The Desirability of a Property Clause: Michelman's Defence of Liberalism

Stellenbosch Law Review 24 (2):312-28 (2013)
I address Frank Michelman’s recent attempts to dispel the notion that there are deep tensions between a liberal approach to constitution making and a resolute commitment to fighting poverty, i.e., to holding what he calls ‘social liberalism’. He focuses on the prima facie tension between anti-poverty struggle on the part of government and the existence of a property clause in a constitution, a tension that several commentators in South Africa have contended requires removing that clause from its Constitution. In reply, Michelman argues that in the final analysis there need be no principled conflict between the two, which implies that amending the South African Constitution is unnecessary and perhaps even unwise. I provide reason to think that Michelman’s attempted resolution is incomplete, and suggest plausible ways to understand the legal function of a property clause in a liberal constitutional order beyond those Michelman addresses that can also help to resolve the apparent tension between it and a concerted effort to reduce poverty.
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