South African Constitutional Doctors with Low Public Support

Abstract

A revolutionary conclusion arises from reading Theunis Roux’s new book on the first ten years of the South African Constitutional Court. Without explicating it in so many words, Roux shows that a national high court does not require public support to function properly. This conclusion contradicts a controlling paradigm in American constitutional theory that has emphasized for many decades that without the sword or the purse, all the Supreme Court has is public support. Without such support, according to this dominant paradigm, the Court cannot function properly. Through a critical reading of Roux’s book, I expose how his research revives Alexander Hamilton’s idea from the Federalist 78th that under certain conditions, the Court can rely on its expertise (“merely judgment”) for its proper function, even without public support.

Keywords: South Africa, expertise, public support, Hamilton