controlled cen-
tral government on the one hand, and the wish to expand the powers of
provincial legislatures in order to move to a nonracial system of local gov-
ernment on the other.31 Beyond the important ramifications for the distri-
bution of legislative powers, these two decisions were crucial because they
dealt with disputes resulting in part from partisan conflicts—namely the po-
litical tension between an ANC-controlled national government and two
provincial governments controlled by other political parties. Primarily due
to the vested party political interests in the situation, the Court acted as a
broker in a series of political disputes over the division of powers between
these two provinces and the central government.32
While various interested parties in South Africa have transferred other
major political controversies concerning national-provincial division of leg-
islative powers to the Constitutional Court, a brief discussion of one such
case (dealing with the regulation of trade and commerce) may help to illus-
trate the transformation of South Africa’s political and constitutional dis-
course in the postconstitutionalization era. In the Liquor Bill Case (1999),
President Nelson Mandela referred the Liquor Bill passed by the National
Assembly to the Constitutional Court, requesting it to consider the appropri-
ate national-provincial legislative powers in the area of liquor licensing.33 In
doing so, the President invoked for the first time his power under the final
Constitution to refer a bill to the Constitutional Court if he had reservations
184 Constitutionalization and the Judicialization of Mega-Politics

about its constitutionality. The recalcitrant province of the Western Cape

argued before the Court that the bill’s comprehensive regulation of the man-
ufacture, distribution, and sale of liquor through a national system of regis-
tration intruded into the exclusive authority of the provinces over liquor li-
censing. The Minister of Trade and Industry asserted, however, that the bill
aimed to make the liquor industry more accessible to this historically disen-
franchised group by breaking down the historical concentration of the in-
dustry in the hands of the few. The minister argued that these issues were
national in scope and that any intervention into an exclusive provincial
power was incidental to achieving the overall effect of the bill. The Court
held that the provinces’ exclusive legislative competence with regard to “li-
quor licensing” was narrower in its scope than the national government’s
concurrent power to regulate “trade” and “industrial promotion.”34 The
Court also stated that the bill’s prohibition of cross-holdings, as well as the
national system of registration for producers and wholesalers, fell within the
national legislature’s competence to regulate trade.35 The Liquor Bill affair, as
well as the more recent Land Registration matter36 and other similar cases,
clearly illustrate the impact of the new constitutional framework on the
scope of judicial involvement in national-level policy-making in present-day
South Africa.
A case may reach the SACC either as an appeal transferred from another
court or as the result of a direct approach to the Court, primarily through the
use of the reference procedure by the President, the National Assembly, the
Senate, or the provincial legislatures. Before 1995 it would have been both
unthinkable and impossible to submit national and provincial statutes deal-
ing with the division of legislative powers to the courts to examine their
constitutionality. Another unique path by which the SACC may be called on
to establish its authority over the political sphere is through the certifica-
tion of constitutional texts. South Africa’s final Constitution states that after
passing a new constitutional text, the Constitutional Assembly must submit
that text to the Court for certification before it enters into effect. Given the
formative stage of the new South African constitutional order, the SACC’s
involvement since 1995 in separation of powers issues is not surprising.
However, the Court’s profound (and invited) involvement in the very certi-
fication of the final national Constitution has no equivalent in the history of
modern constitutionalism.37
After a long and arduous political battle, in May 1996 the Constitutional
Assembly voted in favor of a new constitutional text, which was to form the
 Constitutionalization and the Judicialization of Mega-Politics 185

basis of the final Constitution. Once adopted by the Constitutional Assem-

bly, the new text was submitted to the SACC for certification to ensure that
it complied with the constitutional principles agreed upon in multiparty
negotiations in 1993 and contained in Schedule 4 of the interim Constitu-
tion. With the exception of the African National Congress (ANC) and the
Pan Africanist Congress (PAC), all the political parties represented in the
National Assembly lodged objections to certification with the Court. In
addition, eighty-four private interveners objected. The political parties and
twenty-seven of the private parties were given the opportunity to make oral
submissions to the Court during a nine-day certification hearing in July
1996.
In its landmark decision, delivered in September 1996, the Court identi-
fied nine elements of the new text that failed to comply with certain con-
stitutional principles. The draft Constitution was sent back to the Con-
stitutional Assembly so that certain provisions could be reworked. The
provisions requiring revision included a section that failed to recognize the
right of individual employers to engage in collective bargaining; a section
that unlawfully shielded an ordinary statute from constitutional review; a
section that failed to recognize the special procedures necessary for amend-
ing the Constitution and that failed to afford adequate protection (in the
form of entrenchment) to the Bill of Rights; a section that failed to provide
for and safeguard the independence and impartiality of the Public Prosecu-
tor and other public organs; and a set of provisions that failed to provide a
framework for the structures, fiscal powers, and functions of local govern-
ment and that did not provide that formal legislative procedure should be
adhered to by local legislatures.
The various arguments underpinning the SACC’s decision to require revi-
sions to the draft Constitution illustrate the scope of the Court’s monitoring
of nearly every aspect of the political sphere in the new South Africa. For ex-
ample, the first certification judgment ensured that it would be even more
difficult for future governments to amend the final Constitution, and the
Bill of Rights in particular, and that no specific pieces of legislation could be
placed beyond constitutional scrutiny by the Court. As several scholars have
noted, even the question of reduced provincial powers, which was one of
the most politically controversial topics canvassed at the certification hear-
ings, was ultimately resolved by the court into an issue of judicial power
rather than one of national-provincial distribution of powers. The Court
urged the Constitutional Assembly to remove the presumption in favor of
186 Constitutionalization and the Judicialization of Mega-Politics

national legislation (“residual legislative power” and the doctrine of “para-

mountcy”) and to return to the interim Constitution’s approach to national-
provincial conflicts of law—an approach that essentially left it to the courts
to develop principles for determining the resolutions of such conflicts.38
Following the refusal of the Court to certify the draft constitution, the
Constitutional Assembly was recalled in an attempt to pass an amended
text that would satisfy the Constitutional Principles. In October 1996, barely
a month after the first certification judgment was handed down, the Consti-
tutional Assembly passed an amended text addressing all of the concerns
raised by the Constitutional Court in the first certification hearing. In De-
cember 1996, the Court approved the amended text.
A few observations should be made regarding this certification saga. First,
just as the Quebec Secession Reference was the first instance of a democratic
country testing in advance the legal terms of its own dissolution, the initial
certification judgment in South Africa was the first court refusal of accep-
tance of a national constitutional text drafted by a representative constitu-
tion-making body. Second, the initial certification hearing took place less
than eighteen months after the inauguration of the SACC. Its relative youth
notwithstanding, none of the political actors and parties questioned the le-
gitimacy of either the certification process itself or the particular decisions
taken by the Court during that process. By the end of the certification pro-
cess, the transformation of the Court into a pivotal decision-maker in consti-
tuting the new South Africa was complete.
From a normative perspective, the deliberate transfer of foundational na-
tion-building questions to the judiciary is troubling. The transfer to the judi-
ciary of political controversies such as the struggle over the nature of Canada
as a confederation of two founding peoples, Israel’s wrestling with the ques-
tion “Who is a Jew?” and its status as a Jewish and democratic state, or the
transition to democracy in South Africa may be justified on consequentialist
grounds (consociational or “national healing” considerations, for instance).
However, the practice still raises concerns.
Informed public deliberation and citizen participation are at the heart
of democratic governance. When contentious political questions are trans-
formed into legal questions, however, the bulk of the citizenry (who are
neither judges nor lawyers) are deprived of the opportunity to shape public
policy outcomes in a meaningful way and are forced to relinquish their re-
sponsibility for working out reasonable and mutually acceptable resolutions
of the issues that divide them. The contours of political debate are conse-
 Constitutionalization and the Judicialization of Mega-Politics 187

quently shaped by a narrow class of professionals—usually lawyers, aca-

demics, and judges, all employing technical jargon and legalistic reasoning—
instead of through open public deliberation framed by the people and their
representatives. Put differently, the transfer of fundamental questions of col-
lective identity from the political sphere to the courts favors those who have
specific professional knowledge and better access to and influence upon the
legal system. “They the Jurists” are granted an elevated status in determin-
ing policy outcomes at the expense of “We the People,” laypersons who
make up the vast majority of the populace.
Such transfer represents a large-scale abrogation of political responsibility,
if not outright abdication of power, by legislatures whose primary task is
to make political decisions for which they are accountable to their constitu-
ents. Therefore, an excessive reliance on courts to determine contentious
issues such as a polity’s raison d’être may undermine the very essence of
democratic politics as an enterprise involving a relatively open, at times con-
troversial, but arguably informed and accountable deliberation by elected
representatives. After all, the primary function of legislatures should be to
confront and resolve problems, not to pass them on to others. By transfer-
ring political decision-making authority to the judiciary, these legislatures
take advantage of (or worse, actively support the establishment and mainte-
nance of) a strong judiciary to avoid difficult, unpopular, or unwanted out-
comes. Legislatures thus grant priority to their short-term political interests
at the expense of fulfilling the public task they were elected to do—make
principled, well-informed, and accountable decisions.
Moreover, the unprecedented involvement of national high courts in for-
mative nation-building processes is difficult to reconcile with some of the
widely accepted fundamental principles of canonical constitutional theory.
In The Least Dangerous Branch, Alexander Bickel argues in defense of judicial
review by suggesting that governments should serve not only what people
conceive from time to time to be their immediate material needs, but also
certain enduring values.39 Legislative assemblies often fail to uphold this
function because the pressure for immediate results is powerful and “men
will ordinarily prefer to act on expediency rather than take the long view.”
The proven weakness of legislatures, Bickel argues, relates not only to their
lack of respect for the rule of established principles, but also to their fail-
ure to refer to and respect a coherent body of principled rules. The courts,
by contrast, have distinct capacities for dealing with matters of principle.
Judges, according to Bickel, “have, or should have, the leisure, the training,
188 Constitutionalization and the Judicialization of Mega-Politics

and the insulation to follow the ways of the scholar in pursuing the ends of
government.” This “is crucial in sorting out the enduring values of a society,
and it is not something that institutions can do well occasionally, while oper-
ating for the most part with a different set of gears. It calls for a habit of
mind, and for undeviating institutional customs.” Bickel thus justifies judi-
cial review as “the principled process of enunciating and applying certain
enduring values.”40
Questions as to what constitutes “enduring” or “fundamental values” and
“the background political morality of society,” and who should decide them,
however, are not easily answered.41 There is no consensus as to whether
such values exist at all, what these values are if they do exist, and whether
they are indeed worthy of further preservation. In fact, fundamental politi-
cal controversies, such as the struggle over the nature of Canada as a confed-
eration of two founding peoples, Israel’s definition of itself as a Jewish and
democratic state, and the fight over appropriate reparative justice in post-
apartheid South Africa, are all battles over just what qualities should be rec-
ognized as enduring values that constitute the body politic and whether
these values ought to be preserved. It is hard to see how judges can deal with
such open-ended struggles concerning the very definition and scope of a
given polity’s constitutive values while employing preexisting sets of (inher-
ently judicially created) supposedly enduring values. Moreover, the more
often national high courts deal with fundamental controversies over such
values, the less convincing the rationale behind Bickel’s “enduring values”
approach becomes.
In Taking Rights Seriously, Ronald Dworkin admits that in order to deter-
mine the “enduring values” of their particular societies, judges inevitably
have to make value choices.42 Although they might conscientiously seek to
decide on the basis of objective principles, it is difficult to see how they could
make a determination about enduring values without personal preferences
and political opinions coming into play. It is therefore hard to understand
how judges would be able to base their decisions on principles that are quali-
tatively different from principles that are supposed to characterize the legis-
lative process. Perhaps, then, these decisions might be better determined by
the legislature.
Nor does John Hart Ely’s theory of judicial review as a means of policing
the process of representation rescue the expansion of judicial review from
critique on democratic grounds. Ely’s “participation-oriented, representa-
tion-reinforcing approach to judicial review” endorses an avowedly second-
 Constitutionalization and the Judicialization of Mega-Politics 189

ary and supportive role for the court, which, “unlike its rival value-protect-
ing approach, is not inconsistent with, but on the contrary, . . . entirely
supportive of, the underlying premises of representative democracy.”43 Ac-
cording to Ely, the court would not be concerned with rejecting laws with
which it disagreed, but would be justified in striking down legislation only
when the democratic process itself was malfunctioning. Courts, according to
this process-centered justification of judicial review, should promote “the
achievement of a political process open to all on an equal basis and a conse-
quent enforcement of the representative’s duty of equal concern and respect
to minorities and majorities alike.”44 The proper scope of judicial review
should therefore be confined to procedural questions of participation and
representation. Judicial inquiries into the substantive merits of impugned
political decisions should be avoided, primarily because they might impose
the normative or prescriptive views of appointed and nonaccountable
judges on citizens.45 Democracy requires that the choice of substantive polit-
ical values be made by elected representatives rather than by unelected
judges. As such, substantive political choices should be left to elected and
accountable officials.
Whereas the U.S. Supreme Court’s decision in Bush v. Gore, for example,
can be seen as fulfilling Ely’s criteria, as it is a decision dealing with proce-
dural aspects of democracy (for example, due process and standardized vote
counting), the SCC’s ruling in the Quebec Secession Reference and the South Af-
rican Constitutional Court’s Constitutional certification decisions clearly fall
outside of these parameters. All of these decisions represented clear mani-
festations of substantive political choices by judges. In fact, most cases that
would fall within the judicialization of disputes over electoral procedures
and outcomes would appear to fit Ely’s process-centered justification of con-
fined judicial review. In contrast, most instances of deep judicial entangle-
ment in nation-building processes and restorative justice schemes fall far be-
yond the scope and nature of judicial activism permitted by Ely’s process-
oriented justifications.
Likewise, the global transition to juristocracy questions the soundness of
Bruce Ackerman’s dualist conception of lawmaking as justifying judicial re-
view.46 Unlike ordinary lawmaking, argues Ackerman, constitutional (or
higher) lawmaking is the legitimate outcome of a large-scale political mobi-
lization of vast numbers of citizens over a substantial period of time. Accord-
ing to Ackerman, three periods in the history of the United States meet
the criteria for such constitutional moments: the foundation of the coun-
190 Constitutionalization and the Judicialization of Mega-Politics

try; the Civil War; and the New Deal. By scrutinizing ordinary legislation,
courts protect, not erode, the true democratic will of the people as expressed
through those rare historic moments of higher constitutional lawmaking. If
constitutional norms, not ordinary law, are indeed a genuine expression of
mass popular will, ordinary law cannot legitimately contradict or override it.
However, as several scholars have argued, Ackerman’s distinction be-
tween constitutional politics and ordinary politics is dubious.47 First, it is
questionable whether the constitutional revisions adopted through what
Ackerman describes as constitutional moments indeed reflect the popular
will of vast numbers of citizens over a substantial period of time. As the his-
tory of modern constitutionalism tells us, we have every good reason to be
skeptical about the practical ability of the powerless and the disenfranchised
to shape constitutional lawmaking in any meaningful way. Second, it is un-
clear whether landmark political judgments such as the Quebec Secession Ref-
erence reflect or create constitutional moments. But perhaps more impor-
tant, not all constitutional revolutions under the new constitutionalism
meet Ackerman’s definition of genuine historical moments in which sheer
popular will brought about higher lawmaking. Whereas the constitutional
revolution in South Africa or in the former Eastern Bloc may be portrayed as
meeting Ackerman’s standards, it is very much in doubt to what extent the
constitutionalization of rights and the establishment of judicial review in
Canada or Israel reflect such authentic constitutional moments. And if they
do not, the entire basis of the dualist lawmaking justification of judicial re-
view collapses.

Judicialization of Fundamental Restorative

Justice Dilemmas

The wave of judicial activism that has swept over the world in the past
few decades has not bypassed one of the most contentious issues a demo-
cratic polity ought to address—that of coming to terms with its own (often
not so admirable) past. The increasingly common transfer of fundamen-
tal moral and political dilemmas concerning extreme injustices and human
rights abuses committed against historically disenfranchised groups from the
political sphere to the courts involves several subcategories that reflect dif-
ferent notions of restorative justice. These include persecution of individuals
deemed responsible for past wrongdoing; quasi-judicial commissions of in-
quiry; equalization and affirmative action policies; and constitutional recog-
 Constitutionalization and the Judicialization of Mega-Politics 191

nition of the cultural and material rights of indigenous populations. Con-

crete examples include the judicialization of restorative justice in the wake
of the large-scale atrocities of the apartheid era in South Africa (for example,
through the establishment of the quasi-judicial Truth and Reconciliation
Commission and the corresponding 1995 AZAPO ruling); the Pinochet affair
as the epitome of the ongoing judicialization of restorative justice in Chile
and other postauthoritarian Latin American countries; the exercise of uni-
versal criminal jurisdiction against war crimes, crimes against humanity, and
genocide in the courts of countries such as Spain or Belgium; the major role
played by the newly established constitutional courts in post-communist
Europe in confronting their respective countries’ past during World War II
and the communist era; and the ever-accelerating judicialization of the bat-
tle over the status of indigenous peoples in “settler societies” such as Can-
ada, Australia, and New Zealand.
The question of restorative justice in post-apartheid South Africa, for ex-
ample, presents a set of moral and practical dilemmas that on the face of
it ought to be resolved in the political rather than in the judicial sphere.
Nonetheless, the constitutional revolution of the mid-1990s, combined with
a political environment conducive to judicial activism, facilitated the trans-
fer of the difficult questions of restorative justice and reconciliation from
majoritarian decision-making bodies to the courts. Consequently, the newly
established Constitutional Court, which unlike its Canadian and Israeli
counterparts has not yet developed a broad, uncontested institutional legiti-
macy, has become a major site for dealing with the dilemma of restorative
justice in the post-apartheid era. Ironically, this transfer has turned the
South African judiciary, with its history of almost unbroken silence during
the apartheid years, into one of the primary forums for promoting the so-
called national healing process.48
Consider, for example, the AZAPO case.49 The background is well known.
In 1995, following two years of negotiations between the ANC and the Na-
tional Party, the South African Parliament passed the Promotion of National
Unity and Reconciliation Act (PNURA). This reflected a policy of national
healing through reconciliation and established the Truth and Reconciliation
Commission (TRC), which was designed to establish, through hearings and
investigations, as full a picture as possible of the gross violations of human
rights committed during the apartheid era. In order to fulfill its mission, the
TRC was awarded the authority to grant amnesty to officials and agents of
the apartheid regime who made full disclosure of the crimes they had com-
192 Constitutionalization and the Judicialization of Mega-Politics

mitted against those perceived as appropriate racial or political targets dur-

ing the apartheid era. The Azanian Peoples Organization (AZAPO) and the
relatives of some of apartheid’s best-known martyrs—Steve Biko, Griffith
Mxenge, and Fabian Ribeiro—sought to set aside the conditional amnesty
procedure established by the PNURA on the grounds that it was inconsis-
tent with section 22 of the interim Constitution, which provided that every
person should have the right to have justiciable disputes settled by a court
of law.
In an eloquent judgment released in July 1996, the SACC acknowledged
that the conditional amnesty procedure established by the PNURA limited
the applicants’ section 22 rights. However, citing the interim Constitution’s
“limitation clause,” the Court ruled that the violation of this right was per-
missible and justified by the epilogue to the Constitution, which called for
“national unity and reconciliation.” Specifically, the Court ruled that the
proposed conditional amnesty for criminal, civil, or international liability
was permitted by the epilogue, because without it there would be no incen-
tive for offenders to disclose the truth about past atrocities. Furthermore, the
Court noted that such amnesties were a crucial component of the negotiated
settlement itself, without which the interim Constitution would not have
come into being.
The political and legal ramifications of the AZAPO decision were far-reach-
ing. The TRC conducted a thorough quasi-legal investigation into the mass
atrocities of the apartheid era and published its findings in a comprehensive
and widely publicized report in 1999. Throughout its deliberations, the TRC
drew upon the “amnesty for confession” formula that had been given a
green light by the Court in AZAPO. Beyond the implications of the contro-
versial decision in AZAPO, this case clearly illustrates how moral and politi-
cal quandaries pertaining to restorative justice in the wake of large-scale hu-
man rights abuses can be turned into judicial questions. As in the question
of political self-determination and secession in the case of the ongoing battle
between Quebec and the rest of Canada and the question of secularism ver-
sus religiosity as the predominant feature of a polity in the case of Israel, so
the problem of restorative justice in the wake of mass atrocities is, first and
foremost, a deep moral and political dilemma, not a judicial one. Neverthe-
less, a combination of institutional factors (such as the presence of a consti-
tutional catalogue of rights and the availability of active judicial review prac-
tices) and the active or tacit support of political power-holders and judicial
elites have helped turn these countries’ national high courts into the princi-
 Constitutionalization and the Judicialization of Mega-Politics 193

pal arenas in which these fundamentally political and moral questions are
contemplated.
Another manifestation of this trend can be seen in the judicialization
of the struggle over the status of indigenous peoples in settler societies such
as Canada and New Zealand. Consider, for example, the comprehensive ad-
judication dealing with the most fraught issue on New Zealand’s public
agenda: the recognition and application of Maori rights. Over the past few
decades, the Maori have become increasingly outspoken in their search
for cultural recognition and equal entitlement to public goods. Specifically,
there has been a revival of the public debate over the status of the Treaty of
Waitangi 1840.50 The establishment of the Waitangi Tribunal in 1975, and
the expansion in 1985 of the tribunal’s authority to hear Maori grievances
pertaining to the post-1840 era (rather than grievances pertaining to the
post-1975 period only, as permitted by the Treaty of Waitangi Act 1975),
brought about a slew of claims by Maori groups concerning apparent viola-
tions of their economic and cultural rights. Following the enactment of the
NZBORA in 1990, the New Zealand Court of Appeal has become a central
forum for dealing with these claims.
In a series of landmark judgments since 1990 concerning Maori language
and cultural rights, based both on NZBORA provisions and on the Treaty of
Waitangi, the NZCA ruled in the Radio Frequencies case that the promotion of
Maori language and culture was a mandatory and relevant consideration in
the decision to allocate radio frequencies and therefore that communities
were entitled to a proportional share of radio broadcasting frequencies allo-
cated by the state.51 In the Broadcasting Assets case, however, the Court ruled
that the Minister of Communication’s decision to allocate only a few radio
frequencies to Maori radio stations, following his consideration of the prin-
ciple set in Radio Frequencies, was reasonable.52 According to the Court, the
privatization of broadcasting assets, including Radio New Zealand, did not
contravene the principles of the NZBORA and the Treaty of Waitangi, and
public radio was not essential for the preservation of Maori language rights.
It concluded that the government was not constitutionally obliged to sup-
port the status of the Maori language by maintaining its ownership of com-
mercial radio assets.53 On appeal, the Judicial Committee of Privy Council
affirmed the Court of Appeal decision.54
In other NZBORA and Treaty of Waitangi–based landmark decisions, the
NZCA found in the Maori Electoral Option case that the government had acted
reasonably in its management of the Maori electoral option under the new
194 Constitutionalization and the Judicialization of Mega-Politics

electoral system, whereby Maori electors were to be given notice of their en-
titlement to be registered on a Maori electoral roll.55 And in the Whale-Watch
case, the Court also held that the Maori were entitled to “a reasonable de-
gree of preference” in matters touching their ancestral lands.56 It also in-
structed that fishery assets worth NZ$300 million should be allocated by the
Treaty of Waitangi Fisheries Commission on the basis of iwi (tribe) size, as
the populous northern tribes demanded, and not on the basis of the length
of coastline and traditional fishing grounds, as the South Island’s Ngai Tahu
tribe (one of New Zealand’s smallest Maori tribes) demanded.57
As one last example of the judicialization of the question of Maori rights,
the cases sparked by the Maori fisheries allocation issue are worth mention-
ing. After a period of negotiation and litigation, the government settled
Maori claims to commercial fisheries by enacting the Treaty of Waitangi
(Fisheries Claims) Settlement Act 1992. According to this settlement, certain
assets, comprising fishing quotas and cash already transferred to the Treaty
of Waitangi Fisheries Commission, were required to be distributed to the
Maori. The preamble to the act stated that the Crown had an obligation pur-
suant to the Treaty of Waitangi to confirm and guarantee to chiefs, tribes,
and individual Maori full, exclusive, and undisturbed possession of their
fisheries.
However, the act did not define who is a Maori (for purposes of redistrib-
uting the assets allocated by the act), and this fundamental question soon
reached New Zealand’s judiciary. In its first judgment, the NZCA ruled that
the distribution of assets to the Maori people through the Treaty of Waitangi
Fisheries Commission unjustly bypassed most urban Maori or those Maori
lacking tribal affiliation, as it depended entirely on a tribal definition of
Maori as iwi—people who live according to the traditional Maori lifestyle
(the Maori Fisheries Allocation I case).58 The Court declared in this landmark
decision that, in spite of having no coastline, urban Maori constituted an iwi
(tribe) and were therefore directly entitled to a share of the fishery assets al-
located by the Treaty of Waitangi Fisheries Commission. The case was subse-
quently referred to the Judicial Committee of the Privy Council in London.
The latter’s decision, announced in January 1997, overruled the NZCA’s de-
cision and remitted the issue to the New Zealand court system for further
deliberation.
The High Court in Auckland resumed its deliberations in March 1998, and
the Court of Appeal in Wellington took over in August 1999, releasing its
final decision in October 1999. In brief, in rehearing the case, the Court had
to answer two questions: (1) Does the 1992 settlement require that relevant
 Constitutionalization and the Judicialization of Mega-Politics 195

assets be allocated solely to iwi and/or bodies representing iwi? (2) If the an-
swer to the first question is in the affirmative, does iwi mean only traditional
Maori tribes?
In the longest judgment it ever released, the Court answered the first
question in the affirmative, stating that the original intention of the settle-
ment had been to allocate fishing quotas and other assets exclusively to iwi.
As for the second question, the Court this time held that the word iwi meant
“tribe” in the sense of traditional tribes—a group of Maori people claiming
descent from a common ancestor, sharing a common culture, and either liv-
ing in a specified geographical area or descended from ancestors who lived
in that area. The agreement to allocate assets to iwi had therefore meant an
allocation exclusively to traditional tribes. Urban Maori and their represen-
tative bodies could not claim to be tribes or successors of tribes, and those
who participated in the 1992 negotiations had never contemplated making
any allocations to urban Maori and their representative bodies.59
Another example of the impact of constitutionalization on the judi-
cialization of fundamental restorative justice dilemmas is the recent wave of
adjudication with regard to Canadian First Nations’ rights. The status of First
Nation Canadians has been one of the more contentious issues on Canada’s
political agenda since the late 1960s. Reaction to and outrage over the gov-
ernment’s assimilationist (and many would argue undignified) policies re-
garding Canada’s aboriginal population has generated national resistance,
violent at times, during the past three decades.60 National bodies such as
the Assembly of First Nations maintain a high public profile in their deter-
mined struggle to enhance the socioeconomic status of aboriginal peoples
and to secure wide public acknowledgment of their cultural rights. As in
other settler societies, the calls for recognition for indigenous peoples’
collective rights in Canada have met with fierce objections on the part of
right-wing civil libertarians, nonaboriginal landowners, and proponents of
assimilationist policies. Questions of collective responsibility and inter-
generational justice, the structure of Canadian federalism, and the develop-
ment and management of natural resources (to name some contested is-
sues) also contribute to the mixed reaction of the federal and provincial
governments to aboriginal people’s claims. What is clear, however, is that
the Supreme Court of Canada has become the central national arena for
dealing with the claims to recognition, land, and political voice by Canada’s
indigenous population. The consequences of this judicialization have been a
mixed blessing from the perspective of the aboriginal peoples themselves.
The rights of aboriginal peoples are formally distinguished from the rights
196 Constitutionalization and the Judicialization of Mega-Politics

protected by the Charter of Rights and Freedoms, which occupy the first
34 sections of the Constitution Act 1982. Section 35 of the act recognizes
and affirms “existing” aboriginal and treaty rights, defines aboriginal peo-
ples as including Indians, Inuit, and Metis, and provides that modern land
claim agreements are “treaties” within the meaning of this section. Section
35 is therefore the main constitutional source for the protection of the rights
of Canada’s indigenous peoples. In a series of section 35–based petitions
since the mid-1980s, the SCC has been called on to interpret the somewhat
vague wording of this section and has therefore become the most important
forum for determining the status, rights, and entitlements of First Nation
Canadians.
Consider the following examples, which are only a few of the spate of re-
cent landmark rulings by the SCC regarding section 35. In the Sparrow case
(1990), the SCC was asked to determine the meaning of the word “existing”
in section 35, to set concrete legal tests to establish when an infringement of
an existing right had occurred, and to establish when such an infringement
might be justified.61 In what has become the most important judgment per-
taining to the status of aboriginal peoples’ rights, the SCC ruled that the
word “existing” in section 35 meant “unextinguished”—that if a right had
been validly extinguished before 1982, it was not protected by section 35. A
federal regulatory statute would have the effect of extinguishing aboriginal
rights only if its intention to do so was “clear and plain.” In this case, the
federal Fisheries Act did not demonstrate a “clear and plain intention to ex-
tinguish the Indian aboriginal right to fish.” Therefore, the aboriginal right
to fish was an “existing” right within the scope of section 35. In more practi-
cal terms, the Court ruled that aboriginals’ right to fish was protected under
section 35 of the Charter, but that the scope of this protection should be
narrowly defined.62 To receive constitutional protection, an aboriginal right
must have existed in 1982, and it must relate to aboriginal practices that
were in place at the time of contact between First Nations and European set-
tlers. The SCC added that even when an aboriginal right meets these criteria,
a court may still find that government restrictions on it were justified. This
means, for example, that commercial fishing rights are not protected in most
cases—a fact that has grave implications for the economic well-being of
many aboriginal communities in Canada.
The SCC’s vital role in translating the various constitutional provisions
dealing with aboriginal peoples’ rights into a set of practical guidelines has
not been limited to its interpretation of aboriginal peoples’ economic rights.
 Constitutionalization and the Judicialization of Mega-Politics 197

In Delgamuukw (1997) it ruled that when aboriginal rights to specific land

are infringed (a situation that, given the tough tests set by the Court, should
rarely come about), fair compensation by the government would be the ap-
propriate remedy.63 Nonetheless, the practical implications of Delgamuukw
remain unclear. While the Court was fairly generous in its interpretation of
aboriginal peoples’ title at the declarative level, it has not been determined
how this abstract concept of aboriginal title will translate into redistribution
of land in practice.
More recently, the SCC was called on to interpret the constitutional sta-
tus of Canada’s indigenous population’s rights to fish and hunt vis-à-vis reg-
ulatory provincial and federal laws.64 In Marshall I, for example, the Court
found that there was an unjustified infringement by the Crown of an un-
extinguished Mi’kmaq treaty right to fish for eel for food and to obtain mod-
erate livelihood through trading their catch. In Marshall II, however, the
Court reopened the case by drawing on a rarely used procedure, declaring
that the outcome of its first judgment could not be generalized to a declara-
tion that licensing restrictions or closed seasons could never be imposed as
part of the government’s regulation of aboriginal peoples’ limited commer-
cial right to fish. In September 2003, the SCC released two landmark rul-
ings pertaining to the status of Canada’s Métis population—approximately
300,000 people who have mixed aboriginal and nonaboriginal, primarily
French, ancestry, and whose entitlement to aboriginal rights has not been
clearly defined under Canada’s Indian Act and other pertinent statutes and
constitutional provisions.65 In R. v. Powley, the Court ruled that members of
an Ontario Métis community have a full-status “Indian” right to hunt for
food. (So-called status Indians are permitted to hunt for food without pro-
vincial licenses and out of season.) The ruling is expected to compel the fed-
eral government and provincial governments throughout Canada to rede-
fine Métis rights on issues ranging from natural resources to health services
and taxation. In the companion case of R. v. Blais, the Court rejected an ap-
peal by a Manitoba Métis, who claimed he had the right to hunt for food un-
der the Natural Resources Transfer Agreement—a Manitoba provincial stat-
ute that gave the right to “Indians,” “subject to the continuing right of the
Indians to hunt, trap, and fish for food on unoccupied Crown lands.” The
Court ruled that the historical context of the treaties the NRTA was based
upon suggested that the term “Indians” did not include the Métis.
Finally, in Shilling (2002), the SCC upheld a federal court ruling that an
aboriginal woman working outside designated aboriginal territory was not
198 Constitutionalization and the Judicialization of Mega-Politics

entitled to tax credits granted to aboriginal people who had significant ties to
a given reserve.66 Canadian revenue rules stipulate that Canadian First Na-
tion workers must pay income tax unless their work is closely connected to a
given reserve. Rachel Shilling, a member of the Rama Indian band, worked
for an aboriginal health center in Toronto. She was hired through an em-
ployment agency on a recognized reserve. Although her pay came from a
company based on Indian land, she performed all her work in Toronto. Fol-
lowing long-established custom, the SCC gave no reasons for refusing to
hear the appeal. The Court’s non-ruling in Shilling has been portrayed by ad-
vocates of aboriginal rights as a serious blow to Canada’s growing urban ab-
original community and as an indication of the Court’s support of the Indian
reserve system, felt by many to be an outdated vestige of the colonial era.
Whereas some of these recently judicialized questions of restorative jus-
tice have certain important constitutional aspects, they are neither purely,
nor even primarily, legal dilemmas. As such, they ought to be resolved, at
least on the level of principle, through public deliberation in the political
sphere. Nonetheless, following the constitutional revolutions in South Af-
rica, Canada, and New Zealand, these polities’ national high courts have
gradually become major decision-making bodies for dealing with precisely
such restorative justice quandaries. Distributive justice questions concerning
collective responsibility for crimes against humanity masterminded by polit-
ical power-holders (and tacitly supported by certain of their subjects) and
questions of reconciliation and reparative justice have been framed in terms
of constitutional claims for rights and entitlements. As such, these claims
have rapidly found their way to the national high courts.
Furthermore, as Stuart Scheingold suggests in his classic The Politics of
Rights, the “‘myth of rights’ contrasts the openness of judicial proceedings to
the secret bargaining of interest group pluralism so as to underscore the in-
tegrity and incorruptibility of the judicial process. The aim, of course, is to
enhance the attractiveness of legal and constitutional solutions to political
problems.”67 Channeling pressures for social justice to courts has a consider-
able potential to harm reformist social movements by pacifying activists
with the illusion of change and by luring resources away from political pro-
cesses and lobbying strategies through which more substantial change might
be achieved. The institutional, pro–status-quo, and inherently pacifying na-
ture of the legal system is especially significant when claims for restorative
justice that have potentially revolutionary implications for the redistribution
of wealth and power (such as the reconstruction of post-apartheid South Af-
 Constitutionalization and the Judicialization of Mega-Politics 199

rica or the struggle over indigenous peoples’ rights in settler societies) are
transferred from the potentially open-ended political sphere to the inher-
ently more conservative judicial sphere.
After all, the struggle against the apartheid regime, for example, was
about more than voting rights and legal segregation—it was also about con-
crete economic and social inequality. South Africa was not only legally
racist; during the heyday of apartheid (and, as we have seen, in the post-
apartheid era as well) it had one of the world’s worst situations of material
inequality. The white minority (about 15 percent of the population) owned
approximately 90 percent of the land and earned on average eight times the
income of the black majority (over 75 percent of the population), with the
top 5 percent of the population consuming more resources than the bottom
85 percent. Given the gross injustice and wrongdoing committed during
the apartheid era and the fact that over three-quarters of the new South Af-
rican electorate were direct or indirect victims of the apartheid regime, it is
doubtful that a genuinely open-ended public deliberation would have led to
the selection of the truth and reconciliation process (rather than a compre-
hensive wealth redistribution program, for example) as the most popular
scheme for restorative justice during the transition to the new South African
regime. The judicialization of restorative justice, in other words, might have
become a means of placing certain historic privileges beyond the reach of
majoritarian politics.

