Contemporary Emanations of the Caribbean Legal Revolution:

A Tribute to Professor A.R. Carnegie Caribbean Law Yearbook, Vol. 1 Issue 1

By Daniel Koosed Juris Doctor Candidate 2012

University of Miami School of Law

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The language they're conducted in dictates the play in these debates. Good english, as they say, discriminates. White people language white as sin. Mervyn Morris, "Post-colonial Identity"

Part I: The Incalculable Significance of Professor Carnegie's Legacy

Professor Ralph Carnegie was a Founding Father of Caribbean jurisprudence. He

was also a Rhodes Scholar, international lawyer, founding member and Professor

Emeritus of the Cave Hill School of Law in Barbados and one of the most preeminent

constitutional law scholars in the world1. As such, he has been widely and warmly

described as the "Justice John Marshall of the Caribbean." His life and work stand as

remarkable examples of how a profound, almost mystical, appreciation for British

common law and constitutional government modeled on the Westminster system may be

reconciled with an unremitting pride as a native son of the West Indies.

Professor Carnegie recognized, on both an intuitive and intellectual level, the

significance of the Westminster model's potential as a framework through which then-

newly independent West Indian states could achieve self-determination and the

realization of a fair justice system, the central promises of Independence. As Professor

Tracy Robinson, Law Lecturer at Cave Hill and one of Professor Carnegie's former

students, has explained, his reverence for the law -- especially its mysteries -- rendered

1 Professor Carnegie was also instrumental in the development of several CARICOM institutions; held the positions of Executive Director of the Caribbean Law Institute Centre (CLIC) and Commissioner of the Regional Judicial and Legal Service Commission; .

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his lectures "full of mystique," often leaving those in attendance "bewildered, captivated

and awed at the same time."

Notwithstanding his unquestionably refined abilities as a thinker and teacher, this

"mystique" may be understood as an inevitable byproduct of Professor Carnegie's deeply

personal appreciation for the "legal mysteries" underlying both constitutional theory in

general as well as the legally "revolutionary" reorganization of West Indian governments

and legal systems upon their attainment of independence from the British Empire.

Professor Robinson says that, when discussing this phenomenon in his lectures,

Professor Carnegie would explain, "we knew what happened, but we could not explain

how it happened. We knew our constitutions were supreme after independence, but how

did this happen when the UK Parliament was sovereign and intrinsic to that sovereignty

was that its power could not be abdicated?"

In his 1984 address at a symposium jointly sponsored by the Government of

Jamaica and the Norman Manley Law School commemorating the 150th anniversary of

the Abolition of slavery, Professor Carnegie drew a comparison between Abolition and

Independence by describing both, albeit indirectly, as consequences of "a process of

development in constitutional law." 2 This assertion speaks to Professor Carnegie's

conceptualization of constitutional law as "the meeting-place of government and law."3

Considered in light of their basic utility as "blueprints" for the structure, function

and separation of governmental institutions and powers, this proposition may appear to

be, at least at first, self-evident. What quickly becomes apparent, however, when

2 A.R. Carnegie, "The Importance of Constitutional Law in Jamaica's Development," West Indian Law Journal, Special Issue Commemorating the 150th Anniversary of the Abolition of Slavery (October 1985) 43. 3 Id. at 46.

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investigating the nature and extent of Professor Carnegie's jurisprudential influence, is

that his ideas are consistently more complex and nuanced than his exceptionally concise

articulations of them might suggest.

For example, comparative analyses of the United Kingdom's "unwritten

constitution" and the written constitutions of common law states formerly part of the

British Empire almost invariably characterize this formal written/unwritten distinction as

the source of all other structural differences between the systems. Professor Carnegie,

however, was clearly too enamored by the subtle complexities of constitutional theory to

uncritically accept this rather reductionist premise. Thus, he formulated a unique

theoretical framework capable of incorporating the consideration of both written and

unwritten instruments into constitutional theory, regardless of whether the constitution in

question has, as in the Caribbean states, been encapsulated within a textual document

called a "Constitution" or has, as in England, developed as the culmination of centuries of

tradition, habit and convention.

