The constitution is considered the law of the land because it the highest authority.

Constitutions have special origins

A constitution like ours may, at first glance, look just like any other Act passed by the legislature. But it is not an Act of Parliament: it was passed by a special body called the Constitutional Assembly.

Constitutions are unique - for many reasons. Most constitutions emerge out of special circumstances. Sometimes, as in the case of South Africa, they are a product of turmoil, upheaval and even revolution.

For example, most constitutional processes in Africa in the past 50 years have been preceded by struggles against racial domination, colonialism, prejudice and/or abuse. It's no surprise that the quest for democracy, self-determination and human rights forms the backdrop to many modern African constitutions.

And, given South Africa's past, it's not surprising that our Constitution frequently stresses the need to create a society that is "open and democratic", and that it emphasises dignity, justice and equality.

Constitutions reveal a country's hopes and ideals

Linked to the question of origins is one of ideals. A look at the first page of the document reveals that the language used in our Constitution is at times quite emotive - not the dry legal jargon you find in Acts of Parliament.

It's not surprising: the writers of our Constitution were emotionally invested in the process. They were dealing with the hopes of a nation being reborn - but also had to keep one eye on the very real fears created by the decades of despair that had led the country to this juncture.

There's a good example in the preamble: "We, the people of South Africa, recognise the injustices of our past; honour those who suffered for justice and freedom in our land; respect those who have worked to build and develop our country; and believe that South Africa belongs to all who live in it, united in our diversity."

Constitutions may contain a bill of rights

Constitutions and constitutionalism go hand-in-hand with human rights. Rights are often entrenched in a special part of a constitution, called a bill of rights.

Chapter 2 of the 1996 Constitution contains South Africa's Bill of Rights. It is this part of the Constitution that has attracted the greatest interest - and has had the greatest impact on South Africans - in the past few years.

These provisions deal with the rights to equality, human dignity, life and privacy, among others, as well as the freedoms of religion and expression. They also touch on labour relations, children, education and the legal process. See the page on the Bill of Rights for more.

Constitutions are harder to change

The Constitution itself is protected, which means it is more difficult to change it than it is to change a ordinary laws.

Section 74(2) states that bills amending the Constitution require a two-thirds majority in the National Assembly as well as a supporting vote of six of the nine provinces represented in the National Council of Provinces.

Some parts are even more firmly entrenched. For example, a bill amending Section 1 of the Constitution, which sets out the founding values, requires a 75 percent majority.

Constitutions are interpreted in a special way

There is much debate in legal circles about the correct approach to interpreting legislation. Historically, in the case of normal statutes, words were given their plain and literal meaning.

But this is not always appropriate for a text such as the Constitution, which needs to be read with an eye to the values that run through it. A clause in the Bill of Rights even makes this explicit: Section 39(1) says: "When interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom."

Constitutions tend to be long

Lastly, the Constitution (including its amendments and schedules - the sections that flesh out details such as the design of the flag and the oath the president takes) is well over 100 pages long. It has 14 chapters and contains more than 40 000 words - quite a bit longer than a normal piece of legislation.

Main content

More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution now known as Federalist Papers.  In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist # 78 that the federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.

The U.S. Constitution is the nation's fundamental law.  It codifies the core values of the people.  Courts have the responsibility to interpret the Constitution's meaning, as well as the meaning of any laws passed by Congress. The Federalist # 78 states further that, if any law passed by Congress conflicts with the Constitution, "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." 

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.  It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.  They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental."

The American democratic system is not always based upon simple majority rule.  There are certain principles that are so important to the nation that the majority has agreed not to interfere in these areas.  For instance, the Bill of Rights was passed because concepts such as freedom of religion, speech, equal treatment, and due process of law were deemed so important that, barring a Constitutional Amendment, not even a majority should be allowed to change them.

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:

• Publicly promulgated
• Equally enforced
• Independently adjudicated
• And consistent with international human rights principles.

The courts play an integral role in maintaining the rule of law, particularly when they hear the grievances voiced by minority groups or by those who may hold minority opinions.  Equality before the law is such an essential part of the American system of government that, when a majority, whether acting intentionally or unintentionally, infringes upon the rights of a minority, the Court may see fit to hear both sides of the controversy in court.

DISCLAIMER: These resources are created by the Administrative Office of the U.S. Courts for educational purposes only. They may not reflect the current state of the law, and are not intended to provide legal advice, guidance on litigation, or commentary on any pending case or legislation.

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