Political Reaction to Judicial Divergence

The transfer of foundational collective identity questions to the courts

seldom yields judgments that run counter to the interests of those who
chose to delegate more power to courts in the first place. Likewise, the ad-
vancement of restorative justice through the courts has been, at best, incre-
mental and lethargic. Judicial empowerment is therefore unlikely to pose a
major threat to formative national metanarratives or to the interests of so-
cial groups that have been the main beneficiaries of such foundational nar-
ratives. That said, the constitutionalization of rights and the establishment of
judicial review may provide both opposition legislators and historically dis-
enfranchised groups with the necessary institutional framework for chal-
lenging government policy in courts.
As the numerous illustrative cases surveyed in Chapter 4 suggest, so long
as such challenges are articulated as calls on the government to refrain from
200 Constitutionalization and the Judicialization of Mega-Politics

violating procedural justice safeguards or to avoid excessive interference in

the private sphere, they have a reasonable chance of succeeding. Positive
and collective rights claims are far less likely to find support with national
high courts. The efficacy (or indeed availability) of opposition use of the new
constitutional framework to accomplish political goals depends to a consid-
erable extent on the question of standing (locus standi) and access rights; who
may initiate a legal challenge to the constitutionality of legislation or official
action; and at what stage of the process a given polity’s supreme court may
become involved. As a general rule of thumb, the more liberal a polity’s
standards of standing and access rights, the greater the likelihood of fre-
quent opposition use of courts in that polity.
In the United States, standing rights have been traditionally limited to
individuals who claim to have been affected by an allegedly unconstitu-
tional legislation or official action. The U.S. Supreme Court will not hear a
challenge to the constitutionality of legislation unless all other possible legal
paths and remedies have been exhausted. Moreover, the Court has full dis-
cretion over which cases it will hear—its docket therefore consists of “discre-
tionary leave” cases rather than appeals by right. While this mechanism
does not block political opposition groups from pursuing constitutional liti-
gation, it significantly raises the costs (and therefore lowers the probability)
of such action. Several polities authorize their constitutional court judges, in
an ex officio capacity, to initiate proceedings against an apparently unconsti-
tutional law. Other countries (South Africa, for example) impose mandatory
referrals of constitutional questions by lower courts to a constitutional tribu-
nal. However, the only path by which a question of supreme constitutional
significance can reach the SACC or to the SCC in a prompt fashion is when it
is referred directly by authorized state organs (the President of South Africa;
Canada’s federal government and/or provincial governments) to the judi-
ciary. This in turn renders opposition use of courts as a deliberate counter-
establishment political tool close to impossible.
Constitutional democracies that employ a priori and abstract judicial re-
view (such as France) allow for, and even encourage, public officials and po-
litical actors to challenge the constitutionality of proposed legislation. Other
countries allow private-person constitutional grievances to be submitted di-
rectly to their respective high courts. The Supreme Court of Israel, for exam-
ple, has jurisdiction as appellate court over appeals from the district courts in
all matters, both civil and criminal. In addition, it is a court of first instance
(sitting as a High Court of Justice) in direct actions launched by individual
 Constitutionalization and the Judicialization of Mega-Politics 201

stakeholders against public authorities and in matters where the Court con-
siders it necessary to grant relief in the interests of justice not normally
within the jurisdiction of any other court or tribunal. Originally, the Court
demanded that a petitioner to the High Court of Justice (HCJ) show possible
harm to a direct and material personal interest. Since 1988, however, the
Court has significantly liberalized the rules of standing pertaining to direct
individual petitions, effectively recognizing standing rights of public peti-
tioners and lowering the barrier of nonjusticiability. This in turn has re-
sulted in countless attempts by political opposition groups, “watchdog” or-
ganizations, and even Knesset members to challenge the constitutionality
of legislative decisions and executive policies before the HCJ. Opposition
challenges to the constitutionality of core executive prerogatives concerning
national security, political agreements, and appointments have become an
everyday practice. That said, these challenges very rarely come from those
who oppose the very legitimacy of judicial empowerment through con-
stitutionalization—the ultra-Orthodox community.
In addition to the many cases already discussed, the Court has been asked
by opposition groups to determine the rights of extreme nationalist Jewish
activists (or any other uninvited Jews) to enter areas in Eastern Jerusalem
designated as Muslim holy places, as well as their right to access the El-Aktza
mosque on Temple Mount (known to Muslims as the Noble Sanctuary);68 to
address the issue of reserve soldiers’ conscientious objection to serve in
the occupied territories; and to appraise the Israeli army’s policy of targeted
assassinations of Palestinian military activists said to be masterminding at-
tacks on Israeli civilians, as well as the less than dignified burial arrange-
ments for Palestinian casualties of Israel’s military operations in the West
Bank and Gaza Strip. Regarding political agreements and appointments, the
SCI has responded to opposition petitions to hold that the nomination of a
ex–security service agent as Housing Ministry director-general should be
void because the nominee was not fit for public office, given that he had per-
jured himself in two high-profile security service scandals.69 Based on the
same reasoning, the Court more recently went on to declare unconstitu-
tional and therefore void the direct appointment by the Prime Minister of
another top ex–security service officer as the head of Israel’s antiterrorism
authority.70 In the so-called “Bar-on affair”—a widely publicized scandal
that troubled Israel’s political sphere for the better part of 1997—the Court
ruled that the Attorney General’s decision to ignore police recommenda-
tions to file charges against the Prime Minister for administrative miscon-
202 Constitutionalization and the Judicialization of Mega-Politics

duct (which could have led to the his resignation or impeachment) was rea-
sonable and should thus be upheld. Numerous other decisions by senior
government officials concerning appointments and layoffs of top civil ser-
vants, directors, and ambassadors, and even executive decisions regarding
the promotion of high-ranking army officers, have been subject to frequent
judicial scrutiny by the SCI. In most of these cases, the petitioners were able
to draw on the new constitutional framework, the liberal standing and ac-
cess rights, and not least on the Court’s willingness (if not eagerness) to ad-
judicate such political issues.
In spite of this flurry of opposition-initiated jurisprudence, Israel’s funda-
mental political framework and national metanarratives have remained
largely unchanged. The same holds true for the vast majority of new con-
stitutionalism polities in which less liberal standing and access rights limit
the level of opposition use of courts. Occasionally, courts may respond to op-
position counterestablishment challenges by releasing rulings that threaten
to alter the political power relations in which the courts are embedded.
However, legislatures in most new constitutionalism countries have been
able to respond effectively to such unfavorable judgments or simply to hin-
der their implementation. As several studies have shown, American execu-
tives and legislatures have frequently revised, hampered, or circumvented
constitutional court rulings.71 As the recent history of comparative constitu-
tional politics tells us, recurrent manifestations of unsolicited judicial inter-
vention in the political sphere in general, and unwelcome judgments con-
cerning contentious political issues in particular, have brought about
popular political backlashes and, more important, have triggered legislative
override of controversial rulings and “court packing” attempts by political
power-holders. In some instances they have resulted in constitutional crises
leading to the dissolution of high courts.
Examples of the legislative override scenario are ample. Consider the
1985 Indian Supreme Court Shah Bano ruling and its political aftermath.72
Shah Bano, a seventy-three-year-old Muslim Indian woman, was unilater-
ally divorced by her husband by way of a Muslim talaq divorce after forty-
three years of marriage. She then turned to a magistrate’s court to obtain
state-decreed alimony payments from her ex-husband, although according
to a standard reading of Muslim personal law, she was entitled to alimony
for only the first three months following the dissolution of the marriage.
When the case reached the Supreme Court of India, it imposed on Shah
Bano’s ex-husband monthly maintenance payments for as long as she had
 Constitutionalization and the Judicialization of Mega-Politics 203

not remarried and was unable to maintain herself. The Court held that the
state-defined statutory right of a neglected wife to maintenance stood re-
gardless of the personal law applicable to the parties. This decision had po-
tentially far-reaching implications for India’s long-standing practice of Mus-
lim self-jurisdiction in core religious matters. Traditionalist representatives
of the Muslim community considered this to be proof of Hindu homogeniz-
ing trends that threatened to weaken Muslim identity. In 1986, a year after
the Supreme Court handed down its controversial decision, the Indian Par-
liament bowed to massive political pressure by conservative Muslims and
overruled the Court’s decision in Shah Bano by passing the Muslim Women’s
(Protection of Rights of Divorce) Act. This new bill, its reassuring title not-
withstanding, undid the Court’s ruling by removing the rights of Muslim
women to appeal to state courts for postdivorce maintenance payments. It
also exempted Muslim ex-husbands from other postdivorce obligations.73
Another illustration of this scenario is found in the harsh political reaction
to, and corresponding legislative override of, the Australian High Court’s ex-
pansion of aboriginal rights. In its historic ruling in Mabo No. 2 (1992), the
High Court abandoned the legal concept of terra nullius (vacant land) that
had served for centuries as the basis for the institutional denial of aboriginal
title, established native title as a basis for proprietary rights in land, and held
that aboriginal title was not extinguished by the change in sovereignty.74 At
the practical level, however, aboriginal people still needed to prove continu-
ous occupancy of the disputed land prior to and after contact with white set-
tlers in order to be entitled to compensation. In Wik (1996), the High Court
went on to hold that leases of pastoral land by the government to private
third parties did not necessarily extinguish native title.75 Such extinguish-
ment depended on the specific terms of the pastoral lease and the legislation
upon which it was granted. The redistribution implications of Mabo and Wik
brought about an immediate popular backlash, with the powerful agricul-
tural and mining sectors, backed by the governments of Queensland, West-
ern Australia, and the Northern Territory, demanding an across-the-board
statutory extinguishment of native title. In early 1997, the conservative cen-
tral government under John Howard willingly bowed to the countercourt
political backlash by introducing amendments to the Native Title Act that to
all intents and purposes overrode Wik.
Recognizing the crucial political significance of the judiciary, politicians in
other new constitutionalism countries have tightened their control over ju-
dicial appointment processes. In late 1997, for example, a serious rift devel-
204 Constitutionalization and the Judicialization of Mega-Politics

oped between Pakistan’s Prime Minister, Nawaz Sharif, and the Chief Justice
of the Supreme Court, Sajjad Ali Shah, over the appointment of new judges
to the court. The constitutional crisis came to a dramatic end when the Chief
Justice was suspended from office by rebel members of the Supreme Court.
A crisis of a similar nature occurred in January 2000, when President Pervez
Musharraf insisted that all members of the Supreme Court pledge allegiance
to the military administration. The judges who refused to take the oath were
expelled from the Court.
Responding promptly to an unfavorable ruling by the Singapore Su-
preme Court concerning due process rights of political dissidents detained
for “communist conspiracy to overthrow the government” (Chng Suan Tze,
1988) the government of Singapore (controlled for the past four decades by
the People’s Action Party) amended the constitution to revoke the Court’s
authority to exercise any meaningful judicial review over governmental
powers of preventive detention.76 In a widely publicized ruling in late 1988,
the Judicial Committee of the Privy Council (JCPC) in London overturned a
decision of the High Court of Singapore to expel Mr. J. B. Jeyaretnam, a
leading opposition politician, from the Singapore bar association.77 Prior to
its judgment in the Jeyartenam case, the JCPC’s status at the apex of Singa-
pore’s judicial system appeared inviolable. But as soon as the JCPC issued a
ruling that ran against the political interests of Singapore’s ruling elite, it was
denounced by government officials as “interventionist,” “going outside its
prescribed role,” “out of touch” with local conditions, and as “playing poli-
tics.”78 Consequently, the Singapore government went on to pass a constitu-
tional amendment that completely abolished appeals to the JCPC.
Several new national high courts in former Eastern Bloc countries also
endured a series of direct challenges to their authority and independence by
political elites and power-holders. Such challenges confronted the newly es-
tablished national high courts in Albania (the 1998 suspension of the Alba-
nian Constitutional Court, the arrest of its Chair, and the adoption of a con-
stitutional amendment limiting the justices’ tenure in office to nine years);
Belarus (the referendum crisis of 1996); Bulgaria (“court packing” attempts
by the former Communist party-controlled parliament throughout 1994–
1995); Kazakhstan (the dissolution of the initial Constitutional Court fol-
lowing the 1995 election crisis and the inauguration of a new French-style
Constitutional Council); Tajikistan (the 1997 parliamentary restriction of
the Constitutional Court’s jurisdiction after the Court declared several par-
liamentary by-laws unconstitutional); Hungary (the 1998 “court packing”
 Constitutionalization and the Judicialization of Mega-Politics 205

and the decision by parliament not to renew the term of Justice László
Sólyom, who had led an active and powerful Constitutional Court through-
out the 1990s); and of course the 1993 constitutional crisis in Russia—per-
haps the most telling illustration of the volatility of the status of judges and
supreme courts in the early days of constitutional design in post-communist
societies.
Immediately after its establishment in 1991, the first Russian Constitu-
tional Court found itself entangled in several politically charged cases. These
included the ISS-MVD case, involving a parliamentary challenge to a presi-
dential decree merging the remnants of the KGB with the Ministry of Inte-
rior (MVD), which controlled the police;79 the Tatarstan case, in which the
Court declared unconstitutional a proposed referendum question concern-
ing the Republic of Tatarstan’s status within the Russian federation—a ruling
that was flagrantly ignored by the Tatar government;80 and the landmark
Communist Party case in 1992, where the Court dealt with a petition filed by
a group of Duma members (mostly former Communist Party officials) chal-
lenging the constitutionality of a decree issued by President Boris Yeltsin
suspending the Communist Party and taking some of its property in the
aftermath of the failed August 1991 coup. These proceedings were then
turned by anticommunist members of the Duma into a widely publicized
counterattack on the Communist Party, resulting in a semiformal judicial in-
quest by the first Russian Constitutional Court into the alleged atrocities
committed by the Communist Party during its seventy years of dominance.
In 1993, the involvement of the Constitutional Court in Russia’s political
sphere brought about its dissolution. By late 1993, the Court’s proactive
Chair, Valerii Zorkin, had become deeply involved in a fierce political strug-
gle over presidential and legislative prerogatives, which resulted in President
Yeltsin’s dissolution of Parliament. Throughout the events leading up to the
political crisis of 1993, the Court invoked its ex officio right to initiate consti-
tutional scrutiny of a number of decrees issued by Yeltsin. This led to a split
within the Constitutional Court, with the group headed by Zorkin declaring
Yeltsin’s dissolution of Parliament to be unconstitutional. Yeltsin reacted by
signing a decree suspending the Constitutional Court until the adoption of a
new constitution—an act that marked the demise of the first Constitutional
Court as well as its controversial Chair.81 Not surprisingly then, in a marked
departure from the first Court era, in the years following the constitutional
overhaul the second Russian Constitutional Court resorted to the safer area
of individual rights jurisprudence and tended to avoid separation-of-powers
206 Constitutionalization and the Judicialization of Mega-Politics

disputes.82 Beyond their immediate ramifications, these and other examples

of harsh political responses to unwelcome activism or intervention on the
part of the courts no doubt have had a chilling effect on judges’ patterns of
decision-making.
In short, the political sphere may exercise various effective measures to
clip the wings of a divergent or overactive court. Justices are strategic deci-
sion-makers who realize that their range of choices is constrained by the
preferences and anticipated reaction of the surrounding political sphere.
They may learn to exercise self-restraint, strategically select their issue
agenda and reasoning, and shift their positions on contentious political
questions not only in order to minimize the potential overriding of their de-
cisions, but also to avoid or defuse conflict with other, more powerful
branches of government.
To this we may add the much more common and subtle (and perhaps
more lethal) political response to unwelcome rulings: sheer bureaucratic
disregard and protracted or reluctant implementation. Consider, for exam-
ple, the result of the SCI’s ruling in the Qa’adan case (2000)—arguably one
of the most revolutionary rulings concerning a question of major political
significance the Court has ever delivered. The case involved an Arab-Israeli
couple who in 1994 decided to move from their native village, Baka al-
Gharbiye, to the nearby Jewish communal settlement of Katzir. The Jewish
Agency owned the land on which the settlement was built and opposed
their move on the grounds that the land was reserved for Jews. The couple
appealed to the Supreme Court, which, in a much delayed judgment, cited
principles of equality to hold that Arab citizens of Israel were free to settle
on land designated by the Jewish Agency for Jews-only communal settle-
ment.83 In somewhat oxymoronic fashion, the SCI held that “a Jewish and
democratic state cannot allocate land to members of one national or reli-
gious group only.” The implications of this judgment were potentially far-
reaching: the state of Israel, despite its being a Jewish state, could not dis-
criminate between Jews and Arabs in land allocation, including the alloca-
tion of land purchased by the Jewish Agency for purposes of Jewish settle-
ment in Israel. Essentially, this ruling declared unconstitutional a practice
that had been implemented for over five decades via the Jewish Agency and
that was aimed at fulfilling the Zionist project of “Judaizing” the land,
thereby emphasizing the Jewish, rather than the democratic, character of
the state.
Four years after the SCI’s potentially revolutionary ruling in Qa’adan, very
 Constitutionalization and the Judicialization of Mega-Politics 207

little has changed. Katzir has not opened its gates to Arab families. A com-
plex bureaucratic maze has thus far prevented the Qa’adan family from set-
tling in Katzir. As a result of the Court ruling, numerous Jewish families
have sold their property in the settlement. Beyond Katzir, Israeli-Arab citi-
zens continue to face the worsening of an already serious housing shortage
that stems, at least in part, from a nexus of systematic discriminatory gov-
ernment policies. Constitutionalization of rights and corresponding rights
litigation have thus far failed to change, let alone eliminate, this problem. In
spite of the Court’s ruling in Qa’adan, over 90 percent of Israel’s land is still
owned by the state, through the Israel Land Authority and quasi-govern-
mental Zionist organizations such as the Jewish National Fund and the Jew-
ish Agency.
Since the establishment of Israel in 1948, the state has neither built nor
supported the construction of a single Arab town, city, or village. More-
over, Israel restricts the expansion or development of existing Arab towns in
numerous ways, including massive confiscation of land and limitations on
Arab towns’ jurisdiction. Whereas Arab-Israelis make up about 19 percent
of Israel’s population, less than 3 percent of Israeli land is allocated to Arab
municipalities. Newly built Jewish towns frequently receive permits to ex-
pand their jurisdiction, even when neighboring Arab towns have larger
populations. A comparison of the state-regulated jurisdiction of Nazareth
(the largest Arab city) and Nazareth Illit (Upper Nazareth—a nearby Jewish
town), for example, reveals that while the former includes over 80,000 peo-
ple living on a total area of 16 square kilometers, the latter includes only
40,000 people who live on a total area of 40 square kilometers. As of 2002,
the average housing density among Jewish citizens was 0.97 persons per
room, as compared with 1.62 persons per room among Arabs and other mi-
norities. These figures indicate a disparity in housing density between the
two major ethnic groups in Israel that has been increasing since 1988.84
Since the Court’s controversial judgment was released, the Israeli govern-
ment has been contemplating overriding Qa’adan altogether by adopting a
new law that would provide the Jewish Agency with “as much government-
owned land as needed for the Agency to fulfill its statutory goals” (that is,
of Judaizing the land).85 In short, the gap between court rulings and their
implementation—between rights and realities—has rendered the practical
impact of Qa’adan negligible.
This finding should come as little surprise to those familiar with Gerald
Rosenberg’s argument in The Hollow Hope. As Rosenberg suggests in his po-
208 Constitutionalization and the Judicialization of Mega-Politics

lemic against the prevalent “dynamic court” approach, the U.S. Supreme
Court’s role in producing social reforms (at least in the domains of racial de-
segregation and abortion) has been far less significant than conventional
wisdom would suggest. In fact, hostile opposition forces were able to neu-
tralize the Court’s seemingly groundbreaking ruling in Brown v. Board of
Education, at least in the decade following the decision. The limited progress
eventually made after the ruling was due to a shift in political forces that had
everything to do with the changing economic role of African-Americans and
their own extralegal activism—changes that had little to do with the Su-
preme Court’s ruling. Moreover, courts lack independent enforcement and
implementation powers and are therefore institutionally constrained in
their efforts to bring about social change; their decisions can be fairly easily
stymied if met by strong political opposition. Therefore, courts may effec-
tively produce significant social reform only when extrajudicial political fac-
tors are conducive to such change or when market forces offer positive in-
centives to induce compliance. In this context, Rosenberg argues that “[t]o
ask courts to produce significant social reform is to forget their history and
ignore their constraints: it is to cloud our vision with a naive and romantic
belief in the triumph of rights over politics. And while romance and even
naivete have their charms, they are not best exhibited in court rooms.”86

In sum, the impact of constitutionalization on political discourse in Canada,

New Zealand, Israel, and South Africa has been nothing less than revolu-
tionary. Constitutional reform in these countries has had a profound effect
on the size, scope, and nature of the practice of judicial review and the con-
sequent diminution of legislation. As the examples discussed in this chapter
illustrate, the adoption of a constitutional catalogue of rights and the accom-
panying fortification of judicial review have provided the necessary institu-
tional framework for turning the most contentious political controversies in
these four countries into legal battles over constitutional provisions. In spite
of the differences in political contexts and judicial traditions among these
countries, the constitutionalization of rights and the establishment of judi-
cial review have transformed the national high courts into crucial political
decision-making bodies.
Issues such as the future of Quebec and the Canadian federation, the deep
secular-religious cleavage in Israel, the status of New Zealand’s Maori popu-
lation, and the question of restorative justice in the wake of the apartheid
era in South Africa (to name only a handful of the questions discussed
 Constitutionalization and the Judicialization of Mega-Politics 209

in this chapter) were all framed in terms of constitutional claims for rights
and entitlements. As such, these issues swiftly found their way to these
countries’ national high courts. In spite of the apparent nonjusticiability of
these and other fundamentally political questions, these high courts have
accepted their new role as key political decision-makers willingly, if not with
sheer enthusiasm. In fact, with the exception of the NZCA, all these courts
have formally rejected the political question doctrine, according to which
there are certain kinds of explicitly political questions that a court ought to
refuse to rule on.87 And this is not even to mention these courts’ “expanded
justiciability” approach in cases involving “nonfoundational” yet salient po-
litical issues such as immigration and privatization policies (New Zealand) or
political agreements and national security matters (Israel).
A close comparative look at constitutional politics in many other countries
suggests that while the specific details of judicialized politics in each of the
four countries remain unique, the growing reliance on adjudicative means
for clarifying and settling fundamental political questions in these countries
is anything but idiosyncratic. A few examples include the Maastricht ruling
(1993) by Germany’s Federal Constitutional Court (determining the status
of postunification Germany vis-à-vis the emerging European supranational
polity); the Russian Constitutional Court ruling (1995) in the Chechnya case
(affirming the constitutionality of the Russian military invasion of
Chechnya) or its 1998 ruling to disqualify Boris Yeltsin from seeking a third
term as president; the Hungarian Constitutional Court nullification of a
comprehensive economic emergency plan introduced by the government
(the 1995 Austerity Package decisions, or the so-called “Bokros cases”); the
Turkish Constitutional Court dissolution of major Islamic opposition parties
(for example, the dissolution of the Virtue Party in 2001 and the Welfare
Party in 1998); the Fijian Court of Appeal’s landmark ruling in Fiji v. Prasad
(2001), the first time in the history of modern constitutionalism that a
polity’s high court restored a constitution (the 1997 constitution) and the
democratic system of government it had created, following a constitution-
ally illegitimate coup d’êtat; the 1993 ruling by the reinstalled Supreme
Court of Pakistan nullifying a presidential decree that ordered the dissolu-
tion of Pakistan’s National Assembly, thereby restoring the democratically
elected Nawaz Sharif government; and the 2001 landmark ruling by the
same court, affirming the constitutionality of the Pervez Musharraf–led mili-
tary coup d’êtat of 1999 and ordering Musharraf to restore democratic order
in Pakistan no later than October 2002. This is not to mention the Bush v.
210 Constitutionalization and the Judicialization of Mega-Politics

Gore courtroom saga following the 2000 presidential election in the United
States.88
In principle, the delegation of policy-making powers to courts may reduce
legislators’ impact and control over policy outcomes. In most rule-of-law
countries the costs of reversing constitutional arrangements or overriding
court judgments are often significant. In addition, judicial empowerment
may allow judges to become less accountable to the political sphere and to
drift away from the policy preferences of those who decided to delegate de-
cision-making power to the courts. However, although constitutionalization
has a profound impact on the articulation, framing, and settling of funda-
mental moral dilemmas and political mega-questions, the dilemma of dele-
gation embedded in judicial empowerment remains primarily a theoretical
concern. As the examples in this book illustrate, national high courts tend to
adhere closely to prevalent worldviews, national metanarratives, and the in-
terests of influential elites when dealing with major political issues. Occa-
sionally courts may deliver counterestablishment, groundbreaking rulings
on fundamental political questions. However, these rare occasions of unin-
vited judicial intervention in the political sphere are not likely to transform a
given polity’s formative metanarratives or alter its historically rooted pat-
terns of power inequalities. Nor are such occasional judicial deviations likely
to survive the long-term resistance of a recalcitrant and often still more
powerful political sphere. Those who initiated and carried out the process of
judicial empowerment in these countries as an antidote to the vicissitudes of
democratic politics therefore have obtained precisely what they wanted: a
means of insulating their policy preferences against popular political pres-
sures without risking the potential perils of delegating power to courts.
 Conclusion: The Road to
Juristocracy and the Limits
of Constitutionalization

The constitutional rights revolutions in Canada, New Zealand,

Israel, and South Africa (as well as in numerous other countries through-
out the world of new constitutionalism) are still in their formative stages.
Any attempt to generalize about the impact of constitutionalization of rights
on these and other countries must therefore be tentative. Yet although no
definitive conclusions as to the origins and consequences of constitution-
alization can be offered, I believe that some general (though admittedly
speculative) lessons can be drawn from the findings presented here.
The expansion of judicial power through constitutionalization and the
corresponding acceleration of the judicialization of politics in so many coun-
tries over the past few decades may shed light on an aspect of constitutional
politics that is often overlooked: the political origins of constitutionalization.
Although the adoption of a constitutional catalogue of rights provides the
necessary institutional framework for the judicialization of politics, it is cer-
tainly not a sufficient condition for generating the high level of judicialized
politics we have seen in the four countries studied here. The rise of con-
stitutionalization and judicial review, and the corresponding transfer to the
courts of questions such as the future of the Canadian confederation, na-
tional healing in the wake of apartheid, the fate of the Maori, or the mean-
ing of a “Jewish and democratic” state could not have developed and cannot
be understood in isolation from the major struggles that form the Canadian,
South African, New Zealand, and Israeli political systems. To be sure, none
of these problems is uniquely or intrinsically legal. It is therefore unclear
at first glance why a political regime would vest extended authority in the
courts to resolve them. What is more, the broadened political jurisdiction
of the courts vis-à-vis the declining power of legislatures is especially per-
plexing since courts, even with their new powers, still do not hold indepen-
211
212 Conclusion

dent purse strings, nor have they any means of independently enforcing
their power. Yet they have been given authority to limit the institutional
flexibility of political decision-makers. Judicial empowerment through
constitutionalization seems, prima facie, to run counter to the interests of
power-holders in legislatures and executives. How then can we explain the
increasingly common transfer of power from majoritarian policy-making
arenas to national high courts?
Mainstream constitutional politics scholarship tends to emphasize the de-
centralizing, power-diffusing effects of constitutionalization and judicial
review. Judicial empowerment through constitutionalization is therefore
commonly perceived as reflecting progressive social or political change; as
derivative of a general waning of confidence in technocratic government
and a consequent desire to restrict discretionary powers of the state; or sim-
ply as the result of societies’ or politicians’ genuine devotion to a post–World
War II “thick” notion of democracy and a universal notion of human rights.
However, none of these grand theories is based on a genuinely comparative
systematic and detailed analysis of the political vectors behind any of the ac-
tual constitutional revolutions of the past few decades. What is more, these
explanations ignore the role of human agency in constitutional innovation
as well as the interest of economic elites in confining the boundaries of the
state through constitutionalization. More important, they fail to account for
the significant variations in the timing, scope, and nature of this phenome-
non throughout the world. If we apply the extant theories of constitutional
transformation to any concrete example, they fail to explain why relatively
open, rule-of-law polities such as Canada, Israel, and New Zealand reached
their highest stage of political and judicial progress precisely when they did
and not, say, a decade earlier or later.
Institutional economics and public choice theories of constitutional trans-
formation (essentially suggesting that constitutions and judicial review in-
crease economic predictability and efficiently mitigate systemic collective-
action problems such as coordination, commitment, and enforcement) do
not fare much better than mainstream constitutional politics theories in ac-
counting for the variations in the timing, scope, and nature of the transition
to constituionalization and judicial review. Such theories focus exclusively
on explaining constitutional change while overlooking constitutional stale-
mate. If a given polity indeed requires efficient mitigation of systemic collec-
tive-action problems, then how can we explain the fact that earlier attempts
in that polity to resolve these problems through constitutionalization failed?
 Conclusion 213

