The New Responsive Constitutionalism
| Published date | 01 July 2024 |
| Author | Rosalind Dixon |
| Date | 01 July 2024 |
| DOI | http://doi.org/10.1111/1468-2230.12853 |
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Modern Law Review
DOI:10.1111/1468-2230.12853
THE
MODERN LAW REVIEW
Volume 87 July 2024 No. 4
The New Responsive Constitutionalism
Rosalind Dixon∗
Ideas of responsive law and regulationhave been the subject of sustained scholarly attention but
only recently have scholars turned their attention to what these ideas mean for constitutional
law and governance. The article addresses this gap in the literature by exploring the idea of
responsiveness in constitutional design and interpretation.It suggests that the idea of responsive
constitutionalism points to the importance of both unwritten and written, and politically and
judicially-enforced, constitutional norms in promoting democratic responsiveness. In turn, re-
sponsive constitutionalism also reinforces the valueof: (1) institutional pluralism; (2) overlapping
institutional authority; (3) multiple access points to institutions; and (4) broad remedial power
for relevant institutions, including courts. It further suggests the need for a true balance be-
tween constitutional norms that promote rights-enhancing forms of state action and limits on
state action. And nally, it points to the value of strong institutional checks and balances and
entrenchment of the ‘minimum core’ of a democratic constitution, but a more exible set of
constraints in other contexts, where the aim of a responsive constitutional model is to promote
dialogue between courts and legislators. The article explores these ideas by reference to existing
constitutional theoretic ideas but also through illustrations drawn from Australia,Kenya and the
United Kingdom.
INTRODUCTION
Constitutionalism is a near universal discourse. But it comes in many dierent
variants: it can be democratic or authoritarian, liberal or post-liberal,and legal
or political in nature.1The term constitutionalism has also been used to de-
scribe dierent regional patterns in constitutional self-government, and modes
∗ARC Future Fellowand Scientia Professor of Law,UNSW Sydney.The author thanks Will Bateman,
Lynsey Blayden, Manuel Cepeda, Melissa Crouch,Martin Krygier, David Landau, Malcolm Langford,
Victoria Miyandazi, Will Partlett, Theunis Roux, the two anonymous referees for the MLR, as well
as colleagues at UNSW and at a December 2022 Comparative Constitutional Law workshop at
UNSW, for helpful feedback on prior versions of the article, and Hayden Clift and John Lidbetter
for outstanding research assistance. Special thanks are also due to David Landau for permission to
draw on joint work and ideas in the formulation of the article.Open access publishing facilitated by
University of New South Wales, as part of the Wiley - University of New South Wales agreement
via the Council of Australian University Librarians.
1 On liberal constitutionalism or not, see Theunis Roux, Defending Liberal Constitutions (forth-
coming, 2023). On author itarian constitutionalism, see Mark Tushnet, ‘Authoritarian Constitu-
tionalism’ (2015) 100 Cornell L Rev 391.
© 2023 The Authors. The Modern Law Review published by John Wiley& Sons Ltd on behalf of Moder n Law ReviewLimited.
(2024) 87(4) MLR 799–832
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits
use and distribution in any medium, provided the original work is properly cited,the use is non-commercial and no modications or
adaptations are made.
