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Interpreting The Irish Constitution
The aim of this Chapter is to provide an introduction and overview of the various interpretative techniques that are and have been employed by Irish courts in interpreting the Irish constitution. It will include an analysis of the various interpretative doctrines that have been employed over the years, and it will use as a starting point the five different modes of constitutional interpretation identified in Professor Kelly’s seminal work, ‘The Irish Constitution’.  An argument will be advanced that Irish constitutional interpretation is not actually as clear-cut as Kelly’s work makes it seem, and that the true substance of the debate may actually be stymied by an over-enthusiastic adoption of the grounds he proposed. The chapter will also deal with some academic commentary on and criticisms of the methodology, or lack thereof, adopted by our judiciary in relation to constitutional interpretation.
(A) Professor Kelly’s Five Methods of Constitutional Interpretation
In Chapter 1.1 of ‘The Irish Constitution’ Kelly identifies five different approaches to the interpretation of the Constitution in the case law. These approaches he identifies are literal interpretation; the doctrine of harmonious interpretation; the ‘broad’ approach; the historical approach; and the natural law approach. He acknowledges that it is true to say that they can overlap and suggests that no one particular approach is in the supremacy amongst the judiciary, although he notes that the ‘broad’ and ‘harmonious’ approaches are probably in the ascendancy at the moment. He concludes that it may be true that any segmentation of these approaches is “otiose, because each of these words connotes an aspect of interpretation which legitimately forms part, but only part, of every exercise in constitutional construction."  In relation to this however it is significant to note that in this quote Hardiman J was discussing the techniques Professor Kelly himself had proposed and this sentence was inserted into the work after Professor Kelly’s death, although Kelly’s own opinions probably accorded with this view. For instance in the 3rd edition of the book,  published in 1994 before Professor Kelly’s death, he notes that “…it is true that these approaches sometimes overlap."  Indeed, in that edition he even signalled the possible use of the non-doctrinaire approach by the judiciary (see Part (B)(iii) below) when he said:
“One needs to emphasise, however, that the courts have shown no consistency with regard to any particular approach and this gives rise to the suspicion that individual judges are willing to rely on any such approach as will offer adventitious support for a conclusion which they have already reached."  However, it is submitted that the manner in which he goes on to deal with the distinct approaches at the very least implies a lack of importance being placed on this conclusion by him.
Kelly then goes on the outline the different approaches which he has identified:
(i) The Literal Approach
This approach involves taking a plain language reading of the Constitution; thus Kelly says is perhaps most appropriate for the very technical provisions of the Constitution (and he says probably not fundamental rights). He says that this approach is desirable because it militates against a high degree of judicial interpretation, but it can also be unhelpful because it obliges the courts to fall back on standard Common Law principles of statutory interpretation which may not be appropriate in the context of the fundamental law of the State. Furthermore, he suggests that it is clear that the framers did not intend that the Constitution be interpreted in this way as, if they had, the language used would have been more conducive to a strict interpretation. He identifies two cases that exemplify its use, the second of which is The People (Director of Public Prosecutions) v O’Shea,  which case concerned a Supreme Court decision on whether or not a prosecution is entitled to appeal a jury acquittal. He quotes the following passage from O’Higgins CJ concerning interpretative techniques:
“The Constitution, as the fundamental law of the State, must be accepted, interpreted and construed according to the words which are used; and these words, where the meaning is plain and unambiguous, must be given their literal meaning. Of course, the Constitution must be looked at as a whole and not merely in parts and, where doubts or ambiguities exists, regard may be had to other provisions of the Constitution and to the situation which obtained and the laws which were in force when it was enacted. Plain words must, however, be given their plain meaning unless qualified or restricted by the Constitution itself." 
It is submitted that in fact it is a truism to say that all Constitutional interpretation does, and must, start with an examination of the words involved since it is an exercise in the interpretation of a written document. Further the above extract outlines not just the literal approach to interpretation, but also includes elements of the harmonious and historical approaches. Indeed ultimately O’Higgins CJ bases his judgment on a harmonious reading of Articles 34.4.3° and Article 38.5 of the Constitution. Therefore it could be contended that there is an element of oversimplification creeping into Kelly’s analysis since the very judgment he holds out as the paradigm of literal interpretation ultimately ends up being based on both literal and harmonious techniques.