Consequently, Professor Carnegie insisted that, regardless of form, every

democracy modeled on the Westminster system is governed by both a constitution (with

a small 'c') and a Constitution. He argued that "the constitution" incorporates rules that,

"although not found in the Constitution, are clearly constitutional in functional effect, and

that constitutional law includes those rules as well as the content of the Constitution."4

The difference, he explained, is that "the upper case should be used for the document and

the lower case for the set of all rules of constitutional effect."5

4 "The Importance of Constitutional Law" at 48. 5 Id. at 49.

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This uniquely synthetic conception of constitutional theory reflects Professor

Carnegie's conviction that, as it is practically impossible to draft a document capable of

expressing constitutional principles of universal validity "in such a way as to cover all its

aspects and all its variations" and since "there are some constitutional problems which

may not admit of a solution by any formulae, no matter how logically constructed," those

seeking to understand and apply principles of Westminster constitutionalism have no

choice but to "rely on experience and reasonableness and restraint for its effective

working."6

By simultaneously emphasizing the importance of both liberal constitutional

construction as well as the practical incorporation of experience, reasonableness and

restraint into such construction, Professor Carnegie's jurisprudential philosophy itself

embodied both a break from and a continuation of the ancient British common law

sensibility: "The English lawyer...instinctively prefers brass tacks to noble phrases,

pragmatism to metaphysics...Above all, there is a natural tendency to feel that lessons

drawn from one's own experience have universal validity."7 By unifying a decidedly

"non-English" emphasis on the "mysteries" of the law with a closely held conviction of

the utility of practical experience and restraint deeply consonant with the common law

tradition of England, Professor Carnegie himself, in a sense, personified the trajectory of

Caribbean common law's post-independence development, firmly rooted in the ancient

and venerable traditions of the past yet at the same time willing to traverse new legal

horizons in ways unimaginable to the founders of those traditions.

6 Id. at 49, 50. 7 De Smith, "Fundamental Rights in the New Commonwealth," 10 Int'l & Comp. L.Q. 83, 84 (1961).

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By identifying the limitations inherent in both overly formal and excessively

flexible approaches toward constitutional law, Professor Carnegie infused the

development of constitutional discourse with an understanding of its own limitations.

Indeed, his innate sense of the limitations of formalism and legal language itself seems to

have informed his ideas in remarkably unusual ways. For example, Professor Carnegie

enjoyed concluding his public presentations by reflecting on the fact that, in light of such

insurmountable limitations, "the poet's work is thus needed to complement that of the

lawyer."8

Notwithstanding the unconventionality inherent in any legal expert expressing the

need for deference to anyone without such specialized knowledge, this particular view of

Professor Carnegie's is in fact incredibly illuminating in terms of understanding just what

it is we are talking about when we discuss constitutions. Rather than adhering to a

narrowly positivist construction of constitutional language as an immutable expression of

inflexible rules subject to exclusive and concrete definition, Professor Carnegie

recognized the highly symbolic nature of all constitutional texts: "Where scientific theory

fails in constitutional matters, symbolism may help, and the poet is the practitioner of

symbolism."9

This is why I have chosen to begin this paper precisely where Professor Carnegie

so loved to finish his: with poetry. I believe Professor Carnegie would have appreciated

this particular epigraph, authored by fellow Jamaican Rhodes Scholar and poet Mervyn

Morris. Moreover, Professor Carnegie's identification of constitutional text as highly

symbolic language bearing an essential kinship with the semiotics of poetry is not only an

8 Id. at 50. 9 Id.

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idiosyncratic expression of an incomparably literate mind; it is also a tremendously useful

lens through which the entirety of a given constitutional text's meaning may come close

to being ascertained.

As Professor Simeon C.R. McIntosh of Howard University Law School has noted,

both poetics and constitutional texts share a fundamental "excess of signification or

meaning."10 Echoing Professor Carnegie's assertion of the impossibility of imbuing a

constitutional text with the capacity to explicate every conceivable exigency it is intended

to govern, Professor McIntosh characterizes constitutional text, regardless of form, as

