Judges, politics and the Irish Constitution

Laura Cahillane, James Gallen, Tom Hickey

• Publisher: Manchester University Press
• Year: 2017
• ISBN:
  9781526108203
• Edition: 1
• Topic: Law
• Subtopic: Legal History
• Index: Law

This volume brings together academics and judges to consider ideas and arguments flowing from the often complex relationships between law and politics, adjudication and policy-making, and the judicial and political branches of government. Contributors explore numerous themes, including the nature and extent of judicial power, the European Court of Human Rights decision in O'Keeffe v Ireland, the process of appointing judges and judicial representation, judicial power and political processes. Contrasting judicial and academic perspectives are provided on the role of the European Court of Human Rights and the nature of exhausting domestic remedies, including a contribution from the late Mr. Justice Adrian Hardiman. The role of specific judges, social and political disputes and case law are examined and socio-economic rights, the rule of law and electoral processes are all addressed.

Part I

Judicial power in a constitutional democracy: theoretical foundations

1

In defence of judicial innovation and constitutional evolution

Fiona de Londras

The meaning of broadly drawn constitutional provisions is rarely static or self-evident. Thus, certain branches – including the judiciary – usually have a role in interpreting them. Although this task is often shared between different branches of government (and, thus, essentially collaborative), the role of superior courts is particularly significant, especially (although not only) in so-called ‘legal constitutions’ (i.e. written constitutions in which constitutional, rather than parliamentary, supremacy is the norm). In carrying out their interpretative role, judges are at least sometimes innovative (or what some might call ‘activist’),¹ and that innovation is a key element of constitutional evolution. This is not uncontroversial; many argue that judges ‘overreach’ when they engage in such innovation and, as a result, prefer a more restrained judicial role.² However, exploring this in the Irish context, I argue in this chapter that judicial innovation is an important and legitimate part of constitutional evolution, taking into account the broader constitutional tradition and structure within which Irish superior courts operate.

At this stage, it is useful to outline what I mean by judicial innovation here. Judicial innovation includes, but goes beyond, judicial activism. In his excellent short study of judicial activism in Ireland, David Gwynn Morgan defined judicial activism thus:

[when] in order to resolve the case one way or another … a judge has to call on some element of policy choice or preference … the judge selects the option of not accepting the status quo as it is given in the form of law or government action, but instead strikes down the law or action as unconstitutional.³

Innovation can form part of judicial activism but is not limited to cases where courts strike down law or government action. Rather, wherever the court develops an understanding of the text or unenumerated content of the Constitution that is at odds with and moves the constitutional acquis on from the prevailing understanding we can say judicial innovation has taken place. While this may then be deployed in striking down a law, it can also be used to ‘discover’ a new constitutional right, to save a provision from strike down, or to rethink the relationships between different bodies of law. I consider this here in the context of an evolving constitution: the development of an understanding of the content of the Constitution, the nature of its limits, and the form of the constitutional settlement it frames and represents.

Constitutions require interpretation. This is so not only because of the relatively open-textured nature of constitutional texts (or what might be called their ‘indeterminacy’), but also because of the reality of constitutionalist governance. Governance is an activity, a practice, and a mode of being that does not take on a static form; it is an activity that must constantly address new and emerging issues. In so doing, any system of governance that has a constitutionalist orientation (i.e. that is committed to ensuring the state remains within its constitutional bounds) is constantly faced with the task of establishing and assessing the constitutionality of new responses to old and emergent challenges. This is not least because no politico-legal system could possibly have predicted all of the challenges that it would face in the future at the time of drafting its constitution. Nor could it have foreseen the development of social mores to consider as illegitimate forms of behavioural proscription that were previously considered to be entirely legitimate and vice-versa.⁴ Innovative constitutional interpretation is necessary so that the boundaries and limits of constitutionally permissible action can be identified in the face of new and different forms of government activity and governance. If constitutions and constitutionalism are about setting the limits of permissible government action, then there simply cannot be government activities that fall outside of constitutional governance.⁵ In order to ensure that this is the case, evolution of the constitution is required. Through their engagement in constitutional interpretation, courts play a vital role in that enterprise.

It is important that we identify what is meant by constitutional interpretation in this context. Although useful distinctions can be drawn between interpretation and construction per se, adherence to such a distinction is not required here because judicial innovation can occur in both of these senses. Solum offers the clearest articulation of these two activities in his ‘interpretation–construction distinction’.⁶ For Solum, applying or explicating a constitution (or other authoritative legal text) involves two stages or processes. The first is interpretation, which he says ‘is the process (or activity) that recognizes or discovers the linguistic meaning or semantic content of the legal text’.⁷ The second is construction: ‘the process that gives a text legal effect (either my [sic] translating the linguistic meaning into legal doctrine or by applying or implementing the text)’.⁸ If the need for constitutional interpretation arises from both linguistic indeterminacy or open texturedness and the need to ensure constitutional coverage of new modes and subjects of governance, there is scope for judicial innovation in respect of both linguistic/semantic aspects of the constitution and giving legal effect to the constitution. In neither case is such innovation necessarily an illegitimate exercise of judicial power.

