Fixed Constitutional Commitments: Evaluating Climate Change Constitutionalism's "New Frontier"

This article identifies a type of constitutional provision that departs markedly from most past constitutional practice in general, and environmental constitutional practice in particular. Constitutional protections for the environment typically exhort governments, in broad terms, to pursue objectives such as mitigating climate change. By contrast, a ‘fixed constitutional commitment’ secures both a substantive policy and its precise quantum. By entrenching a specific magnitude of activity, the fixed commitment is intended to curtail vagueness, open-endedness and interest-balancing – features that, though standard in contemporary constitutional procedure, are poorly suited to chronic emergencies requiring unwavering policy responses over the long term. Fixed constitutional commitments on the environment have been enacted thus far in Australia (Victoria), Bhutan, Kenya and the United States (New York). The article evaluates these existing cases as well as prospective examples in the area of climate change. Fixed constitutional commitments raise both pragmatic and normative concerns. After setting out the defining features of such commitments, the article focuses on – and ultimately refutes – a significant normative objection: that taking foundational questions of substantive policy offline unduly curtails democratic deliberation.