The New Responsive Constitutionalism
of government in a variety of spheres – including ‘global’, ‘digital’ and ‘societal’
domains.2
Democratic constitutionalism itself has many variants and intersects with
varying under standings of constitutionalism. Democratic constitutionalism can
be legal or political in nature, and can take on a more preservative or a more
transformative focus.3It can likewise emphasise rights over structure (or vice
vers a),4and either (or both) negative or positive rights traditions.5
There are important real-world consequences to these debates:constitutional
lawyers,drafters and judges worldwide look not only to their own domestic tra-
ditions and politics but to these theoretical ideas to guide processes of consti-
tutional 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 constitu-
tional models, with dierent institutional variants, all within a framework of a
commitment to democratic constitutionalism.6
This article describes a novel, distinctive version of democratic constitu-
tionalism – responsive constitutionalism – which advances both thin and thick
understandings of democracy,and proposes a new way of understanding demo-
cratic constitutionalism as involving a mix of legal and political, negative and
positive,and entrenched and exible constitutionalism.7The idea of responsive
constitutionalism draws on ideas about responsivelaw and regulation developed
by scholars such as Nonet and Selznick, and Ayers and Braithwaite.8
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.9Indeed, he has used the term ‘responsive consti-
tutionalism’ to descr ibe a version of constitution-making, institutional design
and adjudication that involves the same emphasis as responsive law theorists on
2 See for example Anne Peters,‘Global Constitutionalism’ in Michael T. Gibbons (ed),The Encyclo-
pedia of Political Thought (Malden,MA: Wiley,2015); Edoardo Celeste, ‘Digital Constitutionalism:
A New Systematic Theorisation’ (2019) 33 International Review of Law, Computers & Technology
76;Gunther Teubner, ‘Societal Constitutionalism:Alter natives to State-Centered Constitutional
Theory?’ in Christian Joerges, Inger-Johanne Sand and Gunther Teubner (eds), Transnational
Governance and Constitutionalism (Portland, OR: Hart Publishing, 2004).
3 Karl E. Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 SAJHR 146.
4 Roberto Gargarella, Latin American Constitutionalism, 1810-2010: The Engine Room of the Consti-
tution (New York,NY: OUP, 2013).
5 Nicholas W.Barber, The Principles of Constitutionalism (Oxford: OUP,2018).
6 See for example David Landau, ‘Introduction: Symposium on the Chilean Constitutional
Referendum’ Blog of the International Journal of Constitutional Law 23 September 2022 at
http://www.iconnectblog.com/introduction-symposium- on-the-chilean- constitutional-
referendum/ [https://perma.cc/WAS7-LXZ5].
7 See for example Richard Bellamy,‘Political Constitutionalism and Populism’ (2023) 50 Journal
of Law and Society 7; Richard Bellamy,Political Constitutionalism: A Republican Defence of the Con-
stitutionality of Democracy (Cambridge: CUP, 2007); Adam Tomkins,‘The Role of the Courts in
the Political Constitution’ (2010) 60 UTLJ 1; Jeremy Waldron, Law and Disagreement (Oxford:
OUP, 1999).
8 Philippe Nonet, Philip Selznick and Rober t A. Kagan, Law & Society in Transition:Toward Re-
sponsive Law (London: Routledge, 2001); Ian Ayres and John Braithwaite, Responsive Regulation:
Transcending the Deregulation Debate (Oxford: OUP,1992).
9 Manuel J. Cepeda Espinosa, ‘Responsive Constitutionalism’ (2019) 15 Annual Review of Law and
Social Science 21.
800 © 2023 The Authors. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2024) 87(4) MLR 799–832
Rosalind Dixon
notions of participatory decision-making, ‘the competence and institutional ca-
pacity of [courts] to address complex problems’ and ‘promote substantive jus-
tice’, and the value of ‘invit[ing] experts, organizations, and universities’ to con-
tribute to processes of constitutional interpretation and implementation.10
The idea of ‘responsiveness’,however,can be further adapted to t a consti-
tutional 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 construc-
tion and adjudication.11 Malcolm Langford has likewise put forward a concept
of responsive courts in the context of social rights adjudication.12 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 ar ticle 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:
(1) institutional pluralism;
(2) overlapping institutional authority;
(3) multiple access points to institutions;
(4) broad remedial power for relevant institutions, including courts;
(5) a balance between constitutional norms that promote rights-enhancing
forms of state action and limits on state action; and
(6) strong institutional checks and balances, which are bolstered by an en-
trenched ‘minimum core’ of a democratic constitution. However, a more
exible 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 inuence 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 eectiveness 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
10 ibid.
11 Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction in the Modern Age (Oxford:
OUP, 2023).
12 See Malcolm Langford, ‘Judicial Politics and Social Rights’ in Katharine G. Young (ed), The
Future of Economic and Social Rights (Cambridge: CUP,2019) 66, 69-73; Malcolm Langford, Re-
sponsive Courts and Complex Cases (forthcoming).
© 2023 The Authors. The Modern Law Review published by John Wiley& Sons Ltd on behalf of Moder n Law ReviewLimited.
(2024) 87(4) MLR 799–832 801
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