Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice, Cambridge: Cambridge University Press, 2013, 270 pp, hb £60.00, pb, £24.99.

Published date01 November 2013
DOIhttp://doi.org/10.1111/1468-2230.12052
Date01 November 2013
REVIEWS
Stephen Gardbaum,The New Commonwealth Model of Constitutionalism:
Theory and Practice, Cambridge: Cambridge University Press, 2013, 270 pp, hb
£60.00, pb, £24.99.
A pellucid dichotomy once characterised the universe of constitutional structures
for the protection of rights. The paradigm of legislative supremacy, derived from
the British tradition of parliamentary sovereignty, squared off against the para-
digm of judicial (or constitutional) supremacy, derived from the American
tradition of an entrenched, judicially enforced bill of rights. A staple of the
constitutional scholar’s diet is the lively, long-running debate between political
constitutionalists and legal constitutionalists about the adequacy and legitimacy of
each.
Stephen Gardbaum argues that a third, superior approach to rights protection
now exists that draws on the strengths of the traditional paradigms without
succumbing to their major weaknesses. Named after the four countries in which
it first developed (Canada, New Zealand, the United Kingdom and Australia),
the ‘new Commonwealth model of constitutionalism’ – or ‘new model’ –
occupies an intermediate position between judicial supremacy and legislative
supremacy. It seeks ‘to create greater institutional balance and joint responsibility
for rights’ (7), thereby ‘fostering a stronger and deeper rights consciousness in
all institutions exercising public power’ (69), through a three-stage process of
rights review. First, the executive and legislature – the ‘political branches’ – are
required to assess the rights implications of proposed statutes as they are being
drafted and debated. Second, courts undertake the familiar task of rights-based
judicial review. Third, if a court finds an incompatibility with rights, the
legislature reconsiders the issue in the process of determining whether it will
exercise its power to override the court’s ruling through the ordinary law making
process. Thus, the new model aims to enlist the judiciary in the identification
and protection of individual and minority rights while enhancing the capabilities
and preserving the ultimate power of the political branches to evaluate and
determine contested rights issues.
It is an ambitious project with substantial implications for constitutional
theory and practice. Since the end of World War II, the paradigm of legislative
supremacy has fallen from favour – Mark Tushnet states that ‘[f]or all practical
purposes [it] has been withdrawn from sale’ (‘New Forms of Judicial Review and
the Persistence of Rights- and Democracy-Based Worries’ (2008) 38 Wake Forest
Law Review 813, 814). A new paradigm would, if it were a viable alternative to
judicial supremacy, fundamentally recast the choice constitutional drafters face
on the subject of rights protection. Ireland, Israel, Poland and Romania’s adop-
tion of aspects of the new model in recent years underscores the potential
influence a novel option could have and the opportunities it might create for
constitutional innovation. An intermediate paradigm also recasts the terms of
theoretical debate. Exposing the range of constitutional structures as ‘more of a
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© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(6) MLR 1156–1169
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

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