William & Mary law students had a chance to learn about constitutions from two of the pre-eminent jurists of our time - - Justice Anthony M. Kennedy of the U.S. Supreme Court and the Honorable Richard Goldstone, a former justice of South Africa's Constitutional Court - - during an April 8 panel sponsored by the Program in Comparative Legal Studies and Post-Conflict Peacebuilding (CLS/PCP).
Justice Kennedy shared his observations about the U.S. Constitution, the world's oldest written constitution, which was drafted in 1787. He harkened back to Chief Justice John Marshall, one of the Court's most influential jurists, who studied law at William & Mary. Kennedy explored the question of whether jurists such as Marshall have more freedom or more constraints when a constitution is in its infancy. Marshall, he said, "saw the Constitution as this unifying document to which we have allegiance, the document that in Madison's words [in "The Federalist Papers"] 'must endure for ages to come.'"
Interpreting a new constitution, Kennedy said, may pose a challenge for it "does not have a built-in history of allegiance and respect." However, he said, "and Justice Goldstone will know this - - with a new constitution there is an excitement, a sense that you should reach out for new ideas, that you should show how important your constitution is." Marshall did just that in 1803 in Marbury v. Madison, Kennedy said, an opinion that asserted for the first time the power of judicial review. Kennedy added that a nation's regard for its constitution is a bellwether for the rise or decline of the rule of law. "The Constitution basically stands for the rule of law and the rule of law is fragile," he said. "It can disappear."
In her introduction of the speakers, CLS/PCP Program Director Christie Warren said that Justice Goldstone is known as "one of several liberal judges who crafted and issued key rulings that undermined the apartheid system from within." After South Africa adopted its new Constitution in 1996, President Nelson Mandela appointed Goldstone to the nation's newly created Constitutional Court. Warren noted that among his many recognitions and honors, Goldstone received the Law School faculty's highest honor, the Marshall-Wythe Medallion, in 2013.
Goldstone described his experience of being among the few lawyers and judges in apartheid-era South Africa who regarded it as their duty "to apply the law as far as possible with regard to the rights of the majority, who were black South Africans." He recalled the challenges of working within a system in which "there was no power of review, we couldn't set any law of our Parliament aside. There was no constitution, so therefore there was no such thing as a law being unconstitutional." However, he said, the quest for justice went on. "Within the law we could find spaces," he said, "and apply human rights precedents that came to us, interestingly, from the Roman-Dutch law system."
He noted that when the Court faced the task of interpreting the Constitution for the first time, its authors had given them an important resource: the Constitution required them to consider international human rights law and allowed them to consider foreign laws. "I have no doubt from my own experience on the Court that when judges are facing a new and complex and difficult situation, it is a huge benefit to consult foreign law," he said. "Obviously, it is not binding. It gives one ideas, it gives one a perspective. You may agree or disagree with what the foreign court has said, but you will certainly learn from the comparison. I would suggest that judges in old and new democracies can learn from each other."
Scott Van Der Hyde J.D. '14 was in the audience and said that the occasion had special resonance for him. During the summer of 2012, he had an internship through the CLS/PCP Program that gave him the chance to work in Nepal with an organization that supported the country's constitution writing process.
"The part of the talk that I found most interesting was the discussion about different challenges with interpreting an old constitution versus interpreting a new constitution," he said. "This discussion revealed how the first few years of a constitution are extremely important in defining how much of a lasting impact it will have. I think this discussion was important for us to hear as we often take for granted that the Constitution and Supreme Court rulings will be respected, and do not always realize what an important development that was in our own legal history."
Kennedy returned to the Law School the next day to lecture and lead a discussion on "Supreme Court Decisions and the Idea of America" to students in Professor Timothy Zick's Constitutional Law class. He also engaged in a luncheon discussion with faculty about their current research.