Academic journal article Constitutional Commentary

Rights and the Rule of Law in Third Way Constitutionalism

Academic journal article Constitutional Commentary

Rights and the Rule of Law in Third Way Constitutionalism

Article excerpt

THE NEW COMMONWEALTH MODEL OF CONSTITUTIONALISM. Stephen Gardbaum. (1) Cambridge: Cambridge University Press. 2013. Pp. xii + 262. $99.00 (cloth), $39.99 (paper).

In an influential article in 2001, (3) Professor Stephen Gardbaum drew attention to a family resemblance between Commonwealth legal systems which offered some form of constitutional rights review, but within a framework that permitted the supremacy of the legislature. For example, Section 33 of the Canadian Charter of Rights and Freedoms permits legislative override of the Charter by the federal or any provincial parliament, and the United Kingdom's Human Rights Act 1998 empowers judges to declare acts of the UK Parliament incompatible with the European Convention on Human Rights, which leaves the impugned law on the books (sometimes for years). This combination of judicial review with continuing legislative supremacy, along with parliamentary and executive consideration of rights-compliance before legislation is enacted, has been noticed by others as well. Mark Tushnet classified such systems as having "weak form review," (4) and Janet Hiebert has dubbed them the "parliamentary model." (5)

In this book, Gardbaum deepens his analysis of these systems by identifying what he regards as the main characteristics of this model, and presenting an elaborate normative defense of them. He argues that the "New Commonwealth Model" found in Canada, New Zealand, the UK, and Australia represents a normatively compelling "third way" between the strong form, or "court-centric" form of constitutional rights review familiar in the United States and Germany, and the model of parliamentary sovereignty, which, in its classical British form, forbids judges to question the validity of any act of Parliament. Gardbaum's book should be of interest to American constitutional lawyers, not only because the "counter-majoritarian difficulty" is a perennial concern, and Gardbaum engages to some extent with Bickel, Ely, Tushnet, Ackerman and other leading American constitutionalists. It is also because he defends a model of judicial review that is a radical departure from the American brand.

In this review essay, I illustrate how Gardbaum has illuminated an important phenomenon in comparative constitutional law. He has shown with unparalleled rigour and insight how the various interlocking features of the Commonwealth model of constitutional rights protection work, and has put forth a novel argument about how they ought to work. However, I will also argue that his exercise in theory building is problematic from methodological and substantive standpoints. In his quest to build an "internal theory of the New Model," Gardbaum's approach equivocates between describing the jurisdictions and prescribing how they should operate. His methodology of finding a third way between two schools of thought in British constitutional theory is marred by the failure of the distinction to be stable and convincing, and by the doomed attempt to blend irreconcilable positions about the value of judicial review in a rights-based democracy.

As to substance, my key gripe is with the crucial proposal that legislatures should consider, but ultimately disregard, judicial declarations that statutes violate rights if the legislature reasonably disagrees with the judgment. This idea, I argue, is incompatible with Gardbaum's own position about legislative failures to protect rights, it holds out a Panglossian hope for legislative cooperation, and it fails to acknowledge the very substantial rule of law problems we would have in a society where judicial decisions were treated like legal advice.

I. AN OUTLINE OF THE BOOK

A. THE THEORY OF THE NEW COMMONWEALTH MODEL

Part I sets out the "theory" of the New Commonwealth Model, whereas Part II sets out the "practice," namely, the way the model operates in some key jurisdictions that recently adopted bills of rights, including Canada (1982), New Zealand (1990), the United Kingdom (1998) and some Australian states (2004, 2006). …

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