New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?

By Hiebert, Janet L. | Texas Law Review, June 2004 | Go to article overview
Save to active project

New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?

Hiebert, Janet L., Texas Law Review

A handful of parliamentary systems have overcome their historic reluctance to adopt a bill of rights. Yet in changing governing principles to ensure that individual rights become more explicit norms in legislative decision making, they have contributed to the emergence of a new paradigm for rights protection, which I depict as a parliamentary rights model. The significance of this model is that it tries to resist two central precepts of the American regime: that only courts determine the merits of legislation where rights are implicated, and that constitutional principles are compromised if a legislature acts in a manner that challenges or alters the judicial definition of a constitutional right.

This Article examines how this emerging paradigm conceives of institutional roles and responsibilities for judgments about rights, with a specific focus on the Canadian Charter of Rights and Freedoms (Charter)1 and the United Kingdom's Human Rights Act (HRA).2 The first Part of this Article argues that the new paradigm does not rely only on judicial review as a safeguard for protecting rights, as it also creates incentives and processes to facilitate political rights review. As a consequence, this new model has the potential to encourage critical reflection on the merits of legislation from a broader spectrum of institutional actors than is normally associated with a bill of rights. The second Part argues that despite the significantly different assumptions that inform the new paradigm, American ideas of constitutionalism remain sufficiently persuasive that many actors reject the legitimacy of political judgments about rights where they differ from judicial perspectives.

I. The Emerging Parliamentary Model of Rights Protection

A. Introduction

Parliamentary systems based on the Westminster model and those political systems with American-style judicial review have generally been treated as rival political paradigms. Unlike the latter, where courts view their mandate as allowing judges to invalidate legislation when it is inconsistent with judicial interpretations of constitutional rights, in the former, the most important right is that of collective self-government. The constitutional principle of parliamentary sovereignty is generally understood as preventing courts from declaring legislation invalid from a rights perspective when legislation is duly enacted and consistent with the rule of law. This does not mean that individual rights are not protected through interpretations of the common law. Indeed, some argue that the principle of parliamentary sovereignty itself protects rights,3 while others suggest that this principle need not, or should not, constrain judicial interpretation of rights.4 Still, the core principle that no judicial body can set aside the duly-enacted legislation of parliament stands in fundamental contrast to the emergence of judicial supremacy in the United States. Thus, the idea of codifying rights and empowering courts to interpret them creates serious tensions for parliamentary systems that emphasize the sovereignty of parliamentary judgment.

Despite this historic rivalry between competing constitutional systems, after the Second World War, Westminster-based parliamentary systems incurred growing international and domestic pressures to articulate rights for the purposes of constraining state action. Faced with a fundamental conflict between competing constitutional principles, parliamentary systems explored the idea of how to give more prominence to rights without fully abandoning reliance on parliament's judgment. Inherent doubts about the compatibility (or desirability) of the American model encouraged experimenting, borrowing, and modifying new statutory and constitutional instruments that were being introduced in countries where similar constitutional traditions prevailed.

The evolution and adaptation of these parliamentary practices represents an important contribution to constitutional thought.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?