This article is an adapted and abridged version of chapter three of my book The New Commonwealth Model of Constitutionalism: Theory and Practice, which was recently published by Cambridge University Press in the UK (January 3, 2013) and the USA (February 25, 2013). It was prepared for a workshop on political constitutionalism held at Glasgow-Caledonian University on June 2, 2012 and will appear in a special issue of the German Law Journal on the topic.
In the book, which grows out of but substantially develops my previous writing on the subject, I argue that recent bills of rights in Canada, New Zealand, the United Kingdom and Australia are an experiment in a new third way of organizing basic institutional arrangements in a democracy. This “new Commonwealth model of constitutionalism” promises both an alternative to the conventional dichotomy of legislative versus judicial supremacy and innovative techniques for protecting rights. As such, it is an intriguing and important development in constitutional design of relevance to drafters of bills of rights everywhere. In developing the theory and exploring the practice of this new model, the book analyzes its novelty and normative appeal as a third general model of constitutionalism before presenting individual and comparative assessments of the operational stability, distinctness and success of its different versions in the various jurisdictions. It closes by proposing a set of general and specific reforms aimed at enhancing these practical outcomes.
The article presents the general case for the new model. In so doing, it engages with the latest contributions to the debate about the merits of judicial review, and argues that the new model radically and compellingly permits a form of “proportional representation” among the best arguments for and against the practice rather than the “warts-and-all” of the traditional either/or approach. In this way, the new model is to forms of constitutionalism what the mixed economy is to forms of economic organization: a distinct and appealing third way in between two purer but flawed extremes. Just as the mixed economy is a hybrid economic form combining the core benefits of capitalism and socialism while minimizing their well-known costs, so too the new model offers an alternative to the old choice of judicial supremacy or traditional parliamentary sovereignty by combining the strengths of each while avoiding their major weaknesses. Like the mixed economy’s countering of the lopsided allocation of power under capitalism to markets and under socialism to planning, the new model counters legal and political constitutionalism’s lopsided allocations of power to courts and legislatures respectively.