Constitutional reform and the quest for a West Indian hermeneutics

• Author: Simeon C. R. McIntosh
• Position: Professor Emeritus, Howard University School of Law, Washington, D.C.
• Pages: 1-160

CONSTITUTIONAL REFORM AND THE QUEST FOR A

WEST INDIAN HERMENEUTICS

BY

SIMEON C. R. McINTOSH*

In this

Article,

Professor Mcintosh uses the Terms

of

Reference

of the

Barbados Constitution Review Commission

to

offer

a philosophical

critique

of

constitutional reform in the Commonwealth

Caribbean.

To

this

end,

he discusses such issues as

the

patriation

of

the

constitution;

our continued relationship with the British Monarchy; and the

possible restructuring of

parliament.

Part I concludes with a

prescription for the

re-writing

of our

constitutional

texts.

In Part II,

Professor

Mcintosh

focuses on the

case

for a

Caribbean

Court of

Appeal, on the premise that this is critical to our collective

self-

definition.

Professor Emeritus, Howard University School of

Law,

Washington,

D.C.; Professor of Jurisprudence, Faculty of Law, University of the

West Indies, Cave Hill, Barbados.

Acknowledgement: In my preparation of this Paper, I have had the

assistance of

two

distinguished West Indian men of

letters:

The Hon.

Professor Rex Nettleford and Mr. George Lamming. They were very

excited about my project and willingly shared their thoughts with me.

In addition, Professor Richard Kay of the University of Connecticut

Law School gave the usual "strict instructions" to get me off

to

a good

start; and Professor Michel Rosenfeld of

the

Benjamin Cardozo Law

School, and Professor Christopher Eisgruber of New York University

Law School, shared their thoughts with me on some of the more general

theoretical issues with which this Paper deals.

Finally, my special thanks to Valda Maynard for her invaluable

assistance in the typing of

the

original manuscript.

Introduction

The recent appointments of Constitution Review Commissions -

first in Jamaica, and now in Barbados - to study and make

recommendations for

the

"reform of the Constitution" by appropriate

amendments, offer as auspicious an occasion as any for a

fundamental rethinking of conventional understandings of West

Indian constitutional law and practice; to rationally diagnose the

more critical problems attending our political order, and to attempt

to resolve these problems by a discursive engagement of the public

on some of the larger questions of constitutional democratic

governance. Some such questions concern the very process of

constitutional amendment; issues about presidential versus

parliamentary democracy; proportional representation versus single-

member districts; unicameralism versus bicameralism; legislative

supremacy versus judicial review; and, above all, the question

whether the West Indies should establish its own final Court of

Appeal.

In the

round, the current undertaking of constitutional reform

offers an auspicious occasion for philosophical reflection on our

constitutional tradition and on the possibility of redefining our

political and civic identity, thus removing it from the shadow of a

dominant English theoretical perspective. In short, this enterprise of

constitutional reform might indeed allow us to accomplish what the

late Sir Hugh Springer had once faintly intimated: "to make our

Independence Constitutions our own."

In this Essay I attempt to address some of these issues. For

convenience, I focus mainly on the "terms of reference" to the

Barbados Constitution Review Commission, given that they address,

by and

large,

the salient issues which must be addressed by the region

as a whole. In addition, the second half of the Essay is devoted

wholly to the issue of a Caribbean Court of Appeal and the

implications for collective self-definition and for the future of West

Indian jurisprudence. But, first, I attempt to sketch a general theory

of constitutional founding and amendability, from which perspective

the more specific questions pertaining to the West Indies would be

addressed.

Toward a Constitutional Theory of Founding and Amendability

In a democratic society, the constitution - constitutional law - is

foundational: it concerns the most basic arrangements of political

power in the community and establishes the ultimate ground for the

legitimate exercise of political power by some over the rest of the

society. It is the defining institution of political society. On this

view, the constitution is constitutive of collective life; and it is for

this very reason that the democratic founding of a constitution - the

giving of form to collective life - is reckoned amongst the most

notable acts of which political man is capable. According to

Professor Sheldon Wolin, the founding of a constitution is superior

to other types of political acts because it aims to shape the lives of

citizens

by

designing the structure or 'dwelling' which they and their

posterity will inhabit.1

Constitutional founding is therefore a defining act of collective

and political identity. The truth of this proposition has been borne

out in the act of founding on the American continent over two

1 Sheldon Wolin, "Max Weber: Legitimation, Method, and the Politics

of Theory," in Legitimacy and the State 63 (William Connolly ed.

1984).