(ii) The Broad Approach
The essence of the broad approach according to Professor Kelly is that it favours a process of interpretation guided by the actual text but in a way which best advances the ‘intentions of the people as embodied therein’ informed by the broad ‘purpose or spirit of the constitution in protecting human rights’. This approach prevents a rigid application of traditional Common Law interpretative methods which can be inappropriate in the case of a constitution. He then lists a number of cases in which this approach is utilised. In the case of NUR v Sullivan,  which concerned a challenge to the constitutionality of an Act which allowed only one union to represent workers in each industry, he notes that Gavan Duffy J utilised this approach when he considered that the text of the Constitution does “no more than mark its great outlines"  . Further, Gavan Duffy J worried about “importing a misplaced legal pedantry into the interpretation of the national charter against a quite reasonable view of its real meaning."  However, the judge also referred to “the actual language used"  to support his view, and in the same case Murnaghan J delivering the judgment of the Supreme Court noted that constitutions frequently embody important principles expressed in general language, although he also pointed to “language which is simple and clear"  in the Constitution addressing the rights of citizens to form unions. It is clear from this that the different approaches are by no means mutually exclusive, something which could be misunderstood from the way in which Kelly deals with the topic. Similarly, when Professor Kelly discusses the O’Byrne J quote from Sullivan v Robinson  that “A Constitution is to be liberally construed so as to carry into effect the intentions of the people as embodied therein"  he neglects to note that the same judge in the same case refers extensively to the previous state of the law under the 1922 Constitution and indeed even notes that the transitory courts were obliged to apply the 1937 Constitution because it cannot successfully be argued that “the framers of the Constitution contemplated that, in the intervening period, the right to habeas corpus should disappear."  It could further be argued that the notions of broad or purposive interpretation as identified by Kelly and the notion of harmonious interpretation overlap to a large extent in any case; for instance, the passage  Kelly identifies in Murray v Ireland  concerning the ability of the State to delimit the exercise of all Constitutional rights in the interest of the common good, despite this ability only being expressly conferred in the case of a few of the rights, is arguably a piece of harmonious interpretation, which draws on the fact that some natural rights can expressly be so delimited to imply the same in the case of all such rights. Kelly rightly points out the degree of subjectivity that this approach can entail, a good example of which is provided by Costello J in his judgment in the Murray case when he said that “…a purposive approach to interpretation which would look at the whole text of the Constitution and identify its purpose and objectives in protecting human rights, is frequently a desirable one."  It is submitted that the identification by any one judge (particularly a High Court judge) of the purpose and objectives of the Constitution is both subjective and questionable.
(iii) The Doctrine of Harmonious Interpretation:
This is the idea that constitutional provisions should not be construed in isolation but in the context of their entire paragraph, Article, and the Constitution itself. Kelly notes that it is partly based on the presumption that the drafters did not intend internal constitutional dissonance. He suggests that this doctrine was first articulated in the 1980’s although he thinks that it should have been the first cannon of constitutional interpretation. It is submitted however, that it was employed long before the 1980’s. As far back as NUR v Sullivan  Gavan Duffy J remarked that the text of the Constitution concerning the right to form unions in that particular case favoured a wider reading given the context in which the Article in question (Article 40.6.1°) was to be found.  Instances of it occurred periodically in cases such as Sullivan v Robinson  (in which O’Byrne J read the Articles allowing the courts to determine the validity of laws generally (Article 34.3.2°) and the validity of Bills referred to them by the President (Article 26) simultaneously because they are intimately connected), O’Byrne v Minister for Finance  (in which Maguire CJ employed the approach to read the prohibition in the Article (Article 35.5) in the context of the Article as a whole, the purpose of which he said was to safeguard the independence of the judiciary), and by Henchy J in McGee v Attorney General  when he noted that when “sub-s. 1 of s. 3 of Article 40 is read (as it must be) in the light of the Constitution as a whole"  his ‘human personality test’ for enumerating personal rights is refined. Henchy J was a strong proponent of a harmonious reading of the Constitution during his time on the Supreme Court bench, having employed it in many of his judgments in major cases such as The State (Healy) v Donoghue,  DPP v Walsh,  DPP v O’Shea,  and Dillane v Ireland  (the last of which is identified by Kelly as the case in which the harmonious approach was first expressed, and indeed in which Henchy J articulated the doctrine in the following terms: “Under the doctrine of harmonious interpretation, which requires, where possible, the relevant Constitutional provisions to be construed and applied so that each will be given due weight in the circumstances of the case…"  ). Therefore it is clear that the approach was around before the 1980’s, although it was during that decade that it was first articulated and during which it was employed more regularly due in large part to the influence of Henchy J on the Supreme Court. Again it cannot be said that it was ever used exclusively, and other methods of interpretation crept into judgments employing it, including those of Henchy J himself (for instance in adverting to the intentions of the framers and the historical debates on the Constitution in the O’Shea case  ).