Furthermore, the very notion of judicial empowerment as an efficient re-

sponse to systemic deficiencies is based on a simplistic and static understand-
ing of political sociology in divided polities, not to mention a thin function-
alist perception of constitutional and political change. And as we have seen,
it ignores influential economic stakeholders’ and prominent judicial figures’
contribution to the constitutionalization of rights and the establishment of
judicial review.
As one of those people who (as it was said of Lyndon Johnson) “seldom
think of politics more than 18 hours a day,” I have advanced here a strategic
notion of judicial empowerment through constitutionalization as driven pri-
marily by political interests to insulate certain policy preferences from popu-
lar pressures. At the very least, the judicialization of fundamental political
questions offers a convenient refuge for politicians seeking to avoid making
difficult no-win moral and political decisions. After all, when contentious
political issues are treated as legal questions, the concomitant assumption is
that judges and courts, rather than elected representatives in majoritarian
decision-making arenas, should resolve them. A more astute examination
suggests that the transfer of these and other “big questions” from the politi-
cal sphere to the courts has been tacitly supported, if not actively initiated,
by political actors representing hegemonic elites and established interests.
Judicial empowerment through constitutionalization provides these elites
and their political representatives with effective means for reducing the risks
to themselves and to the institutional apparatus within which they operate.
The removal of policy-making power from legislatures and executives and
its investiture in courts may become attractive to political power-holders for
any of several reasons: when they seek to gain public support for their con-
tentious views by relying on national high courts’ public image as profes-
sional and apolitical decision-making bodies; when they regard public dis-
putes in majoritarian decision-making arenas as likely to put their own
policy preferences at risk; or when they estimate that abiding by the limits
imposed by expanded judicial power will enhance their absolute or relative
position vis-à-vis rival political elements and their alternative worldviews or
policy preferences.
The constitutionalization of rights and the establishment of judicial re-
view is therefore not driven solely, or even primarily, by politicians’ genuine
commitment to progressive notions of social justice or to an elevated vision
of universal rights. It is driven in many cases by attempts to maintain the so-
cial and political status quo and to block attempts to seriously challenge it
214 Conclusion

through democratic politics. As my analysis of the political origins of the

constitutional revolution in these four polities suggests, judicial empower-
ment through constitutionalization is more often than not the result of a
strategic tripartite pact between hegemonic, yet increasingly threatened, po-
litical elites seeking to insulate their policy preferences from the vicissitudes
of democratic politics; economic elites who share a commitment to free
markets and a concomitant antipathy to government; and supreme courts
seeking to enhance their symbolic power and institutional position.
Unlike economic and judicial elites, whose interest in constitutional-
ization is self-evident, political power-holders’ proconstitutionalization im-
pulse appears to be counterintuitive. However, the analysis presented here
reveals that political support for constitutionalization can be productively
analyzed in terms of an interest-based hegemonic preservation approach.
Governing elites in divided, rule-of-law polities face a constant struggle to
preserve their hegemony. Such elites are likely to advocate a delegation of
power to the judiciary (a) when their hegemony is increasingly challenged
in majoritarian decision-making arenas by policy preferences of peripheral
groups; (b) when the judiciary in that polity enjoys a reputation for recti-
tude and political impartiality; and (c) when the courts in that polity are in-
clined to rule in accordance with hegemonic ideological and cultural pro-
pensities.
Indeed, as we have seen, national high courts seldom diverge on a long-
term basis from national metanarratives and the interests of hegemonic po-
litical forces. The rare exceptions to this pattern are not likely to transform a
given polity’s formative metanarratives or to alter its historically rooted pat-
terns of power inequalities. Furthermore, even occasional judicial devia-
tions are not likely to survive in the face of a more powerful political sphere.
Those who established judicial empowerment as a response to challenges to
their political hegemony have succeeded in protecting their policy prefer-
ences from the vagaries of democratic politics without risking the dangers of
delegation.
The hegemonic preservation thesis may help us understand judicial em-
powerment through constitutionalization as part of a broader trend
whereby crucial policy-making functions are increasingly insulated from
majoritarian control. As we have seen, the world seems to have been seized
by a craze for constitutionalization and judicial review. The transformation
of judicial institutions into major political actors has not been limited to the
national level; at the supranational level, the European Court of Justice in-
 Conclusion 215

terprets the treaties upon which the European Union is founded and has
been awarded an increasingly important status by legislators, executives,
and judiciaries in the EU member-states in dealing with interstate legal and
economic disputes. The European Court of Human Rights in Strasbourg, the
judicial arm of the forty-one-member Council of Europe, has in effect be-
come the final court of appeal on human-rights issues for most of Europe.
The judgments of these European courts (as well as of other supranational
tribunals, such as the Inter-American Court of Human Rights) carry great
weight and have forced many countries to incorporate transnational legal
standards into their domestic legal system. The expansion of the EU and
the consequent territorial expansion of its courts not only transformed Eu-
ropean politics, it also extended the exercise of judicial power to new or
charged political settings. Present calls for the adoption of a global constitu-
tion and for the establishment of a permanent international tribunal for war
crimes and human rights violations also suggest that the law and courts in
general, and the constitutionalization of rights in particular, are increasingly
becoming key factors in international politics.
Over the past several decades, the delegation of policy-making author-
ity to semiautonomous, professional bodies has also expanded in other,
nonjudicial realms. In many countries, for example, there has been a gen-
eral move toward granting greater independence to central banks. Countries
such as Belgium, Britain, France, Spain, Brazil, and Argentina have all in-
creased the autonomy of their respective central banks. In these and many
other countries, democratically elected governments no longer have exclu-
sive control over monetary policy-making. Likewise, supranational policy-
making bodies (mostly EU-affiliated) have gained authority over many as-
pects of everyday life in the European continent over the past three decades.
This process has included the establishment of the new European Central
Bank; the recent launch of a single European currency; the emergence of
a complex nexus of supranational legal provisions regulating production,
import, and export of goods, as well as taxation and customs throughout the
European continent; and the reconstruction and expansion of NATO—not
to mention the creation of new transnational bodies dealing with immigra-
tion, natural resources, labor relations, food and drug licensing and regula-
tion, consumer protection, environmental preservation, and so on. A similar
process has taken place, albeit at a slower pace, in other continents (for ex-
ample, the emergence of transnational trade treaties such as NAFTA in
North America, MERCOSUR in South America, and ASEAN in Asia), as well
216 Conclusion

as at the intercontinental level (for example, the rise of supranational bodies

such as the International Monetary Fund and the World Trade Organiza-
tion, which monitor substantive aspects of global trade and international
monetary policies). Almost all of these supranational entities have estab-
lished powerful judicial or quasi-judicial binding adjudication apparatuses.
In short, a large-scale transfer of crucial policy-making prerogatives from
majoritarian decision-making arenas to relatively insulated domestic and
transnational policy-making bodies has been established over the past thirty
years.
This has occurred alongside growing popular demands for political repre-
sentation; the spread throughout the globe of universal suffrage (which has
included an erosion of the historical dependence of voting rights on prop-
erty ownership, gender, race, or ethnic origin); a global decline in politically
formalized group-based discrimination and segregation; a rapid growth in
the level of education and political awareness among the general popula-
tion; an unprecedented influx of immigration to prosperous western coun-
tries over the past three decades, which threatens to change the founda-
tional demographics in these countries; increasing demands by ethnic and
religious communities for greater representation; and above all the growing
presence of new or historically recessive interests and policy preferences
(for example, environmentalism, disarmament, multiculturalism, nontra-
ditional sexual preferences) in crucial majoritarian policy-making arenas.
Consequently, the institutions of democratic governance now operate in a
profoundly different environment than that in which they were founded.
All these recent developments imply a profoundly more versatile elector-
ate and consequently an increasing potential threat to established interests
and hegemonic cultural, economic, and political worldviews. The expanded
representation of such “peripheral” interests has further emphasized the
tension between powerful centripetal forces of convergence acting on the
state from outside (such as formal democracy, economic neoliberalism,
global capitalism, an international stock-exchange culture, and media
production and consumption controlled to a large extent by a handful of in-
ternational mega-conglomerates) and reemerging centrifugal forces of di-
vergence acting on it from inside (such as regionalism, differentiated citizen-
ship, and growing economic inequality). In the face of such challenges,
supporters of dominant but increasingly threatened interests may choose to
limit the policy-making authority of majoritarian decision-making arenas by
gradually transferring authority to relatively insulated, professional policy-
 Conclusion 217

making institutions, such as national high courts, central banks, transna-

tional trade and monetary organizations, and supranational bureaucracies
and tribunals.
By keeping popular decision-making mechanisms at the forefront of
the formal democratic political processes while simultaneously shifting the
power to formulate and promulgate certain policies from majoritarian pol-
icy-making arenas to semiautonomous professional policy-making bodies,
those who possess disproportionate access to and have a decisive influence
upon such bodies minimize the potential threat to their hegemony. I there-
fore suggest that the current global trend toward judicial empowerment
through constitutionalization is part of a broader process whereby self-inter-
ested political and economic elites, while they profess support for democracy
and sustained development, attempt to insulate policy-making from the va-
garies of democratic politics. Given the increasing presence of previously ex-
cluded groups and interests in majoritarian policy-making arenas, this large-
scale insulation of policy-making is perhaps the least dangerous course of
action for threatened elites. Put bluntly, it can best be understood as an at-
tempt to defend established interests from the potential threats posed by the
voices of cultural divergence, growing economic inequality, regionalism,
and other centrifugal forces that have been given a public platform through
the proliferation of representative democracy.
As Michael Mandel points out, the recent history of the new con-
stitutionalism provides a perfect illustration of this logic.1 As long as repre-
sentative political decision-making institutions were kept safely in the hands
of the established social circles (typically economic magnates, the political
aristocracy, professionals, and the urban intelligentsia), parliamentary sov-
ereignty was praised by politicians and constitutional theorists alike as the
most sacred of democratic values. The delegation of policy-making to na-
tional high courts was relatively limited. As political representatives of the
established interests started to lose control of these institutions (at different
times in different polities), they started to worry about the “tyranny of the
majority.”2 This led to high praise for and conversion to judicial review and
to the subsequent transfer of crucial policy-making functions to the courts.
Thus, the new constitutionalism—“the transformation in the relations be-
tween courts and representative institutions through the enactment of bills
of rights that has swept the world during the past few decades”—appears
from our present vantage point to be a transformation that “changes every-
thing so that everything may remain the same.”3 This counterintuitive in-
218 Conclusion

sight concerning the origins and consequences of one of the most significant
political phenomena of our times—the transition to juristocracy—serves as a
rather grim testament to the real nature of twenty-first-century constitu-
tional democracy.
For the reasons just outlined, simple, sweeping claims about the positive
effects of the constitutionalization of rights ought to be viewed skeptically.
Whereas this development may affirm identities previously marginalized or
promote the status and visibility of procedural justice and negative liberties,
its influence on promoting progressive notions of distributive justice has
been exaggerated. The comprehensive examination of the bill of rights cases
adjudicated by the high courts of the four countries presented in Chapter
4, as well as the variety of sociopolitical indicators presented in Chapter 5,
demonstrate that constitutional rights are never interpreted or implemented
in a political or ideological vacuum. Judicial interpretation and implementa-
tion of constitutional rights depend to a large extent on the ideological at-
mosphere, specific institutional constraints, and economic and social meta-
conditions within which they operate. In an age of social and economic
neoliberalism, constitutional rights appear to have only a limited capacity to
advance nonmarket notions of social justice into arenas that require wider
state intervention and more public expenditure (for example, basic hous-
ing, health care, education, employment, and welfare). Redistribution of re-
sources and opportunities, eradication of illiteracy and poverty, the provi-
sion of minimal life conditions—all lie beyond the reach of constitutional
rights as currently interpreted by national high courts. By contrast, constitu-
tional entrenchment of rights and rights litigation has proven effective in
enhancing the status of classic civil liberties, protecting and expanding the
boundaries of the private (human or economic) sphere. It may therefore mit-
igate injustice primarily where it is congruent with the prevalent conceptu-
alization of rights as safeguards against state interference with the private
sphere. And even that much progress in a given polity largely depends on the
existence of hospitable sociocultural conditions as well as a more concrete
“support structure for legal mobilization” that allows groups and individuals
to invoke rights provisions through strategic litigation in the first place.4
Unfortunately, as this study has shown, the increasingly popular con-
stitutionalization of rights has not proven to be a significant step toward
egalitarianism. In fact, constitutionalization has more often served as effec-
tive means for shielding the economic sphere from attempts to reduce socio-
economic disparity through regulatory and redistributive means. South
 Conclusion 219

Africa’s new constitution is one of the most progressive in the world. None-
theless, the unemployment rate among Black South Africans exceeds 40
percent, crime is escalating, and the distribution of wealth along racial lines
remains almost undisturbed, as 95 percent of the poor are black and 4 per-
cent are “coloured” (mixed race), while white and Indian South Africans
make up less than 1 percent of that country’s poor. Inadequate access to ba-
sic life conditions is prevalent, with more than half the country’s population
living within households that earn on average less than $100 per month,
and with fewer than one-third of blacks having internal taps, flush toilets,
and electricity.
While the NZBORA guarantees equality rights, New Zealand has wit-
nessed skyrocketing social and economic inequality, mostly concentrated
along ethnic lines. New Zealand’s rights revolution has been described by
scholars as one of the most significant developments in the country’s his-
tory; but in its aftermath the total income of the richest quintile is seventeen
times higher than that of the poorest, and Maori inmates continue to ac-
count for 50 percent of New Zealand’s prison population.
Although Canada has been ranked among the top three countries in the
United Nations’ Human Development Report for nine years in a row, the
human development of its aboriginal population (whose rights have been
fully recognized by the Canadian Constitution for over two decades) was
ranked only seventy-third in the world in the most recent report. While the
adoption of the Canadian Charter of Rights and Freedoms helped fortify the
formal status of some first-generation negative rights and bilingualism, it
also eroded the status of the right to strike and helped to lower trade barriers
between Canada and its southern neighbor. Astonishingly, over two-thirds
of Canada’s private-sector economy is now owned by American economic
conglomerates.
In Israel, despite the adoption of two new Basic Laws protecting funda-
mental rights, not a single Arab town has been built in Israel over the
past fifty years, and tens of thousands of Arab-Israelis continue to live in
“unrecognized” villages. At the same time as Israel’s new Basic Laws pro-
vided the necessary constitutional framework for expansively demarcating
the boundaries of the private sphere, the formerly collectivist Israeli society
has become the third most unequal society among established democracies
in terms of income distribution. In other words, as Harry Glasbeek put it,
“better manners at the dining table do not necessarily mean better food
on it.”5
220 Conclusion

Given the stark socioeconomic disparities among and within nations and
groups, and given the extrajudicial social and economic conditions that pre-
clude a full realization of substantive equality, it is questionable whether an
even more extensive constitutionalization of rights or a more generous judi-
cial interpretation of these rights would significantly improve the real socio-
economic status of capitalism’s traditional losers—especially given the clear
gap between the rhetoric that celebrates the supposedly unequivocal posi-
tive impact of constitutionalization on creating a just society and the ac-
tually negligible effect of bills of rights on advancing progressive notions of
distributive justice.
These findings are consistent with the experience of the United States,
which is perhaps the clearest contemporary example of a country with a
long and established tradition of constitutional protection of freedoms and
active judicial review that does not disturb the polity’s basic political and
economic organization. The United States has one of the most unequal dis-
tributions of income among advanced industrial societies; it has vast social
and economic disparity (the second largest among western societies); and it
is controlled to a large extent by the sheer power of corporate capital. Nor-
way and Sweden, two of the most developed and prosperous nations on
earth, have long adhered to a relatively egalitarian conception of democracy
while being less than enthusiastic (to put it mildly) about the American no-
tion of rights and judicial review. Does this attitude negatively affect individ-
ual liberties in these countries? Hardly. And, as another example, the status
of individual freedoms in the Netherlands—which until very recently strin-
gently opposed the idea and practice of judicial review—has certainly not
been lower than in the United States, which has had more than two centu-
ries’ experience with a widely celebrated Bill of Rights and two centuries of
active judicial review.
The very fact that the constitutionalization of rights has become a boom-
ing industry over the past three decades may bring into question the au-
thenticity of the benevolent vision behind this trend. Now, at the beginning
of a new millennium, it is clearer than ever that mega-conglomerates shape
and control much of our economic and cultural supply and demand; that a
rather shallow international stock-exchange culture has been elevated to a
status of cultural totem; that transnational bodies that govern global trade
and monetary affairs have become more powerful than ever before, success-
fully imposing self-defeating neoliberal economic reforms on poor develop-
ing countries; that closing the stark and growing disparities in life conditions
 Conclusion 221

among members of a polity as well as among polities is not viewed as essen-

tial for the fulfillment of democracy; and that a prevalent Schumpeterian (or
minimalist) conception of democracy has established itself, in which the es-
sence of democracy is relegated to the existence of some sort of electoral
routine, controlled to a large extent by those who have greater access to and
influence on the public agenda. These and other dominant phenomena of
our times are hostile to the active state and unsympathetic (at best) to the
notion of substantive social and economic equality. In light of the common
nature of these phenomena, we have no real reason to believe that the cur-
rent wave of constitutionalization is likely to develop in an altogether differ-
ent manner.
Whereas their impact on judicial and extrajudicial attitudes toward social
justice seems overrated or, at the very least, more nuanced than the conven-
tional wisdom suggests, the constitutionalization of rights and the corre-
sponding establishment of judicial review do have a transformative impact
on political discourse. The existence of a political environment conducive
to judicial empowerment and the consequent creation of a constitutional
framework that encourages deference to the courts provided the necessary
conditions for the wholesale judicialization of the most salient and contested
issues in Canada, Israel, New Zealand, and South Africa. Foundational col-
lective identity, nation-building, and questions of restorative justice have
been framed as constitutional controversies and as such rapidly found their
way to the national high courts of these countries.
“Anything and everything is justiciable” appears to have become a widely
accepted motto by courts worldwide. Many countries have seen a growing
legislative deference to the judiciary, an increasing (and often welcomed)
intrusion of the judiciary into the prerogatives of legislatures and executives,
and a corresponding acceleration of the process whereby political agen-
das have been judicialized. Together, these developments have helped bring
about a growing reliance on adjudicative means for clarifying and settling
fundamental moral controversies and highly contentious political questions
and have transformed national high courts into major political decision-
making bodies. The increasing power of supranational tribunals, such as the
European Court of Justice, the European Court of Human Rights, the United
Nations Human Rights Committee, or the World Trade Organization’s com-
pulsory and binding adjudication apparatus, as well as the proliferation of
numerous quasi-judicial tribunals, panels, and commissions dealing with in-
ternational human rights, transnational governance, trade, and monetary
222 Conclusion

affairs suggest that law, courts, and judicial power are becoming key factors
in international politics.
Most critics of these developments on democratic grounds have been pre-
occupied with the countermajoritarian nature and questionable democratic
credentials of fundamental moral choices made by unelected, unaccount-
able judges, primarily in the context of rights jurisprudence. But the ever-
accelerating judicialization train has left the rights jurisprudence station.
The expansion of the province of courts in determining political outcomes at
the expense of politicians, civil servants, and/or the populace has not only
become more globally widespread than ever before; it has also expanded to
become a manifold, multifaceted phenomenon, extending well beyond the
now-standard concept of judge-made policy-making through constitutional
rights jurisprudence and judicial redrawing of legislative boundaries. The
judicialization of politics now includes the wholesale transfer to the courts of
some of the most pertinent and polemical political controversies a demo-
cratic polity can contemplate. What has been loosely termed “judicial activ-
ism” has evolved beyond the existing conventions found in normative con-
stitutional theory literature. A new political order—juristocracy—has been
rapidly establishing itself throughout world.
Given this dramatic development, the traditional neglect of the study of
comparative law and politics is becoming harder to justify. Although intel-
lectual interest in the field of comparative constitutionalism and judicial pol-
itics has been growing steadily over the past decade, genuinely comparative,
problem-driven or theme-oriented scholarship (as opposed to single-coun-
try studies mistakenly characterized as comparative only by the virtue of
dealing with any country other the United States) is still difficult to come by.
What is worse, in spite of the fact that constitutionalism and judicial review
have “gone global,” by far the greater part of constitutional law and politics
scholarship produced in the United States is not only confined to American
constitutional history and practice, but adamantly refuses to admit to its pa-
rochialism. Until recently, as Bruce Ackerman has noted, it was appropriate
to give the American experience a privileged position in the study of consti-
tutional politics, primarily because other countries’ experiences with writ-
ten constitutions and judicial review were simply too short to warrant con-
fident predictions as to which, if any, would successfully shape long-term
sociopolitical evolution.6 However, given the scope and nature of the global
trend toward juristocracy, the extent to which the study of comparative con-
 Conclusion 223

stitutional politics has been overlooked is indeed “as remarkable as it is re-

grettable.”7
As I have stressed throughout this book, the degree of parochialism
among many scholars of constitutional politics is not merely a problem in
terms of aesthetics or intellectual taste. The traditional overemphasis on the
United States’s exceptional constitutional legacy and the dearth of genuinely
comparative research in the field have important methodological implica-
tions for the study of the origins and consequences of constitutionalization.
As we have seen, political struggles amidst persisting traditions of parlia-
mentary sovereignty in Canada, Israel, New Zealand, and South Africa have
given rise to a flurry of innovative constitutional mechanisms aimed at re-
ducing popular opposition to judicial empowerment by mitigating the ten-
sion between rigid constitutional provisions and active judicial review on
the one hand and democratic governing principles of political representation
and participation on the other. From limitation and override clauses to the
preferential model of judicial review; from a declaration of incompatibility
to the reference procedure to abstract judicial preview of proposed legisla-
tion—the world of new constitutionalism has become a living laboratory of
constitutional innovation. For the most part, the transition to juristocracy in
countries other than the United States reflects an entirely different historical
context from the one that produced the U.S. Constitution. Constitutional
politics and national high courts in India, Pakistan, Germany, Sweden, Rus-
sia, Hungary, Turkey, Egypt, Singapore, Hong Kong, Mexico, Chile, Britain,
Australia, Canada, New Zealand, Israel, and South Africa have arisen out of
different social struggles and political contexts and must develop in a world
changed beyond recognition from the late eighteenth century; at the same
time, these countries face a different set of challenges from those that con-
fronted the creators of the U.S. Constitution. And while it is important to
emphasize the United States’s indisputably unique legacy and profound im-
plications for the rest of the world, it is equally important, I believe, to place
the dramatic manifestations of the expansion of judicial review in that coun-
try within a broader context of similar developments that have taken place
over the past several decades in many other countries. Such an informed
comparative research agenda will not only help to bridge the gap between
grand constitutional theory and real-life constitutional politics worldwide; it
is also likely to yield novel insights concerning the origins and consequences
of the ever-accelerating transition to juristocracy.
 Notes

Introduction
1. Alexis de Tocqueville, On Democracy (New York: Knopf, [1835] 1945), 280.
2. C. N. Tate and T. Vallinder, eds., The Global Expansion of Judicial Power (New
York: New York University Press, 1995), 5.
3. See Ronald Dworkin, A Bill of Rights for Britain (London: Chatto and Windus,
1990).
4. For recent critiques of judicial review on democratic grounds, see, e.g., Mark
Tushnet, Taking the Constitution away from the Courts (Princeton, N.J.: Princeton
University Press, 1999); Jeremy Waldron, The Dignity of Legislation (Oxford: Ox-
ford University Press, 1999); Waldron, “Judicial Review and the Conditions for
Democracy,” Journal of Political Philosophy 6 (1998): 335–355; James Allan,
“Bills of Rights and Judicial Power—A Liberal’s Quandary,” Oxford Journal of
Legal Studies 16 (1996): 337–352; Jeremy Waldron, “A Rights-Based Critique of
Constitutional Rights,” Oxford Journal of Legal Studies 13 (1993): 18–51; Ian
Shapiro, Democratic Justice (New Haven: Yale University Press, 1999); Robert
Burt, The Constitution in Conflict (New Haven: Yale University Press, 1992); and
Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge,
Mass.: Harvard University Press, 1996). For critiques of judicial review on con-
servative-populist grounds, see, e.g., Robert H. Bork, The Tempting of America:
The Political Seduction of the Law (New York: Free Press, 1990); and Bork, Co-
ercing Virtue: The Worldwide Rule of Judges (Toronto: Vintage Canada, 2002).
5. Mark Graber, “Constitutional Politics and Constitutional Theory: A Misunder-
stood and Neglected Relationship,” Law and Social Inquiry 27 (2002): 309–338,
315.
6. Ronald Dworkin, Freedom’s Law (Cambridge, Mass.: Harvard University Press,
1996), 34.
7. Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada,
2nd ed. (Toronto: Thompson Educational Publishing, 1994); Christopher
Manfredi, Judicial Power and the Charter (Toronto: Oxford University Press,
2001); F. L. Morton and Rainer Knopff, The Charter Revolution and the Court

225
226 Notes to Pages 4–17

Party, 2nd ed. (Toronto: Broadview Press, 2000); and Kent Roach, The Supreme
Court on Trial: Judicial Activism or Democratic Dialogue (Toronto: Irwin Law, 2001).
8. See Alec Stone, The Birth of Judicial Politics in France (New York: Oxford Univer-
sity Press, 1992); Donald Kommers, The Constitutional Jurisprudence of the Federal
Republic of Germany, 2nd ed. (Durham: Duke University Press, 1997); Mary
Volcansek, Constitutional Politics in Italy: The Constitutional Court (New York: St.
Martin’s Press, 2000); and collections of predominantly single-country essays
such as Tate and Vallinder’s Global Expansion of Judicial Power.
9. Jon Elster et al., Institutional Design in Post-Communist Societies (Cambridge: Cam-
bridge University Press, 1998), to name only one recent example.
10. See, e.g., publications by Karen Alter, Geoffrey Garrett, Sally Kenney, Walter
Mattli, Anne-Marie Slaughter, Alec Stone Sweet, and J. H. H. Weiler, to name
a few leading scholars who have published extensively in the area of European
and EU public law and judicial politics.
11. See e.g. Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe
(Oxford: Oxford University Press, 2000); William Prillaman, The Judiciary and
Democratic Decay in Latin America (Westport, Conn.: Praeger, 2000); and Leslie
Friedman Goldstein, Constituting Federal Sovereignty: The European Union in Com-
parative Context (Baltimore: Johns Hopkins University Press, 2001).
12. Daniel Lazare, “America the Undemocratic,” New Left Review 232 (1998):
3–31, 21.
13. George Fletcher, “Comparative Law as a Subversive Discipline,” American Jour-
nal of Comparative Law 46 (1998): 683–700, 691. For a critique of American pa-
rochialism in this regard see, e.g., Ran Hirschl, “Looking Sideways, Looking
Backwards, Looking Forwards,” University of Richmond Law Review 43 (2000):
414–441; Bruce Ackerman, “The Rise of World Constitutionalism,” Virginia
Law Review 83 (1997): 771–797; and Martin Shapiro, “Public Law and Judicial
Politics,” in Ada Finifter, ed., Political Science: The State of the Discipline (Washing-
ton, D.C.: American Political Science Association, 1993).
14. To these six scenarios we may add a seventh: the establishment of judicial re-
view at the supranational level through the proliferation of supranational
courts (such as the European Court of Justice, the European Court of Human
Rights, the International Criminal Court, the United Nations Human Rights
Committee, and the International Court of Justice) as well as numerous quasi-
judicial tribunals, panels, and commissions dealing with international gover-
nance, trade and monetary affairs, and international human rights issues.

1. Four Constitutional Revolutions

1. The British North America (BNA) Act 1867 was renamed the Constitution Act,
1867 by the Constitution Act 1982. The BNA Act, passed by the United King-
dom Parliament, created the Canadian federation. It united the provinces of
Canada (which was divided into two new provinces, Ontario and Quebec),
Nova Scotia, and New Brunswick into a single “Dominion” under the name of
 Notes to Pages 18–23 227

Canada; established a bicameral national Parliament; and distributed legislative

powers between the federal Parliament and the provincial legislatures.
2. “How the Charter Changes Justice” (interview with Chief Justice Lamer),
Globe and Mail, April 17, 1992, A11.
3. In R. v. Oakes, [1986] 1 S.C.R. 103, the SCC developed a two-pronged ap-
proach to interpreting the Charter’s “limitation clause.” In this approach, one
first determines whether the challenged law or conduct violates, denies, or in-
fringes any right. This requires an analysis of the scope and definition of the
right as well as the purpose and effect of the legislation and conduct. Second,
the court must determine whether there has been a justifiable limitation on
the right concerned.
4. R. v. Drybones, [1970] S.C.R. 282.
5. F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party, 2nd
ed. (Toronto: Broadview Press, 2000), ch. 1.
6. Thorson v. Attorney-General Canada, [1975] 1 S.C.R. 138. See also Kent
Roach, “The Role of Litigation and the Charter in Interest Advocacy,” in
F. Seidle, ed., Equality and Community: The Charter, Interest Advocacy, and Represen-
tation (Montreal: Institute for Research and Public Policy, 1993).
7. Minister of Justice (Canada) vs. Borowski, [1981] 2 S.C.R. 575, 598.
8. In H.C. 98/69 Bergman v. Minister of Finance 23(1) P.D. 693, the Supreme
Court of Israel upheld the validity of these entrenched clauses and rejected in-
consistent laws not enacted by the prescribed majority.
9. Basic Law: Freedom of Occupation was officially enacted on March 3, 1992,
and amended two years later, on March 9, 1994. Basic Law: Human Dignity
and Liberty was officially enacted on March 17, 1992.
10. E.g., the El-Ard, Ben-Shalom, Rabbi Kahane, and most recently the Azmi
B’shara cases, all dealing with the eligibility of parliamentary lists whose plat-
form contradicted the “Jewish and democratic” principle.
11. Basic Law: Human Dignity and Liberty, § 8; Basic Law: Freedom of Occupa-
tion, § 4. Significantly, both laws authorize judicial review. However, Article 10
of Basic Law: Human Dignity and Liberty grants immunity from scrutiny to all
previously existing legislation. Thus, unlike Basic Law: Freedom of Occupa-
tion, the supremacy of this Basic Law applies only to future legislation that
may infringe on rights guaranteed by the Basic Law.
12. Basic Law: Freedom of Occupation, § 8.
13. C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D.
195. The U.S. Supreme Court’s ruling in Marbury v. Madison (1803) is gener-
ally credited with establishing “judicial review”—the power of the courts to
declare unconstitutional and therefore unenforceable any law, statute, legisla-
tive or executive practice, and any action by a public official on the grounds
that the challenged law, statute, act, or practice is in conflict with a polity’s
constitution or basic law.
14. Article 3 of the new Basic Law states: “A person’s property must not be
harmed.”
228 Notes to Pages 23–33

15. See also my discussion of this case in Chapter 4.

16. The turning point in this respect was H.C. 910/86 Ressler v. Minister of De-
fense, 42(2) P.D. 441. Here the Court declared that whenever a petition raised
an issue of important constitutional merit, or when there was a prima facie
concern for significant governmental violations of the rule of law, any person
was entitled to petition the High Court of Justice, regardless of his or her per-
sonal interest in the outcome of the litigation.
17. Sir Robin Cooke, “A Sketch from the Blue Train,” New Zealand Law Journal
[1994]: 10–13.
18. The tribunal was established through the New Zealand Human Rights Amend-
ment Act 2001.
19. Flickinger v. Crown Colony of Hong Kong, [1991] 1 NZLR 439.
20. Simpson v. Attorney General, [1994] 3 NZLR 667, 706.
21. See, e.g., Drew v. Attorney-General, [2001] NZCA 207.
22. R v. Pora, [2001] 2 NZLR 37. See also R v. Poumako, [2000] 2 NZLR 695.
23. Preamble, New Zealand Bill of Rights Act (1990).
24. A few examples are Tavita v. Minister of Immigration, [1994] 2 NZLR 257;
Rajan v. Minister of Immigration, [1996] 3 NZLR 543; and Puli’uvea v. Re-
moval Review Authority, [1996] 3 NZLR 538—all dealing with immigration
regulations and practices. In all of these cases, the NZCA held that a challenge
to the lawfulness of any state policy or practice could be based on the grounds
that it was inconsistent with international human rights treaty obligations, re-
gardless of whether the treaty in question had been enshrined in statute.
25. Ivor Richardson, “Rights Jurisprudence—Justice for All?” in P. Joseph, ed., Es-
says on the Constitution (Wellington: Brooker’s, 1995), 61–83, 75.

