Edited by Tom Ginsburg and Rosalind Dixon
Chapter 17: Constitutional Experimentation: Rethinking How a Bill of Rights Functions
Janet L. Hiebert Legal and political scholars are curious about how recently adopted bills of rights in Canada, New Zealand, the United Kingdom, the Australian Capital Territory (ACT) and the Australian state of Victoria conceive of the project of rights protection. In choosing to adopt a bill of rights, these Westminster parliamentary systems have set aside constitutional orthodoxy, which presumed the necessity of having to make a stark choice between parliamentary supremacy and granting courts authority to determine the validity of legislation where rights are implicated.1 They have charted a new path that neither emulates the European post-war reliance on constitutional courts based on the German model, nor accepts judicial monism associated with American-style judicial review, despite its being said to have provided ‘the inspiration for the rights-protecting constitutions of liberal democracies throughout the world’ (Weinrib 2006, 84). Like more conventional approaches, these new bills of rights codify rights that are used to assess legislation and executive actions, and authorize judicial review to evaluate whether state actions are consistent with protected rights. Yet, at the same time, they distinguish the concept of judicial review from the idea that courts have final authority to determine the legitimacy of state actions where rights are implicated. In so doing, they accept the legitimacy of legislative dissent from judicial rulings, which is possible by conceiving of the scope of judicial power as more limited than in the United States (where American courts consider themselves, and are considered by most, as the ultimate authority on...
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