Constitutional Interpretation Flashcards
Why are there several methods of constitutional interpretation in common use?
Because there is no consensus on which method must be used. Different justices prefer different methods, and different cases/scenarios may invite different methods to be used.
What are some different methods by which the Constitution can be interpreted?
- Literally
- Harmoniously
- A Moral Reading
- Historical Approach
What are some difficulties with harmonious interpretation?
- It could be trying to minimizes differences between two areas of the Constitution which are rightfully trying to achieve different things.
- Overlooking clearly stated words in favor of some kind of Constitutional “spirit.”
Why are the intentions of the Constitutional authors not considered more when interpreting the Constitution?
- Very little documentation was maintained/is easily accessible from the 1937 Constitutional authoring efforts. There is no Irish equivalent of the Federalist papers.
- Many issues under consideration today were not contemplated by those who were authoring the Constitution in 1937.
What are the two meanings of “constitution” that are relevant to this class?
- rules & principles for a state’s government
- single written instrument containing the most fundamental of these
What are some reasons interpreting statutes is different than interpreting the Constitution?
usually much more detailed and specific
much easier to amend or repeal
normally more recent than constitutional provisions
not all part of the same legal instrument
subject to a statute regulating their interpretation: Interpretation Act 2005
People (DPP) v O’Shea
Whether the Director of Public Prosecutions can bring an appeal against verdicts of “not guilty” recorded by the jury, at the direction of the judge, at the trial, on indictment.
The case raised the question of whether a jury’s acquittal in a criminal case could be appealed to a higher court without violating constitutional protections, particularly double jeopardy and the role of jury decisions.
Court ultimately decided the DPP could appeal an acquittal
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 doubt or ambiguity 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. The rule of law is not inherent in the Constitution
Heneghan v Minister for Housing, Planning & Local Government
Plaintiff claimed that it was unconstitutional to restrict electorate for the 43 panel seats (plaintiff conceded it was constitutional to have a franchise narrower than that for Dáil) franchise for the 6 University seats to NUI and TCD graduates
There was also then a second case fo whether the SC had the right to delay the declaration of unconstitutionality by two years.
Art 18.4.2 - may either means must or must change.
Divisional Court found much of the expert evidence on historical or political factors to be irrelevant or unpersuasive
Only speculation was presented as to what those who voted to keep the Seanad in 2013 thought about its reform
The amendment was passed in 1979 - 7th amendment
High Court: the Amendment enabled the Oireachtas to give representation to more than two institutions, but it did not require this ([151])
Appeal on that issue upheld ([2023] IESC 7 (31 March 2023, 6-1); it is unconstitutional to restrict higher education representation to the two named institutions
Specifically, the polling card distributed to voters in 1979 gave the impression that representation would be extended somehow. (What the will of the people was when the amendment was voted on is important.)
Majority opinion: Constitutional interpreations must comply with the fundamental principles which underlie/underpin the Constitution. No provision can be said to have plain meaning until the whole document is considered.
The Oireachtas must decide which institutions are represented and how, provided either the NUI or DU still is and at least one other institution is too
Supreme Court suspended its declaration of invalidity until 31 May 2025. This suspension was notable and done to prevent “constitutional chaos.” (Art 15.4.2 addresses Court’s declaration of unconsitututional laws). Did not want to step on toes of the legislature but also had to give the Oireachtas time.
This case has led to the Seanad Electoral (University Members) (Amendment) Act 2024, which was signed into law in October. Voting is now expanded to many other higher learning institutions. There will be a bye-election while this new process is implemented to elect Seanad folks.
Tormey v Attorney General and Ireland
Tormey challenged not being able to change venues between courts. Appeal dismissed, as laws, judges, and jury pool wll be the same between Circuit and Central Criminal Court.
The Court held that it is not enough to read constitutional provisions in isolation or purely literally; courts must ensure that the essential constitutional structures and values remain meaningful. (Harmonious interpretation).
