Abstract

https://ssrn.com/abstract=2085011
 


 



Deciding Not to Decide: Deferral in Constitutional Design


Rosalind Dixon


University of New South Wales (UNSW) - Faculty of Law

Tom Ginsburg


University of Chicago Law School

2011

International Journal of Constitutional Law, Vol. 9, Nos. 3/4, 2011
U of Chicago, Public Law Working Paper No. 389

Abstract:     
In designing constitutions, constitutional drafters often face constraints that cause them to leave things “undecided” — or to defer decision-making on certain constitutional issues to the future. They do this both through adopting vague constitutional language, and through specific language that explicitly delegates issues to future legislators (i.e. “by law” clauses). The aim of this article is to deepen our understanding of this second, to date largely un-examined, tool of constitutional design. We do so by exploring: (1) the rationale for constitutional deferral generally; (2) the potential alternatives to “by law” clauses as a means of addressing concerns about constitutional “error” and “decision” costs: (3) the disadvantages, as well as advantages, to such clauses: (4) the likely and actual prevalence of such mechanisms in national constitutions; and (5) the optimal use of such clauses. The paper draws on both the empirical dataset created by the Comparative Constitutions Project and case material from Australia, Brazil, Iraq, Kenya, South Africa, Taiwan, and the U.S. involving instances of arguably “successful” and “unsuccessful” constitutional deferral.

Number of Pages in PDF File: 41


Open PDF in Browser Download This Paper

Date posted: June 16, 2012  

Suggested Citation

Dixon, Rosalind and Ginsburg, Tom, Deciding Not to Decide: Deferral in Constitutional Design (2011). International Journal of Constitutional Law, Vol. 9, Nos. 3/4, 2011; U of Chicago, Public Law Working Paper No. 389. Available at SSRN: https://ssrn.com/abstract=2085011

Contact Information

Rosalind Dixon
University of New South Wales (UNSW) - Faculty of Law ( email )
Sydney, NSW 2052
Australia
Tom Ginsburg (Contact Author)
University of Chicago Law School ( email )
1111 E. 60th St.
Chicago, IL 60637
United States

Feedback to SSRN


Paper statistics
Abstract Views: 996
Downloads: 251
Download Rank: 95,604