2. The Political Origins of Constitutionalization

1. For works that emphasize cultural variations, see Sir Henry Maine, Ancient Law
[1861] (New York: Dutton, Everyman’s Library, 1972); Emile Durkheim, The
Division of Labor in Society [1893] (New York: Free Press, 1964).
2. See, e.g., S. N. Eisenstadt, ed., Readings in Social Evolution and Development (Ox-
ford: Pergamon, 1970); S. N. Eisenstadt, Modernization: Protest and Change
(Englewood Cliffs, N.J.: Prentice-Hall, 1966); Talcott Parsons, The Evolution of
Societies (Englewood Cliffs, N.J.: Prentice-Hall, 1977).
3. The works that adopt various versions of this approach are too numerous to
cite. The most prominent exponent of this line of thought is Ronald Dworkin.
See, e.g., Dworkin’s Taking Rights Seriously (London: Duckworth, 1978); and A
Bill of Rights for Britain (London: Chatto and Windus, 1990). See also Andras
Sajó, Limiting Government: An Introduction to Constitutionalism (Budapest: Central
European University Press, 1999).
4. For an elaboration of the social contract school (or the precommitment argu-
ment) see, e.g., Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irratio-
nality (Cambridge: Cambridge University Press, 1988); Samuel Freeman, “Con-
 Notes to Pages 33–37 229

stitutional Democracy and the Legitimacy of Judicial Review,” Law and

Philosophy 9 (1990): 327–370; and Stephen Holmes, Passions and Constraint: On
the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995). For
a critique of the precommitment argument see, e.g., Jeremy Waldron, Law and
Disagreement (Oxford: Oxford University Press, 1998).
5. Freeman, “Constitutional Democracy and the Legitimacy of Judicial Review,”
353.
6. Martin Shapiro, Courts: A Comparative and Political Analysis (Chicago: University
of Chicago Press, 1981); Martin Shapiro, “The Success of Judicial Review,” in
S. Kenney, ed., Constitutional Dialogues in Comparative Perspective (London:
Macmillan, 1999).
7. George Tsebelis, “Decision-Making in Political Systems: Veto Players in
Presidentialism, Parliamentarism, Multicameralism, and Multipartyism,” Brit-
ish Journal of Political Science 25 (1995): 289–325; K. Weaver and B. Rockman,
eds., Do Institutions Matter? Government Capabilities in the United States and Abroad
(Washington, D.C.: Brookings Institution, 1993).
8. Jon Elster, “Forces and Mechanisms in the Constitution Making Process,” Duke
Law Journal 45 (1995): 364–396.
9. See Paul Rubin, Business Firms and the Common Law: The Evolution of Efficient
Rules (New York: Praeger, 1983).
10. Douglass North and Robert Thomas, The Rise of the Western World (New York:
Cambridge University Press, 1973).
11. For an elaboration of this approach, see Carlo Guarnieri et al., The Power of
Judges: A Comparative Study of Court and Democracy (New York: Oxford University
Press, 2002), 160–181.
12. A. Baaklini and H. Desfosses, eds., Designs for Democratic Stability: Studies in Viable
Constitutionalism (Armonk, N.Y.: M. E. Sharpe, 1997); L. Diamond et al., eds.,
Consolidating Third World Democracies (Cambridge: Cambridge University Press,
1997); A. Lijphart and C. Waisman, eds., Institutional Design in New Democracies
(Boulder, Colo.: Westview Press, 1996); and Elster, “Forces and Mechanisms in
the Constitution Making Process.”
13. For example, between Jews and non-Jews, secular and religious Jews, and
Ashkenazi and Mizrahi Jews.
14. Gad Barzilai, “The Supreme Court in Israeli Legal Culture,” International Social
Science Journal 152 (1997): 193–208; Martin Edelman, “The Judicialization of
Politics in Israel,” International Political Science Review 15 (1994): 177–186.
15. Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State:
How the Courts Reformed America’s Prisons (Cambridge: Cambridge University
Press, 1998).
16. Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford
University Press, 2000); Alec Stone Sweet and Thomas Brunell, “Constructing
a Supranational Constitution: Dispute Resolution and Governance in the Euro-
pean Community,” American Political Science Review 92 (1998): 63–81.
17. North and Thomas, The Rise of the Western World; Oliver Williamson, “Credible
230 Notes to Pages 37–41

Commitments—Using Hostages to Support Exchange,” American Economic Re-

view 73 (1983): 519–540; Barry Weingast, “Constitutions as Governance Struc-
tures: The Political Foundations of Secure Markets,” Journal of Institutional and
Theoretical Economics 149 (1993): 286–311; and Weingast, “The Political Foun-
dations of Democracy and the Rule of Law,” American Political Science Review 91
(1997): 245–263.
18. Max Weber, Economy and Society: An Outline of Interpretive Sociology (Berkeley:
University of California Press, 1978).
19. Douglass North and Barry Weingast, “Constitutions and Commitment: The
Evolution of Institutions Governing Public Choice in Seventeenth Century
England,” Journal of Economic History 49 (1989): 803–833.
20. See, e.g., Paul Mahoney, “The Common Law and Economic Growth: Hayek
Might Be Right,” Journal of Legal Studies 30 (2001): 503–525; Rafael La Porta et
al., “Law and Finance,” Journal of Political Economy 106 (1998): 1113–1155;
Rafael La Porta et al., “The Quality of Government,” Journal of Law, Economics,
and Organization 15 (1999): 222–279; Rafael La Porta et al., “Legal Determi-
nants of External Finance,” Journal of Finance 52 (1997): 1131–1150.
21. Matthew McCubbins and Thomas Schwartz, “Congressional Oversight Over-
looked: Police Patrols versus Fire Alarms,” American Journal of Political Science 28
(1984): 165–179; Matthew McCubbins et al., “Structure and Process, Politics
and Policy: Administrative Arrangements and the Political Control of
Agencies,” Virginia Law Review 75 (1989): 431–482; Matthew McCubbins et al.,
“Administrative Procedures as Instruments of Political Control,” Journal of Law,
Economics, and Organization 3 (1987): 243–277.
22. James Rogers, “Information and Judicial Review: A Signaling Game of Legisla-
tive-Judicial Interaction,” American Journal of Political Science 45 (2001): 84–99.
23. Judicial review in Canada is not limited to review within the context of con-
crete adversary litigation. The reference procedure allows both federal and pro-
vincial governments in Canada to refer proposed statutes or even questions
concerning hypothetical legal situations to the Supreme Court or the provin-
cial courts of appeal for an advisory (abstract) opinion on their constitutional-
ity.
24. Stefan Voigt and Eli Salzberger, “Choosing Not to Choose: When Politicians
Choose to Delegate Powers,” Kyklos 55 (2002): 289–310, 294. See also Morris
Fiorina, “Legislative Choice of Regulatory Forms: Legal Process of Administra-
tive Process,” Public Choice 38 (1982): 33–66.
25. Mark Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the Ju-
diciary,” Studies in American Political Development 7 (1993): 35–73.
26. William Landes and Richard Posner, “The Independent Judiciary in an Interest
Group Perspective,” Journal of Law and Economics 18 (1975): 875–901; Mark
Crain and Robert Tollison, “Constitutional Change in an Interest-Group Per-
spective,” Journal of Legal Studies 8 (1979): 165–175; Eli Salzberger, “A Positive
Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an
Independent Judiciary?” International Review of Law and Economics 13 (1993):
 Notes to Pages 41–47 231

349–379; Eli Salzberger and Paul Fenn, “Judicial Independence: Some Evi-
dence from the English Court of Appeal,” Journal of Law and Economics 42
(1999): 831–847.
27. J. Mark Ramseyer, “The Puzzling (In)Dependence of Courts: A Comparative
Approach,” Journal of Legal Studies 23 (1994): 721–748. See also J. Mark
Ramseyer and Eric Rasmusen, “Why Are Japanese Judges So Conservative in
Politically Charged Cases?” American Political Science Review 95 (2001): 331–344.
28. See Terry Moe, “Political Institutions: The Neglected Side of the Story,” Journal
of Law, Economics, and Organization 6 (1990): 213–253.
29. See Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in
Asian Cases (Cambridge: Cambridge University Press, 2003); and “Economic
Analysis and the Design of Constitutional Courts,” Theoretical Inquiries in Law 3
(2001): 49–85.
30. See Pedro Magalhaes, “The Limits to Judicialization: Legislative Politics and
Constitutional Review in the Iberian Democracies” (Ph.D. diss., Ohio State
University, 2002), 21.
31. Id.
32. See Pilar Domingo, “Judicial Independence: The Politics of the Supreme Court
of Mexico,” Journal of Latin American Studies 32 (2000): 117. See also Bruce
Rutherford, “The Origins of Judicial Independence in the Developing World,”
paper presented at the APSA Annual Meeting, Philadelphia 2003.
33. See, e.g., John Goodman, The Politics of Central Bank Independence (Ithaca, N.Y.:
Cornell University Press, 1992).
34. See, e.g., Sylvia Maxfield, “Financial Incentives and Central Bank Authority in
Industrializing Nations,” World Politics 46 (1994): 556–588.
35. Michael Maloney and Robert McCormick, “A Positive Theory of Environmen-
tal Quality Regulation,” Journal of Law and Economics 25 (1982): 99–127.
36. See, e.g., Geoffrey Garrett, “The Politics of Legal Integration in the European
Union,” International Organization 49 (1998): 171–181.
37. Andrew Moravcsik, “The Origins of Human Rights Regimes,” International Or-
ganization 54 (2000): 217–252.
38. See Pinai Nanakorn, “Re-Making of the Constitution in Thailand,” Singapore
Journal of International and Comparative Law 6 (2002): 90–115.
39. Miles Kahler, “Conclusion: The Causes and Consequences of Legalization,” In-
ternational Organization 54 (2000): 661–683, 663.
40. Moravcsik, “The Origins of Human Rights Regimes,” 220. A fairly recent ex-
ample that appears to support this thesis is the voluntary incorporation of ten
major international human rights covenants into Argentinian constitutional
law in 1994.
41. See David Schneiderman, “Investment Rules and the New Constitutionalism,”
Law and Social Inquiry 25 (2000): 757–787.
42. Id., 758–759.
43. Stephen Gill, “Globalization, Market Civilization, and Disciplinary
Neoliberalism,” Millennium 24 (1995): 399–423, 412.
232 Notes to Pages 47–52

44. William N. Eskridge, “Reneging on History? Playing the Court/Congress/Presi-

dent Civil Rights Game,” California Law Review 79 (1991): 613–684; Cornel
Clayton and Howard Gillman, Supreme Court Decision-Making: New Institutionalist
Approaches (Chicago: University of Chicago Press, 1999); Lee Epstein and Jack
Knight, The Choices Justices Make (Washington D.C.: CQ Press, 1998); Lee Ep-
stein and Jack Knight, “Towards a Strategic Revolution in Judicial Politics: A
Look Back, a Look Ahead,” Political Research Quarterly 53 (2000): 625–661.
45. Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Mich-
igan Press, 1997), 119.
46. Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a Na-
tional Policy-Maker,” Journal of Public Law 6 (1957): 279–295.
47. Recent studies have identified a pattern of clusters of blunt anti-government
judgments occurring during periods of frail political regimes, most frequently
during the last days of condemned dictatorships or toward the end of weak
democratic governments. See Gretchen Helmke, “The Logic of Strategic Defec-
tion: Court-Executive Relations in Argentina under Dictatorship and Democ-
racy,” American Political Science Review 96 (2002): 291–303.
48. For an elaboration of this point see Karen Alter, Establishing the Supremacy of Eu-
ropean Law: The Making of an International Rule of Law in Europe (Oxford: Oxford
University Press, 2001).
49. Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New
York: Free Press, 1991), 158.
50. Sujit Choudhry, “Globalization in Search of Justification: Toward a Theory of
Comparative Constitutional Interpretation,” Indiana Law Journal 74 (1999):
820–892, 820.
51. Anne-Marie Slaughter, “A Typology of Transjudicial Communities,” University
of Richmond Law Review 29 (1994): 99–134, 99.

3. Hegemonic Preservation in Action

1. As of January 2003, Israel’s population was estimated at 6.8 million, of which
approximately 5.5 million (approximately 81 percent) were Jews and 1.3 mil-
lion (approximately 19 percent) were non-Jews. Of the non-Jews, approxi-
mately 950,000 were Moslems, 230,000 Christians, and 90,000 Druze. Of the
Jewish population, approximately 55 percent were of Ashkenzi descent and
approximately 45 percent were of Mizrahi (or Sepharadi) descent. For further
discussion of these demographic trends, see Ayelet Shachar, “Whose Republic?
Citizenship and Membership in the Israeli Polity,” Georgetown Immigration Law
Journal 13 (1999): 233–272. See also “After Zionism,” a special survey on Is-
rael published in the Economist, April 25, 1998).
2. In practice, this exclusive recognition meant that there was an Orthodox near-
monopoly over the rabbinical court system and the provision of formally rec-
ognized religious services in Jewish communities.
3. D. K. (Knesset Records 1950) 1743 [Hebrew].
4. These nine include Basic Law: The Knesset (1958, amended 1985); Basic Law:
 Notes to Pages 52–57 233

Israel Lands (1960); Basic Law: The President of the State (1964); Basic Law:
The Government (1968; replaced by a new version in 1992); Basic Law: The
State Economy (1975); Basic Law: The Army (1976); Basic Law: Jerusalem
Capital of Israel (1980); Basic Law: The Judiciary (1984); and Basic Law: The
State Comptroller (1988).
5. The framework for this type of administrative review was established in 1953
in the seminal case of Kol Ha’am v. Minister of the Interior (H.C. 73/53 7(2)
P.D. 871). This case concerned the validity of a temporary closing decree issued
by the Minister of the Interior against the official newspaper of the Israeli
Communist Party. The Court nullified the decree and held that due to the pri-
mary status of free speech in a democracy, the minister could apply discretion
only when there was a “near certainty” of risk to public safety.
6. Cited in Pnina Lahav, “Rights and Democracy: The Court’s Performance,” in
E. Sprinzak and L. Diamond, eds., Israeli Democracy Under Stress (Boulder: Lynne
Rienner Publishers, 1993), 131.
7. Cited in Pnina Lahav, “Foundations of Rights Jurisprudence in Israel: Chief
Justice Agranat’s Legacy,” Israel Law Review 24 (1990): 211–265, 226.
8. Gary Jacobsohn, Apple of Gold: Constitutionalism in Israel and the United States
(Princeton: Princeton University Press, 1993), 98.
9. Basic Law: The Government (1992).
10. The leading members of this group were law professor A. Rubinstein (Meretz),
law professor D. Libai (Labor), Minister of Justice D. Meridor (Likud), U. Linn
(Likud), A. Poraz (Meretz), M. Shahal (Labor), and S. Aloni (Meretz), all of
whom have formal legal education. The dominant figures in Israel’s legal acad-
emy took a strong positive position in the debate over the enactment of the
new laws and supported the political attempt to enact major civil liberty legis-
lation in Israel. Among the dominant academic figures who enthusiastically
supported the new laws and promoted their enactment were law professors
U. Reichman, B. Bracha, D. Friedman, K. Mann, A. Maoz, A. Shapira, and
A. Rozen-Zvi; business professor D. Pekelman; and political science professors
D. Elazar and B. Zisser.
11. See D. K. (Knesset Records 1991–1992) [Hebrew].
12. It is estimated that between 1989 and 2000 approximately one million immi-
grants came to Israel from the former Soviet Union and about 50,000 came
from Ethiopia. In 1990 alone, 185,200 Jews arrived from the former Soviet
Union, and in 1991 an additional 147,800 arrived.
13. For further discussion, see Israel’s Social Insurance Institute Annual Report
2000–2001 (published in December 2001; www.btl.gov.il).
14. See Yoav Peled, “Towards a Redefinition of Jewish Nationalism in Israel? The
Enigma of Shas,” Ethnic and Racial Studies 21 (1998): 709–710.
15. Yoav Peled and Gershon Shafir, “The Roots of Peacemaking: The Dynamics of
Citizenship in Israel, 1948–1993,” International Journal of Middle Eastern Studies
28 (1996): 391–413. Though it lacks formal status, a Halakhic verdict enjoys
wide public support de facto among believers.
16. Even if we classify Tzomet (which represents extreme right-wing views with
234 Notes to Pages 57–67

regard to the peace process, combined with a “secularist” agenda) as belonging

to the bloc representing established interests and constituencies, the decline in
the relative power of the these interests is still significant (from 95 MKs in
1981 to 68 in 1996).
17. Note that while most upper-middle-class Mizrahi Jews have been voting for
Likud for the past twenty-five years, poor Mizrahi Jews have increasingly been
shifting their votes to Gesher and Shas. For a detailed account of this phenom-
enon, see Peled, “Towards a Redefinition of Jewish Nationalism in Israel?”
18. See, e.g., Yoav Peled and Gershin Shafir, “Peace and Profits: The Globalization
of Israeli Business and the Peace Process,” in G. Shafir and Y. Peled (eds), The
New Israel: Peacemaking and Globalization (Boulder: Westview, 2000); Michael
Shalev “Liberalization and the Transformation of the Political Economy,” in
Shafir and Peled, The New Israel; Yair Aharoni, “The Changing Political Econ-
omy of Israel,” Annals of the AAPSS 555 (1998): 127–146.
19. See “Foreign Workers Flood into Israel; Fighting Opens Ex-Palestinian Jobs,”
Chicago Tribune, July 15, 2002, 1.
20. Guy Bechor, Constitution to Israel: A Story of a Fight (Or Yehuda: Sifriyat Ma’ariv,
1996) [Hebrew]; Aharon Barak, “A Constitutional Revolution: Israel’s Basic
Laws,” Constitutional Forum 4 (1993): 83–84.
21. Aharon Barak, “The Constitutionalization of the Israeli Legal System as a Re-
sult of the Basic Laws and Its Effect on Procedural and Substantive Criminal
Law,” Israel Law Review 31 (1997): 3.
22. On the SCI’s failure to adequately protect, let alone enhance, the status of
Arab-Israeli citizens, Bedouins, and Arab residents of the Occupied Territories,
see my discussion in Chapters 4 and 5.
23. “The Cunning of History,” Boston Review 26, (December 2001–January 2002).
24. See Ran Hirschl, “Civil Society v. The State of Israel: Two Conceptions of Civil
Society and the Israeli Supreme Court’s Constitutional Jurisprudence,” in
Y. Peled and A. Ophir, eds., Israel: From Mobilized to Civil Society? (Jerusalem: Van
Leer Institute, 2001) [Hebrew]; Dan Avnon, “The Enlightened Public: Jewish
and Democratic or Liberal and Democratic?” Mishpat U’Mimshal 3 (1996): 113–
149 [Hebrew]; Menachem Mautner, The Decline of Formalism and the Rise of
Values in Israeli Law (Tel-Aviv: Ma’agaley Da’at, 1993) [Hebrew] and “The Rea-
sonableness of Politics,” Theory and Criticism 5 (1994): 25–53 [Hebrew]; and
Ronen Shamir, “The Politics of Reasonableness: Reasonableness and Judicial
Power at Israel’s Supreme Court,” Theory and Criticism 5 (1994): 7–24 [He-
brew].
25. These were Y. Modai, M. Nisim, A. Rubinstein, D. Meridor, D. Libai,
Z. Ha’negbi, Y. Beilin, M. Shitreet, and Y. Lapid.
26. Ten were born in Poland, nine in Germany, eight in Israel, six in Russia and
Lithuania, and one each in Iraq, England, and the United States.
27. Professor Yitzhak Englard was appointed in 1997 and replaced Justice Tsvi Tal,
who had strongly objected to the constitutionalization of rights and the expan-
sion of judicial power in Israel. Another soft-line observant member of the
 Notes to Pages 67–71 235

Court, the recently appointed Justice Ya’akov Tirkel, has long been a personal
friend of Chief Justice Aharon Barak.
28. Local and municipal religious councils are publicly funded statutory bodies su-
pervising most religious affairs and services at the community level (e.g., the
operation of synagogues and religious ceremonies and the enforcement of Sab-
bath closing laws and Kashrut laws). The 1967 Religious Council Law provides
that 45 percent of the members be appointed by the Minister of Religious Af-
fairs, another 45 percent by the local authority, and 10 percent by the local
rabbi. The members are to be observant Jews, but the appointment system was
meant to reflect the ethnic and political composition of the community.
29. H.C. 5364/94 Velner et al. v. Rabin et al., 49(1) P.D. 758.
30. H.C. 3094/93 Movement for Government Quality v. Prime Minister, 47(5) P.D.
404; H.C. 4267/93 Amitai v. Prime Minister, 47(5) P.D. 441.
31. For example, the nullification (on formal equality grounds) of government-
funded affordable housing projects targeted exclusively at poor Orthodox com-
munities and the nullification of a Knesset law formally recognizing the opera-
tion of unlicensed radio stations (e.g., Channel 7) catering primarily to Ortho-
dox Mizrahi constituencies.
32. James Gibson et al., “On the Legitimacy of National High Courts,” American Po-
litical Science Review 92 (1998): 343–358; William Mishler and Reginald
Sheehan, “The Supreme Court as Countermajoritarian Institution? The Impact
of Public Opinion on Supreme Court Decisions,” American Political Science Re-
view 87 (1993): 87–101.
33. International Social Science Program (ISSP), Study 2150 (Köln, Germany:
Zentralarchiv fur Empiriche Sozial Forschung, May 1993, on file with author).
This comparative study was based on a representative sample of the adult pop-
ulation in eight western countries. On a scale of 1 to 5 (1 = absolute con-
fidence in the legal system; 5 = no confidence), the faith of Israelis in their le-
gal system was ranked first (2.21). Germany was ranked third (2.65); the
United States fifth (3.03); and Britain sixth (3.13).
34. Id.: 29 percent of the respondents had “absolute confidence” in the legal sys-
tem; 38.6 percent had “confidence” in the legal system.
35. Yohanan Peres and Ephraim Yuchtman-Yaar, Between Consent and Dissent: De-
mocracy and Peace in the Israeli Mind (Jerusalem: Israeli Democracy Institute,
1998) [Hebrew], 59.
36. Quoted in the New York Times, August 28, 1996; cited in Gary Jacobsohn, The
Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton:
Princeton University Press, 2003), 248.
37. H.C. 5016/96 Horev v. Minister of Transportation, 51(4) P.D. 1.
38. Cited in Ha’Aretz (English edition), July 12, 2000.
39. It is interesting to note that while many religious leaders participated in the
anti-Court demonstration, a cross-party coalition of important political leaders
representing Israel’s secular bourgeoisie also gathered in Jerusalem in a pro-
Court demonstration.
236 Notes to Pages 71–77

40. Cited in Ha’Aretz (English edition), February 11, 1999 (www.haaretz.co.il/eng).

41. Id.
42. Cited in Ha’Aretz (English edition), January 4, 2002.
43. See, e.g., Jeffrey Mondak and Shannon Ishiyama Smithey, “The Dynamics of
Public Support for the Supreme Court,” Journal of Politics 59 (1997): 1114–
1142.
44. Id., 1131.
45. Canada’s demographics have changed dramatically over the past thirty years.
Eighteen percent of the population is now foreign born (compared with about
11 percent in the United States). Toronto, once a homogeneous city of staid
British tradition, now counts more than 40 percent of its people as foreign
born. Approximately one-third of Montreal’s and Vancouver’s population is
foreign born.
46. Reference Re: Alberta Statutes [1938] S.C.R. 100. Although the doctrine re-
ceived some support, it never commanded a majority and was repudiated by
the Supreme Court of Canada in 1978.
47. The 1960 Bill of Rights was adopted by the newly elected Conservative govern-
ment of John Diefenbaker. As a nonentrenched document, it had no suprem-
acy over other federal legislation. As an ordinary federal act, it applied only to
matters falling under federal jurisdiction. The bill’s recognition of rights and
freedoms that “have existed and shall continue to exist” discouraged judicial
creativity in the definition and enforcement of rights and liberties. Between
1960 and 1981, only 34 Bill of Rights cases reached the Supreme Court of Can-
ada. Throughout that period, the Court struck down only one statute (R. v.
Drybones, 1970) based on the 1960 Bill of Rights.
48. This was a failed proposal for constitutional overhaul whose main components
were the adoption of a minicharter of rights protecting certain political and
language rights; constitutional recognition of regional representation in the
SCC; and the adoption of a new amending formula.
49. See generally F. L. Morton, “The Effect of the Charter of Rights on Canadian
Federalism,” Publius 25 (1995): 173–188; Allan Hutchinson, Waiting for CORAF:
A Critique of Law and Rights (Toronto: University of Toronto Press, 1995); Mi-
chael Mandel, The Charter of Rights and the Legalization of Politics in Canada, 2nd
ed. (Toronto: Thompson Educational Publishing, 1994); Christopher Manfredi,
Judicial Power and the Charter (Toronto: Oxford University Press, 2001); F. L.
Morton, “The Political Impact of the Canadian Charter of Rights and Free-
doms,” Canadian Journal of Political Science 20 (1987): 30–55; and F. L. Morton
and Rainer Knopff, The Charter Revolution and the Court Party, 2nd ed.
(Peterborough, Ont.: Broadview Press, 2000).
50. Chapter 11 of NAFTA provides foreign companies with the right to sue any sig-
natory of the agreement for actions taken against their property by that gov-
ernment that are tantamount to expropriation.
51. See, e.g., Gregory Hein, “Interest Group Litigation and Canadian Democracy,”
in P. Howe and P. Russell, eds., Judicial Power and Canadian Democracy (Mon-
treal: McGill–Queen’s University Press, 2001).
 Notes to Pages 78–83 237

52. Pierre E. Trudeau, Federalism and the French Canadians (Toronto: Macmillan,
1968), 197.
53. The Quebec Bill 101 (Charte de la langue française), enacted by the Parti
Québécois government in 1977, was meant to promote the use of French
in Quebec by restricting the use of English in businesses and schools in the
province.
54. No member of any visible minority group has ever been appointed to the Su-
preme Court of Canada.
55. A few leading examples for this trend are: Munro v. National Capital Commis-
sion, [1966] S.C.R. 663; Reference Re: Offshore Mineral Rights of British Co-
lumbia, [1967] S.C.R. 792; Reference Re: Anti-Inflation Act, [1976] 2 S.C.R.
373; R. v. Hauser, [1979] 1 S.C.R. 984; R. v. Crown Zellerbach Ltd., [1988] 1
S.C.R. 401; and Ontario Hydro v. Ontario, [1993] 3 S.C.R. 327.
56. A few examples of this trend are: R. v. Klassen, (1959) 20 D.L.R. 406; Caloil
v. Canada, [1971] S.C.R. 543; Manitoba v. Manitoba Egg and Poultry Associa-
tion, [1971] S.C.R. 689; Central Canada Potash v. Saskatchewan, [1979] 1
S.C.R. 42; General Motors of Canada Ltd. v. City National Leasing, [1989] 1
S.C.R. 641.
57. Cited in the Globe and Mail, April 13, 2002, A11.
58. See also David Beatty, “The Canadian Charter of Rights: Lessons and La-
ments,” Modern Law Review 60 (1997): 481–498; Morton, “The Effect of the
Charter of Rights on Canadian Federalism”; Hutchinson, Waiting for CORAF;
Mandel, The Charter of Rights and the Legalization of Politics in Canada; Judy Fudge
and Harry Glasbeek, “The Politics of Rights: A Politics with Little Class,” Social
and Legal Studies 1 (1992): 45–70.
59. Joseph Fletcher and Paul Howe, “Canadian Attitudes toward the Charter and
the Courts in Comparative Perspective,” Choices 6:3 (May 2000): 4–29, 16.
60. Peter Russell, “Canada’s Charter: A Political Report,” Public Law (1988): 385–
410, 398; Fletcher and Howe, “Canadian Attitudes toward the Charter,” 12–
13.
61. “Canadians Feel Supreme Court Tainted by Partisan Politics,” Globe and Mail,
July 3, 2001, A1.
62. Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in
Twenty-One Countries (New Haven: Yale University Press, 1984), 19.
63. Arend Lijphart, “The Demise of the Last Westminster System?” Electoral Studies
6 (1987): 2–26.
64. The Human Rights Act 1993 prohibits discrimination on the basis of sex, marital
status, religious belief, ethical belief, color, race, ethnic or national origin, dis-
ability, age, political opinion, employment status, or family status. The Privacy
Act 1993 aims to protect individuals by regulating the disclosure of information
about them. See my discussion of the corresponding Human Rights Amend-
ment Act 2001 in Chapter 2.
65. New Zealand’s exports to the United Kingdom declined from 53 percent of
New Zealand’s total exports in 1960 to 6.2 percent of New Zealand’s total ex-
ports in 1995.
238 Notes to Pages 84–88

66. For detailed accounts of these developments, see, e.g., C. Rudd and B. Roper,
eds., The Political Economy of New Zealand (Auckland: Oxford University Press,
1997); most of the articles in Policy Analysis and Management 16:3 (1997); Jack
Nagel, “Social Choice in a Pluralitarian Democracy: The Politics of Market Lib-
eralization in New Zealand,” British Journal of Political Science 28 (1998): 223–
267; Lewis Evans et al., “Economic Reform in New Zealand, 1984–1995: The
Pursuit of Efficiency,” Journal of Economic Literature 34 (1996): 1856–1902; and
most of the essays in Jonathan Boston et al., Public Management: The New Zea-
land Model (New York: Oxford University Press, 1996).
67. Paul Dalziel, “Economic Policy,” in R. Miller, ed., New Zealand Government and
Politics (Auckland: Oxford University Press, 2001), 410–411.
68. Raymond Miller, “Labour,” in Miller, New Zealand Government and Politics, 230.
69. Id., 229.
70. The tribunal has the authority to determine the meaning of the treaty for today
and to find practical solutions to acknowledged grievances.
71. See Nagel, “Social Choice in a Pluralitarian Democracy,” 234, for data on the
1943–1993 period. I updated the data provided by Nagel to include the results
of the 1996 and 1999 elections.
72. Keith Jackson and Alan McRobie, New Zealand Adopts Proportional Representa-
tion: Accident? Design? Evolution? (Aldershot: Ashgate, 1998), 11–12.
73. Geoffrey Palmer, “A Bill of Rights for New Zealand,” in K. J. Keith, ed., Essays
on Human Rights (Auckland: Oxford University Press, 1968), 106, 107.
74. These included Prime Minister Geoffrey Palmer (hitherto the Minister of Jus-
tice of the Lange government), Roger Douglas (the Minister of Finance), and
David Caygill (the Associate Finance Minister, who left the National Party in
1970s with Palmer), backed by the explicitly neoliberal leadership of the post-
Muldoon National Party and the new libertarian New Zealand Party led by Bob
Jones (described by Jack Nagel as a Ross Perot–like self-made millionaire prop-
erty developer). See Nagel, “Social Choice in a Pluralitarian Democracy,” 239.
75. See, e.g., Geoffrey Palmer and Matthew Palmer, Bridled Power: New Zealand
Government under MMP (Auckland: Oxford University Press, 1997); Paul
Rishworth, “Human Rights and the Bill of Rights,” New Zealand Law Review 17
(1996): 298–324; and Philip Joseph, “The New Zealand Bill of Rights Act
1990,” Public Law Review 7 (1996): 76–91.
76. These included the rights to an adequate standard of living, health care, and
housing; rights to work and education; and the “right to participate in the cul-
tural life of the community.”
77. Geoffrey Palmer, “Westco Lagan v. A-G,” New Zealand Law Journal (May 2001):
168.
78. Note that as of June 2003 six of the NZCA’s seven justices were white males. Of
the thirty-four judges on New Zealand’s seven High Courts (the second highest
legal institution), only five are women. No Maoris, Pacific Islanders, or Asians
have been appointed to these courts.
79. Dame Sian Elias, “The Treaty of Waitangi and the Separation of Powers in New
 Notes to Pages 88–95 239

Zealand,” in B. D. Gray and R. B. McClintock, eds., Courts and Policy: Checking

the Balance (Auckland: Brookers, 1995), 224.
80. Palmer, “Westco Lagan v. A-G,” 166.
81. The literature dealing with the constitutional aspects of the abolition of apart-
heid in South Africa is vast. For three general accounts of the struggle concern-
ing the new constitution in South Africa, see P. Andrews and S. Ellmann, eds.,
The Post-Apartheid Constitutions: Perspectives on South Africa’s Basic Law (Athens:
Ohio University Press, 2001); Siri Gloppen, South Africa: The Battle over the Con-
stitution (Aldershot: Ashgate, 1997); and T. D. Sisk, Democratization in South Af-
rica (Princeton: Princeton University Press, 1995).
82. Quoted by H. R. Hahlo and E. Kahn, South Africa: The Development of Laws and
the Constitution (Cape Town: Juta, 1960), 109.
83. Cited in Alfred Cockrell, “The African Bill of Rights and the ‘Duck/Rabbit,’”
Modern Law Review 60 (1997): 522.
84. Michael Beatton, “South Africa,” in J. Kopstein and M. Lichbach, eds., Compar-
ative Politics (Cambridge: Cambridge University Press, 2000), 390.
85. Although the judicial ranks in post-apartheid South Africa are now more re-
flective of the ethnic profile of the society than they were a decade ago, they
still fall far short of representative composition. As of 2003, the High and Con-
stitutional Courts are staffed mostly by whites: of the 194 judges in question,
129 are white. Of the 11 Constitutional Court judges, 6 are white.
86. South African Law Commission, No. 25, Project 58, Working Paper on Group
and Human Rights Law (1989).
87. Id., 296.
88. Constitution of the Republic of South Africa, Act 200 of 1993.
89. Cited in Dennis Davis, “Deconstructing and Reconstructing the Argument for a
Bill of Rights within the Context of South African Nationalism,” in Andrews
and Ellmann, The Post-Apartheid Constitutions, 207.
90. Roelf Meyer, “From Parliamentary Sovereignty to Constitutionality: The De-
mocratization of South Africa, 1990 to 1994,” in Andrews and Ellmann, The
Post-Apartheid Constitutions, 58.
91. Section 25(1) of the 1996 Constitution reads: “No one may be deprived of
property except in terms of law of general application, and no law may permit
arbitrary deprivation of property.”
92. See section 25(8). The “limitation clause” is section 36(1) of the 1996 Consti-
tution.
93. Section 29(2) of the 1996 Constitution.
94. Michael Mandel, “A Brief History of the New Constitutionalism, or ‘How we
changed everything so that everything would remain the same’,” Israel Law Re-
view 32 (1998): 250–300.
95. Id., 278.
96. The Freedom Charter was adopted by the Congress of the People in 1955. Its
preamble reads: “The People shall Share in the Country’s Wealth: The national
wealth of our country, the heritage of all South Africans, shall be restored to
240 Notes to Pages 96–101

the people; The mineral wealth beneath the soil, the banks and monopoly in-
dustry shall be transferred to the ownership of the people as a whole; All other
industries and trade shall be controlled to assist the well-being of the people;
The Land shall be Shared among those who Work it: Restriction of land owner-
ship on racial basis shall be ended, and all the land re-divided amongst those
who work it, to banish famine and land hunger.” Cited in Nelson Mandela,
Long Walk to Freedom (Boston: Little, Brown and Co., 1994), 151–153.
97. Ian Shapiro, “On the Normalization of South African Politics,” Dissent (Winter
1999): 33.
98. Amazingly, 20 percent of blacks polled in a survey released in December 2002
approved of how South Africa was governed during the apartheid years, up
from 8 percent in 1995. See “Disillusion Rises among South Africa’s Poor,” New
York Times, December 31, 2002, p. A4.
99. See Vivien Hart, “The Contagion of Rights: Constitutions as Carriers,” in
P. Hanafin and M. Williams, eds., Identity, Rights, and Constitutional Transforma-
tion (Aldershot: Ashgate, 1999); Kathryn Firmin-Sellers, “The Politics of Prop-
erty Rights,” American Political Science Review 89 (1995): 867–881; and Firmin-
Sellers, The Transformation of Property Rights in the Gold Coast (Cambridge: Cam-
bridge University Press, 1996).
100. In 1980, Article 2 of Egypt’s Constitution was amended to allow for principles
of Islamic jurisprudence to become the main source of legislation in Egypt. This
meant that no legislation could be passed that contravened Islamic legal princi-
ples. Following the establishment of judicial review in 1979 and the 1980 con-
stitutional amendment, the Egyptian Supreme Constitutional Court has in-
creasingly been called upon to determine the constitutionality of legislative
and administrative acts on the basis of their adherence to the principles of the
Shari’a. The question before the Court in all of these cases has concerned
which principles of the Shari’a possess determinative and absolute authority.
In many of these cases, the Court adopted a fairly progressive interpretation of
Shari’a rules. For two leading examples, see Wassel v. Minister of Education
(the Niq’ab [veil] Case), No. 8 of the 17th judicial year (May 18, 1996); and the
Riba [usury or interest] Case, No. 20, 1st judicial year (May 4, 1986).

