The Renegade Constitutionalist From Down Under
WHY YOU SHOULD CARE
Because even though Americans might think their Constitution is sacrosanct, it’s not.
By Meghan Walsh
It was supposed to be the usual keynote address, in front of hundreds of esteemed lawyers, judges and scholars attending something called the Australian Constitutional Law Conference. But Rosalind Dixon rarely does usual. Though only 35 years old, the pixie-haired Aussie professor proceeded to lecture veterans twice her age about how to interpret the country’s constitution. In her mind, the gavel-wielders out there were ruling too much by the letter of the law, without injecting enough context.
So much for diplomacy. “You could tell people were uncomfortable,” says Scott Stephenson, a colleague at the lecture.
But Dixon can get away with it when she has Mark Tushnet, one of the top legal scholars at Harvard, calling her “the leading comparative constitutional scholar of her generation.” Sure it’s not riveting dinner conversation (unless you’re a Good Wife fan, maybe), but legal minds around the world are tuning in — and watching her words turn into action. Kenya, for one, solicited her commentary on its new constitution. “You want to know what she’s thinking about,” says Samuel Issacharoff, a constitutional law professor at New York University. “Minds like hers don’t come along too frequently.”
Harvard-bred and now a professor at the University of New South Wales since leaving America three years ago, Dixon doesn’t just study vaunted legal documents, but also examines how they translate in the real world, where they have to be enforced by people and institutions with competing agendas. What she does is particularly relevant today, as countries around the world, from Afghanistan to Colombia, form new democracies. Even when it comes to America’s sacrosanct 200-year-old creed, and the infamous gray-haired bench tasked with protecting it, she says the nation’s progressively polarized politics have warped the legal process. “That’s the joy of being a scholar,” says Dixon. “You have the great freedom to tell them how to get it right.”
Scholars may have a reputation for moving at their own pace, often a leisurely one, but not Dixon. Good luck getting her on the phone — or keeping her there. When we finally catch up over Skype, she’s just finished a morning jog, and from the start the conversation is racing. In Dixon’s spare time, she swims and runs; no marathons here, though. She prefers to push herself at work. Yet she says those “leisurely” 30-minute workouts often produce her boldest ideas. One of her bold ideas: Lawmakers need to get more input from judges, since they’re the ones enforcing new laws.
There are those who write laws and those who interpret them, but Dixon’s provocative proposal is that maybe they should be one and the same. Constitutional design, she argues, doesn’t stop after the document is ratified; it’s how the sentiment is carried on in case law that shapes it. To show this, Dixon — who was born in South Africa to two lawyer parents and moved to Australia when she was 3 — has looked at how embattled democracies function judicially, politically and psychologically. That’s important when it comes to figuring out why some succeed and others fail.
There are those who write laws and those who interpret them; Dixon’s provocative proposal is maybe they should be one and the same.
Countries like India have tried to tie the hands of judges by writing amendment after amendment until the constitution is the size of a phone book, but even then it’s never perfectly thorough. That’s why Dixon feels judicial involvement is so important, and would reduce the many laws getting struck down one by one. “We can’t rely on language to do all the work,” she says. Take the Affordable Care Act. Even though it was written and passed by an elected Congress, it’s the courts that will ultimately define it. It’s clear there was an intention to allow subsidies for federal and state programs, but by dissecting certain words in the text, the Supreme Court could possibly strike down much of the law.
Although Tushnet thinks Dixon’s ideas are interesting, he doesn’t necessarily agree with all of them. “It’s not clear to me why the later interpreters would care if no one is around to do anything about it,” he says, meaning once that first generation has moved on to the afterlife, what psychological incentive would future constitutional interpreters have? Which is why he says you have to “draft a really good constitution substantively.”
Dixon’s prescription for the perfect constitution? It can’t be too rigid, because you have to allow space for future politicians and courts to shape its meaning. But it can’t be too fluid either, since it has to guard against the dangers of abuses of power. It has to prod democratic action as well as constrain it. Oh, yeah, and it has to capture the hearts and minds of citizens for generations to come. No big deal.