"essentially 'incomplete,' since...[it] could not possibly state all that could have been said,

once and for all, in virtue of the subject it addresses."11

When viewed in this light, debates surrounding the practice of judicial review are

revealed to be, in reality, debates "about the correct theory of constitutional

interpretation," rather than the mechanistic application of constitutional provisions.12 The

flexibility inherent in this type of interpretive approach grants judges the power to "mold

the substance of the constitutional document, and hence political life itself," an awesome

power to be sure, and one that the British constitutional system has historically sought to

restrain through adherence to the doctrine of Parliamentary sovereignty.13

The interpretive perspective bears unique significance in the Caribbean

constitutional context, in which, "[o]wing to their origin as colonial creations, the new

states have had their constitutions adopted for them by the colonial power or under the

10 Simeon C.R. McIntosh, "A Poetic for Law: Constitutional Theory as Metaphor," 30 How. L.J. 355 at 370. 11 Id. at 375. 12 Id. at 408. 13 William C. Gilmore, "The Associated States of the Commonwealth Caribbean: The Constitutions and the Individual," 11 Law. Am. 1 1979 at 17.

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authority of a law enacted by it."14 Professor Carnegie himself identified within this

process one of the most significant theoretical problems in Caribbean constitutional law,

i.e., the apparent abdication of Parliamentary sovereignty upon attainment of

independence and the adoption of written constitutions:

The typical Constitutional Order in Council prescribes the adoption of pre-existing Laws and identifies pre-existing institutions of state as those which the language of the Constitution itself will purport to create...This appearance of unbroken continuity...has concealed a major theoretical problem in constitutional law. One of the basic doctrines of constitutional law of the United Kingdom and Colonies is that of the supremacy of the United Kingdom Parliament, a power incapable in some views of being abdicated...[And] since the constitutional law preceding independence could with equal intransigence not contemplate the disappearance of that over-riding authority, its factual disappearance can only be explained by supposing that a revolution has occurred.15

The question of how a power whose very definition renders it incapable of abdication can

simply "disappear" was clearly one that Professor Carnegie considered compelling,

complex and uniquely relevant to Caribbean constitutional law. An issue closely related

to this legal paradox is how to evaluate the legitimacy of a new republic's constitution

when that constitution has been drafted by the very same colonial power granting it

independence.

It is in reference to this second question that Professor Carnegie's symbolic

approach toward constitutional construction may be most advantageously utilized. In

light of the fact that the very nature of a symbol necessarily subjects it to a multitude of

equally valid definitions, "a symbol-maker may never be fully aware of all that is

designated by the symbol."16 Thus, in much the same way that the substantive due

14 Simeon C.R. McIntosh, "West Indian Constitutional Theory: An Essay," 32 How. L.J. 735 at 736. 15 A.R. Carnegie, "The Approach of Independence for the Associated States: A Constitutional Law Perspective," 4 Bull. E. Caribbean Aff. 8 (1971) [emphasis added]. 16 "A Poetic for Law" at 427.

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process doctrine of United States constitutional law has, inarguably, augmented the scope

of the Fourteenth Amendment's guarantee of "liberty" beyond any bounds reasonably

contemplated by its drafters, the significance of the colonial origin of nearly all West

Indian constitutions is primarily historical, not legal. Just as the sovereign power of

British Parliament irrevocably devolved upon the Caribbean State itself at the moment of

independence, the importance of the constitutions' imperial origin became irreversibly

subordinated to their new status as the law of the land of the former colony upon

independence.

The "sovereignty problem" Professor Carnegie grappled with may best be

articulated as follows: "Whether a new State may be founded on the basis of a valid legal

act of another State, albeit the State which was once the imperial power in the territory

which is now the sphere of validity of the new, emergent State."17 While it is indeed a

complex and paradoxical problem, its solubility is not necessarily unattainable. Solving it,

however, requires applying the rubric of political theory, as it is substantially broader in

scope than strictly legal analysis.

In the context of Britain itself, such abdication of sovereignty would be indeed

impossible, since it "would be tantamount to the State absolving itself of the

responsibility of being the state."18 However, as Professor McIntosh explains, "such is

not the case in respect to a colony." Approaching the question under the rubric of

political theory, then, the fact that the colony was never "an equal partner in the founding

of the State of Britain" compels the conclusion that Britain's abdication of Parliamentary

sovereignty over its former colonies was not necessarily a fundamental contradiction

17 "West Indian Constitutional Theory" at 736. 18 Id.

