The New Commonwealth Model of 55 Constitutionalism: Theory and Practice

s a recent and ongoing experiment in constitutional design, the new Commonwealth model of constitutionalism may be something new under the sun.It represents a third approach to structuring and institutionalizing basic constitutional arrangements that occupies the intermediate ground in between the two traditional and previously mutually exclusive options of legislative and judicial supremacy.It also provides novel, and arguably more optimal, techniques for protecting rights within a democracy through a reallocation of powers between courts and legislatures that brings them into greater balance than under either of these two lopsided existing models.In this way, the new Commonwealth model promises to be to forms of constitutionalism what the mixed economy is to forms of economic organization: a distinct and appealing third way in between two purer but flawed extremes.Or, it may be, as some have claimed, more like a comet that shone brightly and beguilingly in the constitutional firmament for a brief moment but quickly burned up, a victim of the inexorable law of the excluded middle.In exploring the theory and practice of the new Commonwealth model, the book from which this article is excerpted assesses whether ink or eraser is the better response to its current penciled-in status on the short list of alternatives from which constitutional drafters everywhere make their momentous decisions."The new Commonwealth model of constitutionalism" ("the new model" for short) refers to a common general structure or approach underlying the bills of rights introduced in recent years in Canada (1982), New Zealand (1990), the United Kingdom (1998), the Australian Capital Territory (ACT) ( 2004) and the state of Victoria (2006).This approach self-consciously departs from the old or traditional Commonwealth model of legislative supremacy, in which there is no general, codified bill of rights; rather, particular rights are created and changed by the legislature through ordinary statutes on an ad hoc basis.Under this traditional model, courts have no power to review legislation for infringing rights, as rights are not limits on legislation but its product, and are changeable by it.In this way, legislatures are supreme because they ultimately determine what legal rights there are and how rights issues are resolved.The judicial function is limited to faithfully interpreting and applying whatever laws the legislature enacts.