Democratic Constitutions, Poverty and Economic Inequality: Redress Through the Fourth Branch Institutions?

Published date01 September 2023
AuthorRosalind Dixon,Mark Tushnet
Date01 September 2023
Subject MatterSpecial Issue: Inequality and Public Law (Part I)
Special Issue: Inequality and Public Law (Part I)
Federal Law Review
2023, Vol. 51(3) 285295
© The Author(s) 2023
Article reuse guidelines:
DOI: 10.1177/0067205X231188640‌lr
Democratic Constitutions, Poverty
and Economic Inequality: Redress
Through the Fourth Branch
Rosalind Dixon*and Mark Tushnet**
Accepted 20 June 2023
Fourth branch institutions are some of the most important constitutional design innovations of the
last 20 years. They combine the independence of courts with the expertise of specialised gov-
ernment agencies and possibility of a more f‌lexible approach to the law-politics divide. Equality and
human rights commissions are also some of the most common fourth branch bodies found in
constitutional systems worldwide.
Understanding the successes and failures of these commissions is critical to understanding
both our capacity as constitutional democracies to address the challenge of inequality and the
promise of fourth branch institutions as a distinctive constitutional branch. In this symposium,
we examine equality commissions in a comparative perspective, and with a distinctive question
in mind: to what extent can or do these commissions help address the challenge of poverty an d
economic inequality?
Poverty is rising in some countries and falling in others. But economic inequality is increasing in
almost all major economies. How, then, can constitutional commissions help address this problem?
Doing so requires addressing a wide range of social and economic policy issues including tax and
benef‌it policies. This means trenching on core areas of economic policy in ways that raise distinct
institutional challenges. It also means addressing challenges of economic inequality in an ap-
propriately intersectional way, which accounts for the complex ways in which sources of economic
inequality intersect with discrimination on the grounds of race, ethnicity, gender, disability and
citizenship, among other factors. These are among the reasons that these commissions face is
considerable challenges.
What factors predict the success of fourth branch institutions of this kind? The contributors to the
symposium explore a range of factors: the design of these institutions, their social and political
context and support structure, and approach to their role. Below, we also outline their tentative
* Professor of Law, University of New South Wales.
** William Nelson Cromwell Professor of Law Emeritus, Harvard University.
1. We note the existence of a philosophical literature raising the question: why if at all is inequality as such a matter of
concern? If everyone has adequate material provision (ie, if poverty has disappeared), why should we be concerned that
some have much more than others?

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