Constitutional - Constitutional Interpretation

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Restraint in Interpretation

Back 1

The courts have primacy in the interpretation of the Constitution

Rules and doctrines limit the extent of Judges exercising power of interpretation

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Models of Interpretation

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(a) Literal Approach
(b) Broad/Purposive Approach
(c) Harmonious Interpretation

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Literal Approach

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Court applies the literal meaning of the text

O’Shea (1982) (appeals against acquittal)

“words, where the meaning is plain and unambiguous, must be given their literal meaning” Art 34.4.3 “all decisions”

O’Byrne (1959) (judges’ salaries taxed)

Disagreement over the plain meaning of words
Majority: literal - can tax
Minority: literal - cannot tax

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People ( DPP) v O'Shea (1982)

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(appeals against acquittal)

Traditionally, it had been thought than an acquittal was frnal. There was a difference of judicial opinion on the meaning of the word 'all' in Article 34.4.3. O'Higgins C.J., with whom Walsh and Hederman JJ. agreed, noted that:

The respondent ... must establish that there is something in the Constitution itself which qualifies the plain words of Article 34, s. 4, sub-s. 3, so as to restrict the appellate Jurisdiction, thereby given to the Supreme Court in criminal cases, to appeals against convictions. Or he must show that a statutory provision made subsequent to the Constitution has such an effect.

“words, where the meaning is plain and unambiguous, must be given their literal meaning” Art 34.4.3 “all decisions”

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O'Byrne v Minister for Finance (1959)

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(judges’ salaries taxed)

Disagreement over the plain meaning of words

Majority: literal - can tax
Minority: literal - cannot tax

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Broad/Purposive Approach

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Looking at the purpose of the provision

Paperlink (1984) (specified & unspecified rights)

-“a political instrument as well as a legal document”

-Different use of language not significant.

Quinn Supermarket (1972) (Jewish butchers)

Primary purpose of Art 44 was to allow the free practice and profession of religion, therefore the discrimination was necessary.

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Attorney General v Paperlink (1984),

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(specified & unspecified rights)

-“a political instrument as well as a legal document”

-Different use of language not significant.

Costello J had this to say about the literal approach:

Th Constitution is a political instrument as well as a legal document and in its interpretation the Courts should not place the same significance on differences of language used in two succeeding sub-paragraphs as would, for example be placed on differently drafted sub-sections of a Finance Act. A purposive, rather than a strictly literal, approach to the interpretation of the sub-paragraphs is appropriate. I do not therefore think that any significance should be attached to the fact that the States duty towards 'the citizens" unspecified personal rights in Article 40.3.1 is phrased in
omewhat different language to its duty towards the citizens' specific personal rights set out in Article 40.3.2.

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Quinn Supermarket v Attorney General (1972)

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(Jewish butchers)

Primary purpose of Art 44 was to allow the free practice and profession of religion, therefore the discrimination was necessary.

In this case, a ministerial order granted an exmption to Jewish meat shops from the restricted opening hours applicable to butcher shop Despite the prohibition against religious discrimination in Article 44.2.3, the Court upheld the discrimination as it was necessary in order to allow the free practice of the Jewish religion as guaranteed by Article 44.2. The Court looked at the primary purpose of Article 44 and believed its primary purpose was to allow the free practice and profession of religion.

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Harmonious Interpretation

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Looking at the Constitution in its entirety

O’Shea (1982) (Henchy J. dissenting)

Do not focus on one clause – integrated interpretation
“the letter killeth, but the spirit giveth life”

Sinnott (2001) (special needs education)

Harmonious interpretation used. ‘Child’ has special meaning , looked at other terms such as ‘citizen’ and ‘mother’

O’B v S (1984) (difference in treatment between legitimate and illegitimate child A 40.1) Furthers special position marital family (A41)

Dreher (1984) (property rights)
Art 43 informs interpretation of Art 40.3.2

Tormey (1985) “true purpose & range of Constitution would not be achieved if it were treated as no more that the sum of its parts” – smooth & harmonious operation

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Sinnott -v- Minister for Education (2001)

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(special needs education)
Harmonious interpretation used. ‘Child’ has special meaning , looked at other terms such as ‘citizen’ and ‘mother’
•O’B v S (1984) (difference in treatment between legitimate and illegitimate child A 40.1) Furthers special position marital family (A41)

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People ( DPP) v O'Shea (1982)

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Do not focus on one clause – integrated interpretation

“the letter killeth, but the spirit giveth life”

Henchy J's dissenting judgment in People ( DPP) v O'Shea (1982):

"Any single constitutional right or power is but a component in an ensemble of interconnected and interacting provisions which must be brought in to play as part of a larger composition and which must be given such an integrated interpretation as will fit it harmoniously into the general constitutional order and modulation. It may be said of a Constitution more than of any other legal instrument, that "the letter killeth, but the spirit giveth live"

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O’B v S (1984)

