The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making

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Scholars traditionally deduce whether judicial review is weak or strong in a given country from the text of constitutional provisions (e.g. does it have an override clause, an incompatibility framework). They generally contrast between the strong form of judicial review, exercised under the US model, and weak forms of judicial review, exercised under the new Commonwealth model. My work from 2014 shows, however, that the judicial review’s strength is mainly dictated by the method used for constitution-making. As such, it challenges conventional accounts of how models of constitutionalism come about and which systems should be classified as belonging to the new Commonwealth model of constitutionalism. It reveals that the process used for adoption and amendment of a constitution defines the nature of constitutionalism in a given country more than any text included in the constitution itself.

I demonstrate that the process of constitution-making has practical implications for a country’s present and future constitutional development. The theory and narrative that a country chooses to embrace, lead to different resolutions of fundamental issues, such as: (1) the use of override clauses; (2) the effectiveness of legislative self-entrenchment provisions; (3) the legitimacy of using referenda to decide constitutional matters; and (4) the adoption of the "unconstitutional constitutional amendment" doctrine. I further suggest that the “unconstitutional constitutional amendment” doctrine may have been intended to protect the achievements of popular sovereignty (Am J Comp L, p. 160).

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Scholars traditionally deduce the nature of judicial review (whether weak or strong) in a given country from the text of constitutional provisions (e.g., notwithstanding clause, incompatibility framework). They generally contrast the strong-form judicial review exercised under the U.S. model with weak-forms of judicial review exercised under the new Commonwealth model of constitutionalism. This article argues, however, that the strength of judicial review is mainly dictated by the method used for constitution-making. As such, it challenges conventional accounts of how models of constitutionalism come about and which systems should be classified as belonging to the new Commonwealth model of constitutionalism. 

This article further asserts that the process of constitution-making has practical implications for a country’s present and future constitutional development. It explores how the various theories ascribed to a country’s process of constitution-making lead to different resolutions of such fundamental issues as: (1) the implications of using "notwithstanding" language to overcome constitutional enactments; (2) the effectiveness of legislative self-entrenchment provisions; (3) the legitimacy of using referenda to decide constitutional matters; and (4) the "unconstitutional constitutional amendment" doctrine. The article shows that the process used for adoption and amendment of a constitution defines the nature of constitutionalism in a given country more than any text included in the constitution itself.

Suggested citation:

The New Commonwealth Model of Constitutionalism Notwithstanding: On Judicial Review and Constitution-Making, 62 American Journal of comparative Law 127, 127-169 (2014).