Constitutional Design Deferred

Forthcoming, Elgar Handbook on Comparative Constitution Making (Elgar, 2019) Chapter 8

UNSW Law Research Paper No. 18-63

22 Pages Posted: 18 Sep 2018 Last revised: 17 Mar 2019

See all articles by Rosalind Dixon

Rosalind Dixon

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

Date Written: January 1, 2018

Abstract

Constitution-makers often leave key issues undecided, or choose to defer certain issues for future resolution. This chapter examines this practice of constitutional ‘deferral’, and its different variants in constitution-making processes worldwide – including in the form of abstract (rather than specific) constitutional language, express by-law clauses and conflicting constitutional provisions. It considers how deferral of this kind can help address both ‘decision’ and ‘error’ costs in processes of constitution-making, but also raise its own dangers of long-term delay or ‘burdens of inertia’ in constitutional implementation. Finally, it considers what if any solutions there may be to this problem of recursive constitutional referral, including the idea of time-frames for deferred action, and judicial enforcement of legislative duties of constitutional implementation.

Keywords: Constitutional Drafting, Timing, Deferral, Abstract V Concrete Language, By-Law Clauses, Conflicting Provisions, Time-Limits, Focal Points, Judicial Review

Suggested Citation

Dixon, Rosalind, Constitutional Design Deferred (January 1, 2018). Forthcoming, Elgar Handbook on Comparative Constitution Making (Elgar, 2019) Chapter 8; UNSW Law Research Paper No. 18-63. Available at SSRN: https://ssrn.com/abstract=3251095 or http://dx.doi.org/10.2139/ssrn.3251095

Rosalind Dixon (Contact Author)

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

Kensington, New South Wales 2052
Australia

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