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(difference in treatment between legitimate and illegitimate child A 40.1)

Furthers special position marital family (A41)

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Dreher -v- Irish Land Commission (1984)

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(property rights)

Art 43 informs interpretation of Art 40.3.2

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Tormey -v- Ireland (1985)

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“true purpose & range of Constitution would not be achieved if it were treated as no more that the sum of its parts” – smooth & harmonious operation

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Originalism/Historical Approach

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Interpreting text according to what was meant at time of drafting

PROS

Efficiency – no need for new analysis
Predictability – people can plan their affairs
Democracy – facilitated as not possible to debate every issue

CONS

Governed by choices of a generation past
Difficulty in finding evidence of what past people thought of Constitution
Method requires large amount of subjective assessment

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Sinnott -v- Minister for Education (2001)

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(special needs education)

Though changing understandings of ‘prudence, justice and charity’, cannot be “divorced from its historical context”

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Art 26 OAS Bill 1940

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(internment)

At time of enactment much legislation permitted internment

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Healy v O’Donoghue(1976)

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Court rejected Historical approach

“concepts of prudence, justice and charity must change as society develops” no intention to impose for all time ideas prevalent in 1937

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Norris -v- AG (1984)

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(homosexuality as a crime)
Difficult to identify the standards of 1937 people

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Curtin -v- Dáil Éireann (2005)

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(removal of judge)
Again, Court rejected Historical approach
“not convinced this is the appropriate basis upon which adjudication is to be made in the instant case”

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Fundamental Values

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Judges can draw on notions of ‘prudence, justice and charity’ in interpreting the Constitution

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McGee v AG (1974)

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No interpretation of the Constitution is intended to be final – a ‘living instrument’

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State (Healy) v Donoghue (1976)

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Rights under the Constitution fall to be interpreted from time to time in accordance with prevailing ideas

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Sinnott v Minister for Education (2001)

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– Constitution is a living document, falls to be interpreted in accordance with contemporary circumstances (but cannot be divorced from historical context)

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Zappone v Revenue Commissioners (2006)

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McGee approach of interpreting Constitution in light of changing circumstances only applies to interpretation of existing rights or the express text, not new rights (Dunne J)

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Natural Law Approach

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Natural law is based on value judgements, which emanate from some absolute source eg God’s revealed word. It is not the most popular approach to constitutional interpretation, but was behind some of the most liberal and progressive judgments of the Irish courts.

Can be used in interpreting the Constitution, rather than outranking the Constitution

Re Art 26 & Regulation of Information on Abortion Services Bill 1995

Rejected natural law as superior to Constitution.

Courts can rely on values not expressly provided for in Constitution in its interpretation.

The development of the unenumerated personal rights doctrine owes much to natural law thinking and this fact has been recognised in many of the leading cases.

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Re Art 26 & Regulation of Information on Abortion Services Bill 1995

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Rejected natural law as superior to Constitution.

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Ryan v AG (1965)

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Origins of natural law: “those rights which result from the Christian and democratic nature of the state” not just Art 40

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TD -v- Minister for Eduction (2001)

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(special needs education)- critical of Ryan

-Difficulty in interpreting the Constitution in re ‘New rights’ with reference to ‘Christian and democratic nature of State’

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Problems with Approaches

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Literal – disagreement over what is a literal interpretation

Harmonious – you need to understand what the Constitution means in the first place

Purposive – where does the purpose come from?

Historical – subjective, difficult to assess

Natural –
1.Lack of consensus as to what “Natural Law” actually is
2.Unease due to the link between Natural Law and GOD
3.Subjective nature of Natural Law.

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Hierarchies, Irish Text, Consistency

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Has been recognised by the Courts

People v Shaw (1982) – hierarchy of constitutional rights

Murray v Ire (1985) - right to life and freedom from torture amongst most important rights

X case (1992) - court recognised “priority of rights”

Irish and English Texts
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O’Donovan v AG (1961) – only conflict by inadvertence, and if there is a conflict, must attempt to reconcile text. If cannot be reconciled, then Irish text prevails

-Sinnott (2001) – referred to the Irish term to assist in finding meaning of “child”

Consistency in choice of methods

Sinnott (2001) - maturity of the Constitution, historical approach over natural law approach

Contrast with:

-McGee - idea of developing the Constitution

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People v Shaw (1982)

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Hierarchy of constitutional rights.

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Murray v Ire (1985)

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Right to life and freedom from torture amongst most important rights

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X case (1992)

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Court recognised “priority of rights”

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Curtin -v- Dáil Éireann (2006)

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Fundamental Rights -“balance has to be struck between the effect to be given to the literal meaning of particular words and the need to have regard to the terms of the Constitution as a whole”

If plain and unambiguous words, use literal approach. If not plain, resort to principles derived from other parts of the Constitution (such as respect for personal rights)

Also, can take into account the historical context of certain provisions, whilst not excluding its interpretation in the context of contemporary circumstances