Part V
Transnational Constitutionalism

21. A New Commonwealth Constitutionalism?  

by Claudia Geiringer


Until recently, standard accounts of the global constitutional landscape assigned the world’s constitutions to one of two dichotomous models for the constitutional protection of human rights: legislative supremacy or judicial supremacy. According to this binary taxonomy, the fi rst model is characterized by the absence of any codified bill of rights and by the allocation of final authority on human rights questions to the legislative branch of the state. The second is characterized, to the contrary, by the presence of an entrenched and supreme law bill of rights, interpreted and enforced (including as against the legislature) by courts of some kind. 1

During the late twentieth century (with the spread of constitutionalism after World War II and, again, following the break- up of the Soviet Union), it was the latter model that moved into triumphant ascendency with only a small handful of constitutional democracies holding out against constitutionalized and judicially enforced human rights protections. 2 Even so, doubts persisted (and continue to persist) in some quarters about the legitimacy of this form of court- enforced constitutionalism. Ironically, but perhaps understandably, it is from within the jurisdiction paradigmatically associated with judicial supremacy – the United States – that doubts of this kind have been most insistently expressed. The counter- majoritarian objection to judicial review (that is, the concern about the democratic legitimacy of allocating fi nal authority on constitutional issues to judges) is a leitmotif of US constitutional scholarship. 3 On the other hand, the proponents of judicial review worry, for example, about the vulnerability of minorities and the systematic under- enforcement of human rights that they say can result from unrestrained majoritarianism. 4 Resolution of this so- called constitutionalism/ democracy dilemma has resisted generations of scholarly creativity, and has been described by some as an enduring fixation of the US academy. 5

It is against this backdrop that comparative scholarship on the new generation of Anglo- Commonwealth bills of rights (in Canada, New Zealand, the United Kingdom and Australia) has emerged. As is well known, these four jurisdictions each have strong historic links to the Westminster- derived doctrine of parliamentary sovereignty, with its traditional hostility to codified human rights protection. New Zealand and the United Kingdom remain to this day the clearest proponents of unwritten (or small- c) constitutionalism, with judges in both jurisdictions continuing to ascribe to the view that – except, perhaps, in extreme and as- yet hypothetical circumstances – judges will always obey a sufficiently clear expression of legislative will. Prior to the late twentieth- century developments with which we are now concerned, Canada and Australia – which are federal states – had written constitutions, enacted at the point of federation by the Westminster Parliament. (This is still the position in Australia.) But beyond establishing the organs of federal government and specifying the horizontal and vertical division of powers, neither constitution placed significant substantive limits on legislative power. In these jurisdictions, too, the doctrine of parliamentary sovereignty remained an important feature of constitutional discourse.

Against that background, one might expect this block of Anglo- Commonwealth states to be particularly resistant to the spread of US- style constitutionalism. And so they have proved to be. On the other hand, these jurisdictions have not been entirely immune to the mounting international pressure to conform to the post- war constitutional (and juridical) paradigm of court- enforced human rights protection. 6 Out of these countervailing forces have emerged novel forms of human rights protection that adopt some of the characteristics of traditional codifi ed bills of rights but that accommodate, in various ways, the ongoing claims of majoritarianism. Thus, between 1960 and 2006, Canada, New Zealand, the United Kingdom, and two Australian sub- national jurisdictions each moved to adopt codified human rights protections in statutory (rather than capital- C constitutional) form. And in 1982, as part of the patriation of its federal constitution, Canada adopted a supreme law charter of rights but made it formally subject to majoritarian override in certain circumstances.

If nothing else, these developments break new ground by accommodating codified human rights protections (of some kind) to the Westminster parliamentary tradition. Some scholars have, however, attributed to these developments a broader significance for the study of comparative constitutional law. They have suggested that this ‘new Commonwealth model’ of human rights protection might constitute a distinct third form of constitutionalism that disrupts the traditional dichotomy between legislative and judicial supremacy and that, in doing so, has the potential to solve the impasse between constitutionalism and democracy.

This chapter discusses these developments. It documents the emergence of this new generation of Anglo- Commonwealth bills of rights, and of a body of comparative scholarship that explores its potential as a distinct and normatively advantageous model of human rights protection. The chapter pays tribute to the important contribution this ‘new Commonwealth model scholarship’ (as we might call it) has made both to constitutional theory and to constitutional design. But it also documents the emergence of a counter- literature that questions the empirical assumptions on which this scholarship rests. This counter- literature argues that claims about the distinctiveness of the new Commonwealth model rest on an oversimplified picture of inter- branch interactions under the ‘traditional’ systems of legislative and judicial supremacy, on an oversimplified picture of interbranch interactions in the systems that supposedly constitute the new Commonwealth model, and on a failure to engage with the extent to which hybridism is a feature of the comparative constitutional landscape more generally.

If scholarship on the distinctiveness of the new Commonwealth model has not provided us with all the right answers, nor even asked all the right questions, it has succeeded nonetheless in opening up new vistas of comparative constitutional engagement. Whether intentionally or not, it has also exposed important questions about comparative method – for example, about the taxonomic function of comparative law, and the trade- off between broad- brush typologies and finegrained contextualism. These questions are addressed briefly at the conclusion of the chapter.

1 A further recognized division is into systems that allocate judicial authority over the constitution
to ordinary versus special (constitutional) courts.
2 See, e.g., L.E. Weinrib , ‘ The Postwar Paradigm and American Exceptionalism ’, in S. Choudry
(ed.), The Migration of Constitutional Ideas ( Cambridge University Press , 2006 ), 89 – 92 .
3 See, e.g., B. Friedman , ‘ The Birth of an Academic Obsession: The History of the
Countermajoritarian Diffi culty, Part Five ’ ( 2002 ) 112 Yale Law Journal 153 .
4 E.g., E. Chemerinsky , ‘ In Defense of Judicial Review: A Reply to Professor Kramer ’ ( 2004 )
92 California Law Review 1013 .
5 Friedman (n. 3).
6 On that paradigm, see Weinrib (n. 2).