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
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. …