Book Review: Stephen Gardbaum, 'The New Commonwealth Model of Constitutionalism: Theory and Practice'

Abstract

A pellucid dichotomy once characterized the universe of constitutional structures for the protection of rights. The paradigm of legislative supremacy, derived from the British tradition of parliamentary sovereignty, squared off against the paradigm of judicial (or constitutional) supremacy,⁠ derived from the American tradition of an entrenched, judicially enforced bill of rights.

Stephen Gardbaum argues that a third, superior approach to rights protection now exists that draws on the strengths of the traditional paradigms without succumbing to their major weaknesses. Named after the four countries in which it first developed (Canada, New Zealand, the United Kingdom and Australia), the ‘new Commonwealth model of constitutionalism’ occupies an intermediate position between judicial supremacy and legislative supremacy.

Gardbaum’s book on the subject is an impressive piece of constitutional scholarship, offering a cogent, sophisticated account of the third paradigm. In this review, I argue that a crucial piece of the puzzle remains unexamined. An accurate assessment of the new Commonwealth model’s potential contribution to constitutional theory requires further investigation into the character, circumstances and quality of institutional interaction on rights and the constitutional conditions that improve and impede the appropriate forms of institutional interaction. Only after analyzing these issues can we provide an assessment of the feasibility of the new Commonwealth model's commendable ambitions.

Keywords: constitutional law, comparative law, human rights, new Commonwealth model of constitutionalism, Australia, Canada, New Zealand, United Kingdom