The New Commonwealth Model of Constitutionalism

Abstract

There has been a tremendous growth in constitutionalism around the world in the last sixty years. Mostly, it has come in two concentrated bursts: in western Europe and Japan following World War II, and in central Europe and Africa following the collapse of communism in 1989. Despite fascinating and important differences in the forms that this growth has taken in various countries, the overarching story is one in which the essentials of the American model of constitutionalism have been adopted. These essentials posit a necessary and fundamental incompatibility between legislative supremacy and the effective legal protection of individual rights, so that opting for the latter requires "constitutionalizing" them in the following specific sense: giving such rights the status of supreme law; entrenching them against ordinary legislative repeal or amendment; and enforcing them through the power of judicial review, exercise of which is unreviewable by ordinary legislative means.

There has, however, been a set of recent developments in the three Commonwealth countries of Canada, New Zealand, and the United Kingdom that present an intriguing alternative to this dominant model of constitutionalism. Between 1982 and 1998, each of these three countries adopted a bill of rights in a form that self-consciously and deliberately rejected the central axiom of the American model by seeking to reconcile and accommodate judicial protection of fundamental rights with (what they see as) the legitimate core claims of parliamentary sovereignty. Although they grant significant new power to the courts to protect fundamental rights, each in a different way empowers the legislature to have the final word on what the law of the land is. This article identifies, analyzes and evaluates this new Commonwealth model of constitutionalism.

In addition to presenting novel institutional possibilities within the framework of constitutionalist democracy, the new model suggests solutions to a number of practical and theoretical problems that have long been thought to bedevil the American model. By attempting to create genuine dialogue and joint responsibility between courts and legislatures with respect to rights, the new model may both help to reinject matters of principle back into legislative and popular debates, and offer a radically direct solution to the countermajoritarian difficulty associated with judicial review.