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17
CHAPTER
BETWEEN CHARITY AND
CLARITY: KIBITZING
WITH FRANK MICHELMAN
ON HOW TO BEST READ THE
CONSTITUTIONAL COURT
Stu Woolman*
[I]nfluence-anxiety does not so much concern the forerunner but rather is
anxiety achieved in and by the story ... or essay ... [T]he strong poem is the
anxiety achieved ... What matters most is ... that the anxiety of influence comes
out of a strong act of misreading [‘poetic misprision’] ... What writers may
experience as anxiety ... are the consequence of poetic misprision, rather than
cause of it. The strong misreading comes first: there must be a profound act of
reading that is a kind of falling in love with a literary work. That reading is
likely to be idiosyncratic, and it is almost certain to be ambivalent, though the
ambivalence may be veiled.
Harold Bloom The anxiety of influence: A theory of poetry
1 Introduction 1
Over the past seven years, Frank Michelman and I have engaged in an
aggressive form of learning from one another: a sport New Yorkers would call
‘kibitzing’. Our first exchange around the subject matter of this colloquy (the
application and the interpretation of the Bill of Rights) occurred around
Thanksgiving – November 2003 – at a talk given by Professor Michelman at
New York Law School.
* Professor and Elizabeth Bradley Chair of Ethics, Governance and Sustainable
Development, University of the Witwatersrand; Co-Director, South African Institute for
Advanced Constitutional, Public, Human Rights and International Law. My debt to
Professor Frank Michelman, Harvard Law School, is reflected, if not entirely repaid, in
these pages. I would also like to thank Professor Steve Ellmann, and the New York Law
School South Africa Reading Group, for creating and sustaining a space for conversation
about South African constitutional law that simply does not exist anywhere else.
1 This article is a response to F Michelman ‘On the uses of interpretive charity: Notes on
application, avoidance, equality and objective unconstitutionality from the 2007 term of
the Constitutional Court’ (2008) 1 Constitutional Court Review 1. Professor Michelman
was, in turn, responding, in part, to S Woolman ‘Application’ in S Woolman et al (eds)
Constitutional law of South Africa (2005) (2nd ed) ch 31 and S Woolman ‘The amazing,
vanishing Bill of Rights’ (2007) 123 SALJ 762.
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