Faculty Bibliography

“Outsider scholarship,” we hear, “is characterized by a commitment to the interests of people of color and/or women, by rejection of abstraction and dispassionate ‘objectivity,’ and by a preference for narrative and other engaged forms of discourse.” Off the bat, we think: “Delgado!”, “Rodrigo!” Rightly, we raise our hats and cheer.

A law professors’ global conversation on ‘progressive property’ confirms institutions of private ownership as foundational for individual human freedom and dignity, while also insisting on the design of such institutions with a view, grounded in the principle of the equal value of every person, to the ability of each person to access and enjoy these values of the institution of property. The conversation takes as a premise that a design for a good and just system of property entitlements is not deducible from any single metric but rather falls unavoidably to political judgment and choice. That does not mean, though, impulsive choice, but rather choice through the exercise of deliberative reason and critical judgment leavened by tradition and experience. This article seeks illumination of the progressive-property paradigm through a consideration of three judgments from Associate Justice Johan Froneman, in cases before the Constitutional Court of South Africa on property under that country’s constitution. The discussion takes its turn towards what it names as a pragmatist strain in our received traditions of political argument – finding in the judicial work of Froneman J, as represented in these judgments, characteristics of realism, contextualism, a mediation of functional and formal demands on adjudication under a rule of law, and an optimistic outlook on the possibility of political practical reason.

Reviewing ♣Joseph Fishkin & William E. Forbath, The Anti-Oligarchy Constitution♣ (2022).

Johan van der Walt finds the essence of the concept of liberal democratic law to lie in an uprootedness of law “from life.” He connects that finding to a modern experience of life fundamentally divided. Division of life occurs both at the societal level, as a fact of visionary pluralism, and at the personal level, as an experience of deep-set inner conflicts of passions and motivations. The path to law-from-life uprooting from the experience of external social division may be the more obvious; the path there from the experience of internal conflict may be the more interesting. The two paths join at a crucial place reserved by Van der Walt for indispensable moments of “sacrifice” – or, better, “gift;” or, still better, “graciousness” – in the liberal democratic experience of law. We ask here whether that is also the place of “civility” (in the lexicon of John Rawls), where the conception of liberal democratic law put forth by Rawls in his philosophy of political liberalism may be seen to meet up with the thought of Van der Walt.

There are no spaces or spheres of the personal or the private that are not also fraught with political potential and consequence. That insistent lesson from feminist thought is these days instanced, truly writes Gila Stopler, by the bafflements faced by liberal democracies confronting severe threat from illiberal ideas and incitements gathering steam under shelter of liberal basic-liberties guarantees. My questions here are whether the problem’s root in liberalism runs deeper than any ideology of a “private sphere,” and whether it is aggravated by a turn in John Rawls’s defense of liberal principles from a “comprehensive” to a “political” justificatory strategy.

Whether or how a constitution's guarantees respecting basic right and liberties are to take effect in "horizontal" cases, those involving relations among persons and groups outside of government, has been and remains a matter of debate in liberal-democratic societies. The liberal political philosophy of John Rawls has sometimes been charged with a normative tilt against full extension of the guarantees to these "private" relations. I find the opposite to be true. Given Rawls's conception of the constitution as a society's higher-legal framework for assurance of fairness in its basic structure, along with the justificatory function that Rawls assigns to the guarantees in a constitution thus conceived and the idea of these guarantees comprising a unified "scheme of liberties" guaranteed equally to all, it follows that norms of private law allowing construction of basic of liberties of some by acts of others in civil society should be subject to review for proportional justification. But not every liberty-hostile exercise of a protected basic liberty will come under the scope of such review. For those that do not, liberalism must find some other response.

Frank I. Michelman takes up a proposition from John Rawls that a stricter constraint of constitutional fidelity applies to supreme court judges in a constitutional democracy than to citizens acting politically as litigants, voters, organizers, and otherwise as agitators for political causes to determine whether this proposition fits with Rawls’s other political ideas. It is, however, not immediately clear how this proposition can fit with Rawls’s proposed “liberal principle of legitimacy,” according to which a country’s constitution is to figure as a public procedural pact, by appeal to which citizens justify to each other their exertions of the coercive political powers that they hold as citizens in a democracy. Answering requires careful specification of the respects in which the fidelity constraint is to be looser for citizens than for judges, close analysis of the Rawlsian constitution-centered “principle of legitimacy,” and consideration of Rawls’s later writings that modify in some crucial respects the principle of legitimacy.