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since "it makes proper sense that Britain would adopt legislation for dealing with its

possessions -- whether it trades them to other Nation-States or allows for the devolution

of sovereignty on to them."19

This analysis, of course, appears to beg the question of the legal effect given to a

hypothetical decision of a future British Parliament to repeal an Act that has granted

independent status to a former colony. Professor McIntosh explains that, in the event that

such an unlikely event were to take place, "the result would not be the legal reassertion of

Britain's sovereignty over the territory, since that would be theoretically impossible,

given that the territory is now an independent sovereign State."20

The irony here is that the impossibility of a future Parliament reclaiming

sovereignty over a former colony is a direct consequence of the doctrine of Parliamentary

sovereignty itself. Since a sovereign legislature possesses an absolute degree of legal

power, the decision to permanently relinquish this ultimate power effectively functions as

a unilateral transfer of sovereignty -- a quantum of the sovereign legislature's own

aggregate power -- to the former colony. Since the sovereignty of the newly independent

state therefore derives its power from the voluntary relinquishment of the former

sovereign, any attempt by that former sovereign to reclaim that power would be the

logical equivalent of British Parliament abdicating its supremacy over Britain itself. This

reveals that even the most absolute theory of Parliamentary sovereignty contains within

19 Id. [emphasis added] 20 Id. at 740.

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itself limitations on the exercise of such sovereignty. Parliament may unilaterally grant

sovereignty but it cannot unilaterally reclaim it.21

As Professor Carnegie notes in his seminal article "Judicial Review of Legislation

in the West Indian Constitutions," upon attaining independence, the vast majority of West

Indian states chose to design their institutions of government according to the

Westminster model and reject the doctrine of the "legal omnipotence of Parliament" as it

existed in the United Kingdom.22 Professor Carnegie's monumental importance as a

constitutional theorist lies in his subsequent analysis of this decision's impact on the

separation of powers in Caribbean states generally and the doctrine of judicial review of

legislation in particular.

The fact that no court had yet held an Act of a Caribbean parliament invalid at the

time Professor Carnegie wrote the article is a clear indication of his intuitive as well as

intellectual grasp of both the Westminster system's virtually limitless intricacies as well

as how the paradigm had fundamentally shifted as a consequence of independence and

the adoption of written constitutions in the newly independent Caribbean states.

In the article, Professor Carnegie identifies both formal and substantive judicial

independence as prerequisites for effective judicial review. He argues that the existence

of an formally independent judiciary is threatened or precluded if the legislature may

alter or deny the judiciary's jurisdiction through the same legislative procedures it uses to

pass other laws. In the absence of effective judicial review by an independent judiciary,

he argues, the fact that literally every provision of every West Indian constitution is

21 Indeed, the phenomenon of Parliamentary abdication substantially predates West Indian independence, as evidenced by The Statute of Westminster, 1931, 22 & 23 Geo. 5, c. 4 (Eng.), which declared that Parliament would thereafter no longer legislate for the Dominions without their request and consent. 22 A.R. Carnegie, "Judicial Review of Legislation in the West Indian Constitutions," 1977 PUB. L. 276.

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subject to legislative alteration limits the scope of any objection to a law as

unconstitutional "to no more than that the appropriate procedure for amending the

constitution has not been followed."23

Professor Carnegie's analysis of the substantive independence of the courts

proposes that, even assuming the formal independence of the judiciary, effective judicial

review is nevertheless threatened by the tendency of reviewing courts to follow

"mechanically the usual canons of statutory interpretation," resulting in the likelihood

that courts "might in the process abdicate all too easily the responsibilities conferred on

them by the constitution."24 Thus, he characterizes a lack of will to review legislation

according to the principles, not just the words, of the constitutions as an even more

significant threat to judicial review than a lack of authority to do so.

