Article 16 of the Irish Constitution and Judicial Review of Electoral Processes

Abstract

Constitutional referendums tends to dominate discussion of the Irish courts’ interaction with political processes. The McKenna judgment of 1995, ruling out one-sided public spending on constitutional amendment advocacy, has had contentious and enduring effect. This chapter looks past the referendum cases to examine judicial development of the Constitution’s Article 16. Article 16 provides for the composition of, and election to, Dáil Éireann, Ireland’s lower house of parliament. The chapter first introduces a way of thinking about democracy to ground the evaluation of Article 16 case law that follows. I give an overview of Article 16, rejecting the view that it is a ‘total code’ for Dáil elections. Finally, I defend the restrained yet occasionally creative path the courts have taken under Article 16; the courts’ work can be overall characterised as seeking to protect the electoral process, but not perfect it.

Keywords: judicial review, constitutionalism, comparative constitutional law, constitutional law, Irish constitutional law, Irish electoral law, legal theory, constitutional theory