Professor Kelly points out the myriad of benefits of employing this method, including in the context where competing Constitutional rights are at issue, but he also remarks that despite these benefits the approach should be restricted to the harmonious interpretation of the actual written Constitution and not some spirit or tacitly understood principle in an unwritten Constitution of Ireland, as this strays too far into the realm of judicial policy-making.  This arguably may have occurred in the recent High Court case of Doherty v Government of Ireland and Others  ; in this case Kearns P employed a harmonious interpretation to interpret the Articles in the Constitution concerning democracy and democratic representation together. However, he then said “Far from the Court ‘tearing asunder’ the provisions of the Constitution by adjudicating upon this application, it is the ongoing failure to move the writ for this by-election since June 2009 which offends the terms and spirit of the Constitution and its framework for democratic representation." Reference to some tacitly understood ‘spirit of the Constitution’ may be considered to be judicial policy-making, although it is also arguably a form of purposive or broad interpretation having regard to Ireland as a democratic State as set forth in Article 5 of the Constitution.
(iv) The Historical Approach:
Professor Kelly notes that “An important element in the construction of the Constitution is the state of affairs, legal as well as extra-legal, at the time of the Constitution’s enactment."  He observes that the Courts have shown in such cases as Melling v Ó Mathghamhna  that the state of affairs in 1937 can be relevant to Constitutional interpretation. Kelly points out that the relevance attributed by the judiciary to the state of affairs in 1937 rests at least in part on long-established cannons of statutory (and not constitutional) interpretation. He suggests that this cannon of interpretation is often held to be of secondary importance by the Courts  although it is submitted that his later reference to the unevenness of judicial practice in the area is more accurate than saying that the historical approach is treated as less important, especially given the strength with which it has been employed in judgments in certain cases.  This unevenness of practice is nowhere better expressed than in the case of Sinnott v Minister for Education  in which a seven-judge Supreme Court was asked to rule on at what age, if any, the right to a free primary education expires. Many of the judges employed the doctrine of historical interpretation in reaching their conclusions, although they employed it simultaneously with what one might think were a competing and incompatible doctrine of a ‘living Constitution’ (which holds that the Constitution evolves as society does); Denham J  and Murray J  were particularly guilty of this in their judgments. This case highlights an inconsistency in the reasoning of the judiciary who interpret some parts of a Constitutional Article using one doctrine and other parts of the same Article using an incompatible doctrine.
