Exporting U.S. Counter-Interpretation: Redeeming Constitutional Supremacy in the U.K.

Abstract

To solve the democratic deficit of U.S. style judicial review, the New Commonwealth Model of Judicial Review (NCM) gives legislatures the “final word” on law by empowering them to override Supreme Court decisions. This model was recently implemented in the United Kingdom, Canada, and New Zealand. I argue that the United Kingdom has failed and the United States has succeeded in the democratization of the interpretation of rights because the U.K.’s Human Rights Act has intermediate status while the U.S. Constitution is supreme law. Constitutional supremacy is the necessary condition for the democratization of rights, which I call “counter-interpretation.” Counter-interpretation occurs when the legislature interprets the constitution independently of and sometimes in conflict with the Supreme Court. I illustrate the link between “counter-interpretation” and constitutional supremacy in the homeland of parliamentary sovereignty, the United Kingdom. I show how during a brief period of de facto constitutional supremacy in the United Kingdom, politicians independently and in opposition to the courts interpreted the meaning of the controversial “right to family life.” I conclude by arguing that the United Kingdom should abandon parliamentary sovereignty, that the United States is a viable model for countries seeking to produce counter-interpretation, and I put forth a new more democratic model of judicial review.

Keywords: New Commonwealth Model, Human Rights Act, Counter Majoritarian Dilemma, Right to Family Life, Popular Constitutionalism, Departmentalism, New Commonwealth Model of Constitutionalism