Rosalind Dixon (University of New South Wales (UNSW) – Faculty of Law) has posted Constitutional Design Deferred on SSRN. Here is the abstract:
Constitutions around the world address an increasingly broad range of issues. Yet they also leave many issues undecided: they leave political decision-makers broad freedom to resolve a range of social, political and economic questions unconstrained by constitutional restrictions or requirements. For some issues, they adopt a hybrid approach: they make clear that particular issues are a matter of constitutional concern, but give later decision-makers the task of giving concrete content to particular constitutional requirements.
This strategy of express or implied ‘constitutional deferral’, Tom Ginsburg and I have argued, is an increasingly common feature of constitutional design worldwide. Deferral of this kind can take two broad forms: it can involve the adoption of abstract constitutional provisions that implicitly delegate a range of questions of constitutional ‘implementation’ either to later constitutional judges or legislators. Or it can involve the adoption of ‘by-law’ clauses that expressly permit or require legislators to address certain topics in the future. In more recent work, we have noticed the rise of a third mode of deferral: the adoption of specific constitutional provisions that directly conflict with one another, thereby requiring courts or legislators to make substantive choices resolving the conflict. We also see evidence of all three types of design deferral in recent instances of democratic constitutional design.
Abstract constitutional language has long been a feature of constitutional design. Indeed for early constitutions such as the US Constitution, it was often thought that abstraction in constitutional design was more or less a logical requirement of constitution-making. More recent instances of constitution-making, however, involve the frequent use of by-law clauses and specific but conflicting provisions as tools of constitutional deferral. Both by-law clauses and specific but conflicting provisions, as well as more abstract constitutional provisions, are thus now a key part of the toolkit of constitutional design worldwide.
What are the relative advantages and disadvantages of this trend in constitutional design? As Ginsburg and I noted in earlier work, deferral has two key advantages: it helps reduce both ‘decision’ and ‘error’ costs in processes of constitutional design. This can also often facilitate socially productive forms of constitutional agreement. Deferral, however, can potentially overtax the capacity of later political decision-making processes in some cases, or lead to ongoing delay, or ‘burdens of inertia’, in the resolution of important constitutional issues. How the relative benefits and costs to deferral cash-out in a particular case will thus be deeply contingent on a range of context-specific factors.
The chapter, however, also considers ways in which current approaches to constitutional design could be refined so as to promote a more limited form of deferral of various constitutional questions. One option it considers in this context is the adoption of specific time-frames for the legislative implementation of the mandate created by a by-law clause. Another is the idea of mandatory by-law clauses enforced by constitutional courts. Neither design solution, it suggests, is likely to provide a failsafe answer to the danger of permanent or prolonged, as opposed to temporary, constitutional deferral. But it also has some promise as a tool for refining, or deepening, the current global constitutional design toolkit.
To illustrate these dynamics, the chapter considers a range of instances of constitutional deferral in relatively recent constitution-making processes, including in South Africa, Kenya, Iraq and Tunisia, as well in older constitutional systems such as the US and India. It also gives detailed attention to two well-known instances of deferral by drafters not previously explored in my joint work with Ginsburg on this topic: Art 44 of the Indian Constitution requiring the Indian Parliament to take steps toward the adoption of a uniform personal code; and Art 28 of the Kenyan Constitution requiring a minimum level of gender diversity in the national parliament.
The remainder of the chapter following this introduction is divided into four parts. Part II outlines the idea of constitutional deferral, and its various forms, as well as examples of deferral in recent constitutional drafting processes. Part III canvases the advantages and disadvantages of deferral as a design strategy, and illustrate this by reference to debates over a uniform personal code, gender diversity in parliament and land reform in India, Kenya and South Africa. Part IV considers potential design solutions to the problem of ongoing or recurrent deferral, particularly in the legislative domain, and their respective advantages and disadvantages. Part V offers a brief conclusion on the relationship between constitutional drafters and judges in the process of constitutional design.
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