A further issue with the idea of the ‘historical approach’ is revealed by Kelly’s work, which is that it is used as a catch-all category by the judiciary to mean anything from the intention of the framers, to the state of the law in 1937, to the state of public opinion in 1937. This issue is pointed out in David Langwallner’s Article  in which he notes that the judiciary seems to adopt whichever facet of ‘historical interpretation’ best serves to reach their desired result (for further analysis of the so-called ‘non-doctrinaire approach’ this implies see (B)(iii) below). In any event Langwallner is extremely critical of this approach to Constitutional interpretation, likening it to the “dead-hand of history"  binding the decisions of the present generation. However even some of its proponents are careful to define exactly what it is that they mean by ‘originalism’ or the ‘historical approach’ when they advocate its use to prevent just the kind of judicial discretion which the approach is supposed to remove. This can be seen, for instance, in Stephen Brittain’s Article ‘The Case for an Originalist Approach to Constitutional Interpretation in Ireland’.  However, the Irish judiciary do not even employ this academic rigour in defining what the historical approach entails, resulting in referral to a variety of ‘historical’ sources in Constitutional interpretation, and thus a subjective approach to interpretation. In relation to the public opinion of 1937 Kelly raises the valid point that it probably can only be deduced from sources outside the law or the Constitution and this begs the difficult question of what sources are accurate enough to be permissible in serving this function. At what threshold should this accuracy be judged?
Finally, Kelly suggests that there are several reasons why this approach is unlikely to find favour with the Irish courts. First, there is little original material available to them to reveal the thinking of the drafters since the constitution was drafted in secret and the subsequent Dáil debates often do not reveal the intentions of the drafters; secondly, this approach would be at odds with the traditional interpretative approach in this country of focusing on the words and only any intention that is clear in them rather than a supposed intention of the drafters; and finally, the fact that the Constitution was enacted by plebiscite and amended by a series of referenda shows that it is the actual text of the constitution and not the intention of the drafters that is relevant.
(v) The Natural Law Approach:
Kelly says that the influence of natural law on Constitutional interpretation can be seen in several contexts. He identifies the willingness of some members of the judiciary to interpret the constitution by reference to extra-constitutional principles. A clear example of this is the judgment of Walsh J in the case of McGee v Attorney General  , in which the judge said:
“Both in its preamble and in Article 6, the Constitution acknowledges God as the ultimate source of all authority. The natural or human rights to which I have referred earlier in this judgment are part of what is generally called the natural law. There are many to argue that natural law may be regarded only as an ethical concept and as such is a re-affirmation of the ethical content of law in its ideal of justice. The natural law as a theological concept is the law of God promulgated by reason and is the ultimate governor of all the laws of men. In view of the acknowledgment of Christianity in the preamble and in view of the reference to God in Article 6 of the Constitution, it must be accepted that the Constitution intended the natural human rights I have mentioned as being in the latter category rather than simply an acknowledgment of the ethical content of law in its ideal of justice. What exactly natural law is and what precisely it imports is a question which has exercised the minds of theologians for many centuries and on which they are not yet fully agreed." 
Secondly, Kelly describes the development of the doctrine of unenumerated rights as having been largely influenced by this approach. However, he remarks that an overt reliance on this method has fallen from favour due to the perception of natural law as nebulous and as failing to provide reliable guidelines to interpretation. It has however been used in the recent case of DPP v Best  to justify a purposive approach to interpretation based on the preamble. This example though shows that once again the distinction between the methods of interpretation proposed by Kelly is not entirely clear-cut. This case, and indeed many cases in which there is reference to the Natural Law, also include elements of purposive interpretation (looking to the aims of the Constitution in protecting or advancing Natural Rights) and harmonious interpretation (deducing those aims from sources such as the Preamble or the Directive Principles of Social Policy).
(B) Observations on Irish Constitutional Interpretation
Taking as a basis Professor Kelly’s above work on the area of interpretation, there follow a number of observations both on that work and on Constitutional interpretation in general.
(i) Criticism of Professor Kelly’s Approach
The criticisms of Professor Kelly’s work have largely been outlined above, but they bear reiterating. Irish Constitutional interpretation is not a clear-cut exercise in which judges decide on one of Kelly’s five methods and then use that as the prism through which they view the Constitution. Rather, almost every exercise in Constitutional interpretation involves the employing of multiple approaches, and the use of supposedly contrasting approaches in the same case and even in the same judgment. The questions which Kelly fails to address by neatly placing judgments in different interpretative categories are, it is submitted, the most important to ask of how unelected judges are interpreting the fundamental law of our State: what interpretative techniques are appropriate in interpreting the Irish Constitution, and which are not? By what, if any, considerations should the judiciary be constrained in selecting an appropriate interpretive technique? Is there anything in the nature of a constitution that requires certain interpretive techniques to be employed, and is the approach of the judiciary thus far legitimate in light of that? The importance of these questions has been masked to some extent by the neat categorisation of interpretive techniques set out by Kelly, and it has been left to others to draw these questions to our attention.
