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The Case for the New Commonwealth Model of Constitutionalism

Published online by Cambridge University Press:  06 March 2019

Stephen Gardbaum

Abstract

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The article presents the normative case for the new Commonwealth model as a novel third way of organizing basic institutional arrangements in a democracy and an alternative to the conventional dichotomy of legal or political constitutionalism. In so doing, it engages with the latest contributions to the debate about the merits of judicial review, and argues that the new model radically and compellingly permits a form of “proportional representation” among the best arguments for and against the practice rather than the “warts-and-all” of the traditional either/or approach. In this way, the new model is 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. Just as the mixed economy is a hybrid economic form combining the core benefits of capitalism and socialism while minimizing their well-known costs, so too the new model offers an alternative to the old choice of judicial supremacy or traditional parliamentary sovereignty by combining the strengths of each while avoiding their major weaknesses. Like the mixed economy's countering of the lopsided allocation of power under capitalism to markets and under socialism to planning, the new model counters legal and political constitutionalism's lopsided allocations of power to courts and legislatures respectively.

Type
Part II: The Relationship Between the Courts and Political Institutions
Information
German Law Journal , Volume 14 , Issue 12: Special Issue—Political Constitutions , 01 December 2013 , pp. 2229 - 2248
Copyright
Copyright © 2013 by German Law Journal GbR

Footnotes

*

MacArthur Foundation Professor of International Justice & Human Rights, UCLA School of Law, [email protected]. This article is an adapted and abridged version of chapter 3 of my recently published book The New Commonwealth Model of Constitutionalism: Theory and Practice (2013), and was originally presented to the workshop on political constitutionalism held at Glasgow-Caledonian University on 7 June 2012. Copyright © 2013 Cambridge University Press. Reprinted with permission.

References

1 Unless otherwise stated, I shall be using the terms constitutional review and judicial review (in the American sense) synonymously throughout this article.Google Scholar

2 For a much fuller account of what is new about the new model, see Stephen Gardbaum, The New Commonwealth Model 2 (2013).Google Scholar

3 See Adam Tomkins, Our Republican Constitution (2005); see also Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (2007); Aileen Kavanagh, Constitutional Review under the UK Human Rights Act 338–403 (2009).Google Scholar

4 See, e.g.,Fallon, Richard H. Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693 (2008); Harel, Alon & Kahana, Tsvi, The Easy Core Case for Judicial Review, 2 J. Legal Analysis 1 (2010); Mattias Kumm, Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review, Eur. J. Legal Stud., December 2007, at 1 [hereinafter Kumm, Socratic Contestation]; see also Mattias Kumm, Democracy is Not Enough: Rights, Proportionality and the Point of Judicial Review (N.Y.U. Pub. L. & Legal Theory, Working Paper No. 118, 2009) [hereinafter Kumm, Democracy is Not Enough], available at http://www.law.harvard.edu/faculty/faculty-workshops/kumm.paper.i.pdf; Mark Tushnet, How Different are Waldron's and Fallon's Core Cases For and Against Judicial Review?, 30 Oxford J. Legal Stud. 49 (2010); Waldron, Jeremy, The Core of the Case Against Judicial Review, 115 Yale L.J. 1348 (2006).Google Scholar

5 Kumm, Socratic Contestation, supra note 4, at 1.Google Scholar

6 Id.Google Scholar

7 Kumm, Democracy is Not Enough, supra note 4, at 38.Google Scholar

8 Fallon, supra note 4, at 1733–34.Google Scholar

9 Waldron, supra note 4, at 1354.Google Scholar

10 Waldron, Jeremy, Judges as Moral Reasoners, 7 Int'l J. Const. L. 2, 24 (2009).Google Scholar

11 For previous, briefer arguments for the new model generally, see Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707, 744–48 (2001). See also Stephen Gardbaum, Reassessing the New Commonwealth Model of Constitutionalism, 8 Int'l J. Const. L. 167, 171–75 (2010); Jeffrey Goldsworthy, Homogenizing Constitutions, 23 Oxford J. Legal Stud. 483 (2003); Michael J. Perry, Protecting Human Rights in a Democracy: What Role for Courts?, 38 Wake Forest L. Rev. 635, 662–68 (2003).Google Scholar

