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Article
Judgments of The United States Supreme Court and The South African Constitutional Court as a Basis For a Universal Method to Resolve Conflicts between Fundamental Rights
St. John's J. Legal Comment. (2008)
  • Daniel H Erskine
Abstract
This article describes the methods utilized by the United States Supreme Court to resolve specific cases involving conflicts between federal constitutional rights, a federal constitutional right and a state constitutional or statutory right, and an international treaty right and a federal constitutional right. Consideration of particular decisions representative of the manner the Court resolves conflicts between rights in the three typologies described above, illustrates how the Court views such conflicts and the rationales employed to resolve apparent conflicting rights. The rationales used by the United States Supreme Court are compared to the South African Constitutional Court’s decisions in the Soobramoney, Grootboom, and South African Broadcasting Corp. Ltd. cases. By comparing the reasoning utilized by both courts, this article illustrates distinct judicial methods applied to rationally resolve conflicts between significant individual rights. The comparison serves to permit presentation of a universal method to resolve conflicting fundamental rights for judicial authorities to use across the broad array of legal situations in which conflicts between significant rights occurs.
Keywords
  • South Africa,
  • Constitution,
  • Supreme Court,
  • Constitutional Court,
  • decisions,
  • Fundamental rights,
  • conflict
Publication Date
Winter March 1, 2008
Citation Information
Daniel H. Erskine, Judgments of The United States Supreme Court and The South African Constitutional Court as a Basis For a Universal Method to Resolve Conflicts between Fundamental Rights, 22 St. John's J. Legal Comment. 595 (2008).