The Limits of Constitutional Deferral: Lessons from the History of the 2004 Constitution of Afghanistan

In an important recent work, Rosalind Dixon and Tom Ginsburg noted that constitution writers regularly choose to defer to the future important questions of constitutional design. They argue that an “optimal” level of constitutional deferral might contribute to constitutional stability and help constitutions live longer. This Article argues that although constitution makers might choose to defer on many important questions of constitutional design to promote agreement, certain types of deferral might turn out to be counterproductive, and thus constitution writers’ choice to defer should be limited. The Article highlights that it is risky to defer to future legislatures the powers of institutions (such as apex courts) that are empowered under the constitution to answer other implicit deferrals. Deferring the powers of apex courts is extremely dangerous because such deferrals can potentially politicize the courts’ relationship with the political branches of the government. In response, the political branches of government might choose to resolve deferrals on the powers of apex courts in a retaliatory fashion that could limit the powers of apex courts and undermine the legitimacy and independence. Deferrals on the powers of the judiciary may simply give downstream legislatures a tool to hold apex courts hostage by threatening to amend their laws and strip them of their powers. To highlight this problem, this Article explores the decision of the makers of the 2004 Constitution of Afghanistan to defer on the powers of the Supreme Court and the Independent Commission for the Supervision of the Implementation of the Constitution to interpret the Constitution and exercise all types of judicial review. Afghanistan’s experience operating under the 2004 Constitution gives an important example of the limits of constitutional deferral