The heart of Professor Carnegie's "Judicial Review" article represents what I

consider to be one of the most profound statements of judicial philosophy ever expressed

in the English language. As such, it deserves to be fully reproduced here:

...it is to be hoped that the courts will eschew narrow positivist analysis for a more constructive view of their function of making a reality of their guardianship of the constitution. There are no difficulties in the texts of the constitutions which cannot be satisfactorily resolved if the efficacy of the process of judicial review of legislation is regarded as an overriding principle of the interpretation of the constitution. Unfortunately, the adoption of such a principle might seem to call for a spirit of judicial assertiveness which would be out of line with traditional theories of the judicial function in constitutional interpretation. Judges have frequently paid lip-service at any rate to doctrines of judicial restraint...But it is difficult to believe that the jurisprudence of judicial review of legislation which has accumulated in common law countries could ever have reached such massive proportions if these principles of judicial self-restraint had been applied as consistently as the reverence paid to the theory might suggest.25

23 Id. at 281. 24 Id. at 284. 25 Id. at 285.

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It would be very difficult indeed, not to mention beyond my ability, to overstate the

significance of this statement. It cuts to the heart of the evolution of common law itself.

By identifying the willingness of judges to break from tradition as the source of the

common law tradition's strength, Professor Carnegie blurs the lines between legal

evolution and legal revolution in a truly unprecedented way.

Part II of this paper will reveal why Professor Carnegie's philosophy, as expressed

above, is profoundly consonant with the historical and jurisprudential origins of judicial

review. It will also explain why his predictions regarding the development of judicial

review in the Caribbean have turned out to be far more accurate than I suspect even he

could ever have imagined, reaching as they do all the way back to England herself.

Part II: The Historical Origins of Judicial Review and the Unprecedented Scope of Professor Carnegie's Predictive Accuracy

Professor Carnegie's predictions regarding judicial review of legislation in the

Caribbean were vindicated less than five years after they were published. The case of

Moses Hinds v. The Queen26 invalidated an attempt by the Jamaican Parliament to -- by

ordinary legislative procedure -- establish a "Gun Court" exercising jurisdiction

functionally identical to that exercised by a Resident Magistrate's Court or Circuit Court 26 [1977] A.C. 195.

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of the Supreme Court of Jamaica. Lord Diplock, writing the opinion for the Privy Council,

declared the Act establishing the Gun Court unconstitutional on the same procedural

grounds that Professor Carnegie argued were preclusive of judicial independence.

As the first judge adjudicating the substantive and procedural limitations imposed

on a Caribbean state by its constitution, Lord Diplock began the seminal judgment by

advancing a holistic theory of constitutional construction echoing Professor Carnegie's

own approach, stating, "A written constitution, like any other written instrument affecting

legal rights or obligations, falls to be construed in the light of its subject-matter and of the

surrounding circumstances with reference to which it was made."27

Lord Diplock then described the written constitutions of the Caribbean as

"evolutionary not revolutionary" due to their common origin, pattern and "style of

draftsmanship which may conveniently be described as 'the Westminster Model.'"28 He

asserted that the structural element most essential for any Westminster constitution to

qualify as such is a fundamental separation of executive, legislative and judicial power.

The most significant element of his argument, which both resolved the case and

vindicated Professor Carnegie's theory, was Lord Diplock's insistence that it "is implicit

in the very structure of a constitution on the Westminster Model...that judicial power...is

to continue to be vested in persons appointed to hold judicial office in the manner

[prescribed by the Constitution], even though this is not expressly stated in the

Constitution."29

This reading of an implicit structural limitation common to -- and, therefore

capable of being imputed to -- Westminster-modeled constitutions is rather incredible in

27 Id. at 198. 28 Id. at 200. 29 Id. [emphasis added]

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light of the fact that, in Westminster itself, no such limitation on the legislative authority

of Parliament existed. Thus, Professor Carnegie himself described the Hinds doctrine as

"a legal doctrine restricting the legislative power of Parliament," a limitation whose

"deduction from Westminster model structure has to be reconciled with the impossibility

of any such restriction at Westminster."30

Echoing Lord Diplock's insistence that "[i]t is the substance of the law"

purporting to alter the balance of power between the branches of government "that must

be regarded, not the form,"31 Professor Carnegie, characteristically employing yet another

linguistic metaphor for the law, responded to the Hinds decision he had so clearly and

profoundly influenced by claiming that Caribbean jurists were now "perpetuating a

custom whereby the connotation of language cannot be ascertained by grammatical

analysis."32

To clarify, both Professor Carnegie and Lord Diplock identified the same central

paradox of Wesminster-model constitutions in terms of their fundamental incompatibility

with the conventions of Westminster itself. This was essentially the first time that the

doctrine of Parliamentary sovereignty that governs the unwritten conventions of English

government was declared by the highest court of England to be a "principle peculiar to

British constitutional law and practice" rather than an indispensable component of the

Westminster system generally.33

The fundamental distinction between the Westminster system and the common

law systems modeled upon it appears to turn on the "unwrittenness" of British

30 A.R. Carnegie, "Floreat the Westminster Model?" 6 Carib. L. Rev. 1 at 9. 31 Hinds at 201. 32 "Floreat" at 12. 33 "West Indian Constitutional Theory" at 750.