12 A “reallocation” does not necessarily mean a “transfer” of power from one institution to the other. Thus, in being given the two new powers of declaring an incompatibility and interpreting statutes in a rights-consistent way wherever possible, UK courts are not exercising powers previously held by Parliament. See Kavanagh, supra note 3, at 277–78.Google Scholar

13 Although I am primarily discussing the new model within the framework of the domestic democratic polity, it could also be applied to entities beyond the state.Google Scholar

14 See Waldron, supra note 4; see also Fallon, supra note 4, at 1735; Kumm, Socratic Contestation, supra note 4; Wojciech Sadurski, Judicial Review and the Protection of Constitutional Rights, 22 Oxford J. Legal Stud. 275, passim (2002).Google Scholar

15 See Tomkins, supra note 3, at 27–29; see also Waldron, supra note 10. Mattias Kumm argues that the sort of legalistic distortions they describe are not a feature of contemporary rights adjudication in Europe under proportionality analysis. Kumm, Socratic Contestation, supra note 4, at 5–13. However, the second-order task of assessing the reasonableness of the government's justification for a law, which Kumm argues is the point of judicial review, arguably replaces one set of distorting filters with another so that courts still do not directly address the merits of the rights issues. Moreover, the absence of such law-like reasoning may heighten the internal concerns about the legitimacy of the enterprise.Google Scholar

16 See, e.g., Alexander M. Bickel, The Least Dangerous Branch (1962); see also Rosalind Dixon, The Supreme Court of Canada, Charter Dialogue, and Deference, 47 Osgoode Hall L.J. 235 (2009); Fallon, supra note 4; Kumm, Socratic Contestation, supra note 4; Perry, supra note 11 (making the case for the new model).Google Scholar

17 Fallon, supra note 4, at 1718–22.Google Scholar

18 Kumm, Democracy is Not Enough, supra note 4, at 2128.Google Scholar

19 Id.Google Scholar

20 See Kyritsis, Dimitrios, Constitutional Review in Representative Democracy, 32 Oxford J. Legal Stud. 297, 297– 324 (2012); see also Perry, supra note 11.Google Scholar

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23 Kumm, Socratic Contestation, supra note 4, at 4. In The Easy Core Case, Harel and Kahana present a broadly similar justification of judicial review, which they argue is designed to provide individuals with a necessary and intrinsic right to a hearing to challenge decisions that impinge on their rights, although they do not embed their justification in terms of the general legitimacy of law. See Harel & Kahana, supra note 4.Google Scholar

24 Kumm gives this example, based on the 1981 ECHR case of Dudgeon v. United Kingdom. See Kumm, Socratic Contestation, supra note 4, at 22–24 (citing Dudgeon v. United Kingdom, ECHR App. No. 7525/76 (Feb. 24, 1983), http://hudoc.echr.coe.int/).Google Scholar

25 On judicial under-enforcement of rights generally, see Lawrence G. Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978). On the argument that rights have been under-enforced by the judiciary under the HRA, see K.D. Ewing, The Futility of the Human Rights Act, Pub. L. 829 (2004). See also K.D. Ewing & Joo-Cheong Tham, The Continuing Futility of the Human Rights Act, Pub. L. 668 (2008), available at http://www.law.monash.edu.au/castancentre/events/2008/ewing-tham-article.pdf; K.D. Ewing, The Bonfire of the Liberties: New Labour, Human Rights, and the Rule of Law (2011).Google Scholar

26 Korematsu v. United States, 323 U.S. 214 (1944).Google Scholar

27 The classic statement of this argument was made by James Bradley Thayer. See James Bradley Thayer, John Marshall (1901). Thayer considered that the tendency of legislatures within a system of judicial supremacy to leave consideration of constitutional limits to the courts and to assume that whatever they can constitutionally do they may do, meant that “honor and fair dealing and common honesty were not relevant to their inquiries.” Even more famously, he argued that as judicial review involved the correction of legislative mistakes from the outside, it results in the people losing the “political experience, and the moral education and stimulus that come from … correcting their own errors. [The] tendency of a common and easy resort to this great function [is] to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.” Id. at 103–107.Google Scholar

