Reassessing the New Commonwealth Model of Constitutionalism
International Journal of Constitutional Law, Vol. 8, No. 2, 2010
40 Pages Posted: 30 Mar 2010 Last revised: 15 Nov 2012
Date Written: April 1, 2010
This article presents a general reassessment of the success and distinctiveness of “the new Commonwealth model of constitutionalism” as it is operating in Canada, New Zealand and the United Kingdom. In a previous article, published in 2001, I identified, labeled, and presented the case for this new, intermediate model of constitutionalism that straddles the pre-existing dichotomy of parliamentary sovereignty and constitutional or judicial supremacy. Although as an attempted contribution to general constitutonal theory, the case that I presented was primarily a normative one, parts of it depended on or assumed certain things about how the model would or does operate in practice. These areas of practice are the major focus of this article.
The article first reviews the essential characteristics of the new model and then refines and supplements the basic case for it. It argues that the new model is normatively appealing to the extent it effectively protects rights while reallocating powers between courts and political institutions in a way that brings them into greater balance than under the two more lopsided traditional models of constitutionalism. The article then takes up its main task of assessing whether the new model is achieving these twin goals - effectively protecting rights and balancing the powers of courts and the political institutions - in practice. It does so through a critical evaluation of both (1) the experience to date under its various instantiations in Canada, New Zealand, and the United Kingdom and (2) the mostly country-specific academic commentary on all aspects of its workings.
Contrary to much of this existing commentary, the article’s overall conclusion is that thus far in its short history the new model has mostly been moderately successful and distinctive in practice - at least in its New Zealand and UK versions. It also identifies a major practical dilemma that has arisen for the model as a whole and proposes how it might best be resolved, as well as a few other working adjustments that might further improve the transition from theory to practice. Accordingly, as a third general form of constitutionalism, the new Commonwealth model should be afforded its rightful place alongside judicial and legislative supremacy on the menu of options from which countries and regimes can choose.
Keywords: Constitutionalism, weak-form judicial review, judicial review, bills of rights, parliamentary bills of rights, legislative override
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