The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making

Abstract

Scholars traditionally deduce the nature of judicial review (whether weak or strong) in a given country from the text of constitutional provisions (e.g., notwithstanding clause, incompatibility framework). They generally contrast the strong-form judicial review exercised under the U.S. model with weak-forms of judicial review exercised under the new Commonwealth model of constitutionalism. This article argues, however, that the strength of judicial review is mainly dictated by the method used for constitution-making. As such, it challenges conventional accounts of how models of constitutionalism come about and which systems should be classified as belonging to the new Commonwealth model of constitutionalism.

This article further asserts that the process of constitution-making has practical implications for a country’s present and future constitutional development. It explores how the various theories ascribed to a country’s process of constitution-making lead to different resolutions of such fundamental issues as: (1) the implications of using "notwithstanding" language to overcome constitutional enactments; (2) the effectiveness of legislative self-entrenchment provisions; (3) the legitimacy of using referenda to decide constitutional matters; and (4) the "unconstitutional constitutional amendment" doctrine. The article shows that the process used for adoption and amendment of a constitution defines the nature of constitutionalism in a given country more than any text included in the constitution itself.

Keywords: The New Commonwealth Model of Constitutionalism, strong-form judicial review, weak-form judicial review, override clause, notwithstanding, unconstitutional constitutional amendment, popular sovereignty, parliamentary sovereignty, legislative self-entrenchment, manner and form