Making out this argument requires both a positive and a negative case. The positive case posited here is that innovation in constitutional interpretation is a necessary part of the judicial role; the negative case I forward is that such innovation is not an illegitimate judicial activity. This chapter starts by sketching what I term an ‘ecosystem’ of constitutional interpretation, placing the judicial role in constitutional interpretation into a broader context. I then proceed to outline the positive and negative cases. While the chapter is primarily oriented towards defending judicial innovation in Ireland, the arguments contained here are more broadly applicable allowing for technical adjustments based on the particularities of different politico-legal systems. Thus, the chapter draws on examples from within and beyond Irish jurisprudence throughout.

The ecosystem of constitutional interpretation

Constitutional interpretation does not take place only in courtrooms and by means of litigation and judicial adjudication. Rather, constitutional interpretation is a constant and a collaborative process between all branches of government and the bureaucracy of the state.⁹ Thus, courts are not the only organ of state with a right or a need to interpret the constitution. However, critiques of judicial activism, or what I term judicial innovation, routinely proceed as if that were the case, largely looking at judicial interventions in constitutional evolution in isolation. Such an approach artificially inflates claims of the superiority of the judicial role in constitutional interpretation. It is more appropriate, and more reflective of the reality of constitutionalist practice, to conceive of constitutional interpretation as a knowledge ecosystem in which dynamism and evolution are fostered by inter-entity interaction, which in turn improves decision-making and enhances collaboration.

The precise contours of the interpretative roles of different branches of the state will be different from system to system, but we can say that, in general, at least three entities apart from courts have a role in interpreting the constitution on a fairly constant basis.

The executive

In going about its daily business, the executive must make decisions as to the constitutional permissibility of its actions. This is often done with the advice and assistance of law officers such as Attorneys General, but these law officers merely advise; at the end of the day it is the executive that makes the actionable decision about the permissible limits of the state’s constitutionally endowed power, and the executive that must carry the political and legal consequences flowing from that.

Beyond the obvious political significance of these decisions, the executive’s position on the constitutional permissibility of any desired action has interpretative weight, notwithstanding its non-determinative nature. First of all, these decisions can set a practical precedent, especially while they go unchallenged in litigation, so that they develop into constitutional understandings and maybe even conventions over time. By means of example, from the mid 2000s the Irish government claimed, on the advice of law officers, that same-sex marriage was unconstitutional. However, whether or not marriage between people of the same birth gender was constitutionally impermissible was by no means a matter of settled law at that time. Indeed, there was reasonable disagreement on the question among scholars and the only precedent directly addressing the question emanated from the High Court and was somewhat unconvincingly reasoned.¹⁰ Notwithstanding that, it became accepted wisdom that marriage equality could be achieved only by referendum and constitutional change, and not by political decision-making, leading eventually to the 2015 referendum on the 34th amendment to the Constitution which introduced a constitutional right to marry the person of one’s choosing, as regulated by law, regardless of sex.

Furthermore, executive interpretations of the constitution can be heavily influential on other branches of government including on the legislature (especially but not exclusively in fused systems) and the judiciary (given principles of deference and self-restraint further considered below). The legislature will often be guided in its consideration of the constitutionality of proposed legislative or policy action by the judgement of the executive (which in turn is influenced by advice from relevant law officers). Indeed, where parliamentary votes are subject to party whips there can be limited opportunities for public contestation so that executive decision-making as to constitutionality and constitutionalism may be effectively determinative of legislative opinion in this respect.¹¹ This is not to suggest that executive determinations completely overwhelm legislative judgement as to constitutionality, or that opportunities for backbench or internal-party contestation do not exist outside of the relatively reified air of the legislative debating chamber (for example, in meetings of the parliamentary party).¹² Rather, it is to point out the broad interpretative weight that can attach to executive interpretations of constitutional limits.

The executive can also have a role in constructing judicial interpretations of the constitution. It is sometimes thought that a judicial interpretation is the final word, to borrow from Gardbaum,¹³ particularly in a legal constitution, but that is to oversimplify matters. Even when a superior court has handed down an interpretation of a part of the constitutional text, questions often remain about the broader implications of that, its meaning in the context of the constitutional text as a whole, and its practical application. These are all matters that require executive interpretation of the constitution, and especially of the constitution in action.

The legislature

Although it may not seem to be a task that is often seriously or explicitly discussed by parliamentarians, the legislature also has a role in constitutional interpretation. This is so in both legal and political constitutions (if such a rigid bifurcation can possibly be sustained), although the weight of legislative interpretation may differ from system to system. In a system of separate but equal power – such as that found in the United States – legislative constitutional interpretation arguably takes on a particularly significant role. Under the oath of office, Members of Congress have a duty to abide by the Constitution and rely to a lesser extent on executive guidance in doing so than is the case in fused systems such as the UK and Ireland.¹⁴ Notwi...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• List of contributors
• Tribute to Justice Adrian Hardiman
• Acknowledgements
• Introduction: Laura Cahillane, James Gallen and Tom Hickey
• Part I Judicial power in a constitutional democracy: theoretical foundations
• Part II Judging in the case of O’Keeffe v. Hickey: analysis and debate
• Part III Judges and the political sphere: appointments and dialogue
• Part IV Judges and the Constitution in historical perspective
• Part V Perspectives on the Constitution and judicial power
• Index