Law and Ethics of Human Rights
This article explores the development of ideas in constitutional design. The point of departure is a perspective of constitutions-as-products, and thus, an examination of the invention, innovation, and an uptake of these products. The article conceptualizes constitutional innovation and distinguishes its manifestations with respect to constitutional products, the process of constitution-making, and in supporting institutions. The last two elements, in line with Schumpeter’s approach to innovation, would seem especially important to constitutional development. The article provides several examples from the area of human rights and argues that innovations tend to be found in situations in which there is strong aversion to a prior order. It also shows that innovations tend to come from the periphery rather than the global core of the field. One of the sources of “mixed” constitutions is precisely such innovations, which then form raw material for further mixing.
Tom Ginsburg, "Ideation and Innovation in Constitutional Rights," 16 Law and Ethics of Human Rights 217 (2022).