New chapter: In Defence of Judicial Innovation and Constitutional Evolution

Last September I spoke at a conference in Dublin City University entitled ‘Judges, Politics and the Irish Constitution‘. The conference brought together dozens of lawyers and political scientists from and in Ireland with an interest in the dynamics of constitutional interpretation, collaboration, evolution, politics and law. The organisers of that conference-Laura Cahillane (of UL), and Tom Hickey and James Gallen (both of DCU)–have now brought a number of the papers presented at the conference together into an edited collection. The book, also entitled Judges, Politics and the Irish Constitution–will be published next year by Manchester University Press.

My chapter in the volume is entitled “In Defence of Judicial Innovation and Constitutional Evolution”. In it, I argue that judicial innovation (or what some call ‘activism’, although I think it’s broader than that) in constitutional interpretation is both necessary and a legitimate part of the judicial role. Central to that argument is my rejection of the claim that courts in ‘legal constitutions’ have the final/last word. Instead, I argue, constitutional interpretation and evolution takes place within a collaborative and iterative constitutional ecosystem, in which various branches have the next–but not the ‘last’–word on the meaning of the Constitution in any given controversy or set of circumstances.

I have posted the draft chapter on SSRN and it can be downloaded for free here.The abstract is below.


The meaning of broadly drawn constitutional provisions is rarely static or self-evident. Thus, certain branches—including the judiciary—usually have a role in interpreting them. Although this task is often shared between different branches of government (and, thus, essentially collaborative), the role of superior courts is particularly significant, especially (although not only) in so-called ‘legal constitutions’ (i.e. written constitutions in which constitutional, rather than parliamentary, supremacy is the norm). In carrying out their interpretive role, judges are at least sometimes innovative (or what some might call ‘activist’), and that innovation is a key element of constitutional evolution. This is not uncontroversial; many argue that judges ‘overreach’ when they engage in such innovation and, as a result, prefer a more restrained judicial role. However, exploring this in the Irish context, I argue in this chapter that judicial innovation is an important and legitimate part of constitutional evolution, taking into account the broader constitutional tradition and structure within which Irish superior courts operate.

Constitutions require interpretation. Governance must constantly address new and emerging issues. Any system of governance that has a constitutionalist orientation is constantly faced with the task of establishing and assessing the constitutionality of new responses to old and emergent challenges. Innovative constitutional interpretation is necessary so that the boundaries and limits of constitutionally permissible action can be identified in the face of new and different forms of government activity and governance. Through their engagement in constitutional interpretation, courts play a vital role in that enterprise.

Making out this argument in this short essay comprises both a positive and a negative case. The positive case posited here is that innovation in constitutional interpretation is a necessary part of the judicial role; the negative case I forward is that such innovation is not an illegitimate judicial activity. This chapter starts by sketching what I term an ‘ecosystem’ of constitutional interpretation, placing the judicial role in constitutional interpretation into a broader context. I then proceed to outline the positive and negative cases. While the paper is primarily oriented towards defending judicial innovation in Ireland, the arguments contained herein are more broadly applicable allowing for technical adjustments based on the particularities of different politico-legal systems. Thus, the paper draws on examples from within and beyond Irish jurisprudence throughout.

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