28 Lochner v. New York, 198 U.S. 45 (1905).Google Scholar

29 Fallon, supra note 4, at 1709.Google Scholar

30 For general works on this issue, see Steven M. Shavell, Economic Analysis of Accident Law (1987) and Charles D. Kolstad, Thomas S. Ulen & Gary V. Johnson, Ex Post Liability for Harm vs. Ex Ante Safety Regulations: Substitutes or Complements?, 80 Am. Econ. Rev. 888 (1990).Google Scholar

31 For the few exceptions to this standing limitation and for general discussion of the merits and critiques of abstract review, see Victor Ferreres Comella, Constitutional Courts and Democratic Values 66–70 (2009).Google Scholar

32 This conceptualization and defense was first presented in Marbury v. Madison, 5 U.S. 137 (1803). Harel and Kahana's argument in The Easy Core Case seeks to justify “case-specific judicial review” only and not the broader precedential force of these decisions underlying claims of judicial supremacy, although they believe their argument has “implications” for the latter. See Harel & Kahana, supra note 4.Google Scholar

33 Tomkins, supra note 3, at 29.Google Scholar

34 See, e.g., Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (1991); see also Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000); Waldron, surpa note 4.Google Scholar

35 This argument originates with Alexander Hamilton in Federalist Paper 78. The Federalist No. 78 (Alexander Hamilton).Google Scholar

36 Waldron, supra note 4, at 1393.Google Scholar

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38 A different form of “proportional representation,” one that allocates greater weight to legal constitutionalism, would be to employ the new model for social rights but to retain strong-form judicial review for civil and political rights. See Mark Tushnet, The Relation Between Political Constitutionalism and Weak-Form Judicial Review, 14 German L.J. 2237 (2013).CrossRefGoogle Scholar

39 Jeffrey Goldsworthy, Parliamentary Sovereignty: Contemporary Debates 302–303 (2010).CrossRefGoogle Scholar

40 Fallon, supra note 4, at 1707.Google Scholar

41 The current delaying power of the House of Lords is one year under the 1949 Parliament Act. See Parliament Act 1949, 1949, 12, 13 & 14 Geo. 6, c. 103 (U.K.).Google Scholar

42 Fallon, supra note 4, at 1708.Google Scholar

43 The most famous of which is “the Wednesbury unreasonableness” test in the United Kingdom. See, e.g., Associated Provincial Picture Houses v. Wednesbury Corp., [1947] EWCA Civ. 1, [1948] 1 K.B. 223 (appeal taken from Eng.).Google Scholar

44 See Perry, supra note 11, at 661. Mattias Kumm also appears to accept this principle, which is why for him judicial review is limited to policing the boundaries of the reasonable.Google Scholar

45 That is, in applying the second and third prongs of the proportionality principle courts tend to ask whether the legislature's justification for limiting a right is in fact necessary (or the least restrictive means) and proportionate in the strict sense, rather than reasonably necessary and proportionate. I, too, have argued that under ordinary (e.g., strong-form) judicial review courts should limit themselves to asking whether the government's justification for limiting a right is reasonable, contrary to the general practice—although for a somewhat different reason than Kumm. Stephen Gardbaum, Limiting Constitutional Rights, 54 UCLA L. Rev. 789 (2007).Google Scholar

46 See Kumm, supra note 4, at 28.Google Scholar

47 At the time of the HRA's enactment, no other system of constitutional review of legislation in the world— domestic or international, past or present—contained the same or a similar judicial power. It was subsequently adopted in New Zealand by judicial interpretation. See, e.g., Moonen v Film & Literature Review Bd. [2000] 2 NZLR 9 (CA) 17 (N.Z.). Ireland adopted it as part of the European Convention on Human Rights Act. European Convention on Human Rights Act (Act No. 20/2003). It was adopted in Australia as part of both the Human Rights Act and Victorian Charter of Human Rights and Responsibilities Act. See Human Rights Act 2004, (ACT); Victorian Charter of Human Rights and Responsibilities Act 2006, (Cth).Google Scholar

48 Waldron, Jeremy, Participation: The Rights of Rights, 98 Proc. Aristotelian Soc'y 307 (1998), available at http://www.jstor.org/discover/10.2307/4545289?uid=3739936&uid=2&uid=4&uid=3739256&sid=21102979858137.Google Scholar