Utopian Constitutionalism
成果类型：
Article
署名作者：
Dixon, Rosalind; Landau, David
署名单位：
University of New South Wales Sydney; State University System of Florida; Florida State University
刊物名称：
HARVARD INTERNATIONAL LAW JOURNAL
ISSN/ISSBN：
0017-8063; 2153-2494
发表日期：
2026
页码：
513-581
关键词：
摘要：
An extensive literature examines transformative constitutionalism: the growing tendency of constitutions around the world, especially in the Global South, to seek to transform politics and society to reduce poverty, increase inequality, and achieve other goals. Transformative constitutionalists emphasize the creation of newer rights, including economic and social rights, environmental rights, digital rights, and beyond. They also encourage innovation in judicial decision-making as a key route for the implementation of these rights. We introduce utopian constitutionalism as a potential danger for those invested in transformative constitutionalism. Transformative constitutional projects slide into utopian constitutional projects with no prospect of implementation within a realistic timeframe when there are inadequate institutional pathways to develop rights, or when those rights have insufficient popular or civil society support. This Article focuses on a comparison between the 1991 Colombian Constitution and the failed 2022 Chilean constitutional draft to clarify the distinction between transformative and utopian constitutionalism. It describes the risks posed by utopian constitutionalism, including deflection from other forms of legal change and popular disenchantment with liberal democratic constitutionalism. It uses utopianism to suggest improvements to transformative constitutional discourse and design, including greater resistance to rights inflation in constitutional texts, more attention to non-judicial pathways for enforcement, greater interest in the design of transitional norms, and a more careful balance between popular and elite involvement in constitution-making. The very survival of liberal democratic constitutionalism hinges in part on the need to prevent transformative constitutionalism from falling into utopianism.