4. Constitutionalization and Judicial Interpretation

of Rights
1. The literature on this subject is too vast to cite in full. For examples represent-
ing different theoretical approaches, see Rogers Smith, Civic Ideals: Conflicting Vi-
sions of Citizenship in U.S. History (New Haven: Yale University Press, 1997); Jack
Knight and Lee Epstein, “On the Struggle for Judicial Supremacy,” Law and So-
ciety Review 30 (1996): 87–120; William Mishler and Reginald Sheehan, “The
Supreme Court as Countermajoritarian Institution? The Impact of Public Opin-
ion on Supreme Court Decisions,” American Political Science Review 87 (1993):
87–101; Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional
 Notes to Pages 101–109 241

Law (Cambridge, Mass.: Harvard University Press, 1988); Harold H. Koh, “Why
the President (almost) Always Wins in Foreign Affairs,” Yale Law Journal 97
(1988): 1255–1342; and Robert Dahl, “Decision-Making in a Democracy: The
Supreme Court as a National Policy-Maker,” Journal of Public Law 6 (1957):
279–295.
2. See the notorious Dred Scott v. Sanford, 60 U.S. 393 (1856). In this case the
Court held that “[the Negro is] bought and sold, and treated as an ordinary ar-
ticle of merchandise and traffic” and that therefore “the power of Congress
over the [slave] property of a citizen can never be a mere discretionary power.”
3. During the “Lochner Era” alone (roughly 1885–1930), the U.S. Supreme
Court struck down some 150 pieces of legislation concerning labor relations,
labor conditions, and working hours.
4. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944).
5. Section 2 of the Smith Act. See American Communications Association v.
Douds, 339 U.S. 382 (1950); Dennis v. United States, 341 U.S. 494 (1951). In
Yates v. United States, 354 U.S. 298 (1957), the Court, in a 6–1 decision, over-
turned the convictions of several members of the Communist Party for con-
spiracy to violate the Smith Act. See also the First Amendment cases of the
Lochner Era—Schenck v. United States, 249 U.S. 47 (1919); Debs v. United
States, 249 U.S. 211 (1919); Gitlow v. People of the State of New York, 268
U.S. 652 (1925).
6. San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
7. In Buckley v. Valeo, 424 U.S. 1 (1976), the Court struck down campaign
finance reform that placed spending limits on political candidates and so-called
third parties on the ground that such limits violate the First Amendment’s
guarantee of free speech. In U.S. v. Lopez, 514 U.S. 549 (1995), the Court held
that Congress had exceeded its constitutional authority in forbidding students
from carrying handguns in local public schools. In City of Richmond v. J. A.
Croson, 488 U.S. 469 (1989), and in Adarand Constructions, Inc. v. Pena, 515
U.S. 200 (1995), the Court placed almost all meaningful affirmative action and
“set-aside” schemes beyond the bounds of constitutional protection. In Shaw
v. Reno, 509 U.S. 630 (1993), the Court held that congressional districts cre-
ated to maximize minority representation might be unconstitutional on equal
protection grounds.
8. See Charles Fried, Right and Wrong (Cambridge, Mass.: Harvard University
Press, 1978), 110. Cecile Fabre relies on the “duty distinction” to distinguish
between negative and positive rights: “Some rights are negative in that they
ground negative duties only, while other rights are positive in that they only
ground positive duties to help and resources”: Fabre, “Constitutionalising So-
cial Rights,” Journal of Political Philosophy 6 (1998): 263–284, 264. See also Ce-
cile Fabre, Social Rights under the Constitution (Oxford: Clarendon Press, 2000).
9. The actual percentage of legal rights cases in New Zealand and Israel was likely
higher than these figures suggest, because some “routine” New Zealand Court
of Appeal and Israeli Supreme Court cases dealing with arrest and detention
242 Notes to Pages 110–112

were not reported in the official publications of judicial decisions in either

country.
10. C.F.H 2316/95 G’nimmat v. State of Israel, 49(4) P.D. 589; C.A. 1302/92 State
of Israel v. Nahamias, 49(3) P.D. 309; H.C. 5304/92 Society for Law Victims v.
Minister of Justice, 47(4) P.D. 715. On the impact of the constitutional revolu-
tion on procedural criminal law in Israel, see Aharon Barak, “The
Constitutionalization of the Israeli Legal System as a Result of the Basic Laws
and Its Effect on Procedural and Substantive Criminal Law,” Israel Law Review
31 (1997): 3–21; and Emanuel Gross, “The New Constitutional Rights of the
Defendant in Israel,” Bar-Ilan Law Studies 13 (1996): 155–182 [Hebrew].
11. On the SCI’s record in protecting rights of Arab-Israeli citizens and Arab resi-
dents of the Occupied Territories, see David Kretzmer, The Occupation of Justice:
The Supreme Court of Israel and the Occupied Territories (Albany: State University of
New York Press, 2002), and Kretzmer, The Legal Status of the Arabs in Israel
(Boulder: Westview, 1990); Menachem Hofnung, Democracy, Law, and National
Security in Israel (Aldershot: Dartmouth, 1996); Ilan Peleg, Human Rights in the
West Bank and Gaza: Legacy and Politics (Syracuse: Syracuse University Press,
1995); Ronen Shamir, “Suspended in Space: Bedouins under the Law of Is-
rael,” Law and Society Review 30 (1996): 231–257; and Ronen Shamir, “Land-
mark Cases and the Reproduction of Legitimacy: The Case of Israel’s High
Court of Justice,” Law and Society Review 24 (1990): 781–804.
12. H.C. 5973/92 Association of Civil Rights in Israel v. Minister of Defense, 47(1)
P.D. 267.
13. H.C. 2581/91 Salhat v. The Government of Israel, 47(4) P.D. 837; H.C. 7964/95
Bilbisi v. General Security Service (decision released on Jan. 11, 1996); H.C.
8049/96 Hamdan v. General Security Service (decision released on November
14, 1996); H.C. 3124/96 Mubarak v. General Security Service (decision re-
leased on November 17, 1996).
14. H.C. 5100/94 Public Committee Against Torture in Israel et al. v. State of Israel
et al., 53(4) P.D. 817.
15. Internal security regulations from 1987 allowed security forces to apply “mod-
erate physical pressure” to suspects during interrogation. In 1994, following a
series of suicide bombings, the government further eased restrictions on the
use of physical force against suspects who might have knowledge of imminent
terrorist attacks. The death in custody of several Palestinian detainees high-
lighted the practice of violently shaking some detainees to obtain evidence.
16. A.C.H. 7048/97 Almoni (“John Doe”) v. Minister of Defense, 54(1) P.D. 721.
17. H.C. 6055/95 Sagi Zemach v. Minister of Defense, 53(5) P.D. 241.
18. Many of the NZBORA cases concerning criminal due process rights and reme-
dies for their breaches were recently summarized in R v. Grayson and Taylor,
[1997] 1 NZLR 399.
19. R v. Kirifi, [1992] 2 NZLR 8; R v. Butcher, [1992] 2 NZLR 257.
20. Ministry of Transport v. Noort, [1992] 3 NZLR 260.
 Notes to Pages 112–114 243

21. R v. Goodwin, [1993] 2 NZLR 153; R v. Te-Kira, [1993] 3 NZLR 257; R v. Pratt,
[1994] 3 NZLR 21.
22. R v. Jefferies, [1994] 1 NZLR 290; R v. A, [1994] 1 NZLR 429; R. v. Grayson
and Taylor, [1997] 1 NZLR 399. The Court’s generous interpretation of the
NZBORA provisions protecting procedural due process rights is evident even in
the Grayson ruling, where the Court handed down a slightly narrower interpre-
tation of search and seizure NZBORA guarantees than had been adopted ear-
lier in the Jefferies case.
23. Martin v. Tauranga District Court, [1995] 2 NZLR 419, reversing [1995] 1
NZLR 491. See also R. v. Donaldson, [1995] 3 NZLR 641.
24. R v. Pora,[2001] 2 NZLR 37. See also R v. Poumako, [2000] 2 NZLR 695.
25. Simpson v. Attorney-General, [1994] 3 NZLR 667.
26. The Court of Appeal awarded monetary compensation for breaches of the
NZBORA in several other cases. See, e.g., Auckland Unemployed Workers’
Rights Centre Inc. v Attorney-General, [1994] 3 NZLR 720.
27. S v. Zuma, 1995 (2) SA 642 (CC).
28. S v. Makwanyane, 1995 (3) SA 391 (CC); S v. Williams, 1995 (3) SA 632 (CC).
29. Mohamed v. President of the Republic of South Africa, 2001 (3) SA 893 (CC).
The Court stated that “South Africa cannot expose a person to the risk of exe-
cution, whether by deportation or extradition and regardless of consent.” For a
similar SCC ruling see United States v. Burns, [2001] 1 S.C.R. 283.
30. Christian Education South Africa v. Minister of Education, 2000 (4) SA 757
(CC).
31. See, e.g., S v. Bhulwana, 1996 (1) SA 388 (CC); S v. Mbhata, 1996 (2) SA 464
(CC); S v. Julies, 1996 (7) BCLR 899 (CC); and most recently S v. Singo,
2002(4) SA 858 (CC).
32. Sanderson v. Attorney General, Eastern Cape, 1998 (2) SA 38 (CC); S v.
Vermaas, 1995 (3) SA 292 (CC); Shabalala v. Attorney General, Transvaal,
1996 (1) SA 725 (CC). In all of these cases, the SACC rescinded clauses that
provided that if illegal drugs, arms and ammunition, etc. were found in the im-
mediate vicinity of a person, it shall be presumed, until the contrary is proved,
that the arms and stolen articles were in possession of that person and that
such a person has been dealing in the banned substance, stolen articles, etc.
33. S v. Niemand 2001 (11) BCLR 1181 (CC). Any punishment involving impris-
onment, stated the Court, must prescribe the maximum period of incarcera-
tion.
34. S v. Steyn, 2001 (1) SA 1146 (CC).
35. S v. Motloutsi, 1996 (1) SA 584 (CC).
36. Mistry v. Interim National Medical and Dental Council of South Africa, 1998
(4) SA 1127 (CC).
37. For a comprehensive analysis of the SCC’s procedural rights adjudication, see
Kent Roach, Due Process and Victims’ Rights: The New Law and Politics of Criminal
Justice (Toronto: University of Toronto Press, 1999); Roach, “The Effects of the
Canadian Charter of Rights on Criminal Justice,” Israel Law Review 33 (1999):
244 Notes to Pages 114–120

607–637; and Don Stuart, Charter Justice in Canadian Criminal Law, 3rd ed.
(Scarborough, Ontario: Carswell, 2001).
38. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Note
that whereas three justices based their decision on section 7 of the Charter,
three other justices reached the same outcome based on the more specific sec-
tion 2(e) of the statutory Canadian Bill of Rights 1960, which protects the
“right to a fair hearing.”
39. See also Baker v. Canada, [1999] 2 S.C.R. 877.
40. Askov v. The Queen, [1990] 2 S.C.R. 1199.
41. R. v. Stinchcombe, [1991] 3 S.C.R. 326. For further discussion see G. Owen,
“Disclosure after Stinchcombe,” in A. Peacock, ed., Rethinking the Constitution
(Oxford: Oxford University Press, 1996).
42. A recent example is R. v. Noël, 2002 SCC 67 (decision released on October 31,
2002).
43. The Queen v. Lavalee et al., 2002 SCC 61 (decision released on Sept. 12, 2002).
44. United States of America v. Cobb, [2001] 1 S.C.R. 587; United States of Amer-
ica v. Shulman, [2001] 1 S.C.R. 616.
45. R. v. Feeney, [1997] 2 S.C.R. 117.
46. In a similar spirit, the SCC held recently that conducting a strip search in a
public space of suspects in drug trafficking and selling contravened the Char-
ter’s privacy provisions. The incriminating evidence gathered through such
searches was held inadmissible. See R. v. Golden, [2001] 3 S.C.R. 679.
47. R. v. Seaboyer, [1991] 2 S.C.R. 577.
48. R. v. O’Connor, [1995] 4 S.C.R. 411. See also R. v. Daviault, [1994] 3 S.C.R 63.
49. R. v. Mills, [1999] 3 S.C.R. 668.
50. R v. M, [1996] 2 NZLR 659.
51. R v. T, [1999] 2 NZLR 602.
52. R. v. CIP Inc., [1992] 1 S.C.R. 843. The discussion of this case draws on Joel
Bakan, Just Words (Toronto: University of Toronto Press 1997), 91–92.
53. In Texas v. Johnson, 491 U.S. 397 (1989), the U.S. Supreme Court relied pri-
marily on the “content neutrality” doctrine to strike down a Texas law that
banned flag burning as a form of political protest. In an equally contested deci-
sion in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court unanimously
invalidated St. Paul’s hate-speech ordinance that banned cross burning, swas-
tika displays, and other expressions of racial supremacy and held that even
within the category of fighting words, governments may not bar or penalize
the expression of some, but not other, words based on their content.
54. R. v. Keegstra, [1990] 3 S.C.R. 697.
55. R. v. Zundel, [1992] 2 S.C.R. 731. See also Ross v. New Brunswick School Dis-
trict No. 15, [1996] 1 S.C.R. 825. In R. v. Lucas, [1998] 1 S.C.R. 439, the SCC
confirmed Zundel, holding that section 2(b) of the Charter protects the dissemi-
nation of deliberate falsehoods.
56. R v. Sharpe, [2001] 1 S.C.R. 45.
57. RJR MacDonald Inc. v Canada, [1995] 3 S.C.R. 199.
 Notes to Pages 120–125 245

58. Moonen v. Film and Literature Board of Review, [2000] 2 NZLR 9.

59. Living Word Distribution Ltd v. Human Rights Action Group Inc. (Wellington),
[2000] 3 NZLR 570.
60. Id., 571.
61. Case v. Ministry of Safety and Security, 1997 (3) SA 514 (CC).
62. Islamic Unity Convention v. Independent Broadcasting Authority, 2002 (4) SA
294.
63. Egan v. Canada, [1995] 2 S.C.R. 513. However, the specific discriminatory pro-
vision in question was reinstated by the “reasonableness” test of section 1.
64. Vriend v. Alberta, [1998] 1 S.C.R 493.
65. M v. H, [1999] 2 S.C.R. 3.
66. F. L. Morton and Rainer Knopff, The Charter Revolution and the Court Party, 2nd
ed. (Peterborough, Ont.: Broadview Press, 2000), 14.
67. H.C. 721/94 El Al Airlines Ltd. v. Danilowitch et al., 48(5) P.D. 749.
68. H.C. 273/97 Association for the Protection of Individual Rights of Homosex-
uals, Lesbians, and Bisexuals in Israel et al. v. Minister of Education et al. 51(5)
P.D. 822.
69. H.C. 1779/99 Brener-Kadish v. Ministry of Interior, 52(2) P.D. 368.
70. Quilter and Pearl et al. v. Attorney-General, [1998] 2 NZLR, 88. However, the
Court noted that it could not interpret the Marriage Act as including same-sex
marriages, because such a change in the law must come from the legislature
rather than from the judiciary.
71. National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1)
SA 6 (CC).
72. National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs,
2000 (2) SA 1 (CC).
73. Satchwell v. President of Republic of South Africa (No. I), 2002(6) SA 1 (CC).
See also Satchwell v. President of Republic of South Africa (No. II) (CCT 48/02,
decision released on March 17, 2003).
74. Du Toit v. Minister of Welfare and Population Development, 2002(10) BCLR
1006 (CC).
75. The Court added that the provisions denied same-sex spouses due recognition
as joint parents and infringed upon the principle of the paramountcy of a
child’s best interests.
76. J and B v. Director General, Department of Home Affairs (CCT 46/02, decision
released on March 28, 2003).
77. Rulings in the same spirit were recently given by the U.S. Supreme Court in
Romer v. Evans, 517 U.S. 620 (1996) and Lawrence et al. v. Texas (decision re-
leased June 26, 2003); by the European Court of Human Rights (ECHR) in
Smith and Grady v. United Kingdom, Lustig-Prean & Beckett v. United King-
dom (2000) 29 EHRR 493; by the United Nations Human Rights Committee
in Toonen v. Australia, Communication No. 488/1992, U.N. Doc. CCPR/C/50/
D/488/1992 (1994); and by the Hungarian Supreme Court in Decision 14/
1995 on the Legal Equality of Same Sex Partnerships (decision delivered
246 Notes to Page 126

March 13, 1995). An apparent departure from this trend is the U.S. Supreme
Court’s recent ruling in Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
In a 5–4 decision, the Court held that requiring Boy Scouts of America to up-
hold the membership and scoutmaster status of an outspoken homosexual vio-
lated the organization’s First Amendment right of expressive association. The
Court accepted Boy Scouts’ argument that the very presence of gays as scout-
masters would send a message contradicting the organization’s fundamental
belief that homosexuality is immoral. “It appears that homosexuality has
gained greater social acceptance,” wrote Chief Justice Rehnquist in the Court’s
ruling. “But this is scarcely an argument for denying First Amendment protec-
tion to those who refuse to accept those views.” Despite its outcome, how-
ever, Boy Scouts is a textbook example of how deeply embedded is the notion
of the demarcated private sphere in the U.S. Supreme Court’s constitutional
jurisprudence. The Court’s decision was based on the classification of Boy
Scouts of America as a private entity and on the Court’s determination that
as a private entity, the organization had the right to impose a certain moral
code on its members (who joined voluntarily), however contested that code
might be.
78. See e.g., Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy
(Princeton, N.J.: Princeton University Press, 1980); and Jeremy Waldron,
“Welfare and the Images of Charity,” Philosophical Studies 36 (1986): 463–482.
According to other proponents of the basic-needs scheme, inequalities (even
on arbitrary basis) should be allowed, provided that the basic needs of all are
met. See e.g., John Rawls, The Law of Peoples (Cambridge, Mass.: Harvard Uni-
versity Press, 1999); and David Miller, “Justice and Global Inequality,” in A.
Hurrell and N. Woods, eds., Inequality, Globalization, and World Politics (Oxford:
Oxford University Press, 1999).
79. The Human Development Report is published annually by the UNDP. It in-
cludes updated statistics on a wide variety of human development indicators
worldwide.
80. Amartya Sen, “Equality of What?” in S. McMurrin, ed., Tanner Lectures on Hu-
man Values (Cambridge: Cambridge University Press, 1980); and Sen, Inequality
Reexamined (Cambridge, Mass.: Harvard University Press, 1992). See also Mar-
tha Nussbaum, Women and Human Development: The Capabilities Approach (Cam-
bridge: Cambridge University Press, 2000), 70–101.
81. The Indian Supreme Court, for example, has developed the world’s most com-
prehensive body of judgments dealing with social welfare rights as protected
by the unqualified “right to life” enshrined in the Indian Constitution. In Olga
Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180), for example, the
Indian Supreme Court held that the right to life, enshrined by article 21 of the
Indian Constitution, implies constitutional protection of the right to livelihood
and a person’s right not to be deprived of his or her right to livelihood to the
point of abrogation. In a similar spirit, the Indian Supreme Court went on to
rule in Unni Krishnan v. State of Andhra Pradesh (AIR 1993 SC 2178) that the
 Notes to Pages 126–131 247

right to basic education to the age of fourteen years is embraced within arti-
cle 21, thereby elevating the right to education to the status of fundamental
right.
82. For a comprehensive discussion of the moral foundations of positive social
rights and their constitutional entrenchment in numerous national constitu-
tions and international treaties and covenants see Keith D. Ewing, “Social
Rights and Constitutional Law,” Public Law (Spring 1999): 104–126; and Craig
Scott and Patrick Macklem, “Constitutional Ropes of Sand or Justiciable Guar-
antees? Social Rights in a New South African Constitution,” University of Penn-
sylvania Law Review 141 (1992): 1–148.
83. See David Beatty, “The Last Generation: When Rights Lose Their Meaning,” in
D. Beatty, ed., Human Rights and Judicial Review: A Comparative Perspective
(Dordrecht; Boston: M. Nijhoff, 1994); and Michael Zander, A Bill of Rights? 4th
ed. (London: Sweet and Maxwell, 1997), 40–69.
84. See, e.g., Stephen Holmes and Cass Sunstein, The Cost of Rights (New York:
W. W. Norton, 1999).
85. The proposed provision stated clearly that it was not meant to level the status
of social rights with the rights protected by the Charter and would not have the
effect of modifying the interpretation of the rights and freedoms protected by
the Charter. For further discussion of the rise and fall of the Charlottetown Ac-
cord’s social rights provisions, see Joel Bakan and David Schneiderman, Social
Justice and the Constitution: Perspectives on a Social Union for Canada (Ottawa:
Carleton University Press, 1992).
86. R. v. Prosper, [1994] S.C.R. 236.
87. Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 163–164.
88. Finlay v. Canada (Minister of Finance), [1993] 1 S.C.R. 1080.
89. Gosselin v. A-G. Quebec, 2002 SCC 84 (decision released Dec. 19, 2002).
90. Adler et al. v. The Queen [1996] 3 S.C.R. 609.
91. Id., at 613. Following the Court’s decision, the parents presented the case be-
fore the U.N. Human Rights Committee (UNHRC). In 1999, the Committee re-
leased its recommendation stating that Ontario’s refusal to fund non–Roman
Catholic denominational schools amounts to a violation of fundamental free-
dom of religion and equality rights. See Waldman v. Canada (1999), CCPR/C/
C7/694/1999.
92. Schachter v. Canada, [1992] 2 S.C.R. 679. The Court held that unemployment
insurance child-care benefits had to be provided equally to both biological and
adoptive parents and that the Unemployment Insurance Act’s provision of
such benefits to the latter but not to the former was therefore unconstitutional.
93. Eldridge v. British Columbia, [1997] 3 S.C.R. 624. The Court held that the fail-
ure of hospitals and doctors to provide publicly funded sign-language interpre-
tation as part of the provision of medical services was discriminatory toward
deaf patients of British Columbia’s medicare system.
94. Laurine Platzky and Cherryl Walker, The Surplus People: Forced Removals in South
Africa (Johanesburg: Ravan Press, 1985), 10.
248 Notes to Pages 131–137

95. Soobramoney v. Minister of Health (KwaZulu-Natal), 1998 (1) SA 765 (CC),

paragraphs 8–9.
96. In re: Gauteng School Education Bill, 1996 (3) SA 165 (CC).
97. Id., 166. The final Constitution expressly endorses the Court’s interpretation of
education rights as negative rights by providing in s. 29(3) that “everyone has
the right to establish and maintain, at their own expense, independent educa-
tional institutions” (emphasis added).
98. Government of RSA v. Grootboom, 2001 (1) SA 46 (CC).
99. Despite the Court’s ruling in Grootboom, lower courts have repeatedly over-
turned “land grabs” by the homeless. See “Space Invaders,” Economist (July 14,
2001), 44.
100. Minister of Health v. Treatment Action Campaign (TAC), 2002(5) SA 721 (CC).
101. Id., 743. Nevirapine’s manufacturer had offered the drug free to the South Af-
rican government for a limited period, which would lower significantly the
costs of implementing the Court’s ruling.
102. Lawson v. Housing New Zealand, [1997] 2 NZLR 474.
103. Id., 494. In a similar spirit, the NZCA went on to hold that the decision of a
semiprivate health insurance company to remove a patient from a dialysis pro-
gram and to discontinue his medical treatment based on his poor mental con-
dition did not amount to a breach of the patient’s right to life protected by sec-
tion 8 of the NZBORA: see Shortland v. Northland Health Ltd., [1998] 1 NZLR
433.
104. Mendelssohn v. Attorney-General, [1999] 2 NZLR 268.
105. Attorney-General v. Shirleen et al., [2003] NZCA 29 (decision released on Feb-
ruary 29, 2003).
106. On the different alternatives in interpreting Basic Law: Human Dignity and
Liberty, see the Court’s discussion in H.C. 454/94 Women’s Lobby in Israel v.
Government of Israel, 48(5) P.D. 50.
107. Aharon Barak, “Human Dignity as a Constitutional Right,” Ha’Praklit 41
(1994): 271–290 [Hebrew].
108. Aharon Barak, Judicial Interpretation (Jerusalem: Nevo, 1994) 419 [Hebrew].
109. H.C. 1554/95 G.I.L.A.T. v. Minister of Education, 50(3) P.D. 2.
110. Id., 25–26. The rationale behind the Court’s decision seems to replicate the
U.S. Supreme Court’s judgment in San Antonio Independent School District v.
Rodriguez, 411 U.S. 1 (1973), where the Court ruled that although “the grave
significance of education both to the individual and to our society cannot to be
doubted . . . education is not among the rights afforded explicit protection un-
der the Federal Constitution. Nor do we find any basis for saying it is implicitly
so protected.”
111. C.A. 1684/96 “Tnu La’khayot Likhyot” (Let the Animals Live) v. Hamat Gader
Vacation Industries Ltd., 51(3) P.D. 832.
112. H.C. 205/94 Nof v. Ministry of Defense, 50(5) P.D. 449.
113. See, e.g., H.C. 3954/91 Agbaria v. Minister of Education, 45(5) P.D. 472.
114. H.C. 240/98 Adalah v. Minister of Religious Affairs, 52(2) P.D. 167.
 Notes to Pages 137–141 249

115. H.C. 2814/97 Follow-Up Committee on Arab Education v. Ministry of Educa-

tion, 54(3) P.D. 233.
116. For a comprehensive report on the systematic discrimination against Arab
children in Israel’s schools see Zama Coursen-Neff, Second Class: Discrimination
against Palestinian Arab Children in Israel’s Schools (New York: Human
Rights Watch, 2001). For an outline of the main findings see my discussion in
Chapter 5.
117. H.C. 6032/99 Suad et al. v. National Planning and Construction Board, 55(5)
P.D. 929.
118. H.C. 4540/00 Abu-Apash et al. v. Ministry of Health (decision released Sept.
12, 2001; not yet published).
119. See, e.g., Aharon Yoran, “The Constitutional Revolution in Taxation in Israel,”
Mishpatim 23 (1994): 55–68 [Hebrew].
120. C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D.
195.
121. Id., 205.
122. It is important to note that judicial interpretations of bills of rights under mar-
ket liberalism show a marked tendency to reflect that ideological atmosphere
by protecting liberty and property rather than supporting state-underwritten
regulatory employment laws. The best-known example of this occurred during
the Lochner era in the United States, when a profoundly conservative Su-
preme Court used the Constitution’s Fifth Amendment to block socially pro-
gressive legislation for more than thirty years. During this time (roughly 1885
to 1930), the U.S. Supreme Court struck down some 150 pieces of legislation
concerning labor relations, labor conditions, and working hours. In the famous
Lochner ruling (Lochner v. New York, 198 U.S. 45 1905), the Court invalidated
a state law that limited the working hours of bakers, claiming that the safety of
bakers provided “no reasonable ground for interfering with the liberty of a per-
son of the right of free contract.” During the Lochner Era, the Court declared
unconstitutional laws banning “yellow dog” contracts (Adair v. U.S., 208 U.S.
161 1908; Coppage v. Kansas, 236 U.S. 1 1915), laws requiring minimum
wages for women (Adkins v. Childer’s Hospital, 261 U.S. 525 1923), laws re-
stricting child labor (Hammer v. Dagenhart, 247 U.S. 251 1918), and a host of
other laws similar in nature.
123. Reference Re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R.
313; Retail, Wholesale & Department Store Union v. Saskatchewan, [1987] 1
S.C.R. 460; and Public Service Alliance of Canada v. The Queen, [1987] 1
S.C.R. 424.
124. Reference Re: Public Service Employee Relations Act (Alberta), 319–320.
125. Professional Institute of the Public Service in Canada v. Northwest Territories,
[1990] 2 S.C.R. 367.
126. See National Union of Belgian Police v. Belgium (1975) 1 EHRR 578; Young et
al. v. UK (1981) 4 EHRR 38.
127. Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211.
250 Notes to Pages 141–145

128. R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209.

129. Dunmore v. Ontario, [2001] 3 S.C.R. 1016.
130. Id., 1017.
131. Secondary picketing is picketing by workers in sites other than the primary
place of employment, usually in an attempt to prevent their corporate em-
ployer from avoiding the costs of a labor dispute by transferring its pertinent
business activities to other locations, branches, etc. or in an attempt to raise
public awareness to the workers’ claims.
132. Retail, Wholesale & Department Store Union, Local 580 et al. v. Dolphin Deliv-
ery Ltd., [1986] 2 S.C.R. 573.
133. See also the Court’s decision in British Columbia Government Employees’
Union v. British Columbia, [1988] 2 S.C.R. 214.
134. U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; Retail,
Wholesale & Department Store Union, Local 558 v. Pepsi-Cola Canada, [2002]
1 S.C.R. 156.
135. U.F.C.W., Local 1518 v. KMart Canada Ltd, 1085.
136. Retail, Wholesale & Department Store Union, Local 558 v. Pepsi-Cola Canada,
paragraph 80.
137. One of the recent appointees to South Africa’s Constitutional Court—Justice
Kate O’Regan—specializes in labor law and is generally perceived as sympa-
thetic to workers’ rights.
138. South African National Defence Union (SANDU) v. Minister of Defence, 1999
(4) SA 469 (CC).
139. National Education Health and Allied Workers Union (NEHAWU) v. University
of Cape Town (CCT 2/02, decision released Dec. 6, 2002).
140. National Union of Metal Workers of South Africa v. Bader Bop Ltd. (CCT 14/
02, decision released on Dec. 13, 2002). It is questionable, however, whether
this judgment is indeed favorable to wokrers; by strengthening the status of
minority unions, this ruling entails erosion in the unique status of majority
unions. See the SCC’s ruling in Lavigne (1991).
141. This immunity for strikers was established by the Knesset in 1965 following
the Supreme Court’s decision in C.A. 167/62 Leo Beck High School v. Organi-
zation of High School Teachers, 16 P.D. 2205. The immunity of strikers is pro-
tected under the Israeli tort law (article 62b).
142. See C.A. 593/81 Ashdod Vehicle Enterprises v. Tsizik, 41(3) P.D. 169.
143. See, e.g., Tel-Aviv District Court 2233/89 Barclays Discount Bank Ltd. v. Dis-
count Bank Employees Union (Unpublished, 1989); Haifa District Court 1380/
93 National Coal Company Ltd. v. Markowitz (Unpublished, 1994). While this
notion may be logical in other spheres, it is not logical in the context of labor
disputes. In most industrial actions, the predominant intention is to further
workers’ interests, but this can never be achieved without intentionally dam-
aging employers’ interests, including their relations with third parties.
144. H.C. 1074/93 Attorney-General v. National Labor Court, 49(2) P.D. 485.
145. Barak, Judicial Interpretation, 597.
 Notes to Pages 145–153 251

146. Aharon Barak, “Basic Law: Freedom of Occupation,” Mishpat U’Mimshal (Law
and Government) 2 (1994): 202 [Hebrew].
147. H.C. 987/94 Euronet Gold Lines (1992) Ltd. v. Ministry of Communication,
48(5) P.D. 412.
148. H.C. 726/94 Klal Insurance Company Ltd. v. Minister of Finance, 48(5)
P.D. 441.
149. H.C. 1715/97 Association of Investment Management v. Minister of Finance,
51(4) P.D. 367.
150. Capital Coast Health Ltd. v. New Zealand Medical Laboratory Workers Union,
[1996] 1 NZLR 7.
151. Id., 8. See also Lewis v. Real Estate Institute of New Zealand Inc., [1995] 3
NZLR 385.

