The amazing, vanishing Bill of Rights

Abstract

The author contends that the Constitutional Court's predilection for undertaking fundamental rights analysis in terms of the vague 'values' found in s 39(2) of the Constitution has had the deleterious consequence of denuding many of the specific substantive provisions of the Bill of Rights of their 'expected' content. The court's long-standing emphasis on minimalism does not only undermine the Bill of Rights : an approach to constitutional adjudication that makes it difficult for other judges, lawyers, government officials and citizens to discern, with some degree of certainty, how the basic law is going to be applied in any future matter, constitutes a paradigmatic violation of the rule of law. Such an approach to the interpretation of the constitutional text - and to the rule of law - cannot possibly be what the drafters of the Constitution intended.