Weak-Form Judicial Review and American Exceptionalism

摘要

By giving legislatures broad power to override constitutional rights provisions, recent Commonwealth rights charters are said to create a new ‘weaker’ model of constitutional rights protection than the traditional US model of strong-form judicial review. The article, however, argues that to date such powers have rarely if ever been used by Commonwealth legislatures, and thus have had little direct effect on the strength of judicial review in Commonwealth countries. At most, such powers may have had some indirect effect on the strength of review in the Commonwealth, compared to the United States, by encouraging greater deference by courts such as the Supreme Court of Canada to attempts by parliament to engage in ‘dialogue’ via ordinary legislative means. This more limited—and contingent—view of Commonwealth–US constitutional difference also has clear practical implications, the article suggests, for ongoing attempts to ‘borrow’ or adopt the new Commonwealth constitutional model elsewhere.