5. Rights and Realities

1. Patricia Williams, The Alchemy of Race and Rights (Cambridge, Mass.: Harvard
University Press, 1991), 153. See also Martha Minow, Making All the Difference:
Inclusion, Exclusion, and American Law (Ithaca: Cornell University Press, 1990);
and Kimberley Crenshaw, “Race, Reform, and Retrenchment: Transformation
and Legitimation in Antidiscrimination Law,” Harvard Law Review 101 (1988):
1331–1387.
2. Austin Sarat, “Going to Court: Access, Autonomy, and the Contradictions of
Liberal Legality,” in D. Kairys, ed., The Politics of Law: A Progressive Critique, 3rd
ed., (New York: Basic Books, 1998), 98. For an exploration of the cultural sig-
nificance of Brown, see the essays in A. Sarat, ed., Race, Law, and Culture:
Reflections on Brown v. Board of Education (New York: Oxford University Press,
1997).
3. Owen Fiss, “Against Settlement,” Yale Law Journal 93 (1984): 1073–1125.
4. Williams, The Alchemy of Race and Rights, 164.
5. Ronald Dworkin, A Bill of Rights for Britain (London: Chatto and Windus,
1990), 1.
6. Harold Laski, Liberty and the Modern State (London: George Allen and Unwin,
1948), 75.
7. This notion is based on Amartya Sen’s “capabilities,” or “basic needs,” ap-
proach to human development. It has been adopted by the UNDP and numer-
ous other international human development agencies. See Amartya Sen,
“Equality of What?” in S. McMurrin, ed., Tanner Lectures on Human Values
(Cambridge: Cambridge University Press, 1980); and Sen, Inequality Reexamined
(Cambridge, Mass.: Harvard University Press, 1992).
8. Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chi-
cago: University of Chicago Press, 1991), 107–108.
9. Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State:
How the Courts Reformed America’s Prisons (Cambridge: Cambridge University
Press, 1998).
252 Notes to Pages 153–157

10. Alexander Hamilton, “Federalist 84,” in C. Rossiter, ed., The Federalist Papers
(New York: Mentor, 1961), 512.
11. I. Dilliard, ed., Spirit of Liberty: Papers and Addresses of Learned Hand (New York:
Knopf, 1944), 189–190.
12. See Robert Dahl, “Thinking about Democratic Constitutions: Conclusions from
Democratic Experience,” Nomos 38 (1996): 175–206, 178. For a discussion of
the social conditions favorable to the existence of a “polyarchy” see Dahl’s De-
mocracy and Its Critics (New Haven: Yale University Press, 1989), 244–279.
13. Robert Dahl, A Preface to Democratic Theory (New Haven: Yale University Press,
1956), 143.
14. Robert Putnam et al., Making Democracy Work: Civic Traditions in Modern Italy
(Princeton, N.J.: Princeton University Press, 1993). The implications of the
Dahl-Putnam thesis for what many theorists call the “transitology” debate are
obvious: in order for a democracy to endure in a given polity it is more impor-
tant to develop a vibrant civil society and a rights-supportive culture in the pol-
ity than to structure the institutional setting in that polity correctly.
15. Joel Bakan, Just Words: Constitutional Rights and Social Wrongs (Toronto: Univer-
sity of Toronto Press, 1997), chs. 3–5.
16. Jeremy Waldron, Nonsense upon Stilts: Bentham, Burke, and Marx on the Rights of
Man (Oxford: Oxford University Press, 1987), 196. See also Ronald Beiner,
What’s the Matter with Liberalism (Berkeley: University of California Press,
1992); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse
(New York: Free Press, 1991); and Mark Tushnet, “An Essay on Rights,” Texas
Law Review 62 (1984): 1363–1403.
17. Glendon, Rights Talk, xi. See also Robert Kagan, Adversarial Legalism: The Ameri-
can Way of Law (Cambridge, Mass.: Harvard University Press, 2001).
18. See Edward Broadbent, “Ten Propositions about Equality and Democracy,” in
Broadbent, ed., Democratic Inequality: What Went Wrong? (Toronto: University of
Toronto Press, 2001), 7.
19. The Gini coefficient describes the distribution of a nation’s wealth, whereby 0
reflects perfectly equal income distribution and 1 reflects fully unequal income
distribution. For further discussion, see Israel’s Social Insurance Institute Annual
Report, 2000–2001 (published in December 2001; www.btl.gov.il).
20. Report released on December 2, 2002.
21. See Adva Center, Information on Equality and Social Justice in Israel,
www.adva.org/english/gaps/income-types.htm.
22. The 2001 Census (Statistics Canada, May 2003).
23. Jim Stanford, “The Economic Consequences of Financial Inequality,” in
Broadbent, Democratic Inequality, 225.
24. Income Distribution after Tax: Distribution by Size in Canada (Ottawa: Minister of
Supply and Services Canada, 1994), 42. For a comprehensive account of the
growing economic inequality in Canada over the past two decades, see René
Morissette et al., The Evolution of Wealth Inequality in Canada, 1984–1999, Statis-
tics Canada Working Paper No. 187, February 22, 2002; and Anton Allahar and
 Notes to Pages 157–163 253

James Cote, Richer and Poorer: The Structure of Inequality in Canada (Toronto:
James Lorimer and Co., 1998).
25. Morissette, The Evolution of Wealth Inequality, 20.
26. See “Poor Made Few Financial Gains in 1990s,” Toronto Star, July 19, 2002.
27. Dean Hyslop and David C. Maré, “Understanding Changes in the Distribution
of Household Incomes in New Zealand between 1983–86 and 1995–99,” New
Zealand Treasury Working Paper 01/21 (2001).
28. Statistics Canada, Catalogue no. 13–217; Statistical Abstract of Israel, 2001 (Jerusa-
lem: Central Bureau of Statistics, 2002); New Zealand Official Yearbook 2001; Sta-
tistics South Africa Yearbook, 2001.
29. Report of Royal Commission on Aboriginal Peoples, 1996; Statistics Canada, Compari-
son of Social Indicators 1991 and 1996.
30. Education Statistics of New Zealand, 1988, 1993, 1998, 2001.
31. State Comptroller’s Report, No. 50 (2000), 363–364; Second Class (New York: Hu-
man Rights Watch, 2001).
32. Statistical Abstract of Israel, 2000 (Jerusalem: Central Bureau of Statistics, 2001),
285, Tables 22.9, 22.15.
33. See, e.g., U.S. Department of State, 1999 Country Reports on Human Rights Prac-
tices: Israel (report released February 2000).
34. See my discussion of several such cases in Chapter 4.
35. See New Zealand Ministry of Maori Development, Closing the Gaps, 2000 (pub-
lished in May 2000; available at www.tpk.govt.nz).
36. Soobramoney v. Minister of Health (KwaZulu-Natal), 1998 (1) SA 765 (CC),
paragraphs 8–9. See also In re: Gauteng School Education Bill, 1996 (3) SA
165 (CC).
37. See James Gibson and Gregory Caldeira, “Defenders of Democracy? Legiti-
macy, Popular Acceptance, and the South African Constitutional Court,” Jour-
nal of Politics 65 (2003): 1–30.
38. Two major caveats should be noted here. First, MPs may represent different
sections of the population even if they do not themselves belong to this group.
Second, it is not at all clear that better representation of a given group in the
numerical sense automatically translates into more favorable policy outcomes
for that group. As the history of parliamentary democracy indicates, public fig-
ures who belong to historically disenfranchised minorities might not represent
their group’s best interests.
39. 424 U.S. 1 (1976).
40. 509 U.S. 630 (1993). See also Shaw v. Hunt, 517 U.S. 899 (1996).
41. Miller v. Johnson, 515 U.S. 900 (1995). In a follow-up ruling in Abrams v.
Johnson, 521 U.S. 74 (1997), the Court held that Georgia was not required to
make any increase in the number of majority-minority voting districts in the
state.
42. 517 U.S. 952 (1996).
43. Department of Commerce v. United States House of Representatives, 525 U.S.
316 (1999).
254 Notes to Pages 163–176

44. 531 U.S. 98 (2000).

45. For a detailed examination of this subject see Thomas Schouls, “Aboriginal
Peoples and Electoral Reform in Canada: Differentiated Representation versus
Voter Equality,” Canadian Journal of Political Science 29 (1996): 728–749.
46. Economic liberties in the four countries are protected by section 6 of the Cana-
dian Charter (the right to move to and take up residence in any province; and
to pursue the gaining of a livelihood in any province) as well as by a nexus of
pertinent NAFTA provisions protecting economic freedoms; by sections 8 and
21 of the NZBORA; by section 25 of the South African Bill of Rights; and by
Basic Law: Freedom of Occupation and section 3 (“There shall be no viola-
tion of the property of a person”) of Basic Law: Human Dignity and Freedom
in Israel.
47. Freedom House Annual Survey of Economic Freedom, 1972 to 2002 (New York: Free-
dom House, annual); Economic Freedom of the World: 2000 Annual Report (Van-
couver: Fraser Institute, 2000), and 2002 Annual Report (Vancouver: Fraser In-
stitute, 2002); E. Messick, ed., World Survey of Economic Freedom (New
Brunswick, N.J.: Transaction Publications, 1998); Rethinking Foreign Aid: The In-
dex of Economic Freedom (Washington, D.C.: Heritage Foundation, 1995); and In-
dex of Economic Freedom (Washington, D.C.: Heritage Foundation, 2002).

6. Constitutionalization and the Judicialization of

Mega-Politics
1. Alexis de Tocqueville, On Democracy (New York: Knopf, [1835] 1945), 280.
2. For a more general discussion of the so-called delegatee drift problem see D.
Roderick Kiewiet and Mathew McCubbins, The Logic of Delegation: Congressional
Parties and the Appropriation Process (Chicago: University of Chicago Press,
1991).
3. Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a Na-
tional Policy-Maker,” Journal of Public Law 6 (1957): 291.
4. H.C. 3872/93 Meatrael Ltd. v. Minister of Religious Affairs, 47(5) P.D. 485.
5. H.C. 4676/94 Meatrael Ltd. v. the Kensset, 50(5) P.D. 15.
6. H.C. 77/02 Aviv-Osovlanski Ltd. v. The Central Rabbinate (decision released
September 8, 2002).
7. H.C. 1000/92 Bavli v. Great Rabbinical Court, 48(2) P.D. 6.
8. H.C. 3269/95 Katz v. Jerusalem Regional Rabbinical Court, 50(4) P.D. 590.
9. H.C. 5507/96 Amir v. Haifa District Court, 50(3) P.D. 321.
10. H.C. 5227/97 David v. Great Rabbinical Court, 55(1) P.D. 453.
11. H.C. 293/00 Plonit (“Jane Doe”) v. Great Rabbinical Court, 55(3) P.D. 318.
12. See, e.g. H.C. 2222/99 Gabai v. Great Rabbinical Court, 54(5) P.D. 401; H.C.
2274/99 Shafir v. Regional Rabbinical Court, 56(1) P.D. 673.
13. H.C. 257/89 Hofman v. Custodian of the Western Wall, 48(2) P.D. 265. The
main opinion in the 1994 Women of the Wall case (H.C. 3358/95 Hofman v.
 Notes to Pages 176–184 255

Government of Israel, 54(2) P.D. 345) was written by Deputy Chief Justice
Menachem Elon, a renowned expert in Jewish law.
14. This decision was given by a different panel of judges, and was written after
the retirement of Justice Elon.
15. H.C. 3267/97 Rubinstein and Oron v. The Minister of Defense et al., 52(5) P.D.
481.
16. The Law of Return provides Jews with the right to “return” to Israel to take up
citizenship even if they have never been there.
17. H.C. 264/87 Sepharadi Torah Guardians, Shas Movement v. Population Regis-
trar, 43(2) P.D. 723.
18. H.C. 1031/93 Pessaro (Goldstein) et al. v. Ministry of Interior, 49(4) P.D. 661.
19. H.C. 5070/95 The Conservative Movement v. Minister of Religious Affairs (de-
cision released Feb. 20, 2002; not yet published).
20. Reference Re: Resolution to Amend the Constitution (Patriation Reference),
[1981] 1 S.C.R. 753.
21. Reference Re: Objection by Quebec to a Resolution to Amend the Constitution
(Quebec Veto Reference), [1982] 2 S.C.R. 793.
22. These arguments contend that Quebec is entitled to a special veto status be-
cause it represents a distinct francophone society within Canada, and because
the Canadian confederation was founded on a historic agreement between
Quebec and English-speaking Canada.
23. A.-G. Quebec v. Quebec Protestant School Board, [1984] 2 S.C.R. 66.
24. A.-G. of Quebec v. Blaikie, [1979] 2 S.C.R. 1016.
25. A.-G. Quebec v. Quebec Protestant School Board, [1984] 2 S.C.R. 66.
26. Ford v. A.-G. Quebec 1988 (the “sign law” case), [1988] 2 S.C.R. 712.
27. Reference Re: Manitoba Language Rights, [1985] 1 S.C.R. 721.
28. Mahe v. Alberta, [1990] 1 S.C.R. 342.
29. Aresenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3.
30. Reference Re: Secession of Quebec, [1998] 2 S.C.R. 217.
31. Western Cape Legislature v. President of the Republic of South Africa, 1995 (4)
SA 877 (CC); Premier, KwaZulu-Natal v. President of the Republic of South Af-
rica, 1996 (1) SA 769 (CC). Basically, the two cases dealt with the constitution-
ality of amendments made by the President to constitutional provisions per-
mitting greater parliamentary discretion over matters of local government.
32. For a recent example of this pattern, see Executive Council of KwaZulu-Natal
v. President of the RSA, 2000 (1) SA 661 (CC).
33. In re Constitutionality of the Liquor Bill, 2000 (1) SA 732 (CC).
34. Id., 762–763.
35. Id., 766–769.
36. DVB Behuising Limited v. North West Provincial Government, 2001 (1) SA
500 (CC). In this case, the Court held that the repeal by the North West provin-
cial government of an apartheid-based provincial law that provided for the es-
tablishment of townships in accordance with apartheid policies of racial segre-
gation fell within provincial legislative powers. However, the province was not
256 Notes to Pages 184–193

constitutionally entitled to repeal the registration of deeds and land title estab-
lished by the disputed law.
37. In re: Certification of the Constitution of the Republic of South Africa, 1996 (4)
SA 744 (CC); In re: Certification of the Amended Text of the Constitution of
the Republic of South Africa, 1997 (2) SA 97 (CC).
38. Heinz Klug, “Historical Background,” in M. Chaskalson et al., eds., Constitu-
tional Law of South Africa (Johannesburg: Juta, 1998), § 2.17–19.
39. Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Poli-
tics (Indianapolis: Bobbs-Merrill, 1962), 24.
40. Id., 25, 26.
41. See K. D. Ewing, “The Bill of Rights Debate,” in K. D. Ewing et al., eds., Human
Rights and Labour Law (London: Mansel, 1994), 157–159.
42. Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1978).
43. John H. Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University
Press, 1980), 87–88.
44. Id., 99.
45. Id., 181.
46. Bruce Ackerman, We the People: Foundations (Cambridge, Mass.: Harvard Uni-
versity Press, 1992).
47. See, e.g., Jennifer Nedelsky, “The Puzzle and Demands of Modern
Constitutionalism,” Ethics 104 (1994): 500–515.
48. On the legitimacy of the SACC see James Gibson and Gregory Caldeira, “De-
fenders of Democracy? Legitimacy, Popular Acceptance, and the South African
Constitutional Court,” Journal of Politics 65 (2003): 1–30.
49. Azanian Peoples Organization (AZAPO) v. President of the Republic of South
Africa, 1996 (4) SA 671 (CC).
50. The Treaty of Waitangi (1840), affirmed by the Treaty of Waitangi Act, formed
a covenant between representatives of the British Crown and Maori leaders.
The treaty recognized the prior occupation of New Zealand by Maori people
and enabled the peaceful acquisition of land for settlement purposes. The
treaty also allowed the Crown to set up a government to establish laws. In re-
turn, the Crown was to guarantee and actively protect Maori tribal authority
over their lands, fisheries, villages, and culture and extend to them the status
and rights of British citizens. Beyond its formal terms, the Treaty of Waitangi is
often claimed to be a “founding document” and a “fundamental charter” that
brought about the foundation of the state, and as such, it symbolizes the begin-
ning of modern, Western-style government in New Zealand.
51. New Zealand Maori Council v. Attorney General, [1991] 2 NZLR 129 (the “Ra-
dio Frequencies” case).
52. New Zealand Maori Council v. Attorney General (No. 2), [1991] 2 NZLR 147
(the “Broadcasting Assets” case).
53. New Zealand Maori Council v. Attorney General, [1996] 3 NZLR 140.
54. New Zealand Maori Council v. Attorney General, [1994] 1 NZLR 513 (PC).
 Notes to Pages 194–197 257

55. Taiaroa v. Minister of Justice, [1995] 1 NZLR 411 (the “Maori Electoral Op-
tion” case).
56. Ngai Tahu Maori Trust Board v. Director General of Conservation, [1995] 3
NZLR 553 (the “Whale-Watch” case).
57. See Treaty Tribes Coalition et al. v. Urban Maori Authorities et al., [1997] 1
NZLR 513. The claims of the Ngai Tahu tribe were eventually settled in the
Ngai Tahu Claims Settlement Act 1998. In it, the Crown acknowledged and
settled wrongs done in its name to the people of Ngai Tahu and made a fresh
start. In early 1998, following an incident in late 1997 (in which a fishing boat
reportedly landed several metric tons of snapper without commercial quota
rights), it was announced that new regulations were to govern the manage-
ment of “customary” fishing by tanagata whenua (people of the land), whereby
the Maori are permitted to harvest an unlimited amount of seafood, provided
it is not for pecuniary gain. A few months after the adoption of the Ngai Tahu
Claims Settlement Act 1998, the Court was asked by another Maori tribe, the
Ngati Apa (whose people live in the same area as the Ngai Tahu), to determine
whether a Parliamentary Act that had settled the Ngai Tahu Treaty claims had
deprived the Ngati Apa of the capacity to raise their own claims. See Ngati Apa
ki te Waipounamu Trust v. The Queen, [2000] 2 NZLR 659.
58. Te Runanga o Muriwhenua v. Te Runanganui o Te Upoko o Te Ika Association
Inc., [1996] 3 NZLR 10.
59. Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi Fisheries Commission, [2000]
1 NZLR 265.
60. While a spirit of negotiation and compromise has historically informed aborigi-
nal relations with the government, violent confrontations are not uncommon.
Those in Oka, Quebec, in 1990, Gustafsen Lake, British Columbia, in 1995, and
Burnt Church, New Brunswick, in 2000 received comprehensive media cover-
age and national attention for months.
61. R. v. Sparrow, [1990] 1 S.C.R. 1075. Sparrow, a Musqueam Indian, was
charged under the federal Fisheries Act for using a longer drift net than permit-
ted under an Indian food license. Sparrow argued that the regulation was an
unjustified infringement of his section 35 aboriginal right to fish. The constitu-
tional question was whether the aboriginal right to fish constituted an “exist-
ing” right or whether it was a right that had been extinguished prior to the en-
actment of the Constitution Act 1982.
62. See R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. Gladstone, [1996] 2 S.C.R.
672; R. v. N. T. C. Smokehouse, [1996] 2 S.C.R. 572.
63. Delgamuukw v. British Columbia, [1993] 5 W.W.R. 97; Delgamuukw v. British
Columbia, [1997] 3 S.C.R. 1010. See also R. v. Pamajewon, [1996] 2 S.C.R.
821, in which the Court narrowly defined the right of First Nations to self-gov-
ernment under s. 35 of the Charter.
64. R. v. Badger, [1996] 1 S.C.R. 771; R. v. Marshall I, [1999] 3 S.C.R. 456; R. v.
Marshall II, [1999] 3 S.C.R. 533.
258 Notes to Pages 197–203

65. R. v. Powley, 2003 SCC 43 (decision released on Sept. 19, 2003); R. v. Blais,
2003 SCC 44 (decision released on Sept. 19, 2003).
66. Right to appeal denied on March 14, 2002.
67. Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Politics (New
Haven: Yale University Press, 1974), 34.
68. See, e.g., H.C. 4935/93 “Temple Mount Trustees” Movement v. Mayor of Jeru-
salem, 47(5) P.D. 865; H.C. 6403/96 “Temple Mount Trustees” Movement v.
Mayor of Jerusalem, 50(4) P.D. 241; H.C. 7128/96 “Temple Mount Trustees”
Movement v. Government of Israel, 51(2) P.D. 509; and H.C. 8666/99 “Temple
Mount Trustees” Movement v. Attorney General, 54(1) P.D. 202.
69. H.C. 6163/92 Eisenberg v. Minister of Housing, 47(2) P.D. 229 (the so-called
“Ginnosar affair,” 1993).
70. The so-called “Ehud Yatom affair” (H.C. 4668/01 Sarid v. Prime Minister, 56(2)
P.D. 265).
71. See, e.g. Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social
Change? (Chicago: University of Chicago Press, 1991); Gerald Rosenberg, “Judi-
cial Independence and the Reality of Political Power,” Review of Politics 54
(1992): 369–398; Donald Horowitz, The Courts and Social Policy (Washington,
D.C.: Brookings Institution, 1977); and Mark Galanter, “Why the ‘Haves’
Come Out Ahead: Speculations on the Limits of Legal Change,” Law and Society
Review 9 (1974): 95–121. For a general survey of the various formal and infor-
mal political checks on the judiciary in the United States see Terri Jennings
Peretti, In Defense of a Political Court (Princeton, N.J.: Princeton University Press,
1999). For a general discussion of the costs of judicial divergence see Keith
Whittington, “Legislative Sanctions and the Strategic Environment of Judicial
Review,” International Journal of Constitutional Law 1 (2003): 446, 461–464.
72. Mohammed Ahmad Kan v. Shah Bano (AIR 1985 SC 945). My discussion of
Shah Bano and its political aftermath draws on Ayelet Shachar’s analysis in
Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge:
Cambridge University Press, 2001), 81–83.
73. In a recent follow-up ruling (Danial Latifi vs. Union of India, 2001 7 SCC 740),
the Indian Supreme Court held that interpreting the act to mean that Muslim
women were not entitled to support from their husbands beyond the iddat pe-
riod (a three-month period that follows a divorce) was inconsistent with sec-
tions 21 (the right to live with dignity), 14 (equality and equal protection un-
der the law), and 15 (prohibition of discrimination on the grounds of religion)
of the Indian Constitution. However, the Court added that in a situation where
there are two possible interpretations of a statute and one would render the
statute outside of Parliament’s jurisdiction, the inoffensive reading should be
adopted. Thus, the Court accepted the reading of the act that sees it mandating
a settlement for maintenance being required within the iddat period. The final
compromise result of Danial Latifi is that the act was not found to be unconsti-
tutional insofar as it can be read as codifying the Shah Bano decision. It remains
to be seen what will be India’s political sphere’s reaction to this ruling.
 Notes to Pages 203–217 259

74. Mabo v. Queensland [No 2] (1992) 175 C.L.R. 1. Note that the SCC’s ruling in
Delgamuukw (mentioned earlier) echoed the Australian High Court’s ruling in
Mabo.
75. The Wik Peoples v. Queensland (1996) 187 C.L.R. 1.
76. Chng Suan Tze v. Minister of Home Affairs [1988] SLR 132. See also Gordon
Silverstein, “Globalization and the Rule of Law: A Machine that Runs of
Itself?” International Journal of Constitutional Law 1 (2003): 427, 438–440.
77. J. B. Jeyaretnam v. Law Society of Singapore, [1989] A.C. 608 (Privy Council).
78. See Francis Seow, “The Politics of Judicial Institutions in Singapore,” presented
at the University of Sidney, March 1997, available at www.singapore-window.org.
79. Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe
(Chicago: University of Chicago Press, 2000), 118–122.
80. Id., 122–125.
81. Id., 144–145.
82. Lee Epstein et al., “The Role of Constitutional Courts in the Establishment and
Maintenance of Democratic Systems of Government,” Law and Social Inquiry 35
(2001): 152–153.
83. H.C. 6698/95 Qa’adan v. The Jewish Agency, 54(1) P.D. 258.
84. Statistical Abstracts of Israel, 2002 (Jerusalem: Central Bureau of Statistics), 273.
85. Cited in Ha’Artez (English edition), July 16, 2002.
86. Rosenberg, The Hollow Hope, 343.
87. The apparent nonjusticiability of a political question is based primarily on the
principle of separation of powers and the corresponding ideal of representa-
tive, fully accountable, and well-informed decision-making, particularly in
matters of supreme political salience. The political question doctrine is also
based on the need to attribute finality to actions of the legislative and executive
branches of government and to respect their defined prerogatives.
88. The Maastricht Case (1993) 89 BVerfGE 155 (Germany); the Chechnya case
(July 1995) (Russia); Decision 43/1995 on Social Security Benefits (the “Aus-
terity Package” decision) (Hungary); TCC Decision 1/1998 (the Refah [Wel-
fare] Party Dissolution case), January 16, 1998; TCC Decision 57/2001 (the
Fazilet [Virtue] Party Dissolution case), June 21, 2001 (Turkey); The Republic
of Fiji Islands v. Prasad (decision released on March 1, 2001) High Court Civil
Action No. 217/2000 (Fiji); Muhammad Nawaz Sharif v. President of Pakistan
and Others, P.L.D. 1993 S.C. 473; Zafar Ali Shah v. Pervez Musharraf, Chief
Executive of Pakistan, P.L.D. 2000 S.C. 869 (Pakistan).

Conclusion
1. Michael Mandel, “A Brief History of the New Constitutionalism, or ‘How we
changed everything so that everything would remain the same’,” Israel Law Re-
view 32 (1998): 250–300.
2. Id., 299–300.
3. Id., 300, 251.
260 Notes to Pages 218–223

4. See Charles Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in
Comparative Perspective (Chicago: University of Chicago Press, 1998). Epp sug-
gests that the impact of constitutional catalogues of rights may be limited by in-
dividuals’ inability to invoke them through strategic litigation. Hence bills of
rights matter to the extent that a support structure for legal mobilization—a
nexus of rights-advocacy organizations, rights-supportive lawyers and law
schools, governmental rights-enforcement agencies, and legal aid schemes—is
well developed.
5. Harry Glasbeek, “From Constitutional Rights to ‘Real Rights’—‘R-i-g-hts Fo-
or-wa-ard Ho’!” Windsor Yearbook of Access to Justice 10 (1990): 473.
6. Bruce Ackerman, “The Rise of World Constitutionalism,” Virginia Law Review
83 (1997): 771–797, 774.
7. James Gibson et al., “On the Legitimacy of National High Courts,” American
Political Science Review 92 (1998): 343.
 Legal Decisions Cited

Australia
Mabo v. Queensland [No 2] (1992) 175 C.L.R. 1.
The Wik Peoples v. Queensland (1996) 187 C.L.R. 1.

Canada
Adler et al. v. The Queen, [1996] 3 S.C.R. 609.
A.-G. Quebec v. Quebec Protestant School Board, [1984] 2 S.C.R. 66.
A.-G. Quebec v. Blaikie, [1979] 2 S.C.R. 1016.
Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.
Aresenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3.
Askov v. The Queen, [1990] 2 S.C.R. 1199.
Baker v. Canada, [1999] 2 S.C.R. 877.
British Columbia Government Employees’ Union v. British Columbia, [1988] 2
S.C.R. 214.
Caloil v. Canada, [1971] S.C.R. 543.
Central Canada Potash v. Saskatchewan, [1979] 1 S.C.R. 42.
Delgamuukw v. British Columbia, [1993] 5 W.W.R. 97.
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010.
Dunmore v. Ontario, [2001] 3 S.C.R. 1016.
Egan v. Canada, [1995] 2 S.C.R. 513.
Eldridge v. British Columbia, [1997] 3 S.C.R. 624.
Finlay v. Canada (Minister of Finance), [1993] 1 S.C.R. 1080.
Ford v. A.-G. Quebec, [1988] 2 S.C.R. 712.
General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641.
Gosselin v. A.-G. Quebec, 2002 SCC 84 (decision released on Dec. 19, 2002).
Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211.
Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357.
M v. H, [1999] 2 S.C.R. 3.
Mahe v. Alberta, [1990] 1 S.C.R. 342.
Manitoba v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689.

261
262 Legal Decisions Cited

Minister of Justice (Canada) v. Borowski, [1981] 2 S.C.R. 575.

Munro v. National Capital Commission, [1966] S.C.R. 663.
Ontario Hydro v. Ontario, [1993] 3 S.C.R. 327.
Professional Institute of the Public Service in Canada v. Northwest Territories, [1990]
2 S.C.R. 367.
Public Service Alliance Canada v. The Queen, [1987] 1 S.C.R. 424.
The Queen v. Lavalee et al., 2002 SCC 61 (decision released on Sept. 12, 2002).
R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R 209.
R. v. Badger, [1996] 1 S.C.R. 771.
R. v. Blais, 2003 SCC 44 (decision released on Sept. 19, 2003).
R. v. CIP Inc., [1992] 1 S.C.R. 843.
R. v. Crown Zellerbach Ltd., [1988] 1 S.C.R. 401.
R. v. Daviault, [1994] 3 S.C.R. 63.
R. v. Drybones, [1970] S.C.R. 282.
R. v. Feeney, [1997] 2 S.C.R. 117.
R. v. Gladstone, [1996] 2 S.C.R. 672.
R. v. Golden, [2001] 3 S.C.R. 679.
R. v. Hauser, [1979] 1 S.C.R. 984.
R. v. Keegstra, [1990] 3 S.C.R. 697.
R v. Klassen, (1959) 20 D.L.R. 406.
R. v. Lucas, [1998] 1 S.C.R. 439.
R. v. Marshall I, [1999] 3 S.C.R. 456.
R. v. Marshall II, [1999] 3 S.C.R. 533.
R. v. Mills, [1999] 3 S.C.R. 668.
R. v. Noël, 2002 SCC 67 (decision released on Oct. 31, 2002).
R. v. N. T. C. Smokehouse, [1996] 2 S.C.R. 572.
R. v. Oakes, [1986] 1 S.C.R. 103.
R. v. O’Connor, [1995] 4 S.C.R. 411.
R. v. Pamajewon, [1996] 2 S.C.R. 821.
R. v. Powley, 2003 SCC 43 (decision released on Sept. 19, 2003).
R. v. Prosper, [1994] S.C.R. 236.
R. v. Seaboyer, [1991] 2 S.C.R. 577.
R. v. Sharpe, [2001] 1 S.C.R. 45.
R. v. Sparrow, [1990] 1 S.C.R. 1075.
R. v. Stinchcombe, [1991] 3 S.C.R. 326.
R. v. Van der Peet, [1996] 2 S.C.R. 507.
R. v. Zundel, [1992] 2 S.C.R. 731.
Reference Re: Alberta Statutes, [1938] S.C.R. 100.
Reference Re: Anti-Inflation Act, [1976] 2 S.C.R. 373.
Reference Re: Manitoba Language Rights, [1985] 1 S.C.R. 721.
Reference Re: Objection by Quebec to a Resolution to Amend the Constitution
(Quebec Veto Reference), [1982] 2 S.C.R. 793.
Reference Re: Offshore Mineral Rights of British Colombia, [1967] S.C.R. 792.
Reference Re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313.
 Legal Decisions Cited 263

Reference Re: Resolution to Amend the Constitution (Patriation Reference), [1981]

1 S.C.R. 753.
Reference Re: Secession of Quebec, [1998] 2 S.C.R. 217.
Retail, Wholesale & Department Store Union, Local 580 et al. v. Dolphin Delivery
Ltd., [1986] 2 S.C.R. 573.
Retail, Wholesale & Department Store Union, Local 558 v. Pepsi-Cola Canada,
[2002] 1 S.C.R. 156.
Retail, Wholesale & Department Store Union v. Saskatchewan, [1987] 1 S.C.R.
460.
RJR MacDonald Inc. v Canada, [1995] 3 S.C.R. 199.
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825.
Schachter v. Canada, [1992] 2 S.C.R. 679.
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.
Thorson v. A.-G. Canada, [1975] 1 S.C.R. 138.
U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083.
United States v. Burns, [2001] 1 S.C.R. 283.
United States of America v. Cobb, [2001] 1 S.C.R. 587.
United States of America v. Shulman, [2001] 1 S.C.R. 616.
Vriend v. Alberta, [1998] 1 S.C.R 493.

