The New Responsive Constitutionalism

Abstract

Ideas of responsive law and regulation have 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, responsive constitutionalism also reinforces the value of: (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 between constitutional norms that promote rights-enhancing forms of state action and limits on state action. And finally, it points to the value of strong institutional checks and balances and entrenchment of the ‘minimum core’ of a democratic constitution, but a more flexible 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.