Charter or Higher Law? The Constitution under the New Supreme Court

(Forthcoming, Dublin University Law Journal)

60 Pages Posted: 21 Mar 2024 Last revised: 27 Mar 2024

See all articles by Conor Casey

Conor Casey

University of Surrey

Oran Doyle

Trinity College (Dublin); Academia Sinica - Institutum Iurisprudentiae (IIAS)

Date Written: February 22, 2024

Abstract

Irish constitutional scholarship has, over the past 10 years, increasingly adopted comparative, historical, and theoretical perspectives. Constitutionalism outside the courts – most obviously, constitutional amendments and their related deliberative processes but also the novel constitutional issues raised by the minority Government of 2016-2020 – has been a particular focus. The same period, however, saw a radical change in court structure, far greater than that which occurred in 1961 and arguably as great as that which occurred in 1937. The establishment of the Court of Appeal has created a new Supreme Court, controlling what cases it hears and – with the abolition of the one-judgment rule for all but Article 26 references – having greater space for the development of constitutional analysis. Perhaps enabled by these institutional changes, the past decade has seen significant doctrinal development across the full range of constitutional law, unparalleled in the Court’s history. Yet we do not experience ourselves as living through a moment of great constitutional change, such as frequently identified with the early 1960s or late 1990s / early 2000s. How can we explain the apparent paradox of significant doctrinal development that does not significantly alter the substance of constitutional law?

In this Foreword, we review the constitutional jurisprudence of the Court over the past decade to attempt to capture the current zeitgeist of Irish constitutional law. We find that the Court has marginally expanded constitutional rights protection, removed impediments to the Government and Oireachtas working as joint actors in constitutional governance, and widened the scope for judicial scrutiny of legislative and executive action. While far from negligible, these doctrinal developments are modest compared to previous moments of change in the Supreme Court. The stability in the substance of constitutional law belies – although perhaps stems from – greater attention to questions of constitutional methodology. The Court’s jurisprudence has been driven by a lawyerly concern with text, intent, and structure. Viewed from this perspective, the paradox dissolves: the purpose of the Court’s jurisprudence has been to establish more soundly based doctrinal frameworks for results not so different from those that might have been reached in earlier decades.

There is broad agreement in the Court that the purpose, or object, of constitutional interpretation is to give effect to the will of the People, as expressed through the Constitution. The starting point for analysis is a close parsing of constitutional text, although it is recognised that regard must also be had to context to construct or discern the intent of the People. Differences emerge, however, between judges and across cases over not only the balance to be struck between text and context but also the sort of context that can be appropriately considered and emphasised in constructing that intent. If there is a divide on the current Supreme Court, it is between treating the Constitution as a higher law – mandating consideration of a relatively narrow range of contextual factors – and treating the Constitution as a great Charter – broadening the context that informs constitutional meaning. The future development of constitutional law depends largely on which view of the Constitution will predominate.

We proceed as follows. Part ‎2 outlines the fundamental rights jurisprudence of the Court over the past decade, including its treatment of the right to person, derived rights, equality, standards of review, criminal procedure rights, family and children’s rights, and the inviolability of the dwelling. Part ‎3 discusses the Court’s treatment of separation of powers, including legislative, executive and judicial power, sovereignty, and constitutional remedies. Part 4 identifies broad trends in the Court’s jurisprudence and attempts to capture some elements of the current zeitgeist of Irish constitutional law. Part ‎5 concludes.

Keywords: Irish Constitution, constitutional interpretation, judicial review, Supreme Court, constitutional rights

Suggested Citation

Casey, Conor and Doyle, Oran, Charter or Higher Law? The Constitution under the New Supreme Court (February 22, 2024). (Forthcoming, Dublin University Law Journal), Available at SSRN: https://ssrn.com/abstract=4735122

Conor Casey (Contact Author)

University of Surrey ( email )

United Kingdom

Oran Doyle

Trinity College (Dublin) ( email )

2-3 College Green
Dublin, Leinster D2
Ireland

Academia Sinica - Institutum Iurisprudentiae (IIAS) ( email )

128 Academia Sinica Rd., Sec. 2
Nankang
Taipei City, 11529
Taiwan

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