In Defence of Judicial Innovation and Constitutional Evolution

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.