'The New Responsive Constitutionalism' by Rosalind Dixon in (2023) Modern Law Review comments
Constitutionalism is a near universal discourse. But it comes in many different variants: it can be democratic or authoritarian, liberal or post-liberal, and legal or political in nature. The term constitutionalism has also been used to describe different regional patterns in constitutional self-government, and modes of government in a variety of spheres – including ‘global’, ‘digital’ and ‘societal’ domains.
Democratic constitutionalism itself has many variants and intersects with varying understandings of constitutionalism. Democratic constitutionalism can be legal or political in nature, and can take on a more preservative or a more transformative focus. It can likewise emphasise rights over structure (or vice versa), and either (or both) negative or positive rights traditions.
There are important real-world consequences to these debates: constitutional lawyers, drafters and judges worldwide look not only to their own domestic traditions and politics but to these theoretical ideas to guide processes of constitutional design and construction. The ongoing process of constitution-making in Chile is only one of many recent examples. Constitutional drafters in Chile have proposed a wide variety of preservative versus transformative constitutional models, with different institutional variants, all within a framework of a commitment to democratic constitutionalism.
This article describes a novel, distinctive version of democratic constitutionalism – responsive constitutionalism – which advances both thin and thick understandings of democracy, and proposes a new way of understanding democratic constitutionalism as involving a mix of legal and political, negative and positive, and entrenched and flexible constitutionalism. The idea of responsive constitutionalism draws on ideas about responsive law and regulation developed by scholars such as Nonet and Selznick, and Ayers and Braithwaite.
Manuel Cepeda has also provided a compelling account of how these ideas can, and do, inform constitutional practice in real-world settings, including in countries such as Colombia. Indeed, he has used the term ‘responsive constitutionalism’ to describe a version of constitution making, institutional design and adjudication that involves the same emphasis as responsive law theorists on notions of participatory decision-making, ‘the competence and institutional capacity of [courts] to address complex problems’ and ‘promote substantive justice’, and the value of ‘invit[ing] experts, organizations, and universities’ to contribute to processes of constitutional interpretation and implementation.
The idea of ‘responsiveness’, however, can be further adapted to fit a constitutional context, drawing on distinctive notions of institutional capacity in this context and what democracy is and requires. In previous work I have explored the idea of responsive judicial review as a distinct mode of constitutional construction and adjudication. Malcolm Langford has likewise put forward a concept of responsive courts in the context of social rights adjudication. This article attempts to spell out the broader theoretical framework in which these ideas sit, as well as the broader implications for constitutional design and construction.
A ‘new’ responsive approach to constitutionalism, the article suggests, points to the importance of both unwritten and written, and politically and judicially-enforced constitutional norms in promoting democratic responsiveness. Hence, it is contended that responsive constitutionalism emphasises the value of: institutional pluralism; overlapping institutional authority; multiple access points to institutions; broad remedial power for relevant institutions, including courts; a balance between constitutional norms that promote rights-enhancing forms of state action and limits on state action; and strong institutional checks and balances, which are bolstered by an entrenched ‘minimum core’ of a democratic constitution. However, a more flexible set of constraints are appropriate in other contexts, where the aim of a responsive constitutional model is to promote dialogue between courts and legislators.
Some aspects of this model can be achieved through formal constitutional design, and other aspects through a responsive approach to constitutional construction by courts. Constitutional design and constitutional construction will thus be potential complements as well as partial substitutes in realising a responsive model of constitutionalism. But there are also aspects of responsive constitutionalism that are beyond the scope of formal design or construction, and which depend on a supportive political and legal culture. For instance, the influence of responsive ideas on formal constitutional choices will depend on whether political elites and civil society actors support the logic of shared, balanced and/or tiered constitutional design. The effectiveness of these choices will depend on the independence and political support for institutions such as courts and ‘fourth branch’ bodies. And their continued implementation will depend on an ethos of both responsibility and restraint on the part of judges and legislators. Describing what responsive constitutionalism should look like, therefore, is not the same as saying what it would look like in different countries. This is a deeply important task, but one the article only begins to undertake.
The article illustrates these arguments by reference to examples of constitutional electoral regulation in Australia, Kenya and the UK, as well as broader examples of the non-protection of constitutional rights in Australia. These systems share a common law and democratic parliamentary tradition, and as a group, they have a range of important similarities. But they also differ in the balance they strike between legal and political models of constitutionalism. The UK is well-known as an exemplar of political constitutionalism but has also added important elements of legal protection for constitutional rights – both by accession to the European Convention on Human Rights and adoption of the Human Rights Act 1998 (HRA 1998). The Australian constitutional system combines elements of both legal and political constitutionalism, but is notable in its continued emphasis on positive, political constitutional models for the protection of rights. And the 2010 Kenyan Constitution envisages both legal and political models of enforcement but goes much further in legally entrenching a wide range of democratic constitutional commitments. In addition, the article draws on examples from Canada, New Zealand and South Africa to illustrate the broader terrain of democratic constitutional possibilities within the common law world. None of these examples prove the appeal of responsive constitutional approaches, over rival approaches. They simply show the plausibility of certain aspects of responsive constitutionalism in real world constitutional settings, and help demonstrate certain finer-grained aspects of the theory.
The remainder of the article is divided into five parts. The second part sets out different understandings of democracy, and how a responsive approach attempts to reconcile both thin and thick understandings of democracy through the idea of a democratic ‘minimum core’ and broader, more democratically mediated notions of deliberation and constitutional rights. The third part sets out the idea of responsive constitutionalism as a model of shared legal and political authority, or one that depends on both legal and political forms of constitutionalism. The fourth considers the relationship between responsive constitutional ideas and notions of positive and negative constitutionalism, and how a responsive approach favours a balanced approach to both constraining and empowering democratic states. The fifth part explores the relationship between these ideas and notions of constitutional entrenchment, and how a responsive approach points to a ‘tiered’ approach to constitutional design, but also a quite distinct one, in which the democratic minimum core and only that core enjoys heightened protection against legislative override or amendment. The sixth part considers the relevance of responsive ideas to constitutional design and construction, while the seventh offers a brief conclusion on the promise and limits of formal constitutional design and construction as capable of realising responsive constitutional ideals.