Purposive and Contextual Interpretation:
Rather than adopting a narrow, literal approach, the Court took into account the purpose behind constitutional guarantees. This indicates that when the text leaves room for interpretation, courts should lean towards interpretations that uphold the Constitution’s fundamental objectives
O’Meara& Ors -V- The Minister for Social Protection
Court found it unconstitutional to deny a man who was not married to his partner claim a Widower’s Contributory Pension for the sole reason that the couple had not been married to each other. This was because of Art 40.1 (equality before the law) and not Art 41 (marriage) - example of historical interpretation
The test for inequality comes from Donnelly v Ireland - the exclusion infringes on equality if it draws on an irrational distinction. O’Donnell CJ found several, including that the cost of raising children does not differ depending on marital status.
Hogan discussed the expansion of the definition of family in Article 42 based on adoption cases, but O’Donnell found this unconvincing.
Case was decided shortly before the unsuccessful referendum on extending the definition of family. Could be argued that this case was decided correctly.
Senator Ivana Bacik v an Taoiseach
A limit of Tormey harmonious interpretation. Case re: whether Seanad can sit without Taoiseach’s nominees. Court noted “sixty is sixty” re: Article 18.1, no matter what is said elsewhere in the Constitution.
Why can the Heneghan decision be seen as a resolution to the literalist v harmonious camps
opinion holds interpretations must comply with fundamental principles which “underpin” or “underlie” the Constitution. No provision can be said to have “plain meaning” until the whole document has been considered.
Have the judgments (majority, concurring and dissenting) in Heneghan clarified the degree to which constitutional provisions should be given a literal interpretation?
Things relating to processes should be given a literal interpretation and other concepts should be considered beyond what is just written on the page.
Whether the Director of Public Prosecutions can bring an appeal against verdicts of “not guilty” recorded by the jury, at the direction of the judge, at the trial, on indictment.
The case raised the question of whether a jury’s acquittal in a criminal case could be appealed to a higher court without violating constitutional protections, particularly double jeopardy and the role of jury decisions.
Court ultimately decided the DPP could appeal an acquittal
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 doubt or ambiguity 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. The rule of law is not inherent in the Constitution
People (DPP) v O’Shea
Plaintiff claimed that it was unconstitutional to restrict electorate for the 43 panel seats (plaintiff conceded it was constitutional to have a franchise narrower than that for Dáil) franchise for the 6 University seats to NUI and TCD graduates
There was also then a second case fo whether the SC had the right to delay the declaration of unconstitutionality by two years.
Art 18.4.2 - may either means must or must change.
Divisional Court found much of the expert evidence on historical or political factors to be irrelevant or unpersuasive
Only speculation was presented as to what those who voted to keep the Seanad in 2013 thought about its reform
The amendment was passed in 1979 - 7th amendment
High Court: the Amendment enabled the Oireachtas to give representation to more than two institutions, but it did not require this ([151])
Appeal on that issue upheld ([2023] IESC 7 (31 March 2023, 6-1); it is unconstitutional to restrict higher education representation to the two named institutions
Specifically, the polling card distributed to voters in 1979 gave the impression that representation would be extended somehow. (What the will of the people was when the amendment was voted on is important.)
Majority opinion: Constitutional interpreations must comply with the fundamental principles which underlie/underpin the Constitution. No provision can be said to have plain meaning until the whole document is considered.
The Oireachtas must decide which institutions are represented and how, provided either the NUI or DU still is and at least one other institution is too
Supreme Court suspended its declaration of invalidity until 31 May 2025. This suspension was notable and done to prevent “constitutional chaos.” (Art 15.4.2 addresses Court’s declaration of unconsitututional laws). Did not want to step on toes of the legislature but also had to give the Oireachtas time.
This case has led to the Seanad Electoral (University Members) (Amendment) Act 2024, which was signed into law in October. Voting is now expanded to many other higher learning institutions. There will be a bye-election wh
Heneghan v Minister for Housing, Planning & Local Government
