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Gardbaum on the New Commonwealth Model of Constitutionalism

By Lawrence Solum

Stephen Gardbaum (UCLA School of Law) has posted Reassessing the New Commonwealth Model of Constitutionalism (International Journal of Constitutional Law, Vol. 8, No. 2, 2010) on SSRN. Here is the abstract:

This article presents a general reassessment of the success and distinctiveness of ?the new Commonwealth model of constitutionalism? as it is operating in Canada, New Zealand and the United Kingdom. In a previous article, published in 2001, I identified, labeled, and presented the case for this new, intermediate model of constitutionalism that straddles the pre-existing dichotomy of parliamentary sovereignty and constitutional or judicial supremacy. Although as an attempted contribution to general constitutonal theory, the case that I presented was primarily a normative one, parts of it depended on or assumed certain things about how the model would or does operate in practice. These areas of practice are the major focus of this article.

The article first reviews the essential characteristics of the new model and then refines and supplements the basic case for it. It argues that the new model is normatively appealing to the extent it effectively protects rights while reallocating powers between courts and political institutions in a way that brings them into greater balance than under the two more lopsided traditional models of constitutionalism. The article then takes up its main task of assessing whether the new model is achieving these twin goals -- effectively protecting rights and balancing the powers of courts and the political institutions -- in practice. It does so through a critical evaluation of both (1) the experience to date under its various instantiations in Canada, New Zealand, and the United Kingdom and (2) the mostly country-specific academic commentary on all aspects of its workings.

Contrary to much of this existing commentary, the article?s overall conclusion is that thus far in its short history the new model has mostly been moderately successful and distinctive in practice - at least in its New Zealand and UK versions. It also identifies a major practical dilemma that has arisen for the model as a whole and proposes how it might best be resolved, as well as a few other working adjustments that might further improve the transition from theory to practice. Accordingly, as a third general form of constitutionalism, the new Commonwealth model should be afforded its rightful place alongside judicial and legislative supremacy on the menu of options from which countries and regimes can choose.

And from the paper:

Finally, there is the issue of judicial appointments. One wonders how much longer highest court judges in countries adopting the new model can continue to be appointed in the traditional, comparatively non-political, common law manner -- by the government alone based primarily on professional reputation, peer review, and seniority -- before calls for the types of greater  political accountability and legislative input, perhaps even the relevance of political affiliation, typical of constitutional courts exercising de jure supremacy around the world become unanswerable. Indeed, the UK has recently moved even further in the direction of greater insulation from political factors (but also greater transparency) by instituting a new, fully independent Judicial Appointments Committee to replace the opaque method of selection by the Lord Chancellor. Predictably, given the Charter?s greater age and grant of judicial power, Canada has already come under the most pressure on this front and in 2006 held its first ever ? albeit brief and entirely non-partisan -- public hearing for a nominee to the Supreme Court. In any event, increasing the political ? and perhaps especially legislative -- role in judicial appointments to the highest courts exercising weak-form judicial review, as well as possibly also adjusting tenure (perhaps renewable fixed terms in the highest courts), may also be a means of recalibrating judicial and legislative power under the new model in favor of the latter ? if thought necessary, appropriate, and not counterproductive.

Very interesting and highly recommended.

Full post as published by Legal Theory Blog on April 14, 2010 (boomark / email).