Egypt
Riba [usury or interest] Case, No. 20, 1st judicial year (May 4, 1986).
Wassel v. Minister of Education (the Niq’ab [veil] Case), No. 8 of the 17th judicial
year (May 18, 1996).

European Court of Human Rights

National Union of Belgian Police v. Belgium (1975) 1 EHRR 578.
Smith and Grady v. United Kingdom, Lustig-Prean & Beckett v. United Kingdom
(2000) 29 EHRR 493.
Young et al. v. UK (1981) 4 EHRR 38.

Fiji
The Republic of Fiji Islands v. Prasad (decision released on March 1, 2001) High
Court Civil Action No. 217/2000.

Germany
Maastricht Case (1993) 89 BVerfGE 155.

Hungary
Decision 14/1995 on the Legal Equality of Same Sex Partnerships.
Decision 43/1995 on Social Security Benefits (the “Austerity Package” decision).
264 Legal Decisions Cited

India
Danial Latifi v Union of India, (2001) 7 SCC 740.
Mohammed Ahmad Kan v. Shah Bano (AIR 1985 SC 945).
Olga Tellis v. Bombay Municipal Corporation (AIR 1986 SC 180).
Unni Krishnan v. State of Andhra Pradesh (AIR 1993 SC 2178).

Israel
H.C. 4540/00 Abu-Apash et al. v. Ministry of Health (not yet published).
H.C. 240/98 Adalah v. Minister of Religious Affairs, 52(2) P.D. 167.
H.C. 3954/91 Agbaria v. Minister of Education, 45(5) P.D. 472.
A.C.H. 7048/97 Almoni (“John Doe”) v. Minister of Defence, 54(1) P.D. 721.
H.C. 5507/96 Amir v. Haifa District Rabbinical Court, 50(3) P.D. 321.
H.C. 4267/93 Amitai v. Prime Minister, 47(5) P.D. 441.
C.A. 593/81 Ashdod Vehicle Enterprises v. Tsizik, 41(3) P.D. 169.
H.C. 273/97 Association for the Protection of Individual Rights of Homosexuals, Les-
bians, and Bisexuals in Israel et al. v. Minister of Education et al., 51(5) P.D. 822.
H.C. 5973/92 Association of Civil Rights v. Minister of Defense, 47(1) P.D. 267.
H.C. 1715/97 Association of Investment Management v. Minister of Finance, 51(4)
P.D. 367.
H.C. 1074/93 Attorney-General v. National Labor Court, 49(2) P.D. 485.
H.C. 77/02 Aviv-Osovlanski Ltd. v. The Central Rabbinate (decision released Sep-
tember 8, 2002; not yet published).
T.A.D.C. 2233/89 Barclays Discount Bank Ltd. v. Discount Bank Employees Union
(unpublished, 1989).
H.C. 1000/92 Bavli v. Great Rabbinical Court, 48(2) P.D. 6.
H.C. 98/69 Bergman v. Minister of Finance, 23(1) P.D. 693.
H.C. 7964/95 Bilbisi v. General Security Service (not yet published).
H.C. 1779/99 Brener-Kadish v. Ministry of Interior, 52(2) P.D. 368.
H.C. 5227/97 David v. Great Rabbinical Court, 55(1) P.D. 453.
H.C. 6163/92 Eisenberg v. Minister of Housing, 47(2) P.D. 229.
H.C. 721/94 El Al Airlines Ltd. v. Danilowitch et al., 48(5) P.D. 749.
H.C. 987/94 Euronet Gold Lines (1992) Ltd. v. Ministry of Communication, 48(5)
P.D. 412.
H.C. 2814/97 Follow-Up Committee on Arab Education v. Ministry of Education,
54(3) P.D. 233.
H.C. 2222/99 Gabai v. Great Rabbinical Court, 54(5) P.D. 401.
H.C. 1554/95 G.I.L.A.T. v. Minister of Education, 50(3) P.D. 2.
C.F.H. 2316/95 G’nimmat v. State of Israel, 49(4) P.D. 589.
H.C. 8049/96 Hamdan v. General Security Service (not yet published).
H.C. 257/89 Hofman v. Custodian of the Western Wall, 48(2) P.D. 265.
H.C. 3358/95 Hofman v. Government of Israel, 54(2) P.D. 345.
 Legal Decisions Cited 265

H.C. 5016/96 Horev v. Minister of Transportation, 51(4) P.D. 1.

H.C. 3269/95 Katz v. Jerusalem Regional Rabbinical Court, 50(4) P.D. 590.
H.C. 726/94 Klal Insurance Company Ltd. v. Minister of Finance, 48(5) P.D. 441.
H.C. 73/53 Kol Ha’am v. The Minister of the Interior, 7(2) P.D. 871.
C.A. 167/62 Leo Beck High School v. Organization of High School Teachers, 16 P.D.
2205.
H.C. 3872/93 Meatrael Ltd. v. Minister of Religious Affairs, 47(5) P.D. 485.
H.C. 4676/94 Meatrael Ltd. v. the Knesset, 50(5) P.D. 15.
H.C. 3094/93 Movement for Government Quality v. Prime Minister, 47(5) P.D.
404.
H.C. 3124/96 Mubarak v. General Security Service (not yet published).
H.D.C. 1380/93 National Coal Company Ltd. v. Markowitz (unpublished, 1994).
H.C. 205/94 Nof v. Ministry of Defense, 50(5) P.D. 449.
H.C. 1031/93 Pessaro (Goldstein) et al. v. Ministry of Interior, 49(4) P.D. 661.
H.C. 293/00 Plonit (“Jane Doe”) v. Great Rabbinical Court, 55(3) P.D. 318.
H.C. 5100/94 Public Committee Against Torture in Israel et al. v. State of Israel et al.,
53(4) P.D. 817.
H.C. 6698/95 Qa’adan v. The Jewish Agency, 54(1) P.D. 258.
H.C. 910/86 Ressler v. Minister of Defense, 42(2) P.D. 441.
H.C. 3267/97 Rubinstein and Oron v. The Minister of Defense et al., 52(5) P.D. 481.
H.C. 6055/95 Sagi Zemach v. Minister of Defense, 53(5) P.D. 241.
H.C. 2581/91 Salhat v. The Government of Israel, 47(4) P.D. 837.
H.C. 4668/01 Sarid v. Prime Minister (“Ehud Yatom affair”), 56(2) P.D. 265.
H.C. 264/87 Sepharadi Torah Guardians, Shas Movement v. Population Registrar,
43(2) P.D. 723.
H.C. 2274/99 Shafir v. Regional Rabbinical Court, 56(1) P.D. 673.
H.C. 5304/92 Society for Law Victims v. Minister of Justice, 47(4) P.D. 715.
C.A. 1302/92 State of Israel v. Nahamias, 49(3) P.D. 309.
H.C. 6032/99 Suad et al. v. National Planning and Construction Board, 55(5) P.D.
929.
H.C. 8666/99 “Temple Mount Trustees” Movement v. Attorney General, 54(1) P.D.
202.
H.C. 7128/96 “Temple Mount Trustees” Movement v. Government of Israel, 51(2)
P.D. 509.
H.C. 4935/93 “Temple Mount Trustees” Movement v. Mayor of Jerusalem, 47(5)
P.D. 865.
H.C. 6403/96 “Temple Mount Trustees” Movement v. Mayor of Jerusalem, 50(4)
P.D. 241.
H.C. 5070/95 The Conservative Movement v. Minister of Religious Affairs (not yet
published).
C.A. 1684/96 “Tnu La’khayot Likhyot” (Let the Animals Live) v. Hamat Gader Vaca-
tion Industries Ltd., 51(3) P.D. 832.
C.A. 6821/93 United Mizrahi Bank v. Migdal Cooperative Village, 49(4) P.D. 195.
266 Legal Decisions Cited

H.C. 5364/94 Velner et al. v. Rabin et al., 49(1) P.D. 758.

H.C. 454/94 Women’s Lobby in Israel v. Government of Israel, 48(5) P.D. 50.

New Zealand
Attorney-General v. Shirleen et al., [2003] NZCA 29 (decision released on Feb. 29,
2003).
Auckland Unemployed Workers’ Rights Centre Inc. v. Attorney-General, [1994] 3
NZLR 720.
Capital Coast Health Ltd. v. New Zealand Medical Laboratory Workers Union, [1996]
1 NZLR 7.
Drew v. Attorney-General, [2001] NZCA 207.
Flickinger v. Crown Colony of Hong Kong, [1991] 1 NZLR 439.
Lawson v. Housing New Zealand, [1997] 2 NZLR 474.
Lewis v. Real Estate Institute of New Zealand Inc., [1995] 3 NZLR 385.
Living Word Distribution Ltd. v. Human Rights Action Group Inc. (Wellington),
[2000] 3 NZLR 570.
Martin v. Tauranga District Court, [1995] 2 NZLR 419.
Mendelssohn v. Attorney-General, [1999] 2 NZLR 268.
Ministry of Transport v. Noort, [1992] 3 NZLR 260.
Moonen v. Film and Literature Board of Review, [2000] 2 NZLR 9.
New Zealand Maori Council v. Attorney-General, [1991] 2 NZLR 129.
New Zealand Maori Council v. Attorney-General (No. 2), [1991] 2 NZLR 147.
New Zealand Maori Council v. Attorney-General, [1994] 1 NZLR 513 (PC).
New Zealand Maori Council v. Attorney-General, [1996] 3 NZLR 140.
Ngai Tahu Maori Trust Board v. Director General of Conservation, [1995] 3 NZLR
553.
Ngati Apa ki te Waipounamu Trust v. The Queen, [2000] 2 NZLR 659.
Puli’uvea v. Removal Review Authority, [1996] 3 NZLR 538.
Quilter and Pearl et al. v. Attorney-General, [1998] 2 NZLR 88.
R v. A, [1994] 1 NZLR 429.
R v. Butcher, [1992] 2 NZLR 257.
R v. Donaldson, [1995] 3 NZLR 641.
R v. Goodwin, [1993] 2 NZLR 153.
R v. Grayson and Taylor, [1997] 1 NZLR 399.
R v. Jefferies, [1994] 1 NZLR 290.
R v. Kirifi, [1992] 2 NZLR 8.
R v. M, [1996] 2 NZLR 659.
R v. Pora, [2001] 2 NZLR 37.
R v. Poumako, [2000] 2 NZLR 695.
R v. Pratt, [1994] 3 NZLR 21.
R v. T, [1999] 2 NZLR 602.
R v. Te-Kira, [1993] 3 NZLR 257.
Rajan v. Minister of Immigration, [1996] 3 NZLR 543.
 Legal Decisions Cited 267

Shortland v. Northland Health Ltd., [1998] 1 NZLR 433.

Simpson v. Attorney-General, [1994] 3 NZLR 667.
Taiaroa v. Minister of Justice, [1995] 1 NZLR 411.
Tavita v. Minister of Immigration, [1994] 2 NZLR 257.
Te Runanga o Muriwhenua v. Te Runanganui o Te Upoko o Te Ika Association Inc.,
[1996] 3 NZLR 10.
Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi Fisheries Commission, [2000] 1
NZLR 265.
Treaty Tribes Coalition et al. v. Urban Maori Authorities et al., [1997] 1 NZLR 513.

Pakistan
Mohtarma Benazir Bhutto v. Chief of Army Stuff, P.L.D. 1977 S.C. 657.
Mohtarma Benazir Bhutto v. President of Pakistan, P.L.D. 1998 S.C. 388.
Muhammad Nawaz Sharif v. President of Pakistan and Others, P.L.D. 1993 S.C.
473.
Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan, P.L.D. 2000 S.C.
869.

Russia
Chechnya case (July 1995) [Constitutional Court of Russia].
Communist Party case (November 1992) [Constitutional Court of Russia].
ISS-MVD case (January 1992) [Constitutional Court of Russia].
Tatarstan case (March 1992) [Constitutional Court of Russia].

Singapore
Chng Suan Tze v. Minister of Home Affairs [1988] SLR 132.
J. B. Jeyaretnam v. Law Society of Singapore [1989] A.C. 608 (Privy Council).

South Africa
Azanian Peoples Organization (AZAPO) v. President of the Republic of South Africa,
1996 (4) SA 671 (CC).
Case v. Ministry of Safety and Security, 1997 (3) SA 514 (CC).
Christian Education South Africa v. Minister of Education, 2000 (4) SA 757 (CC).
Du Toit v. Minister of Welfare and Population Development, 2002 (10) BCLR 1006
(CC).
DVB Behuising Limited v. North West Provincial Government, 2001 (1) SA 500
(CC).
Executive Council of KwaZulu-Natal v. President of the RSA; and Province of the
Western Cape v. Minister of Provincial Affairs, 2000 (1) SA 661 (CC).
Government of RSA v. Grootboom, 2001 (1) SA 46 (CC).
268 Legal Decisions Cited

In re: Certification of the Constitution of the Republic of South Africa, 1996 (4) SA
744 (CC).
In re: Certification of the Amended Text of the Constitution of the Republic of South
Africa, 1997 (2) SA 97 (CC).
In re: Constitutionality of the Liquor Bill, 2000 (1) SA 732 (CC).
In re: Gauteng School Education Bill, 1996 (3) SA 165 (CC).
Islamic Unity Convention v. Independent Broadcasting Authority, 2002 (4) SA
294.
J and B v. Director General, Department of Home Affairs, (CCT 46/02, decision re-
leased on March 28, 2003).
Minister of Health v. Treatment Action Campaign (TAC), 2002 (5) SA 721 (CC).
Mistry v. Interim National Medical and Dental Council of South Africa, 1998 (4) SA
1127 (CC).
Mohamed v. President of the Republic of South Africa, 2001 (3) SA 893 (CC).
National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs, 2000
(2) SA 1 (CC).
National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6
(CC).
National Education Health and Allied Workers Union (NEHAWU) v. University of
Cape Town, (CCT 2/02, decision released on Dec. 6, 2002).
National Union of Metal Workers of South Africa v. Bader Bop Ltd., (CCT 14/02, de-
cision released on Dec. 13, 2002).
Premier, KwaZulu-Natal v. President of the Republic of South Africa, 1996 (1) SA
769 (CC).
S v. Bhulwana, 1996 (1) SA 388 (CC).
S v. Julies, 1996 (7) BCLR 899 (CC).
S v. Makwanyane, 1995 (3) SA 391 (CC).
S v. Mbhata, 1996 (2) SA 464 (CC).
S v. Motloutsi, 1996 (1) SA 584 (CC).
S v. Niemand, 2001 (11) BCLR 1181 (CC).
S v. Singo, 2002 (4) SA 858 (CC).
S v. Steyn, 2001 (1) SA 1146 (CC).
S v. Vermaas, 1995 (3) SA 292 (CC).
S v. Williams, 1995 (3) SA 632 (CC).
S v. Zuma, 1995 (2) SA 642 (CC).
Sanderson v. Attorney General, Eastern Cape, 1998 (2) SA 38 (CC).
Satchwell v. President of Republic of South Africa (No. I), 2002 (6) SA 1 (CC)
Satchwell v. President of Republic of South Africa (No. II), (CCT 48/02, decision re-
leased on March 17, 2003).
Shabalala v. Attorney General, Transvaal, 1996 (1) SA 725 (CC).
Soobramoney v. Minister of Health (KwaZulu-Natal), 1998 (1) SA 765 (CC).
South African National Defence Union (SANDU) v. Minister of Defence, 1999 (4) SA
469 (CC).
 Legal Decisions Cited 269

Western Cape Legislature v. President of the Republic of South Africa, 1995 (4) SA
877 (CC).

Turkey
TCC Decision 1/1998 (the Refah [Welfare] Party Dissolution case), January 16,
1998.
RCC Decision 57/2001 (the Fazilet [Virtue] Party Dissolution case), June 21, 2001.

United Nations Human Rights Committee (UNHRC)

Toonen v. Australia (1994), CCPR/C/50/D/488/1992.
Waldman v. Canada (1999), CCPR/C/C7/694/1999.

United States
Abrams v. Johnson, 521 U.S. 74 (1997).
Adair v. U.S., 208 U.S. 161 (1908).
Adarand Constructions, Inc. v. Pena, 515 U.S. 200 (1995).
Adkins v. Childer’s Hospital, 261 U.S. 525 (1923).
American Communications Association v. Douds, 339 U.S. 382 (1950).
Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
Brown v. Board of Education, 347 U.S. 483 (1954).
Buckley v. Valeo, 424 U.S. 1 (1976).
Bush v. Gore, 531 U.S. 98 (2000).
Bush v. Vera, 517 U.S. 952 (1996).
City of Richmond v. J. A. Croson, 488 U.S. 469 (1989).
Coppage v. Kansas, 236 U.S. 1 (1915).
Debs v. United States, 249 U.S. 211 (1919).
Dennis v. United States, 341 U.S. 494 (1951).
Department of Commerce v. United States House of Representatives, 525 U.S. 316
(1999).
Dred Scott v. Sanford, 60 U.S. 393 (1856).
Furman v. Georgia, 408 U.S. 238 (1972).
Gitlow v. People of the State of New York, 268 U.S. 652 (1925).
Gregg v. Georgia, 428 U.S. 153 (1976).
Hammer v. Dagenhart, 247 U.S. 251 (1918).
Korematsu v. United States, 323 U.S. 214 (1944).
Lawrence et al. v. Texas (decision released June 26, 2003).
Lochner v. New York, 198 U.S. 45 (1905).
McCleskey v. Kemp, 481 U.S. 279 (1987).
Miller v. Johnson, 515 U.S. 900 (1995).
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
270 Legal Decisions Cited

Romer v. Evans, 517 U.S. 620 (1996).

San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
Schenck v. United States, 249 U.S. 47 (1919).
Shaw v. Hunt, 517 U.S. 899 (1996).
Shaw v. Reno, 509 U.S. 630 (1993).
Texas v. Johnson, 491 U.S. 397 (1989).
U.S. v. Lopez, 514 U.S. 549 (1995).
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
Yates v. United States, 354 U.S. 298 (1957).
 Acknowledgments

Writing a comprehensive book on comparative constitutional

law and politics requires mastery of several bodies of scholarship and close
acquaintance with constitutional politics and jurisprudence worldwide. I
could not have possibly completed a project of such scope and magnitude
without the support of many colleagues and friends.
My colleagues at the University of Toronto—especially Sylvia Bashevkin,
David Cameron, Peter Solomon, Janice Stein, Rob Vipond, and Melissa Wil-
liams—created a nearly ideal environment in which to pursue my interest
in comparative constitutional politics. I am also deeply indebted to Mark
Graber, Ian Shapiro, Rogers Smith, Mark Tushnet, and Joseph Weiler for
their ongoing mentorship, encouragement, and trust. They believed in this
project and gave it a chance long before it deserved such confidence.
Other friends and colleagues who provided helpful commentary on ear-
lier versions of several of the book’s sections include Fred Aman, Carl Baar,
David Cameron (Yale), Chris Eisgruber, Leslie Goldstein, Michael Mandel,
Lorraine Weinrib, and Keith Whittington. I gratefully acknowledge the gen-
erous research grants provided by Princeton University’s Program in Law
and Public Affairs, Yale University’s Center for International and Area
Studies, the University of Toronto’s Connaught Fund, and Canada’s Social
Sciences and Humanities Research Council.
I also wish to thank Donna Bouvier, Dan Friedman, Catherine Frost, Jac-
queline Krikorian, Erin Metzler, Helen Moffett, and Sharon Tsang for their
skillful editorial assistance; Mike Aronson at Harvard University Press for his
enthusiastic support of this project; Tmima and Arie Shachar for their open-
mindedness and goodwill; and Ralph and Roz Halbert for their warm hospi-
tality. Special thanks to Naomi Ernst-Hirschl for her unflagging sympathy
and support.
271
272 Acknowledgments

Most of all, I owe the greatest debt of gratitude to Ayelet Shachar for her
infinite wisdom and boundless love, and to our beautiful son, Shai, for illu-
minating our lives in such a wonderful, unimaginable way.

I thank the following journals and publishers for permission to reprint in

modified form some of the preliminary arguments I presented in: “Reposi-
tioning the Judicialization of Politics: Bush v. Gore as a Global Trend,” Cana-
dian Journal of Law and Jurisprudence 15 (2002): 191–218; “The Political Ori-
gins of the New Constitutionalism,” Indiana Journal of Global Legal Studies
11(1) 2003 (published by Indiana University Press); “Negative Rights vs.
Positive Entitlements: A Comparative Study of Judicial Interpretations of
Rights in an Emerging Neo-Liberal Economic Order,” Human Rights Quarterly
22 (2000): 1060–1098 (published by the Johns Hopkins University Press);
and “The Political Origins of Judicial Empowerment through the Consti-
tutionalization of Rights: Lessons from Four Polities,” Law and Social Inquiry
25 (2000): 91–149 (published by the University of Chicago Press). The first
verse of Leonard Cohen and Sharon Robinson’s poem “Everybody Knows”
is reprinted with the permission of SONY/ATV Music Publishing, ©1988
Sony/ATV Songs LLC, MCA Music Inc., Robinhill Music; all rights on be-
half of Sony/ATV Songs LLC administered by Sony/ATV Music Publishing,
8 Music Sq. West, Nashville, TN 37203.
 Index
Aboriginal Canadians, 195–198; education,
159; housing, 161; representation, 164;
wealth distribution, 219
Abraham, David, 100
Ackerman, Bruce, 189–190, 222, 226n13,
256n46, 260n6
Adler et al. v. The Queen, 129
African National Congress (ANC), 28, 89,
90, 92–96, 183, 185, 191
A.-G. Quebec v. Blaikie, 179
A.-G. Quebec v. Quebec Protestant School
Board, 179
Agudat Israel party (Israel), 59
Albania, 204
Alberta Press case, 76
Alberta Reference case, 140
Aloni, Shulamit, 233n10
Alter, Karen, 226n10, 232n47
Amicus curiae. See Interveners
ANC. See African National Congress
Apartheid. See South Africa
APEC. See Asia-Pacific Economic Confer-
ence
Appeal process, 103; Canada, 20, 103;
United States, 20, 103, 200; Israel, 23–
24, 103; New Zealand, 27, 103; South
Africa, 184
Arab-Israelis/Arabs in Israel, 55–57, 58, 65,
67, 110, 137–138, 234n22, 242n11;
wealth distribution, 55–56, 156, 219;
housing, 138, 206–207; education, 160,
249n116; representation, 164
Arens, Moshe, 58, 59
Aresenault-Cameron v. Prince Edward Is-
land, 180
Argentina, 45, 215, 231n40, 232n47
Aridor, Yoram, 58
ASEAN, 215
Ashkenazi Jews, 22; role in Israeli consti-
tutional transformation, 50–51, 53–59,
63–64, 173; Israeli ethnic and national
origin cleavages, 51; decline in political
representation, 54–59; wealth distribu-
tion, 55–56, 156; backlash against, 59–
60; judicial empowerment, 60, 64–65,
65–74
Asia-Pacific Economic Conference, 83
Askov v. The Queen, 114, 115
Association, freedom of. See Labor rights
Austerity Package cases, 209
Australia, 32, 83, 191, 203, 223
Azanian Peoples Organization (AZAPO) v.
President of the Republic of South
Africa, 190–192
Badger case. See R. v. Badger
Baigent’s case. See Simpson v. Attorney
General
Bakan, Joel, 244n52, 247n85
Barak, Aharon, 63–64, 70, 73, 145, 169,
234n21, 235n27, 242n10, 248n107,
248n108, 250n145, 251n146
Barak, Ehud, 57
Barzilai, Gad, 229n14
273
274 Index
Basic Laws (Israel), 21–24, 52, 54–55, 60,
62–64, 175, 232n4; interpretative ap-
proach by Supreme Court of Israel, 22–
23, 65–68, 70–73; property rights, 23;
social and economic rights, 62–63, 136–
139; critics, 72; judiciary, 72; nature of
cases, 103–108; formal judicial review
provisions, 227n11. See also Freedom of
Occupation; Government, The; Human
Dignity and Liberty
Bavli v. The Grand Rabbinical Court, 175
Beatty, David, 237n58, 247n83
Begin, Menachem, 54, 59
Beiner, Ronald, 252n16
Belgium, 126, 191, 215
Ben-Gurion, David, 52, 53–54
Ben-Israel, Ruth, 63
Ben-Menahem, Eli, 58
Bibi, Yigal, 73
Bickel, Alexander, 187–188, 256n39
Biko, Steve, 192
Bilbisi v. General Security Service, 111
Bill of Rights 1960 (Canada). See Canadian
Bill of Rights 1960
Bill of Rights 1993 (South Africa), 28–29,
90, 93; nature of cases, 103–108
Bill of Rights 1996 (South Africa), 29–30,
90, 93; nature of cases 103–108; 185. See
also South Africa; South African Consti-
tutional Court
Blaikie cases. See A.-G. Quebec v. Blaikie
BNA Act 1867. See British North America
Act 1867
Bokros cases. See Austerity Package cases
Bolivia, 8
Bork, Robert H., 225n4
Botswana, 48
Boy Scouts of America v. Dale, 246n77
Bracha, Baruch, 63, 233n10
Brazil, 8, 95, 158, 215
British North America Act 1867, 17, 19,
81, 226n1
Broadcasting Assets case. See New Zealand
Maori Council v. Attorney General, no. 2
Brown v. Board of Education, 149–150,
152, 207–208
Buckley v. Valeo, 101, 163
Bulgaria, 204
Bush v. Gore, 163, 189, 208–209
Bush v. Vera, 163
Butcher case. See R v. Butcher
Caldeira, Gregory, 256n48
Canada: constitution, 8, 17–21, 75–81; ap-
plication of hegemonic preservation the-
sis, 75–82; Quebec, 75–77, 79–82, 172,
178–182, 192; economy, 77–78; judicial
empowerment, 78–82; education, 79–
80, 81–82, 129–139, 147, 159, 179, 180,
247n91; language, 79–80, 81–82, 180;
Bill 101, 80; wealth distribution, 156–
157, 219; housing, 160–161; representa-
tion, 163–164; labor, 165; immigration,
236n45. See also Aboriginal Canadians;
Canadian Charter of Rights and Free-
doms; Supreme Court of Canada
Canadian Bill of Rights 1960, 20, 76,
236n47, 244n38
Canadian Charter of Rights and Freedoms,
17–21, 75–79; interpretative approach
to, by Supreme Court of Canada, 18, 21,
80; nature of cases, 103–108
Capital Coast Health Ltd. v. New Zealand
Medical Laboratory Workers Union,
146
Case v. Ministry of Safety and Security,
121
Cato Institute, 166
Caygill, David, 238n74
Center Party (Israel), 58, 59
CER. See Closer Economic Relations
Certification case. See In re: Certification of
the Constitution of the Republic of
South Africa, 1996
Certification process (South Africa), 184–
186, 189
Charlottetown Accord, 128
Charter of Rights and Freedoms. See
Canadian Charter of Rights and
Freedoms
Chaskalson, Arthur, 133
Chechnya case, 209

Chile, 191, 223
China, 97
Chng Suan Tze v. Minister of Home Affairs,
204
Choudhry, Sujit, 232n50
CIP case. See R. v. CIP Inc.
Closer Economic Relations (CER), 83
CODESA. See Convention for a Democratic
South Africa
Coetsee, H. J., 92
Colombia, 8
Committee on Human Rights. See United
Nations Committee on Human Rights
Common-law couples, in Canada, 20. See
also Equality rights; Gay/lesbian rights
Communist Party case, 205
Comparative constitutional politics, study
of, 4, 5–10, 222–223
Compromise model of judicial review. See
Preferential model of judicial review
Congo, 158
Congress of South African Trade Unions
(COSATU), 97
Consociationalism, 35, 186
Constituent Assembly (Israel), 52
Constitution: Canada, 8, 17–21, 75–81; Is-
rael, 8–9, 21–24, 52–54, 62–64; New
Zealand, 8–9, 24–27, 82–83, 87–89;
South Africa, 9–10, 27–30, 90–94
Constitution, 1983 (South Africa), 91
Constitution Act 1982 (Canada), 17–21,
75–76, 79, 226n1
Constitutional Assembly (South Africa),
28, 93, 184–186
Constitutionalization, common scenarios
of, 7–10
Constitutional supremacy, shift from par-
liamentary sovereignty, 1–3, 30
Constitutional theory: Bruce Ackerman,
189–190, 226n13, 256n46, 260n6; Alex-
ander Bickel, 187–188, 256n39; Robert
Dahl, 153, 172, 232n46, 252n12,
252n13, 254n3; Ronald Dworkin, 1–4,
17, 125, 150, 172, 188, 225n3, 228n3,
251n5, 256n42; John Hart Ely, 188–189,
256n43; Harold Laski, 150, 251n6; Mark
Index 275
Tushnet, 225n4, 240n1, 252n16; Jeremy
Waldron, 225n4, 246n78, 252n16
Constitutional transformation theories, 7–
8, 11–17, 31–42, 212–213, 213–222; he-
gemonic preservation thesis, 11–17, 42–
49, 97–99, 213–222; democratic prolifer-
ation/transition thesis, 31–32; evolution-
ist theories, 31, 32–34; social contract–
based school, 31, 33; functionalist expla-
nations/system-needs based, 31, 34–36;
weaknesses, 36–37; institutional eco-
nomics model, 37–38; electoral market
approach, 38–42; application of hege-
monic preservation thesis, 50–97
Convention for a Democratic South Africa,
28, 93
COSATU. See Congress of South African
Trade Unions
Czech Republic, 8
Dahl, Robert, 153, 172, 232n46, 252n12,
252n13, 254n3
Danilowitch case. See El Al Airlines Ltd. v.
Danilowitch
Declaration of Independence (Israel), 22,
52
Delgamuukw v. British Columbia, 107, 197
Democracy, 189; judicial empowerment
and, 1–3; South African transition, 28–
30; expansion of judicial power and, 31–
32; federalism, 32; transitions to, 41, 42.
See also Democratic proliferation/transi-
tion thesis
Democratic Party (South Africa), 94
Democratic proliferation/transition thesis
of constitutional transformation, 31–32;
weaknesses, 36
Denmark, 8, 36
Department of Commerce v. United States
House of Representatives, 163
Deri, Arieh, 71
Disraeli, Benjamin, 167
Distributive justice, 100–103, 198
Dolphin Delivery case. See Retail, Wholesale
& Department Store Union, Local 580 et
al. v. Dolphin Delivery Ltd.
276 Index
Douglas, Roger, 238n74
Dovrat, Aharon, 60
Due process rights, 54, 102, 108–118, 127;
Israel, 109–112; New Zealand, 109, 112–
113, 117; South Africa, 109, 113–114;
Canada, 109, 114–117, 243n37; United
States, 118
Dunmore v. Ontario, 141–142
Du Toit v. Minister of Welfare and Popula-
tion Development, 124–125
DVB Behuising Limited v. North West Pro-
vincial Government, 184
Dworkin, Ronald, 1–4, 8, 17, 125, 150,
172, 188, 225n3, 228n3, 251n5, 256n42
Eastern Europe, 31, 47, 53
Economic development model. See Institu-
tional economic models
Economic freedoms, 166–168
Education, 159–160; South Africa, 29, 94,
132; Canada, 79–80, 81–82, 129–139,
147, 159, 179, 180, 247n91; New Zea-
land, 135–136, 159–160; Israel, 136–
138, 160, 249n116
Egan v. Canada, 107, 122
Egypt, 8, 31, 42, 97, 223, 240n100
El Al Airlines Ltd. v. Danilowitch, 123, 125
Elazar, Daniel, 233n10
Eldridge v. British Columbia, 130, 138
“Electoral market” approach to constitu-
tional transformation, 38–42; reduction
in legislative costs variant, 39–40; appli-
cation to Israel, 42–43; weaknesses, 42.
See also Hegemonic preservation thesis
Elias, Sean, 88
Elster, Jon, 226n9, 228n4, 229n12
Ely, John Hart, 188–189, 260n43
Employment Contracts Act (1991) (New
Zealand), 84
Epp, Charles, 260n4
Epstein, Lee, 232n44, 259n82
Equality rights, 102, 106, 122–125; Can-
ada, 20, 39, 122–125, 128, 130; South
Africa, 29, 30, 123–125, 133–134, 161–
162; Israel, 65, 67–68, 123, 125, 176–
177, 206–207; New Zealand, 123–125
Equatorial Guinea, 158
Ethiopia, 51
Europe, expansion of democracy, 31, 41–
42, 47. See also Eastern Europe; Euro-
pean Union
European Community, Charter of Funda-
mental Rights, 126
European Convention on Human Rights,
7, 8, 36, 48, 97
European Court of Human Rights, 45, 48,
141, 215, 221, 245n77
European Court of Justice, 45, 221
European Union, 1, 2, 4, 32, 36, 215;
Charter of Social and Collective Rights,
12; intergovernmental thesis, 45
Evolutionist thesis of constitutional trans-
formation, 31, 32–34; socioeconomic
variant, 32; cultural variant, 32; human
rights post-WWII, 32–33; separation of
powers variant, 33, 34; diffusion of
political power, 33, 34; weaknesses,
36–37
Ewing, K. D., 247n82, 256n41
Expression. See Freedom of expression
Federalism: Canada, 19, 79–81, 195; South
Africa, 29, 30, 183–185; judicial review,
32
Federalist Papers, 153, 252n10
Feeley, Malcolm, 152, 153, 229n15, 251n9
Feeney case. See R. v. Feeney
Fiji, 209
Fiji v. Prasad, 209
Finlay v. Canada (Minister of Finance), 128
Fiscal Responsibility Act (1994) (New Zea-
land), 84
Fiss, Owen, 64, 149, 251n3
Fletcher, George, 6
Fletcher, Joseph, 237n59, 237n60
Flickinger v. Crown Colony of Hong
Kong, 26
France, 7, 38, 200, 215
Freedom Charter, 95
Freedom from discrimination. See Equality
rights
Freedom House, 166
Freedom of association. See Labor rights
Freedom of expression, 102; United States,