The term "judicial restraint," applied to courts engaged in judicial constitutional review, can refer ambiguously to any one or more of three possible postures of such courts, which we here will distinguish as "quiescent," "tolerant" and "weak-form." A quiescent court deploys its powers sparingly, strictly limiting the agenda of social disputes on which it will pronounce in the constitution's name. A tolerant court confirms as valid laws whose constitutional compatibility it finds to be reasonably sustainable, even though it independently would conclude to the contrary. A weak-form court acts on the understanding that its pronouncements on matters constitutional will be duly open to considered rejection by other political agencies. Theory commonly tends to treat the question of judicial restraint as turning on a bedrock political value of democracy. We may also, however, understand debates over judicial restraint in the light of a different bedrock value, that of political legitimacy. Where democracy is the focal concern, debaters may tend toward conflating into one measure the three dimensions of judicial restraint. A focus on legitimacy rather tends toward a dis-bundling of the three dimensions, thus complicating the choices while also clarifying the stakes. The political philosophy of John Rawls helps us to see how and why this occurs.

In what he called "the liberal principle of legitimacy," John Rawls proposed that coercive exercises of political power can be justified to free and equal dissenters when "in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse . . . ." Does "unwritten constitution" there refer to empirical regularities of political practice (as opposed to normative rules and standards)? To norms that subsist only as custom but not as law? To norms that subsist as common law but not as code law? Which interpretation is best?

"Transformative Property Law honours Professor AJ Van der Walt (1956-2016) - scholar, mentor, and teacher. As the first incumbent of the DST/NRF South African Research Chair in Property Law his primary research goal was to develop the theoretical foundations for the transformation of property law in post-apartheid South Africa. Covering topics that are at the forefront of global thinking on property law, Transformative Property Law consists of 20 essays by a combination of senior and young scholars from South Africa, the United States of America, the United Kingdom, Ireland, the Netherlands, Belgium, and Zimbabwe. The essays focus on the themes that Professor Van der Walt developed during the first 10 years of the research chair, namely: (a) the single system of law and subsidiarity principles; (b) the marginality principle; (c) the development of the common law of property; (d) constitutional property law; and (e) property theory. This volume also includes a list of all Professor Van der Walt’s research outputs and a list of all the Masters and Doctoral students that he supervised during his career.–Publisher’s website.

In his book The Purse and the Sword: The Trials of Israel’s Legal Revolution, Daniel Friedmann brings under critical inspection what he names as a legal revolution in Israel. Friedmann gives us, under that name, an account of a shift of certain major and sensitive state powers from elected leaders and legislators to politically insulated officials and judges. The Supreme Court’s construction of two Basic Law enactments of the twelfth Knesset into a justiciable, substantive “formal constitution” for Israel figures in Friedmann’s book as one component of the revolution, along with other judicial developments, including purposive interpretation of constitutional and other laws, an intensified form of common-law review of administrative actions for unreasonableness, and expansionary revisions to standing and justiciability. In all these developments, Aharon Barak took a leading part as judge and as scholar. I here consider to what extent these developments may be understood as responsive to promptings from a “political-liberal” conception of a justificational burden and need for substantive constitutional law. I reflect here on the possible pull of this conception in a political-cultural setting of a persisting widespread attachment to an idea of Israel as a member of the family of liberal constitutional states, and hence on Barak’s understanding of the role and responsibility of the Supreme Court. I speculate briefly about how far that pull may extend also to Professor Friedmann in his role of critic of the judicial handiwork of Barak and the Court on which he served.

As used in this paper, “proportionality” names a protocol for use in deciding questions of the constitutionality of laws. The protocol is typically understood to consist of a four- or five-step order of decisional march, of which there are multiple close-kindred versions in circulation. Debates about the virtues, vices, and variations of the protocol and its deployment routinely construct the theater of action as a court of law engaged in judicial constitutional review. Adjudicative use of the protocol is what we think of as the central case. An aim of this paper is to achieve some first steps towards figuring out what relevance, if any, the protocol of proportionality might have for “extended” cases (as we may call them) of constitutional discourses outside the courts. I try here to think about the protocol’s pertinence, if any, to political-practice idealizations in which other political actors displace independent judiciaries as sole or final arbiters of constitutional compliance.

