We Are Under The Constitution Analysis

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Charles Hughs, a former Chief Justice of the United States Supreme Court, once commented that “We are under the constitution, but the constitution is what the judges say it is…” This comment depicts the importance of judicial interpretation of Constitutions not only in South Africa, but around the world. I argue that the South African Constitution allows for the constant evolution of itself, through changes in interpretations, to best fit the current social needs of the society and promote transformation. This freedom of interpretation is constrained to limit the possibility of negative consequences due to inarticulate premises of the judicial interpreters with respect to matters of feeling, belief or conviction in the context surrounding the legal issue.
Constitutionalism provides certain structures for governance and attempts to legitimize the transfer of power from the people, to those elected to represent them through a fair democratic
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The contrast of parliamentary sovereignty to constitutional sovereignty is vast with the latter aimed towards the protection of the individuals within the country and the former aimed at carrying out the desires of the minority in power. Under parliamentary sovereignty, the executive branch was above the law. In Ndlwana v Hofmeyr , we realise the pointlessness of questioning whether an act by a sovereign parliament is ultra vires or not, as one cannot question a power which has no limit. This portrays a system in which the legislature had little freedom to interpret the law in such a way as to protect the liberty of individuals. With the constitutional sovereignty which exists in South Africa today, not only do judges have the freedom to interpret the law in a positive manner for individuals, but they are bound to do so in the spirit, purport and objects of the Bill of Rights

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