118; Canada, 118–120; New Zealand,
120–121; South Africa, 121–122
Freedom of Occupation (Basic Law), 22,
54, 144–146, 174–176, 227n9; override
clause, 22, 174; limitations clause, 22
Friedman, Daniel, 233n10
Fudge, Judy, 237n58
Functionalist thesis of constitutional trans-
formation, 31, 34–36; systemic efficiency
variant, 34; structural organic variant,
34, 35; consociationalism variant, 35;
application to Israel, 35; administrative
state variant, 35; supranational regimes
variant, 35–36; weaknesses, 36–37
Gafni, Moshe, 71–72
Galanter, Mark, 258n70
Garrett, Geoffrey, 226n10, 231n35
Gay/lesbian rights, 20, 39, 120–125,
245n77. See also Equality rights
General Security Service case. See Bilbisi v.
General Security Service
Germany, 7, 32, 48, 64, 67, 69, 97, 209,
223
Gesher, 58, 59
Ghana, 7, 97
Gibson, James, 235n32, 256n48, 260n7
Gill, Stephen, 47, 231n43
Ginsburg, Tom, 41
Glasbeek, Harry, 219, 237n58, 260n5
Glendon, Mary Ann, 48, 232n48,
252n16
G’nimmat v. State of Israel, 110
Goldstein, Leslie, 226n11
Goodwin case. See R v. Goodwin
Gosselin v. A-G. Quebec, 129
Government, The (Basic Law), 22, 54, 62,
63
Government of RSA v. Grootboom, 132–
133
Graber, Mark, 39, 225n5, 230n25
Grayson case. See R v. Grayson and Taylor
Great Britain. See United Kingdom
Greece, 8, 41–42
Green Party (New Zealand), 86
Grootboom case. See Government of RSA v.
Grootboom
Index 277
Hamilton, Alexander, 153, 252n10
Hammer, Zvulun, 123
Hand, Learned, 153
Ha’Negbi, Tzahi, 58, 71
Harari Resolution (Israel), 52
Hegemonic preservation thesis, 11–16, 42–
48, 97–99, 213–222; Israel, 50–74; Can-
ada, 75–82; New Zealand, 82–89; South
Africa, 89–97
Hein, Gregory, 236n51
Helmke, Gretchen, 232n47
Heritage Foundation, 166
Herut party (Israel), 54, 58
Holmes, Stephen, 247n84
Hong Kong, 48, 83, 97, 223
Horowitz, Donald, 258n70
Horowitz, Yigal, 58
Housing, 160–161; Arab-Israelis/Arabs in
Israel, 138, 206–207; aboriginal Canadi-
ans, 160–161; Maoris, 161; South Africa,
161
Howard, John, 203
Howe, Paul, 236n51, 237n59, 237n60
Human Dignity and Liberty (Basic Law),
22–23, 54, 110–112, 123, 136–139,
227n9; limitations clause, 22
Human Rights Act 1993 (New Zealand),
25, 89, 237n64
Human Rights Committee. See United Na-
tions Committee on Human Rights
Human Rights Review Tribunal (New Zea-
land), 25
Hungary, 8, 48, 204–205, 209, 223,
245n77
Hutchinson, Allan, 236n49, 237n58
Iacobucci, Frank, 141
ILO. See International Labour Organiza-
tion
IMF. See International Monetary Fund
Implied bill of rights: Israel, 52; Canada,
75–76
India, 7, 32, 42, 48, 53, 126, 202–203, 223,
246n81, 258n72
In re: Certification of the Constitution of
the Republic of South Africa, 1996, 184–
186
278 Index
In re: Constitutionality of the Liquor Bill,
183–184
In re: Gauteng School Education Bill, 132
Institutional economic models of constitu-
tional transformation, 37–38; economic
growth variant, 37; bureaucratic super-
vision variant, 38; weaknesses, 38
Inter-American Court of Human Rights,
215
Intergovernmental thesis, 45
Interim Bill of Rights 1993 (South Africa).
See Bill of Rights 1993
International Covenant of Civil and Politi-
cal Rights, 24, 26, 87
International Covenant on Economic and
Social Rights, 126, 134
International Labour Organization, 126,
165
International Monetary Fund, 46–47,
216
Interveners (Canada), 21
Iran, 59
Islamic Unity Convention v. Independent
Broadcasting Authority, 122
Israel: constitution, 8–9, 21–24, 52–54, 62–
64; “as a Jewish and democratic state,”
22, 51, 52–53, 138, 172– 173, 174, 186,
206, 227n10; “who is a Jew,” 22, 39,
172, 175, 177, 186; functionalist thesis,
35; constitutional reform, 42, 54–59; ap-
plication of hegemonic preservation the-
sis, 50–74; constitutional history, 51–54;
immigration, 51, 55–57, 177–178,
233n12; ethnic and national origin
cleavages, 51, 55–57, 173; representa-
tion changes in Knesset, 54–59, 164;
Law of Return, 55, 177–178, 255n16;
wealth distribution, 55–56, 94–95, 156,
219; municipal politics, 59–60; economic
elites, 60–62; economy, 60–66, 156; ju-
dicial empowerment, 60, 64–65, 65–74;
labor, 62–63; legal profession, 63–64;
public opinion, 68–73; military law, 111–
112; gay and lesbian rights, 123–125; ed-
ucation, 136–138, 160, 249n116; hous-
ing, 138, 206–207; labor, 165; judicial-
ization of politics, 173–178, 200–202,
206–208. See also Arab-Israelis/Arabs in
Israel; Ashkenazi Jews; Basic Laws;
Knesset; Mizrahi Jews; Supreme Court
of Israel
Israel Ba’Aliyah party, 59
Israel Beiteinu party, 59
Israel v. Nahamias, 110
ISS–MVD case, 205
Italy, 7
Jackson, Robert H., 31
Jacobsohn, Gary, 54, 233n8, 235n36
Jamaica, 48
J and B v. Director General, Department of
Home Affairs, 124
Japan, 41
JCPC. See Judicial Committee of the Privy
Council
Jefferies case. See R v. Jefferies
Judicial Committee of the Privy Council
(JCPC), 80–81, 193, 194, 204
Judicial empowerment: democracy and, 1–
3; critics, 3; American dominance of
scholarship, 4–7, 222–223; constitu-
tional transformation theories, 7–8, 31–
42, 212–213; hegemonic preservation
thesis, 11–17, 42–49, 97–99, 213–222;
impact on socioeconomic factors, 14–15;
impact on politics, 15; Israel, 50–74;
Canada, 75–82; New Zealand, 82–89;
South Africa, 89–97
Judicialization of politics, 169–172, 208–
210, 221–222; judicialization of founda-
tional national-building questions, 172–
190; judicialization of fundamental re-
storative justice dilemmas, 190–199. See
also Political reaction to judicial diver-
gence
Juristocracy, 1, 222–223. See also Constitu-
tional transformation theories; Hege-
monic preservation thesis; Judicial em-
powerment; Judicialization of politics
Kach party (Israel), 59
Kahler, Miles, 45, 231n39

Karamanh, Constantine, 41
Katsav, Moshe, 59
Katz v. Jerusalem Regional Rabbinical
Court, 175
Kazakhstan, 204
Keegstra case. See R. v. Keegstra
Kenney, Sally, 226n10
Kenya, 97
Kirifi case. See R v. Kirifi
Klerk, F. W. de, 89, 93, 95
Klug, Heinz, 256n38
Knesset, 52; relationship with Supreme
Court of Israel, 21–22, 35; override
clause, 22, 174; constitutional reform,
43, 54–60; Ashkenazi dominance pre–
1990s, 50, 51; decline of Ashkenazi
dominance, 54–60; origins, 54; 1981–
1999 electoral results, 58–59; judicial
empowerment, 60; public opinion, 69;
Society and Welfare committee, 156;
representation, 164. See also Basic Laws;
Israel; Supreme Court of Israel
Knopff, Rainer, 20, 225n7, 245n66
Kruger, Paul, 90
KwaZulu-Natal, Executive Council of v.
President of the RSA, 183
Labor, 164–167; New Zealand, 165; Can-
ada, 165; South Africa, 165; Israel, 165
Labor party (Israel), 43, 52, 55, 57, 58–59,
68
Labor rights, 102, 139–146; South Africa,
29, 94, 96–97, 143–144, 146; Israel, 62–
63, 144–146; 173–176; Canada, 140–
143; New Zealand, 146–148. See also
Freedom of Occupation; International
Labour Organization; Labor
Labour Party (New Zealand), 85, 87
Labour Relations Act (South Africa), 94
Lahav, Pnina, 233n6, 233n7
Lamer, Antonio, 18, 128, 227n2
Landes, William, 40, 41, 230n26
Land Registration case. See DVB Behuising
Limited v. North West Provincial Gov-
ernment
Lange, David, 85
Index 279
Language rights: South Africa, 29, 94; Can-
ada, 79–80, 81–82, 180; New Zealand,
193
Lapid, Yosef, 67
Laski, Harold, 150, 251n6
Laskin, Bora, 80
Latin America, 1, 31, 191
Lavigne v. Ontario Public Service Em-
ployees Union, 141
Law of Return, 55, 177–178, 255n16
Lawrence v. Texas, 245n77
Law Society of Upper Canada v. Skapinker,
18
Lawson v. Housing New Zealand, 134
Lazare, Daniel, 5
Lebanon, 110, 111
LeDain, Gerald, 140
Legislative override (India), 202, 203
Lesbian rights. See Gay/lesbian rights
Lévesque, René, 76
Libai, David, 233n10
Liberal Party (Israel), 58
Liberman, Avigdor, 73
Lijphart, Arend, 237n62, 237n63
Likud party (Israel), 43, 54–55, 57, 58–
59
Limitations clause: Canada, 18, 79; Israel,
22; South Africa, 29, 94, 192
Linn, Uriel, 58, 61, 233n10
Liquor Bill case. See In re: Constitutionality
of the Liquor Bill
Livnat, Limor, 58
Lochner v. New York, 101
Locus standi. See Standing
Lustick, Ian, 65
Maastricht case, 209
Mabo v. Queensland [No 2], 203
Magalhaes, Pedro, 41–42
Mahe v. Alberta, 107, 180
Mahomed, Ismail, 132
Makwanyane case. See S v. Makwanyane
Mandel, Michael, 95, 217, 225n7, 236n49,
239n94, 259n1
Mandela, Nelson, 28, 90, 95, 183, 240n96
Manfredi, Christopher, 225n7
280 Index
Manitoba Language case. See Reference Re:
Manitoba Language Rights
Mann, Kenneth, 233n10
Maori Electoral Option case. See Taiaroa v.
Minister of Justice
Maori Fisheries Allocation I case. See Te
Runanga o Muriwhenua v. Te
Runanganui o Te Upoko o Te Ika Associ-
ation Inc.
Maoris (New Zealand), 85–86, 89, 193–
195; education, 159–160; housing, 161;
language rights, 193; representation,
194–195; wealth distribution, 219
Maoz, Asher, 233n10
Mapai party (Israel), 52, 53
Marbury v. Madison, 18, 22–23, 227n13
Marshall I and II cases. See R. v. Marshall I;
R. v. Marshall II
Martin v. Tauranga District Court, 112
Masalla, A., 58
Mattli, Walter, 226n10
Mautner, Menachem, 234n24
McCubbins, Mathew, 230n21, 254n2
McLachlin, Beverley, 115, 129
Meatrael cases, 173–176
Mendelssohn v. Attorney-General, 135
MERCOSUR, 215
Meretz party (Israel), 43, 54–55, 57, 58, 59
Meridor, Dan, 54, 58, 72, 233n10
Mexico, 8, 42, 45
Meyer, Roelf, 94, 239n90
Miller, Raymond, 85
Mills case. See R. v. Mills
Milo, Ronnie, 58
Milton, 5
Minister of Health v. Treatment Action
Campaign, 133
Ministry of Transport v. Noort, 112
Minow, Martha, 251n1
Mishler, William, 235n32, 240n1
Mistry v. Interim National Medical and
Dental Council of South Africa, 114
Mizrahi Jews, 156, 164; Israeli ethnic and
national origin cleavages, 51, 55–57; role
in Israeli constitutional transformation,
52, 55–59; wealth distribution, 55–56,
156; Knesset representation, 58–59, 164;
judicial empowerment, 60, 64–65, 65–
74; voting patterns, 234n17
Modai, Yitzhak, 58
Mohammed Ahmad Kan v. Shah Bano,
202–203, 258n72, 258n73
Moledet party (Israel), 59
Moonen v. Film and Literature Board of
Review, 120–121
Moravcsik, Andrew, 45, 231n37, 231n40
Morton, F. L., 20, 225n7, 227n5, 236n49,
245n66
Moshevitz, David, 60
Motloutsi case. See S v. Motloutsi
Musharraf, Pervez, 204, 209
M v. H, 20, 123, 124–125
Mxenge, Griffith, 192
NAFTA. See North American Free Trade
Agreement
Nagel, Jack, 238n66, 238n71, 238n74
Nahamias case. See Israel v. Nahamias
National Coalition for Gay and Lesbian
Equality v. Minister of Home Affairs,
124–125
National Education Health and Allied
Workers Union (NEHAWU) v. University
of Cape Town, 143
National Party (South Africa), 89–94, 191
National Religious Party (Israel), 59
National Union of Metal Workers of South
Africa v. Bader Bop Ltd., 143–144
National Union party (Israel), 59
Nation-building, 170–190; Israel, 172–178,
186, 190, 192; Canada, 172, 178–182,
186, 190, 192; South Africa, 172, 183–
186, 190
NATO, 215
Nedelsky, Jennifer, 256n47
Neoconservatism. See Neoliberalism
Neoliberalism, 3, 53, 54, 59, 64, 98, 147–
148, 150–151, 154–158, 164–167,
249n122; Israel, 60–66; Canada, 77–78;
New Zealand, 83–85; South Africa, 96–
97
Netanyahu, Benjamin, 59

Netherlands, 223
Nevirapine case. See Minister of Health v.
Treatment Action Campaign
New Zealand: constitution, 8–9, 24–27,
82–83, 87–89; legislature/judicial rela-
tionship, 24–25; role of attorney general
and NZBORA, 25; preferential model of
judicial review, 25–26; international hu-
man rights covenants, 25–27; represen-
tation, 26, 194; judicial empowerment,
83, 87–89; economy, 83–85; ethnic
makeup, 85–86; immigration, 85–86;
Maoris, 85–86, 89, 193–196; political
parties and the electoral results, 86–87;
high courts, 103–104; education, 135–
136, 159–160; wealth distribution, 157–
158, 219; labor, 165; judicialization of
politics, 193–196; exports, 237n65,
257n57. See also Maoris; New Zealand
Bill of Rights Act 1990; New Zealand
Court of Appeal; Treaty of Waitangi
New Zealand Bill of Rights Act 1990
(NZBORA), 24–27, 83, 87–89; role of at-
torney general, 25; interpretative ap-
proach by New Zealand Court of Appeal,
25–27, 87–89; nature of cases, 103–
108
New Zealand Court of Appeal (NZCA), 25–
27; relationship with legislature, 24; in-
terpretative approach to NZBORA, 25–
27, 87–89; international human rights
covenants, 25–27; caseload, 26–27, 103–
108; appeal process, 27, 103. See also Due
process rights; Equality rights; Freedom
of expression; Labor rights; Property
rights; Social and economic rights
New Zealand Maori Council v. Attorney
General, 193
New Zealand Maori Council v. Attorney
General, no. 2, 193
New Zealand party, 85
Nicaragua, 8
Nigeria, 95, 97
Nissim, Moshe, 58
Noort case. See Ministry of Transport v.
Noort
Index 281
North, Douglass, 34, 37, 229n17, 230n19
North American Free Trade Agreement
(NAFTA), 45, 77, 215, 236n50
Norway, 220
Notwithstanding clause. See Override
clause
NP. See National Party
Nussbaum, Martha, 246n80
NZBORA. See New Zealand Bill of Rights
Act 1990
NZCA. See New Zealand Court of Appeal
Occupation. See Freedom of Occupation;
Labor rights
Occupied Territories, 110, 111, 234n22,
242n11
O’Connor case. See R. v. O’Connor
OECD. See Organization for Economic Co-
operation and Development
Olmert, Ehud, 58
Ometz party (Israel), 59
One Nation party (Israel), 59
O’Regan, Kate, 250n137
Organization for Economic Cooperation
and Development (OECD), 157–158
Override clause: Canada, 18, 79, 174;
Israel, 22, 174. See also Legislative over-
ride
PAC. See Pan Africanist Congress
Pakistan, 31, 204, 209, 223
Palestinians, 110–111, 173, 201
Palmer, Geoffrey, 85, 87–88, 134, 238n73,
238n74, 238n75, 238n77, 239n80
Palmer, Matthew, 238n75
Pan Africanist Congress, 185
Parliamentary sovereignty: shift to consti-
tutional supremacy, 1–3, 30; Canada, 21,
76; Israel, 21, 52–53; New Zealand, 24,
25, 27, 82–83, 88; preferential model
of judicial review, 25–26; South Africa,
89–92
Parliamentary supremacy. See Parliamen-
tary sovereignty
Parsons, Talcott, 228n2
Parti Québécois (Canada), 76
282 Index
Patriation Reference case. See Reference Re:
Resolution to Amend the Constitution
Paz, Ophir, 73
Pearson, Lester, 78
Pekelman, D., 233n10
Peled, Yoav, 233n14, 233n15, 234n18
Peres, Shimon, 59
Peretti, Terri Jennings, 258n71
Peretz, Amir, 58, 59
Peru, 8
PNURA. See Promotion of National Unity
and Reconciliation Act
Poland, 8
Political question doctrine, 208
Political reaction to judicial divergence, 15,
199–208
Population Registration Act 1950 (South
Africa), 89
Pora case. See R v. Pora
Poraz, Avraham, 233n10
Portugal, 8, 41–42, 126
Porush, Menachem, 72
Positive rights, 102, 105–108, 125–
139,146–148, 241n8. See also Labor
rights; Social and economic rights
Posner, Richard, 40, 41, 230n26
Pratt case. See R v. Pratt
Preferential model of judicial review, 25–
26
Privacy Act of 1993, 89
Privy Council. See Judicial Committee of
the Privy Council
Promotion of National Unity and Reconcil-
iation Act (PNURA) (South Africa), 191–
192
Proper, Dan, 60
Property rights, 37, 97, 127, 139; Israel, 23;
Canada, 77; New Zealand, 88; South Af-
rica, 94–95
Prosper case. See R. v. Prosper
Protestant School Board case. See A.-G. Que-
bec v. Quebec Protestant School Board
Putnam, Robert, 154, 252n14
Qa’adan v. The Jewish Agency, 206–207
Quebec Veto Reference case. See Reference Re:
Objection by Quebec to a Resolution to
Amend the Constitution
Quilter and Pearl et al. v. Attorney-Gen-
eral, 123, 125
Rabbinical courts, 66–68, 174–176
Rabin, Yitzhak, 56, 68
Radio Frequencies case. See New Zealand
Maori Council v. Attorney General
Ramseyer, Mark, 41, 231n27
R.A.V. v. City of St. Paul, 118
Rawls, John, 246n78
Redistribution of Land Rights Act (South
Africa), 162
Reference Re: Manitoba Language Rights,
180
Reference Re: Objection by Quebec to a
Resolution to Amend the Constitution,
179
Reference Re: Resolution to Amend the
Constitution, 179
Reference Re: Secession of Quebec, 81–82,
172, 181–182, 186, 189, 190
Reichman, Uriel, 63, 233n10
Representation, 162–164, 253n38; New
Zealand, 26, 194; Israel, 54–59, 164;
United States, 163; Canada, 163–164
Republican Constitution 1961 (South Af-
rica), 90
Restorative justice, 170–172, 190–199;
Canada, 192, 195–198; Israel, 192; New
Zealand, 193–195, South Africa, 198–199
Retail, Wholesale & Department Store
Union, Local 558 v. Pepsi-Cola Canada,
143
Retail, Wholesale & Department Store
Union, Local 580 et al. v. Dolphin Deliv-
ery Ltd., 142
Ribeiro, Fabian, 192
Richardson, Sir Ivor, 27
Riker, William, 153
Rivlin, Reuven, 58
RJR MacDonald Inc. v Canada, 120
Roach, Kent, 226n7, 243n37
Rosenberg, Gerald, 152, 207–208, 251n8,
258n71, 259n86
 Index 283

Rozen-Zvi, Ariel, 233n10 Scheingold, Stuart, 198, 258n66

Rubin, Edward, 152, 153, 229n15, Schneiderman, David, 231n41, 247n85
251n9 Schwimer, Al, 61
Rubinstein, Amnon, 54, 72, 233n10 SCI. See Supreme Court of Israel
Russell, Peter, 236n51, 237n60 Seaboyer case. See R. v. Seaboyer
Russia, 205, 209, 223 Secession Case. See Reference Re: Secession
R v. A, 112 of Quebec
R. v. Badger, 197 Secession of Quebec reference. See Reference
R. v. Blais, 197 Re: Secession of Quebec
R v. Butcher, 112 Sen, Amartya, 126, 246n80
R. v. CIP Inc., 117 Separation of powers, 169; democracy, 32,
R. v. Feeney, 115–116 127; South Africa, 30, 184
R v. Goodwin, 112 Sexual preference/orientation. See Gay/les-
R v. Grayson and Taylor, 112 bian rights
R v. Jefferies, 112 Shabalala v. Attorney General, 114
R. v. Keegstra, 119 Shachar, Ayelet, 232n1, 258n72
R v. Kirifi, 112 Shafir, Gershon, 233n15, 234n18
R v. M, 117 Shah, Sajjad Ali, 204
R. v. Marshall I, 197 Shahal, Moshe, 233n10
R. v. Marshall II, 197 Shah Bano case. See Mohammed Ahmad
R. v. Mills, 116 Kan v. Shah Bano
R. v. O’Connor, 116 Shamir, Ronen, 234n24
R v. Pora, 26 Shamir, Yitzhak, 59
R v. Pratt, 112 Shapira, A., 233n10
R. v. Prosper, 128 Shapiro, Ian, 96, 225n4, 240n97
R. v. Seaboyer, 116 Shapiro, Martin, 226n13, 229n6
R. v. Sharpe, 119 Sharif, Nawaz, 204, 209
R. v. Sparrow, 196 Sharon, Ariel, 58, 59, 73
R. v. Stinchcombe, 115 Sharpe case. See R. v. Sharpe
R v. T, 117 Shas party (Israel), 57, 68, 71, 178
R v. Te-Kira, 112 Shaw v. Reno, 101, 163
R. v. Zundel, 119 Sheehan, Reginald, 235n32, 240n1
R.W.D.S.U. v Pepsi-Cola Canada. See Retail, Shetreet, Meir, 73
Wholesale & Department Store Union, Shilling case, 197–198, 258n65
Local 558 v. Pepsi-Cola Canada Shoval, Zalman, 58
Shue, Henry, 246n78
SACC. See South African Constitutional Simpson v. Attorney General, 112–113
Court Singapore, 83, 204
Same-sex partnerships. See Equality rights; Singh v. Minister of Employment and Im-
Gay/lesbian rights migration, 114–115
Sanderson v. Attorney General, 114 Skapinker case. See Law Society of Upper
Sarat, Austin, 149 Canada v. Skapinker
Satchwell v. President of Republic of South Slaughter, Anne-Marie, 48, 226n10,
Africa, 124 232n51
SCC. See Supreme Court of Canada Slovakia, 8
Schachter v. Canada, 130, 138 Smith, Adam, 32
284 Index
Smith, Rogers, 240n1
Social and economic rights, 102, 105–108,
125–139, 150–151, 247n82; Israel, 29,
50, 62–63, 136–139; South Africa, 29,
128, 130–134; New Zealand, 88, 134–
136; Canada, 127–130
Social contract–based thesis of constitu-
tional transformation, 31, 33
Social justice, 3
Society for Law Victims v. Minister of Jus-
tice, 110
Sólyon, Làszló, 205
Soobramoney v. Minister of Health, 131
South Africa: constitution, 9–10, 27–30,
90–94; apartheid, 27–28, 89–92, 94–95,
130–131, 162, 198–199, 239n81,
240n98; transition to democracy, 28–30;
international human rights covenants,
29; labor, 29, 94, 96–97, 143–144, 165;
education, 29, 94, 132; language, 29, 94;
wealth distribution, 55–56, 94–95, 158;
bill of rights movement, 92–94; constitu-
tional court, 93–94; property rights, 94–
95; ethnic and racial cleavages, 94–95;
land distribution/reforms, 94–95, 130,
131, 162, 184, 198–199; economy, 95–
97; judicial empowerment, 98; high
courts, 103–104; wealth distribution,
158, 198–199, 219; housing, 161;
judicialization of politics, 183–186, 191–
193; Truth and Reconciliation Commis-
sion (TRC), 191–192. See also African
National Congress; South African Con-
stitutional Court
South Africa Amendment Act 1958, 90
South African Communist Party, 97
South African Constitutional Court, 28–30,
48, 93, 183–185, 200; caseload, 29–30,
103–108; appeal process, 184; certifica-
tion process, 184–186, 189; ethnic and
racial makeup, 239n85. See also Due pro-
cess rights; Equality rights; Freedom of
expression; Labor rights; Property rights;
Social and economic rights
South African National Defence Union
(SANDU) v. Minister of Defence, 143
South Pacific Forum, 83
Spain, 8, 41–42, 191, 215
Sparrow case. See R. v. Sparrow
Standing, 200; Canada, 21; Israel, 24, 201;
United States, 200
Stevenson, William, 117
Stinchcombe case. See R. v. Stinchcombe
Stone Sweet, Alec, 226n8, 226n10,
226n11, 229n16
Sunstein, Cass, 64, 247n84
Supreme Court of Canada (SCC), 18–21,
38, 103–104; interpretative approaches
to Charter, 18, 21, 80; caseload, 19–20,
81, 103–108; formal judicial review pro-
visions in constitution, 19; appeal pro-
cess, 20, 103; standing, 21; judicial em-
powerment, 78–82; federalism, 79–81;
appointment process, 80; ideological ori-
entation, 80–81; public opinion, 82; use
of international law, 182. See also Due
process rights; Equality rights; Freedom
of expression; Judicial Committee of the
Privy Council; Labor rights; Property
rights; Social and economic rights
Supreme Court of Israel (SCI), 22–24, 103–
104, 175, 177; relationship with Knesset,
21–22, 35; interpretative approach to
Basic Laws, 22–23, 65–68; caseload, 23,
103–108; appeal process, 23–24, 103;
standing, 24, 201; representation con-
cerns, 50–51; judicial empowerment, 60,
64–65, 65–74; ideological orientation,
65–70, 173; socioeconomic makeup, 66–
67; appointment process, 66–67; public
opinion, 68–74; critics, 70–73; constitu-
tional court movement, 72–73; jurisdic-
tion, 200; implementation issues, 206–
208. See also Due process rights; Equality
rights; Freedom of expression; Labor
rights; Property rights; Social and eco-
nomic rights
S v. Makwanyane, 48, 113
S v. Motloutsi, 114
S v. Vermaas, 114
S v. Williams, 113
S v. Zuma, 113

Sweden, 8, 36, 220
Systemic need–based thesis of constitu-
tional transformation. See Functionalist
thesis
Taiaroa v. Minister of Justice, 193–194
Tajikistan, 204
Tami party (Israel), 59
Tanzania, 48
Tatarstan case, 205
Tate, Neal, 225n2
Tehiya party (Israel), 59
Te-Kira. See R v. Te-Kira
Tel-Aviv University, 63
Te Runanga o Muriwhenua v. Te
Runanganui o Te Upoko o Te Ika Associ-
ation Inc., 194
Texas v. Johnson, 118
Thailand, 45
Theories of constitutional transformation.
See Constitutional transformation theo-
ries
Third Way party (Israel), 59
Thomas, Robert, 34
Tirkel, Ya’akov, 235n27
Tocqueville, Alexis de, 1, 169, 225n1,
254n1
TRC. See South Africa, Truth and Reconcili-
ation Commission
Treaties, rationale, 44–45
Treaty of Waitangi, 27, 86, 89, 193–194,
256n50
Treaty of Waitangi Act (New Zealand),
86
Treaty of Waitangi (Fisheries Claims) Set-
tlement Act 1992 (New Zealand), 194
Trudeau, Pierre Elliot, 75, 76, 78, 79,
237n52
Turkey, 42, 209, 223
Tushnet, Mark, 225n4, 240n1, 252n16
Tzomet party (Israel), 59
U.F.C.W., Local 1518 v. KMart Canada Ltd.,
142
UNDP. See United Nations Human Devel-
opment Program
Index 285
Union of Soviet Socialist Republics, 51, 55,
56, 57. See also Russia
United Kingdom, 1, 2, 8, 21, 36, 53, 69, 83,
97, 150, 215, 223; Human Rights Act
1998, 36
United Mizrahi Bank v. Migdal Coopera-
tive Village, 22–23, 139
United Nations, Universal Declaration of
Human Rights, 126
United Nations Committee on Human
Rights, 48, 245n77
United Nations Human Development Pro-
gram, 126, 156–158, 246n79
United States, 31, 32, 42, 48, 53, 64, 69,
78, 83 87, 100–101, 153. See also United
States Supreme Court
United States Supreme Court (USSC), 20,
47, 61, 69, 73, 118, 149–151, 153, 163,
172; caseload, 19–20; appeal process, 20,
103, 200; ideological orientation, 100–
101; Bill of Rights interpretation, 101;
due process rights, 118; freedom of ex-
pression, 118; representation, 163
Universal Declaration of Human Rights,
126
USSC. See United States Supreme Court
U.S. v. Lopez, 101
Vermaas case. See S v. Vermaas
Verwoerd, Hendrick, 90
Victoria Charter 1971 (Canada), 76, 78–
79
Vriend v. Alberta, 122, 124–125
Waitangi Tribunal, 86, 193
Waldron, Jeremy, 225n4, 246n78, 252n16
Wealth distribution, 156–168; Israel, 55–
56, 94–95, 156, 219; Canada, 156–157,
219; New Zealand, 157–158, 219; South
Africa, 158, 198–199, 219; women, 158–
159; United States, 220. See also Aborigi-
nal Canadians; Arab-Israelis/Arabs in Is-
rael; Maoris
Weber, Max, 230n18
Weiler, Joseph, 226n10
Weingast, Barry, 37, 230n17
286 Index

Weitzman, Ezer, 59–60 Workers’ rights. See Labor rights

Weitzman, Haim, 59–60 World Bank, 46
Western Cape, Province of the v. Minister World Trade Organization (WTO), 46, 216,
of Provincial Affairs, 183 221
Westminster system of government. See WTO. See World Trade Organization
Parliamentary sovereignty
West Virginia State Board of Education v. Yacoob, Zak, 133
Barnette, 31 Yahad party (Israel), 59
Whittington, Keith, 258n71 Yeltsin, Boris, 205
Wik Peoples, The, v. Queensland, 203 Yosef, Ovadia, 71
Williams, Patricia, 149–150, 251n1,
251n4 Zander, Michael, 125
Williams case. See S v. Williams Zimbabwe, 48
Women, 116, 117; Israel, 67; wealth distri- Zisser, Baruch, 233n10
bution, 158–159; Women of the Wall af- Zorkin, Valerii, 205
fair (Israel), 176; aboriginal Canadians, Zuma case. See S v. Zuma
197–198; India, 202–203 Zundel case. See R. v. Zundel