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CONSTITUTIONALISM AND ITS MALCONTENTS Tembeka Ngcukaitobi 6 August 2024 Tonight’s lecture is entitled constitutionalism and its malcontents. I propose to defend the constitution despite its critiques and imperfections (no surprise, there). In doing so, I shall address four themes: history, inequality, representation and the place of the judiciary. Constitutionalism is a unique idea. More so in a democracy. In its raw form, the Athenian inspired impulse of democracy says that the “the people” are both the government and the governed at the same time. As desirable as this idea, it is only an ideal. Never in fact the lived reality of many. When the British introduced the limitations of the powers of the King, through that veritable instrument, the Magna Carta, of the thirteenth century, they did not in fact transfer political power to the people, but to a new political class of parliamentarians. Later revolutions in France and the United States of America also promised to upend monarchical power, transferring power, once and for all, to “the people”. An area of contention remained: what is the place of legal authority? It was to this question that Alexander Hamilton, one of the founding fathers of the American Constitution, addressed in Federalist Paper 78. The judicial branch, he argued was the “will always be the least dangerous to the political rights of the Constitution”. This is because judges “have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” A few decades later the American democracy was the subject of a study by a Frenchman, Alexis de Tocqueville, in a book called Democracy in America, published in two volumes between 1835 and 1840. He was impressed by the individual freedoms granted by the American Bill of Rights, to all men, which protected the individual from what he called “the tyranny of the majority”. Yet, du Tocqueville was not naïve as to who was excluded in the American conception of democracy: native