TD v Minister for Education, Constitutional Culture, and Constitutional Dark Matter

AuthorDavid Kenny
PositionAssociate Professor of Law and Fellow, Trinity College Dublin
[2022 ] Irish Judicial Studies Journal Vol 6(3)
Abstract: This paper suggests that the true influence of the TD case is seen not in its formal legal significance but
in its le ss obvious impa ct on Irish constitutional culture. Drawing on Tribe’s notion of la ndmark cases curving
constitutional space, it suggests TD is a form of constitutional dark matter, warping the fabric constitutional law
invisi bly by entrenching a highly cautious judi cial culture and a p olitical culture that is less sensitive to rights
infringements caused by policy failures.
Author: Dr David Kenny, Associate Professor of Law and Fellow, Trinity College Dublin
Every Irish law student, and every lawyer educated here after the case came down, knows TD.
They have probably had their constitutional law lecturer tell them with some varying degree
of hyperbole about how they will never understand or pass constitutional law until they have
understood it. Almost every practitioner knows it too there are few areas of practice so
insulated from constitutional law that this will not have filtered down to those who began their
work long before the case came down. But its influence is even deeper than this, I think it
animates and dominates our constitutional culture.
As we mark its 20th anniversary, however, there is a tendency that runs somewhat counter to
this. More formalistically incline d legal commentators sometimes suggest that the centring of
TD in our constitutional law goes too far.
There are several ways that this is anecdotally
evidenced: it doesn’t really come up that much in court; its impact in determining major cases is
modest; it is not on the tip of the tongues of politicians and civil servants they deal with. This
viewpoint, with respect, entirely misses the point, and shows, I think, the limitations of a
formalist and legalist perspective when it comes to something like the TD case. TD’s holding
was narrow, and in strict formal, legal effects, did not have sweeping impact. But TD does not
need to have these effects; it is far too important for that. TD is now a core part of the frame, the
background fabric, the stage in which Irish constitutional law plays out. To put it another way,
we cannot just think of TD as a constitutional law case. We have to see it as a foundational
element of contemporary Irish constitutional law culture. The language of culture, I think, gives
us a way to articulate the vast, informal impact of this case on our constitutional law.
TD v Minister fo r Education [2001] 4 IR 259.
This is different, I think, from Tom Hickey’s argument in this volume, which I t ake to be a case that we should
limit our understanding of what TD d id to its strict legal holdin g. To use the language I use here, h e suggests w e
should try to limit its cultural impact to the specific aspect of the order in the case, rather t han allow it to have large
reach beyond th at. (see Tom Hickey, ‘Reading TD Down’ 2022 6(3) Irish Judicial Studies Journal 19. I would agree.
But if I am wron g in this reading, and it is Hickey’s argument that TD d id not have broader effects on our
constitutional law because th e hold ing of the case does not legally support th em, I would t hink this to no t just to
miss wood for trees, but to miss the trees for the bark, and this would be precisely the sort of failure to see cultural
impact that I am trying to highligh t here.

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