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Tulsa Journal of Comparative & International Law


In this last term, the highest courts in the U.S. and South Africa, respectively, the United States Supreme Court in Town of Castle Rock, Colorado v. Gonzales and the South African Constitutional Court in N.K. v. Minister of Safety and Security, overturned decisions from their appellate courts, the Tenth Circuit and the Supreme Court of Appeals. … This article is not primarily concerned with a comparison of the doctrinal nuances of these three cases, or of the respective constitutional mechanisms that aided the courts in coming to their decisions. This article examines the comparison, or rather, the sharp contrast between the values and spirit animating these decisions. The respective Courts' interpretations of the underlying values, or spirit of their constitutions, either help forge a special relationship between the victims and the police, thereby altering the existing distribution of entitlement and duties, or they hinder those attempts. The contrast is between a court that views its constitution as a progressive covenant between the people and its government, which fosters a culture of justification and accountability, and a court that views its constitution as a charter of negative liberties, which will go to great lengths to conserve the status quo distribution of rights and entitlements. One is intent on protecting the vulnerable members of its society, and the other is skeptical of attempts by the legislature to do so through the creation of new rights.

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University of Tulsa College of Law





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