In The Democratic Horizon: Hyperpluralism and the Renewal of Political Liberalism, Alessandro Ferrara seeks a philosophical breakthrough from what looks like it could be a pending dead-end for democracy. The best hope, Ferrara superbly maintains, lies through an extension or updating – a “renewal,” as he calls it – of lines of thought bequeathed to us, by John Rawls and others, under the name of political liberalism. Somewhere near the crux of Ferrara’s reflection stands a class of institutional fixtures whose name is missing from his title. I mean the class “constitution.” I use that word to name a country’s scriptural basic law, its publicly cognizable corpus of canonically worded sentences ordaining the country’s basic institutional framework. My suggestion will be that it is no less tellingly a “constitutional” than a “democratic” horizon that Ferrara’s work, in conjunction with Rawls’, shows us to be facing.

I distinguish three ways by which references to the Declaration of Independence might enter into American legal argument. In primary-legal mode, the Declaration ranks as supreme law beside or above the Constitution, setting mandates as the Constitution does for other purported exercises of legal authority, from Acts of Congress on down. In interpretive-contextual mode, the Declaration provides informative historical context for determinations of the meanings of the Constitution and other laws. In creedal mode, the Declaration serves as a canonical marker for axiomatic principles of good or right government. Creedal uses of the Declaration are common and benign. Interpretive-contextual uses invite debates like those attending other uses of history in legal interpretation. A supreme-law status for the Declaration finds little support in our legal history, nor is there good reason to press in that direction.

Frank Michelman offers a critical discussion of the sense—if any—in which Fishkin and Forbath’s argument is a constitutional argument. He carefully teases out some different senses in which such an argument makes claims about the Constitution in court. He asks whether Fishkin and Forbath are essentially opening the door to an unraveling of the New Deal settlement, and a return of what Holmes called “economic theory” to the work of the courts. And finally, he questions why the argument contains much talk of the Constitution, but relatively little talk of constitutional rights.

Constitutionally speaking, "democracy" signifies something beyond the rule of many or the crowd as opposed to die few or "the one." Constitutional democracy marches arm-in-arm with freedom. A Dworkinian substantive ("constitutional") conception of proper democracy means some form of institutional entrenchment of basic human-rights interpretations against procedural-democratic revision. To reply to the majoritarian objection, Ronald Dworkin needs to uphold the constitutional conception. To uphold that conception persuasively, he needs to demonstrate its consonance with endorsement of positive liberty as a basic human interest. Dworkins self-assigned task is defense of the constitutional conception of democracy against the charge of defeating positive liberty. Dworkin concludes that if any beings positive liberty is in principle infringed when the constitutional conception allows non-popularly determined basic-rights interpretations, it can be that of the citizenry taken whole. Crucial to the demonstration is Dworkins distinction between "kinds" or ’readings" of collective action—between ways of interpreting the idea that a decision has been made "by the people."

Alongside the regulative and integrative functions we theorize for constitutions, a function of legitimation perhaps deserves a focus of its own. By legitimation, I mean the social and communicative processes by which a country’s people sustain among themselves a sense of assurance of the deservingness of its political regime of general and regular support. On the level of political philosophy, the idea of the constitution as a platform for legitimation finds expression in John Rawls’s proposal – named by him as “the liberal principle of legitimacy” – that enactments by political majorities can be justified to dissenters in any given case (regardless of which side of the case you might think true justice and policy would favor) by a showing that the winners have acted within the terms of a good-enough (in the paper’s terms, a “legitimation-worthy”) constitution. The Rawlsian proposal figures as one for what the paper calls “legitimation by constitution” or “LBC.” The paper posits, as a hypothesis, the activity of this idea in a population’s political consciousness, with a view to tracing resultant effects on constitutional-legal practice and debate. As a prime case in point, the paper points to an apparent correlation, within the world of broadly-speaking liberal constitutional thought, of a recent spread of receptivity to the idea of “weak-form” judicial constitutional review with a spread, within that same world, of conviction that a legitimation-worthy constitution would have to include guarantees respecting the so-called socioeconomic rights of citizens vis-a-vis their states. The paper suggest that LBC (the idea) provides a hinge between these two developments.

