Tom Hickey: How to Interpret the Irish Constitution
Michael Ramsey
Tom Hickey (Dublin City University) has posted How to Interpret the Irish Constitution: Tomas Heneghan v Minister for Housing ((2024) (6) Irish Supreme Court Review 53-79) (23 pages) on SSRN. Here is the abstract:
This paper explores the judgment of Murray J in the Tomas Heneghan case as it pertains to 'constitutional interpretation'. Specifically, it looks at how and why Murray J endorses the Henchy J 'harmonious' or 'spirit-based' approach, in apparent preference to the more 'formalist' or 'literalist' approach of O'Higgins CJ.
And from the introduction (footnotes omitted):
Over the longer haul, the significance of Murray J’s majority judgment in Tomás Heneghan v Minister for Housing will likely be more for what it says about how judges are to approach the interpretation of the Irish Constitution than for the changes it demanded would be made to the electoral franchise in respect of the six ‘University seats’ in the Seanad. Murray J emphasises the fundamental importance of ‘context’ and ‘purpose’ in constitutional interpretation. The wording of this or that provision may on the face of it appear unambiguous, and to have crystal clear implications. But there is ‘no case’, says Murray J, ‘and no provision – no matter how clear it may be – in which it is other than appropriate to understand and have regard to the overall context in which that provision was adopted’. And he prefers the ‘harmonious’ and broadly ‘spirit-based’ approach to constitutional interpretation – as Henchy J had in his dissenting judgment in People (DPP) v O’Shea (ie where O’Higgins CJ, in a majority judgment in that case, had insisted that ‘plain words … must be given their plain meaning’). Indeed, Murray J – on the face of it – could hardly have been more emphatic on the point: ‘I do not believe that Henchy J’s analysis can or should now be seriously questioned as the authoritative explanation of how a court should view any issue of interpretation by any Article of the Constitution.
(Via Larry Solum at Legal Theory Blog, who says: "Fascinating discussion, with echoes of the American debates over originalism and living constitutionalism. Recommended.")
I think most originalists (even most textualist originalists) would not object to looking at "context and purpose," even with respect to an apparently clear provision, to be sure there's no hidden ambiguity. The question is what an interpreter does with the "context and purpose" -- is it used to understand what the original meaning of the provision actually was, or is it used to go off in some different direction from the one the text indicates?