Deciding not to Decide: Deferral in Constitutional Design

This article examines the practice in constitution-making of deferring certain issues to future legislators. In designing constitutions, constitutional drafters often face constraints that cause them to leave things “undecided” - or to defer decision-making on certain constitutional issues to the future. They do this both through adopting vague constitutional language, and through specific language that explicitly delegates issues to future legislators (ie, “by law” clauses, which explicitly deem a subject constitutional, but then defer almost all substantive decision-making on the subject to future decision-makers). This article focuses on this second tool of constitutional design, by exploring: (1) the rationale for constitutional deferral generally; (2) the potential alternatives to “by law” clauses as a means of addressing concerns about constitutional “error” and “decision” costs; (3) the disadvantages, as well as advantages, to such clauses; (4) the likely and actual prevalence of such mechanisms in national constitutions; and (5) the optimal use of such clauses.