In the United States, exceptionally, an established judicial protocol for constitutional clearance of legislative incursions on freedom of action sets up a two-track scheme, prescribing a searching form of review for a subset of such incursions and a markedly more cursory review for the rest. The model further sets up a general standard of 'fundamentality' by which to sort such incursions into the two classes – as opposed, say, to a name-by-name specification of protected liberties drawn directly from the text of the bill of rights. Political Liberalism, I argue, should be at home with both these features of the U.S. jurisprudence. The role assigned by that jurisprudence to fifth and fourteenth amendment 'liberty' is matched by the role assigned to 'liberty of conscience' in Rawlsian political philosophy; while the second principle of justice (and not, as might appear, any Rawlsian philosophical denial of value to freedom of action 'as such') points toward a refusal of heightened-scrutiny protection for freedom of action across the board. In a Rawlsian well-ordered society, two-track scrutiny would be understandable as a device for holding the two principles of justice in equipoise.

Symposium: Examining Critical Race Theory: Honoring Professor Richard Delgado

The article focuses on political dysfunction in the U.S. and discusses U.S. constitutional law. Topics include constitutional interpretation and construction, legitimization by constitution, and the role of the U.S. Supreme Court in constitutional application. Information is provided on counterconstitutionalism, a term used by the author to discusses the rejection of constitutional rules.

This Comment presents a reading of the judgments of the Supreme Court of Appeal of South Africa in the recent case of Minister of Minerals and Energy v. Agri South Africa. The judgments reject a claim of unconstitutional expropriation of property by force of a recent, major statutory revision of laws governing acquisition, retention, exercise, duration, and transfer of mining rights in South Africa. The Comment makes no attempt to provide a complete account of these judgments (which will undergo review by South Africa’s Constitutional Court) or all of their reasoning. Its scope is restricted to questions regarding the appearance in the judgments, and certain arguments to which the judgments respond, of what I have called “the baseline dignity of the common law,” which comes to the fore when the rule or model of the common law is taken to provide a baseline of justified expectation, by reference to which to measure claims of excessive or otherwise impermissible deprivations or expropriations by the state.

This is the text of a public talk delivered on 18 July 2012 in Johannesburg, South Africa. The talk included discussions of two recent decisions from South Africa’s top courts, considered in relation to the South African legal community’s response to the Constitution’s directions for submission of South Africa’s body of pre-transition common law to judicial inspection in appropriate cases, in order to check whether common-law norms are line (and to bring them into line where they are not) with the “spirit, purport and objects” of the Constitution’s Bill of Rights. Such an on-going, case-based judicial audit of the common law under the gaze of the Bill of Rights would be one way (in cases where all the parties are private) of giving “horizontal effect” to the Bill of Rights.

Does a political culture’s embrace of liberal constitutionalism – or does liberal political thought more generally – come laden with a deep-seated resistance to recognition of the injustice of structural poverty within a broadly affluent society, or to getting done politically whatever is required in order to abolish that injustice? For those inclined to say so, the philosophy of John Rawls might seem to pose a testing case. In our time, Rawls’s philosophical excavations of liberalism are the ones we might well regard as the most dedicatedly antipoverty of all, and so his works would seemingly be the last place to go hunting for evidence of an ineluctable resistance in liberalism to the subjugation of poverty by political means. If we find such evidence there, where in liberalism will we not? Rawls compiles a roster of “constitutional essentials,” meaning commitments that must be observable, in practice as well as in form, in the basic laws that constitute a country’s political and legal regime, in order to render that regime legitimate in the sense it can command morally the compliance of citizen with laws and policies that issue from it, regardless of disagreements about whether those laws and policies are truly compatible with the demands of justice. Now, Rawls decidedly and deliberately excludes from the constitutional essentials a guarantee to everyone of what he calls “fair” (as distinguished from merely “formal”) equality of opportunity – even though, in Rawls’s view, a regime that fails to satisfy fair equality of opportunity may for that very reason be gravely unjust. This paper asks whether the Rawlsian exclusion of fair equality of opportunity from the constitutional essentials should be taken as a sign, even within the thought of Rawls, of the incapacity of liberal constitutionalism, with its prioritized commitment to individual rights and liberties, to grasp and respond fully to the injustice of avoidable structural poverty. The paper answers “no.” It finds that constitutionalization of fair equality of opportunity remains an open and debatable question within liberalism as conceived by Rawls, and furthermore that Rawls’s own reasons for deciding against constitutionalization contain nothing to detract from his insistence that fair equality of opportunity is a strict requirement of justice. This paper was prepared for a symposium on “Constitutionalism and the Poor,” held at Drake Law School on April 14, 2012, under the sponsorship of the Drake Constitutional Law Center.