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constitutional procedure as, "in the absence of a written text defining the constitution of

the State, then the very procedure whereby the State makes law, its principle and

awesome power, not only manifests its sovereignty, but also becomes the most

appropriate way of describing that sovereignty."34 Where, however, a state has adopted a

written constitution, the constitution itself replaces Parliament as the supreme -- and,

therefore, sovereign -- authority, binding each of the three branches of government

against impermissible encroachment upon the powers of the other two.

As a result, although the basic tripartite division of state power mandated by a

constitutional arrangement such as that established by the Constitution of Jamaica is

essentially "Westminsterian," the practical impossibility of replicating the conditions and

conventions of Westminster itself requires, if not a complete break from the Westminster

system, at the very least "innovation in relation to constitutional convention which has no

historical British application."35

For example, Professor Carnegie describes the British conventions of granting

lifetime and hereditary appointments to members of the House of Lords as practices

simply not "possible in the system of any Commonwealth Caribbean State."36 When

combined with the fact that "the Opposition at Westminster is an institution of

[unwritten] constitutional convention and not of law," the necessity for judicial review in

Westminster-model constitutional arrangements that has never existed in Westminster

itself begins to lose some of its seemingly contradictory character. Indeed, Professor

Carnegie himself characterizes the difference in terms of the written/unwritten

distinction:

34 Id. at 752. 35 "Floreat" at 4. 36 Id. at 3.

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Even where those Constitutions are clearly attempting to imitate the Westminster system as closely as possible, they may in many instances functionally cease to do as Westminster does by the very process of codifying the Westminster rules, since those rules at Westminster are conventions of the Constitution, which might perhaps lose some of their intrinsic evolutionary character by the ossification which is inherent in codification in a Constitution.37

As discussed in Part I of this paper, Professor Carnegie's philosophy states that, since "the

Westminster theories themselves could threaten to provide real obstacles to functioning

separation of powers," this type of codification necessarily becomes a prerequisite for the

establishment of an independent judiciary. In turn, the increased constitutional

protections afforded judges in a post-Westminster system such as Jamaica's gives rise to

an affirmative corollary obligation on the part of those judges themselves to militate

against the rigidness and "ossification" that codification tends to easily lend itself to.38

Conventions as entrenched and, seemingly, fundamental as the doctrine of

Parliamentary sovereignty never die easily. The Dissenting Judgment in Hinds, authored

by Viscount Dilhorne and Lord Fraser, is illustrative of this fact. The dissenters argue that,

since none of the written Westminster model constitutions explicitly "limit the legislative

capacity of the Parliament of the territory to which they apply," these Parliaments are

legally free to "alter, modify, replace, suspend, repeal or add to any provision of the

Constitution" according to their inherently unreviewable discretion.39 Thus, although

agreeing with Lord Diplock's basic premise that "the constitutions on the Westminster

Model were evolutionary and not revolutionary," the dissenters nevertheless refuse to

lend credence to the Lord Diplock's subsequent conclusion that "the Parliament of a

37 Id. at 4. 38 Id. at 11. 39 Hinds at 217.

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territory cannot by ordinary enactment alter the jurisdiction and powers of any Court

named in the Constitution."40

The Dissent makes clear that the disagreement here consists of a fundamentally

interpretive discrepancy. Rejecting Lord Diplock's imputation of implicit limitations into

the Jamaican Constitution, the dissenters insist that a written constitution must instead be

construed to give effect to the intentions of those who drafted and agreed to its adoption,

intention that must be either "expressed in or...deduced form the terms of the constitution

itself and not from any preconceived ideas as to what such a constitution should or should

not contain. It must not be construed as if it was party written and partly not."41

As Professor Carnegie always maintained, however, written constitutions consist

not only of the textual content of the constitutional documents itself but also rules that,

"although not found in the Constitution, are clearly constitutional in fundamental

effect."42 Lord Diplock's vindication of Professor Carnegie's philosophy of constitutional

construction in Hinds not only compels the conclusion that the Caribbean "doctrine of

constitutional supremacy ousts the United Kingdom style doctrine of Parliamentary

sovereignty" but is, in addition, surprisingly consonant with both ancient lines of

common law thinking as well as contemporary developments in British jurisprudence

itself.

