Rosalind Dixon

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Cornell Law Review | 2012

Rosalind Dixon; Martha Craven Nussbaum

The latter part of the twentieth century saw the near-universal recognition of the idea of children’s rights as human rights. At the same time, the conceptual basis for such rights remains largely under-theorized. Part of the aim of this article is to draw on the insights of the “capabilities approach” developed by Martha Nussbaum in philosophy, and Amartya Sen in economics, in order to provide a fuller theoretical justification of this kind. In addition, this article investigates the degree to which it will be justifiable, under such an approach, for international human rights law or national constitutions, to give special priority to children’s rights. It begins this task by first considering, and rejecting, potential justifications for such special priority based on the need to ensure the future self-reliance of children as adults and ideas about the special “innocence” of children; and, then, by developing two affirmative justifications for such special priority, based on the special vulnerability of children, and the special cost-effectiveness of protecting children’s rights. This article also explores the degree to which these principles may provide a starting point for thinking about more general trade-offs between different rights claims, or claimants, under a capabilities approach.

Supreme Court Review | 2009

Rosalind Dixon

The dominant mode of updating constitutional meaning in the United States is via judicial interpretation, or ordinary legislation, rather than constitutional amendment. On the Supreme Court’s current approach to interpretation, this also creates a serious potential problem when it comes to the updating of constitutional “rules”, as opposed to “standards” – because when it comes to such rules, the Court generally declines to adopt an evolutionary approach to the interpretation and also often strikes down attempts by Congress or state legislatures (or even voters) to pass substitute updating legislation existence. The article, however, argues that at least part of this current approach by the Court is mistaken, and that when it comes in particular to attempts by Congress or state legislatures to pass such updating legislation, the Court should instead apply a clear margin of deference to determining the validity of relevant legislative action. While theoretically novel, clear precedent for such an approach can be found in federal courts’ approach to the Treaty Clause, as well as several other constitutional contexts. By its indirect nature, such an approach also largely avoids potential objections to more direct forms of interpretive updating by the Court in the context of various constitutional rules.

Federal law review | 2015

Rosalind Dixon

A ‘functional’ approach to constitutional interpretation is well-accepted in many other jurisdictions, including the United States, and offers a promising middle path between the extremes of pure formalism and pragmatism. It is, however, under-developed as an approach to constitutional interpretation, rather than doctrine, in Australia. The article offers an exploration of what it would mean to adopt a more explicitly functionalist approach to the interpretation of the Constitution, drawing on constitutional cases decided by the High Court in 2014.

Comparative Constitutional Law in Latin America | 2017

Rosalind Dixon; Tom Ginsburg

Comparative constitutional law is a field that purports to be truly global in nature. Yet in recent years some scholars have suggested that the field suffers from a clear disciplinary bias or blind spot: it tends systematically to overlook the constitutional challenges and experiences of “the Global South” (Maldonado 2014, p 5). In economics, the Global South critique is generally understood to be a critique about the distribution of global wealth and resources: if the “North” is defined as North America, Western Europe and economically developed parts of East Asia, the North is then home to only 25 per cent of the world’s population, but controls 80 per cent of the world’s wealth. Ninety-five per cent of citizens living in the North have access to enough food, shelter and a functioning education system, whereas in the global “South” – i.e. Africa, Latin America, the Middle East and developing Asia – this figure is closer to 5 per cent. In constitutional law, the critique is somewhat different: it is that comparative constitutional law scholarship has tended to focus on the problems and challenges facing wealthy, consolidated constitutional democracies – i.e. challenges such as how best to balance commitments to individual rights and security, to respond to problems of reasonable disagreement in the context of the interpretation and enforcement of first-generation constitutional rights, or realize the claims of progressive generations to full social inclusion – while ignoring key challenges facing less wealthy and stable democracies, particularly those related to socioeconomic distribution (Maldonado 2014; Hirschl 2014). These challenges arise with different degrees of intensity in different parts of the Global South. In the last few decades, some parts of the Global South have enjoyed extended periods of democratic government, and economic growth and prosperity, while others have faced renewed threats of state failure, civil war, famine, public health crisis and rising

Icon-international Journal of Constitutional Law | 2016

Rosalind Dixon

Contrary to popular perception, the Australian Constitution does contain a bill of rights. What is exceptional about this bill of rights, however, is that it is extremely narrow in both comparative and democratic terms. This narrowness in constitutional rights protection has a direct impact on the approach of the High Court of Australia to interpreting express rights guarantees. It encourages a narrow approach to the interpretation of such rights, which itself means that incremental efforts to expand constitutional rights protection are likely to be self-defeating. The only reliable approach to expanding constitutional rights in Australia, therefore, will likely involve tackling head-on the challenge of broader constitutional change.

Archive | 2015