The Case for an Originalist Approach to Constitutional Interpretation in Ireland

• Author: Stephen Brittain
• Position: Senior Sophister LLB Candidate, Trinity College Dublin
• Pages: 71-93

THE

CASE

FOR

AN

ORIGINALIST

APPROACH

TO

CONSTITUTIONAL

INTERPRETATION

IN

IRELAND

STEPHEN BRITTAIN*

"... a ghlfinta

na

saoirse

cuimhnigi

orainne,

glinta

na

haislinge."

1

Introduction

The

institution

of

judicial

review,

as

it

exists

under

the

Irish Constitution,

permits

judges

of

the

superior

courts

to

strike

down

acts

of

the

Oireachtas

and

executive

measures

should

they

deem

them

to

be

contrary

to

any

of

the

provisions

of

the

Constitution.

Judges

are

thus

the

ultimate

guardians

of

the

basic

law

under

the

Irish

system

of

government, having

the final

say

in

cases

where

disagreement

exists

as

to

the

meaning

of

any

of

its

provisions.

This

responsibility

is

evidently

one

of

crucial

importance. Given

the

democratic

nature

of

our

polity

the exercise

of

this

function

by

an

unelected

judiciary

requires

special

justification.

It

is

for

the

purpose

of

providing

such

justification

that

differing

methods

of

constitutional

interpretation

have

been formulated,

applied,

and

defended.

The

approach

that

would

read the

Constitution

as

a

"living document",

changing

from

age

to

age

to

meet

the

evolving

needs

of

society, has long

been

part

of

the

ascendancy

in

Irish

constitutional

discourse.

The

objective

of

this

article

is

to

challenge this

consensus.

During

the

course

of

this

article,

it

shall

be

argued

that

the

"living

constitution"

doctrine,

a

protean

concept, cannot

be

reconciled

with

certain fundamental tenets

of

our

system

of

government,

most

notably democracy

and

the

separation

of

powers,

and

that

the

Irish

courts

should

adopt

an

"originalist"

approach

in

their

interpretation

of

Bunreacht

na

hEireann.

This

article

is

divided

into

three

sections.

It

is

important

as

an

initial

matter

to

clearly

state

what

is

meant

by

an

"originalist

approach".

Part

I

shall,

therefore,

be

devoted

to

an

examination

of

the

meaning

and

methodology

of

originalism.

In

part

II,

arguments

in

favour

of

the

adoption

of

an

originalist

approach

to

constitutional interpretation

in

Ireland

shall

be

*

Senior

Sophister

LLB

Candidate, Trinity

College

Dublin.

The

author

would

like

to

extend

his

thanks

to

Kevin Bell

and

Emma Fenelon

for

their

helpful suggestions,

and

Diarmuid

Rossa

Phelan

and

Gerry

Whyte for

their

counsel on

some

of

the

constitutional

issues.

1

Liam

Mac

Uistin,

"Rinneadh Aisling

Dainn".

This

translates literally

as

"generations

of

freedom

remember

us,

the

generations

of

the

vision/dream."

©

2010

Stephen

Brittain

and

Dublin

University Law

Society

Trinity

College

Law

Review

put

forward.

It

shall

be

argued

that

originalism

is

the

only

approach

to

constitutional interpretation consistent

with

the

separation

of

powers,

democracy,

and

the

anti-evolutionary purpose

of

a

Constitution. In

the

article's

concluding section,

I

shall

summarise

my

principal

arguments

and

make

some

final

observations.

I.

The

Meaning

and

Methodology

of

Originalism

(A)

Intentional

Originalism

Dennis

Goldford

identifies two

different

kinds

of

orginalism:

intentional

originalism

and

textual originalism.

He

describes

intentional

originalism

as

"hard

originalism".

Intentionalists

do

not

accord

primacy

to

the

text

of

the

Constitution

but,

rather,

to

the

intentions

of

its

framers.

2

It

is

important

to

define

what

is

meant

by

the term "framers".

Goldford

treats the

term

as

synonymous

with

"authors".

3

In

contrast,

Jonathan

O'Neill,

defines

the

framers

of

the

Constitution

as

the

"ratifiers

and

Congressmen

who

voted

for

the

measure."

4

It

is

respectfully

submitted

that

O'Neill's

description

is

artificial

as

a

semantic

matter.

It

is

difficult

to

see

in

what

sense

a

person

who

merely

voted

for

a

particular

provision

can

be

said to

have

framed

it.

The

verb

"to

frame"

comprehends

the

taking

of

an

active

part

in

the

construction

of

a

particular thing.

5

Therefore,

O'Neill's

definition

should

be

rejected

and

that

of

Goldford adopted.

It

is

not

being

suggested, however,

that

the

views

of

the

Constitution's

ratifiers,

the

electorate

in

the

Irish

context,

are

irrelevant.

On

the contrary,

they

are

of

significance,

as

will

be

explored

below. Rather,

the

aim here

is

to

distinguish

between

"framers" and

"ratifiers".

Intentional originalism

accords

canonical

status to

the

intention

of

the

Constitution's

framers. This

approach

is

to

be

contrasted with

textual

originalism,

which

focuses

predominantly

on

the

constitutional

text

and

only considers

inter

alia

the

understanding

of

the framers

if

the

text

is

ambiguous.

6

The

principal

difference

between

the

intentional originalist

2

Dennis Goldford,

The

American Constitution

and

the

Debate

Over

Originalism

(Cambridge

University

Press,

2005), at

110.

See

also

Raoul Berger,

Government

by

Judiciary:

The

Transformation

of

the

Fourteenth

Amendment

(Harvard

University

Press,

1977),

at

363.

3

Goldford,

note

2,

at

91.

See

also

Antonin

Scalia,

A

Matter

of

Interpretation

(Princeton

University Press,

1997),

at

38.

4

Jonathan

O'Neill,

Originalism

in

American

Law

and

Politics:

A

Constitutional

History

(The

John

Hopkins University

Press, 2005),

at

73.

5

See

Shorter

Oxford

English

Dictionary

(Clarendon

Press Oxford,

1993).

6

Goldford,

note

2,

at

116.

[Vol. 13