Nascent Free State
On 10 August 1922, Felix Frankfurter, a Harvard professor and later a distinguished judge of the US Supreme Court, wrote to the then Attorney General of the nascent Irish Free State Hugh Kennedy.
Intrigued by the draft constitution, he asked about the “arresting provision” giving the High Court jurisdiction for the validity of any law – the familiar doctrine of judicial review which Frankfurter believed was of vital significance.
The letter was received, but there was no record of it ever having been replied to, given that the Irish civil war had started six weeks earlier, with assassinations of pro-treaty government members, Mr Justice Hogan said.
“Even if Kennedy had time on his side, I don’t think he would have found it easy to answer,” Mr Justice Hogan said.
“And I’m not sure that anybody can fully answer it.”
One technical reason is that the treaty had been negotiated between the Irish and British sides in 1921, and gave no power to parliament to amend the scheduled treaty.
Contravene terms of treaty
For that reason alone, there had to be some form of judicial review, because how else could it be determined whether a law enacted by parliament actually contravened the terms of the treaty?
The concept had, however, been in the air for quite some time, with mentions in prior draft home-rule legislation, which also suggested the same types of guarantees as in the US Bill of Rights.
The 1937 Constitution gave guarantees on fundamental rights, modelled on the 1919 Weimar Constitution in Germany, Mr Justice Hogan said.
There were word-for-word transpositions of Weimar into both the 1922 and 1937 Constitutions, he added.
However, judicial review did not flower between 1922 and 1937. One reason for this was that the Dáil allowed the Constitution to be amended by ordinary legislation, rather than only by referendum.
This was upheld by the Supreme Court, leading to no constraints on parliament’s power to enact law.
“By reason of those developments, the Constitution of 1922 lay in tatters,” Mr Justice Hogan said.
Instrumental
But the idea of judicial review, which it was instrumental in establishing, didn’t disappear.
The 1937 Constitution reinforced this in an “altogether more powerful and profound way”, Mr Justice Hogan said.
Firstly, that Constitution was enacted by referendum, which gave it popular legitimacy. Secondly the drafters gave the Constitution powers such that it could not be easily amended.
“Article 46 excludes expressly any type of implicit amendment," Mr Justice Hogan said.
“If you are going to amend the Constitution, you have to do it expressly,” he said, which meant by referendum.
Presidential power
The 1937 Constitution also strengthened the power of judicial review and gave presidential power to refer a bill to the Supreme Court.
While Irish political culture subjected the 1937 Constitution to a lot of criticism, any contention that it did not protect fundamental rights was somewhat puzzling, Mr Justice Hogan said, given the elaborate guarantees of habeas corpus, the right to trial by law and due process, to private family life, and to the inviolable nature of a family dwelling.
Danger of internal collapse
The drafters included a legal system of fundamental rights and adopted a system of judicial review because, without public acceptance, there was a danger of internal collapse, Mr Justice Hogan said.
There was a desire in 1937 to move away from a judicial system of parliamentary supremacy, he said.
There was also a desire to show that religious and political minorities would be fairly treated by the new State.
This would now be called a confidence-building measure, he added.
“Since 1937 there have been over 100 instances where items of legislation have been found to be unconstitutional,” Mr Justice Hogan said.
While the Irish Supreme Court was not as central to Irish political life as the US Supreme Court, or the German constitutional court, judicial review of legislation had, on the whole, had a beneficial effect, Mr Justice Hogan said.
The late John Kelly TD, who was a constitutional scholar, wrote in 1980 that the average liberal would accept that the overall impact of the courts on modern Irish life, in their handling of constitutional issues, had been beneficial, rational, progressive and fair, he added.
“Other decisions served to strengthen the democratic and political process,” he said.
Unique feature
Irish constitutional review is a distinctive, and in some respects unique, feature of Irish political life that served to cut the moorings of the Irish legal system from the common law.
“This, in turn, served to facilitate the development of an interesting jurisprudence, which mixes a common-law inheritance with what we like to believe is a sophisticated system of constitutional review," he said.
It was such an embedded feature that even in the event of reunification, it would still be retained, Mr Justice Hogan said.
“The true lesson of all of this is that it has taken 100 years to answer the question once posed by Felix Frankfurter,” Mr Justice Hogan concluded.