Reassessing the new Commonwealth model of constitutionalism

Abstract

This article presents a general reassessment of the success and distinctiveness of “the new Commonwealth model of constitutionalism” in practice. This new, third model of constitutionalism attempts to straddle the previous dichotomy of traditional parliamentary sovereignty and constitutional or judicial supremacy by adequately and effectively protecting rights through a reallocation of powers between courts and legislatures which brings them into greater balance than under these two preexisting, more lopsided models. The article considers the extent to which the new model is achieving these twin goals—protecting rights and balancing judicial and legislative powers—through a critical evaluation of recent experience under its various versions in Canada, New Zealand, and the United Kingdom and the mostly country-specific academic commentary on all aspects of its workings. The article concludes that the new model has for the most part been moderately successful and distinctive in practice, and proposes a few working adjustments that might make it more so in the future.