(ii) Some Conclusions on Irish Constitutional Interpretation
While an exhaustive examination of all of the cases in which judges have outlined methods of Constitutional interpretation is beyond the scope of this essay, a number of general points can be made about the state of Constitutional interpretation as it exists in this country based on an examination of a number of prominent cases.
First, it is submitted that there has been a marked evolution in the jurisprudence of the Courts in relation to how they interpret the Constitution. It is submitted that the early Court employed a good deal of purposive interpretation, as well as the historical approach through looking at the intention of the framers.  In the 70’s and 80’s the idea of the harmonious approach dominated the Court’s thinking and the Natural Law interpretation also came to the fore, signalling a period of perceived judicial activism.  This trailed off towards the present day with a return to more literal and historical approaches, although some discussion of a harmonious approach lingers in the Court’s thinking still. 
Secondly, it is submitted that judges never use just one interpretative technique in a judgment and even where they strongly advocate in favour of one particular one they inevitably end up using elements of others too. Further, it is clear from an examination of the prominent jurists that they tend to have a favoured interpretative technique (for instance Henchy J generally favours a harmonious approach  , O’Higgins CJ seems to favour a mixed approach  , and Denham J generally favours a literal approach  ), but it is also clear that they will not feel themselves bounded by the constraints imposed by that technique and will use others where they deem it necessary. This begs the question about how and when they should and do deem it necessary to depart from that particular favoured technique. The more disturbing question this begs is whether the interpretive technique favoured is simply a function of trying to achieve the desired result.
Thirdly, in most cases judges tend to start from the premise that a straight textual reading should be employed where possible, and say that the literal approach should be used where the meaning of the plain text is clear. Denham J provides a useful discussion about when it is appropriate to use the literal approach in the case of Attorney General v Hamilton (No.2).  This case also shows that the approach adopted has a manifest influence on the result attained. Here the majority of the Supreme Court adopted a purposive and broad approach to hold that the repetition of the statements that had been made in the Dáil were still subject to parliamentary privilege despite that repetition having taken place outside of the Dáil Chamber. In her dissent however, Denham J argued that “The clear words themselves relating to utterances, plus their juxtaposition with the clear prior words relating to the House and "within the precincts of, either House" are so precise that to take other than the literal construction of the Article would be wrong. There is no reason on the wording of the Constitution to step beyond the literal meaning."  This clearly shows that the adoption of a literal approach rather than a broad purposive approach leads to a different result than that reached by the majority.
(iii) Academic Commentary and the Non-Doctrinaire Approach
These conclusions signal the non-doctrinaire approach adverted to by Kelly in the 3rd edition of his book as noted above (Part A). This idea has been expanded upon by other academics including Dr. Oran Doyle, who highlights the use of the non-doctrinaire approach in his article “The Duration of Primary Education: Judicial Constraint in Constitutional Interpretation".  Focusing on the use of this approach in the Sinnott case,  a case which has been held up as a determined stand against judicial activism, Doyle argues that in fact this case is inherently activist because of the use of the non-doctrinaire approach employed in it by the judiciary. He concludes that judicial restraint is obviously provided by the words in the Article in question, but the interpretative method chosen dictates the result, and freedom to choose any method places very few limits on judicial interpretations. As each method was viewed as equally legitimate by the judges in short they “…were not constrained by law to reach the conclusion they did."  Oran argues that this absence of constraints makes Sinnott a quintessentially activist decision and not the stand against judicial activism that some have portrayed it to be. He described the decision as ultimately a political one (deferential, but nonetheless political) confined by the legal framework but not by the law.
It shall be contended in this thesis that an argument for law being defined in terms of legitimate authority provides the judiciary with constraints about the appropriate methodology to adopt in interpreting the Constitution; as such, the next Chapter contains a discursus of the idea of legitimate authority.