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Kibitzing with Frank Michelman on how to best read the Constitutional Court 393
The chapter, and subsequent articles by Professor Michelman and
myself, extended that conversation over time. This article is part of that
shared effort at aggressive learning (I prefer Professor Michelman’s other apt
locution – kibitzing) designed to sharpen ‘the clarity and bite of [our] differences
… [while] enlarging the basis of shared opinion’. 4
2 Common ground and shared opinion
Here I mark out the reworked grounds upon which we both (largely)
now agree.
The first reworked ground involves a brief exposition of the place ‘the
principle of charity’ occupies in Davidson’s theory of truth and interpretation.
For it is a proper understanding of that theory of truth that animates our
mutual effort to understand what drives the Constitutional Court and other
expositors of the Court’s work.
The second reworked ground for agreement flows from my recognition
that Professor Michelman’s critique of my ‘the flight from substance
argument’ is largely correct: correct in the sense that we both agree that the
Court has not, entirely, shirked engagement with the substantive provisions
of the Bill of Rights issues in the disputes that have arisen before it. The real
issue – and the heart of this article – turns on the Court’s mistaken embrace
of judicial minimalism: a mistake that leads, in turn, to a lack of doctrinal
clarity – in a number of areas – on the part of the Court. As Professor
Michelman notes:
[Stu . . ] makes good and fair points. They go to the debate over pragmatism and
minimalism. I agree that a general policy of minimalism at the Constitutional
Court would be dubious for South Africa at this point. So, while I would not
myself, on the whole record, characterise the Constitutional Court's
performance as striking a badly wrong balance, I certainly see the strength and
importance of your view. 5
Both of us now hold the view, as Professor Michelman says, that ‘storming
over section 39(2) and direct/indirect application – and the extent to which it
leads to a flight-from-substance’ does not ‘get to the marrow’. 6 Professor
Michelman continues: ‘That was my focus in my Constitutional Court Review
piece, and I can see now that it was too narrow and potentially misleading as
to my overall view.’ 7
4
D Davidson ‘On the very idea of a conceptual scheme’ in D Davidson Inquiries into truth
and interpretation (1984) 183 197 (my emphasis).
5 E-mail from Michelman on 10 January 2010.
6
E-mail from Michelman on 12 January 2010.
7 As above.