David Jenkins' brilliantly articulated monograph "From Unwritten to Written:

Transformation in the British Common-Law Constitution"43 traces the development of

the Parliamentary sovereignty doctrine in British jurisprudence. Jenkins argues that, as

40 Id. at 219. 41 Id. at 221-2. 42 "The Importance of Constitutional Law" at 48. 43 36 Vanderbilt Journal of Transnational Law 863 (2003)

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the State entity possessing the entirety of all legal power in the British Commonwealth,

any check on Parliament's power necessarily had to be extra-legal, or political in nature.44

He further explains that the legitimacy of Parliament's sovereignty was not an inevitable

outgrowth of the common law's evolution, but was instead a consequence of the

exigencies of British history: "The Glorious Revolution permanently altered the balance

between Parliament and the Crown, establishing Parliament as the supreme law-making

authority in the realm. Consequently, the doctrine of parliamentary sovereignty...became

legal orthodoxy."45

The corollary to Jenkins' argument traces the ancient roots of the doctrine of

judicial review all the way back to Lord Coke's 1610 decision in Dr. Bonham's Case.

This is the earliest common law articulation of the idea that, when a statute conflicts with

the implicit, substantive restrictions imposed on the law-maker by the very structure of

government itself,

[The common law would] controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void...46

Clearly, then, there is in truth no fundamental inconsistency between the doctrine of

judicial review and the common law foundation of the Westminster system. The potential

for this "alternative" strain of common law thought to serve as a powerful restraint

against unfettered legislative power has energized the efforts of British subjects seeking

to liberate themselves from the Empire since at least the time of the American

Revolution; just as Caribbean common law jurisprudence has utilized the doctrine in the

44 Id. at 873. 45 Id. at 889. [emphasis added] 46 Dr. Bonham's Case, 77 Eng. Rep. 638 (1610).

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decades following the "legal revolution" effected by Independence, "American

revolutionary thought was firmly rooted in the English common law, but represented a

different and competing development of it than had previously occurred in Great

Britain."47

Apart from the fact that the doctrine of judicial review is thus firmly rooted in the

ancient British common law tradition, Jenkins further argues that the ultra vires doctrine

employed in British courts today bears a strong functional resemblance to judicial review

of legislation, due to the fact that "courts may exercise the power of ultra vires review,

not from Parliament's implied intent that they do so, but from their own inherent and

independent common law authority."48 Although the scope of ultra vires review is

formally limited to a determination of whether the Crown's executive action, taken

pursuant to Parliamentary authorization, exceeds the scope of that authorization, in

practice such review scrutinizes "both executive action and the statute in question in a

manner bordering upon substantive review," suggesting, in turn, that ultra vires review

"contains the theoretical seeds to grow into a full power to invalidate parliamentary

statutes."49

Jenkins also makes an argument that may be characterized as the inverse of

Professor Carnegie's view that all written constitutions necessarily implicate and

incorporate unwritten conventions and practices, suggesting that the British constitution

is in fact not entirely unwritten at all since it incorporates "a conglomeration of treaties

and statutes."50 Early examples of such documents include the Manga Carta, the 1689

47 Id. at 892. 48 Id. at 897. 49 Id. at 899, 905. 50 Id. at 921.

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Bill of Rights, the Act of Settlement, the Acts of Union between England and Scotland,

and the Reform Act of 1832.51

Furthermore, Jenkins argues that even the legal philosophies of William

Blackstone and A.V. Dicey, generally considered two of the most authoritative

proponents of Parliamentary sovereignty, contain strains of thought capable of supporting

the incorporation of judicial review into the British constitutional structure due to the

structural balance of power provided by the fact that "Parliament" proper in fact can only

be said to exist when the powers of the Crown, the Commons and the Lords are in

accordance.52

Although both Blackstone and Dicey advanced somewhat different justifications

for parliamentary supremacy, they both "relied upon political -- as opposed to legal --

checks upon legislative action."53 Blackstone pointed to the ability of Parliament's

tripartite structure to ensure that political tensions within Parliament itself acted as an

effective check against tyranny while Dicey focused on the power of the electorate to

vote out, disobey, or rebel against Parliament as an external check against Parliamentary

tyranny.54 Both types of limitations are, of course, essentially political and, therefore,

extra-legal.

