2008] The Minimum Core of Economic and Social Rights 169 proportionality-based limitations clause. 321 For example, the South African Constitution, like the Covenant, prevents limitations from interfering with the “nature of the right.”322 Yet it is more correctly pe rceived that the language of rights already heightens the normative protection that the interest is due and is subject to balancing only afterwards. Consider the example from the first case raising the right to health adjudicated in South Africa. 323 Mr. Soobramoney was a forty-one-year-old man suffering from chronic renal failure. Because he was d iabetic and suffering from other medical conditi ons, he did not qu alify for a kidney transplant; nor did he qua lify for renal dialysis from the public hospital. He argued that his constitutional right to health required the st ate to provide him with dialysis.324 This claim was rej ected by the South African Constitutional Court, which reasoned that the excessive cost of dialysis was not a reasonable burden for the state to bear. As Karin Lehmann has argued, from the perspective of the rights-holder, the decision to deny medical treatment was not because his interest be longed at the periphery of his right to health. Rather, it was made on the basis of the general welfar e. In comparing Mr. Soobramoney’s request with a differently situated patient in need of di alysis, “[t]heir subjective interest in receiving treatment is identical. The considerations that inform the decision as to which one of them will have their right realized is external to their subjective interest. It is entirely utilitarian.”325 This decision, therefore, constitutes a state limitation of the right that the court deemed a justifiable infringement.326 Balancing is not arbitrary. As Robert Alexy has theorized, balancing can be subject to its own discipline, which may protect the substance of rights far more than building a firewa ll ex ante. Like th e resources that they purport to protect, rights are also subject to the law of diminishing marginal utility: “The greater the degree of non-satisfaction of , or detriment to, one principle, the greater must be the importance of satisfying the other.” 327 Without examining the balancing exercise in detail here, it is important to draw attention to the fact that the range of constitutions ar ound the world whic h protect economic 321. See Iles, supra note 40, at 458 (“If there were a minimum core concept in our socioeconomic rights jurisprudence, s 36 [the genera l limitations clause] would have a m eaningful role to play in ju stifying failures by the state to de liver this minimum core. The inte rnal limitations would serve to jus tify failures to exp and on the m inimum core.”); see also Heads of Argum ent for Hum an Rights Comm'n of S. Afr. Cm ty. Law Ctr. as Amici Curiae Supporting Respondents, supra note 258, ¶¶ 36, 84-86 (pointing out a potentially illuminating relationship between an implied minimum core and the general limitations clause, with reference to General Comment No. 3, supra note 1). 322. S. AFR. CONST. 1996 s. 36(1)(c); Covenant, supra note 19, art. 4. For a suggestion of the link between Article 4, the proh ibition on conflicting w ith the nature of a right, and “core content,” see Coomans, In Search of the Core Content of the Right to Education, supra note 7, at 166. 323. Soobramoney v Minister of Health 1998 (1) SA 765 (CC) at 771-72 (S. Afr.). 324. Id. at 774. Soobramoney’s arguments are based upon Section 27(3), which states that “[n]o one m ay be refused em ergency medical treatment,” Section 27(1), which provides that “[e]veryone has the right to have access to . . . health care services.” Both argum ents failed. See S. AFR. CONST. 1996 ss. 27(3), 27(1). 325. Lehmann, supra note 6, at 190. 326. See S. AFR. CONST. 1996 s. 36. 327. ALEXY, supra note 118, at 102.