The Download of the Week is Utopian Constitutionalism by Rosalind Dixon & David Landau. Here is the abstract:
An extensive literature examines transformative constitutionalism: the growing tendency of constitutions around the world, especially in the global south, to seek to transform politics and society to reduce poverty, increase inequality, and achieve other goals. Transformative constitutionalists emphasize the creation of newer rights, including economic and social rights, environmental rights, digital rights, and beyond, as key instruments. As well, they encourage innovation in judicial decision-making as a key route for implementation of these rights. We introduce utopian constitutionalism as a potential danger for those invested in transformative constitutionalism. Transformative constitutional projects slide into utopian constitutional projects with no prospect of implementation over a realistic timeframe when there are inadequate institutional pathways to develop rights or where those rights have insufficient popular or civil society support. This article focuses on a comparison between the 1991 Colombian Constitution and the failed 2022 Chilean constitutional draft to clarify the distinction between transformative and utopian constitutionalism. It describes the risks posed by utopian constitutionism, including deflection from other forms of legal change and popular disenchantment with liberal democratic constitutionalism. And it uses utopianism to suggest improvements to transformative constitutional discourse and design, including greater resistance to rights inflation in constitutional texts, more attention to non-judicial pathways for enforcement, greater interest in the design of transitional norms, and a more careful balance between popular and elite involvement in constitution making. The very survival of liberal democratic constitutionalism hinges in part on the need to prevent transformative constitutionalism from falling into utopianism.
Brilliant. Highly recommended. Download it while it’s hot!