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alter the Constitutional Court’s take on the basic law. By explicitly
separating out the process of defining the ambit of a right and the
process of determining the appropriateness of any limitation, the Bill
of Rights avoids creating a binary world where the outcome of the
dispute is tied entirely to rights definition. For example, in American
constitutional law, once a particular type of conduct is deemed to fall
within the protected ambit of a fundamental right, any law limiting
the exercise of the conduct concerned is highly likely to be
invalidated under a strict scrutiny standard. 30 The two-part structure
of Bill of Rights analysis has enabled the Constitutional Court to avoid
rigid categories and expressly acknowledge the role of other state
institutions in interpreting the provisions of the Final Constitution.
The two-part structure of Bill of Rights analysis has two further
benefits when viewed through the lens of shared constitutional
interpretation. First, a relatively precise, if nuanced, approach to
limitations analysis creates the space for a fairly fastidious treatment
of rights interpretation. Second, the Court is at its best, and its most
comfortable, when it speaks to the parameters of the ‘constitutional’
and is not asked to become an oracle of the ‘optimal’. 31
However, the promise of shared constitutional interpretation will
not be fulfilled if the courts continue to rely exclusively on the
metaphor of balancing. Balancing blocks meaningful analysis of the
facts in difficult cases because it substitutes an empty image for the
more difficult task of information-gathering, norm-setting and
remedy creation. Balancing thereby carries the potential for
increased judicial deference to existing practices and, consequently,
the systematic under-enforcement of important rights. Actions
challenging public or private institutional practices typically pose the
following problems for traditional adjudication: (1) epistemic hurdles
in adapting the legal language to render faithfully important facts and
ideas from particular communities and contexts; 32 (2) evaluative
obstacles when courts need to weigh conflicting values against a
background of norms grounded in particular contexts; and (3) the
complexity of structuring suitable institutional remedies. 33
30 For a compelling account of the dilemmas posed by one-stage fundamental rights
analysis, see L Tribe & M Dorf ‘Levels of generality in the definition of rights’
(1990) 57 University of Chicago Law Review 1057.
31 See, especially, Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa, 1996 1996 4 SA
744 (CC), 1996 10 BCLR 1253 (CC) para 27.
32 See R Cover ‘1982 term foreword: Nomos and narrative’ (1983) 97 Harvard Law
Review 4 28 citing Bob Jones University v United States (1983) 461 US 574.
33
See M Dorf ‘The domain of reflexive law’ (2003) 103 Columbia Law Review 384
399 (Noting the dynamic nature of deliberation and implementation may create
novel solutions to seemingly intractable conflicts because ‘reflexivity goes both
up and down, local participation always has ingredient in it the prospect of
changing the principal norm.’)