Tuesday, March 09, 2004

Laurence at Commentary sketches several scenarios (such as a terrorist attack or civil war in Zimbabwe) which, he fears, might prompt the South African government to amend the Constitution.

As much as I enjoy Commentary I find this rather unpersuasive. In situations such as this, the most obvious response would be not to amend the Constitution, but to declare a state of emergency. Given South Africa's experience with states of emergency in the past, the Constitution makes exceptionally clear provision for declaring future states of emergency (see section 37 of the Bill of Rights). In fact, when I heard Laurence Tribe, the US's foremost constitutional lawyer, speak in Oxford, he referred to the South African Constitution as exemplifying how states of emergency, or the types of scenarios sketched by Laurence, should be dealt with.

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