Download this Paper Open PDF in Browser

Constitutional Design Two Ways: Constitutional Drafters as Judges

44 Pages Posted: 8 Nov 2017  

Rosalind Dixon

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

Date Written: January 1, 2017

Abstract

Constitutional scholarship often assumes a strict separation between processes of constitutional drafting and interpretation. Yet on constitutional courts around the world, the judges charged with interpreting a constitution’s text are often the same people who helped write or ratify that text only a few years before. This Article examines the phenomenon of constitutional drafters as judges and the insights to be gained from a study of such judges about the nature of democratic constitution-making — i.e., the degree to which constitution making inevitably takes place over an extended time period, involves processes of constitutional interpretation as well as drafting, and combines forms of legal and political judgment. It further suggests that insights of this kind may invite closer attention to the virtues of certain kinds of judges as agents of democratic constitutional change — i.e., judges who resemble a majority of democratic constitutional drafters by possessing both legal and political relationships, skills, and commitments, or who resemble many actual drafter-judges in that they are lawyer-politicians.

Keywords: Constitutional Law, Drafting, Interpretation, Constitutional Courts, Constitutional Drafters, Democratic Constitutional Change

Suggested Citation

Dixon, Rosalind, Constitutional Design Two Ways: Constitutional Drafters as Judges (January 1, 2017). (2017) 57(1) Virginia Journal of International Law 1; UNSW Law Research Paper No. 76. Available at SSRN: https://ssrn.com/abstract=3066511

Rosalind Dixon (Contact Author)

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

Kensington, New South Wales 2052
Australia

Paper statistics

Downloads
14
Abstract Views
71