Between charity and clarity : kibitzing with Frank Michelman on how to best read the Constitutional Court

• Author: Stu Woolman
• DOI: 10.10520/EJC153233
• Published date: 01 January 2010
• Date: 01 January 2010
• Pages: 491-514

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

1Introduction

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.

At about the same time, I was entering my second year of writing on the Court’s

‘application’ jurisprudence and was trying to come to grips with that body of work in

*

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

Woolman ‘Application’ in Woolman, Roux and Bishop (eds) Constitutional law of South Africa (2005)

(2

nd

ed) ch 31 and Woolman ‘The amazing, vanishing Bill of Rights’ (2007) 123 SALJ 762.

(2010) 25 SAPL492

the post-Khumalo era. I had taken a line, largely unwavering, since I began thinking

about the subject with my late great friend Etienne Murienik. But that line – easily

adopted as criticism and opposition under the Interim Constitution – now had to take

account of the Constitutional Court’s only pronouncement on the Final Constitution’s

application clause. In a unanimous judgment, the Court held that the Bill of Rights

does apply directly and horisontally where the content of a right so allows, and so

dictates. That conclusion was not for me my core concern. Rather, as something of

a mechanic when it comes to topics such as application, interpretation and limitation,

I was troubled by what I thought was Justice O’Regan’s gossamer thin five para-

graph explanation for the Constitutional Court’s take on the subject.

2

I knew what I wanted to say. The question was: ‘how do I say it best, without

being rude or intemperate?’ Professor Michelman, to his credit and my benefit,

worked through the core of an exceedingly long rough draft of the ‘Application’

chapter. What followed was a month of intense engagement about my text, the

judgment in Khumalo and the relevant clauses of the Final Constitution. During

this exchange, I picked up such terms of art as ‘textual plausibility’, ‘naturalness’,

‘surplusage’, ‘range of application’, ‘prescriptive content’, and, most important of

all, ‘the good faith reconstruction’. However, our exchanges did not constitute

legal language lessons. They were, and still remain, part of an effort to set out the

black letter law, a good faith reconstruction of the Court’s jurisprudence where the

Court itself has been silent, and a preferred reading where the good faith

reconstruction cannot, in my view, do the work the text naturally and plausibly

requires. Throughout these exchanges, Professor Michelman continually pushed

me to make my arguments leaner, meaner and more rigorous. (And he often

supplied the necessary language to do so.)

What I came to learn about good faith reconstructions throughout our various

exchanges was not just a technical, if important, part of my tutelage (though

Professor Michelman would never describe our exchange as such). What

Professor Michelman did for me is what he does for all constitutional law scholars

that I know: he makes their work better. And that itself is a lesson in academic

collegiality and analytical rigour – or call it a tutorial in ‘aggressive learning’.

3

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

Khumalo v Holomisa 2002 5 SA 401 (CC), 2002 8 BCLR 771 (CC)(‘Khumalo').

3

I cannot emphasise that enough. Professor Michelman is, in my opinion, one of the most influential

legal academics in South Africa because of what he has done, and continues to do, for others. See

eg, Botha, Van der Walt A and Van der Walt J (eds) Rights and democracy in a transformative

constitution: Festschrift for Frank Michelman (2003).

4

Davidson ‘On the very idea of a conceptual scheme’ in Inquiries into truth and interpretation (1984)

183, 197 (emphasis added).