Judge advocates judicial restraint in interpreting the Constitution

A Supreme Court judge has advocated judicial restraint in interpreting the Constitution and urged more "sceptical" consideration of the view that the courts are obliged to develop new rights.

Mr Justice Donal O’Donnell said “reason is central to the judicial task” and people should not assess a judicial decision according to its result but rather on the basis of the reasons for that.

He said the Constitution explicitly endorses and requires “a classical form of legal constitutionalism” in relation to its interpretation, involving a “constrained form of judicial power” and “emphasising judicial restraint”.

There is ultimately “no single or correct approach” to the interpretation of the Constitution, particularly in highly contested cases, he stressed.

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However “humility, fidelity, and above all reason, are essential guideposts”.

While those do not dictate the results, they facilitate them and their subsequent analysis “and that is a task well worth applying ourselves to”.

The possibilities have not by any means been exhausted and there is “much work to be done by us all”.

The people in 1922 and 1937 chose lawyers to enforce the Constitution “and we should be faithful to that choice”.

Trust

In his keynote address at a conference at the University of Limerick marking the 80th anniversary of the Constitution, the judge said the drafters of the 1922 and 1937 Constitution had chosen the courts and therefore lawyers to enforce the Constitution on the basis the courts could be trusted.

After conducting a detailed analysis of constitutional interpretation over the decades, he urged that people consider more sceptically and rigorously the “orthodox” view that it is “somehow inevitable” the courts must go further than the boundaries implied by the text and language of the Constitution.

That view also maintains the courts are obliged to develop new rights or adapt the Constitution to changing times without the need for an amendment, as was suggested in 1977, or to advance an approach to the Constitution detached from its text “guided only by the theory it is a cultural artefact reflecting an ethos”.

“Reason is central to the judicial task,” he said.

People must not only be wary of the prospect of a court “becoming colonised by ideologues who will impose results we dislike”.

More dangerously, it will come to be generally accepted here, if there is not better guide to a court’s decision than the subjective views of a judge, then the imposition of views by judicial decision is a permissible process.

If so, the process inevitably loses its capacity to command respect and therefore its effectiveness, he said.

In Spain, it has been possible to "blithely assert" that the holding of a referendum in Catalonia was not unconstitutional but his view was that was "not open to serious legal debate".

If the reasoning process is part of the inbuilt tradition of the common law, and what we all value, it is possible in many cases to say a result is correct, whatever one’s views of its desirability, and even in more contestable cases, that one outcome is by far the most likely and plausible view, he said.

There was “no reason to discard that critical faculty after long years of study and practice”.

To analyse all cases in terms only of the result involves weakening the “adhesive quality” of judicial decisions, he said. It is possible to distinguish between the result and method by which it is achieved.

Unmerited criticism

An example was the decision rejecting the case by Katherine Zappone –now a government minister - and her wife Ann Louise Gilligan aimed at having their Canadian marriage recognised here.

He believed the criticism of that decision was “unmerited” because to have interpreted the 1937 Constitution as extending to a same sex marriage would have shaken credibility in the judicial decision making function in “a serious way”.

That was not to say the case itself was not beneficial, he said. It was important at the level of consciousness raising and was also a “high example of constrained constitutionalism”.

The end result was the passage of the same sex marriage referendum but, had judges decided otherwise in the Zappone case, they “might have been heroes” to some but “at a high price” in terms if respect for the process of constitutional interpretation, particularly among those who might take a contrary view and would have had no opportunity to be persuaded.

He accepted there was a contrary argument in that the referendum may not have been passed and a fundamental right should not be at the vagary of a temporary majority who happened to turn out on referendum day.

While recognising the force of that argument, it should also be said all our fundamental rights here “are derived ultimately from a vote of the majority”.

Earlier in his address, the judge said he disliked the “implicit endorsement” of the view that a lawyerly approach to the Constitution should be discarded in favour of “a more mystical philosophical approach in which the judge has to delve into natural law to ascertain desirable developments in society”.

He considered any contemporary criticism of the approach to constitutional interpretation adopted by the Supreme Court, including of Mr Justice Brian Walsh, during the 1960s and 70s, got little traction because essentially commentators approved of what the court was doing.

Unenumerated rights drove the activism of that court, he said. While at the time the decisions of the court were seen as “innovative and groundbreaking”, the reasoning in retrospect was “perhaps relatively unsophisticated” and open to the objection now “the game was being played backwards – a right was postulated that would allow the plaintiff to succeed”.

The power of amendment is the power of the people and interpreting the Constitution to reshape it in an innovative way, and to explicitly avoid the need for amendment, was “to encroach on the people’s prerogative”.

This note of caution was not an argument for a narrow or conservative approach to the Constitution, he stressed. The values embedded in the Constitution, which the courts are enjoined to protect, and to resist change to, are “essentially liberal and democratic”.