The significance of Blackstone and Dicey's recognition of these structural, albeit

extra-legal, limitations on legislative supremacy suggests that limitations on Parliament's

supposedly unlimited power have always existed within the British constitutional system,

just not in an explicitly "legal" form. Viewed in this light, the development of judicial

51 Id. at 946. 52 Id. at 872. 53 Id. at 873. 54 Id. at 873-4.

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review in the United States and the Caribbean is, as Professor Carnegie correctly

identified, simultaneously evolutionary and revolutionary.

Its evolutionary nature is rooted in the fact that "it represents the resurgence of an

older, alternative common-law theory that maintains continuity with the British

constitutional tradition."55 At the same time, it is revolutionary in the sense that, as

Professor Carnegie perceived in the Caribbean context, "[t]o move from [the British

constitutional order of Parliamentary sovereignty] to one in which the judiciary occupied

such a position of constitutional primacy would...involve a 'break in legal continuity' to

which the term 'revolutionary' could properly be applied."56

55 Id. at 958. 56 Sir William Wade, Constitutional Fundamentals 36 (1980).

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III: Conclusion

Taking all the above into consideration, it seems to me that Professor Carnegie

was correct in arguing that a rigidly positivist insistence upon the fundamental supremacy

of Parliament truly has no place in post-Revolutionary common law societies with written

constitutions. This is because the rationale underlying the doctrine rests on an assumption

that becomes obviated upon the adoption of a written constitution; the assumption being

that empowering courts to review legislation somehow infuses the judiciary with more

authority than the legislature. The logical fallacy of this assumption in the context of a

society governed by a written constitution ratified by the people themselves has perhaps

been best articulated by Alexander Hamilton:

[This conclusion does not] by any means suppose a superiority of the judicial power to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental.57

Thus, Alexander Hamilton, Lord Coke, Lord Diplock, Justice Marshall and Professor

Carnegie all share a common understanding that the abandonment of Parliamentary

sovereignty in favor of judicial review functions as a deeply democratic check on the

power of all three branches of government.

However, having conducted a thorough exploration of the history and philosophy

underlying the doctrines of Parliamentary sovereignty and judicial review, the British

constitutional system's reliance on the former is in reality premised upon the exact same 57 Alexander Hamilton, The Federalist No. 78, at 435-36 (Clinton Rossiter ed., 1999).

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democratic protections against tyranny; the difference is in the method of implementing

these protections, not in their substantive goals.

As common law judges are typically not elected by the people, it is logical to

characterize the judiciary as -- like the Crown -- generally unaccountable to the people.

This circumstance, when combined with the primarily unwritten nature of the British

constitution, necessarily concentrated supreme governmental authority in the branch of

government most directly accountable to and subject to the will of the people themselves:

Parliament.

As a lifelong student of English common law jurisprudence, Professor Carnegie

undoubtedly understood this. But he also understood something that, apparently, few if

any other individuals in his particular time and place grasped; namely, that the best way

to breathe new evolutionary life into Caribbean common law would require,

paradoxically, a substantially revolutionary break from that same common law, at least as

it had developed according to the exigencies of history unique to Britain. The complexity

of such a paradoxical conclusion was one that Professor Carnegie, with his singularly

linguistic genius and quasi-mystical appreciation for the fact that the strengths of the

common law lie precisely in its limitations, was in a singularly exceptional position to

advance.

In fine, I will always lament the fact that I will never know the joy of being

"mystified" by one of Professor Carnegie's lectures. I do, however, look forward to

tracing the future emanations of his incomparably significant contributions to

constitutional theory as they will inevitably provide invaluable guidance and exert a

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profound, global and inexorable influence on practitioners and theorists of constitutional

law for a long, long time to come.