This article begins with a broad-brush survey of the doctrinal play of public/private in constitutional law. It then turns to the question of a public/private ‘ghost’ presiding from behind the scenes over all the public/private coding we meet on stage — shaping it, guiding it, imbuing it with point and purpose: some master spirit, then, whose sundry outcroppings in institutional design and doctrinal construction could be expected both to vary and to converge in interestingly describable and classifiable ways across instances of the legal forms and practices labelled as ‘constitutional’.

Constitutionalism – the idea of the subjection of even the highest political authority in a country to limits and requirements having the form and force of law — is a notion of normative political theory. A kind of constitutional contractarianism is John Rawls’s response to the question of the possibility of legitimate government in modern, plural societies. Constitutional law is a body of learning used to apply the canonical constitution’s provisions to specific controversies. Rawls has sought to ascertain the conditions of the possibility of political legitimacy in modern, plural societies. Rawls looks to democratic political culture for the makings of a basis for political agreement robust enough to support a democratic constitution even while allowing for the ingrained tendency of constitutional democracy itself to sustain a wide diversity of conflicting moral and religious doctrines. In South Africa, the Constitution expressly calls on the judiciary at all levels for performance of this responsibility.

This is my keynote address for the opening session of a three-day conference in Israel on the "20th Anniversary of Israel's Human Rights Revolution." The opening session was held at the Knesset, Jerusalem, and was introduced by the Speaker of the Knesset. (Sessions on the following days were held at Hebrew University, Jerusalem, and the Interdisciplinary Center, Hertzliya.)

Suppose we have three factors in play: a national project of post-colonial recovery from distributive injustice, prominently including land reform; express constitutional protection for property rights; and a Constitution whose other main features bring it recognizably within the broad historical tradition of liberal constitutionalism. To what extent does or must that Constitution’s overall liberal affiliation or its inclusion of a property clause impede the social-transformation project? The narrower claim of this essay is that the attractions of liberal constitutionalism do not come necessarily laden with a counter-reformative property clause. In what I would call a proper liberal view, the office of a constitutional property clause is to signal recognition of the connection between a decent respect for property and a decent respect for human dignity and freedom; it is not, however, to provide defenses for property rights beyond what constitutional protections for freedom, security, dignity, equality, and legality would anyway provide. It may, even so, be true that the conditions of distributive justice within a national society will not always be achievable by means meeting the demands of an up-and-running liberal constitutional order. The essay’s broader claim is that the fault in such cases does not, however, lie in a liberal conception of justice.

Les représentants des Critical Legal Studies se sont attaqués à une conception libérale trop simpliste du processus de décision judiciaire et des doctrines juridiques bien davantage qu’ils n’ont rejeté toute forme de libéralisme. La préparation du bicentenaire avait été, pour les historiens américains, l’occasion de rappeler une tradition républicaine un peu oubliée et certains des représentants des CLS ont cherché dans un républicanisme repensé une réponse aux problèmes qu’ils rencontraient. Cet ouvrage a pour but de faire découvrir comment la théorie américaine du droit, à partir des Critical Legal Studies, a envisagé le rapport de l’individu et de la société et les solutions adaptées au pluralisme (post)moderne. Les deux articles de Frank I. Michelman, ici traduits par Françoise Michaut, sont devenus des classiques. Ils invitent à suivre la Cour Suprême des États-Unis dans ses modes de raisonnement et à voir comment la doctrine vient ensuite, par sa réflexion, enrichir le débat sur le problème qu’a eu à traiter la Cour.