The Inaugural Lecture of Professor Oran Doyle

Title of Lecture:

Against Constitutionalism? Constitutional Interpretation on the Supreme Court

Abstract:

In the second half of the 20th century, constitutionalism emerged as the dominant form of democratic governance worldwide. Individual rights and democracy would be protected by subjecting government to legal constraints interpreted by courts. Constitutionalism, however, faces a fundamental democratic objection: how can we countenance judges, who lack any electoral mandate, overturning the decisions of representative, electorally accountable institutions? Constitution drafters must respond to this challenge but so too must judges. Because the extent of judicial power will vary depending on judges’ chosen method of constitutional interpretation. Over the past 10 years, a consensus has emerged on the Supreme Court that the constitutional text must be interpreted in its appropriate context. But there is a significant divergence over what context is relevant. Most acutely, should the constitution be interpreted in light of its assumed commitment to constitutionalist values? A majority on the Court rejects this approach, out of a concern that it will overly empower judges. A significant minority, however, sees this approach as necessary to realise the full value of the constitution. In this lecture, I contend that the constitution cannot be meaningfully interpreted without reference to constitutionalist values. But the scope of judicial power should be curtailed by (i) a recognition that the enablement of democratic governance is a constitutionalist value and (ii) the use of comparative examples to ground our sense of constitutional values and what they entail.

About:

Oran Doyle is Head of School and Professor of Constitutional Law at Trinity College Dublin. He is an expert in comparative constitutional law, with a particular focus on the issues of constitutional amendment, territory, and Irish unification. He is the author of 'The Irish Constitution: A Contextual Analysis' (Hart, 2018) and (with Tom Hickey) 'Constitutional Law: Text, Cases and Materials' (Clarus, 2019). He co-edited with Aileen McHarg and Jo Murkens 'The Brexit Challenge for Ireland and the United Kingdom: Constitutions under Pressure' (2021). He has recently published in Global Constitutionalism, the International Journal of Constitutional Law, the European Constitutional Law Review, Comparative Constitutional Studies, and the German Law Journal. He is currently writing a monograph on constitutional amendment, co-editing (with Mariana Velasco Rivera) the Edward Elgar Research Handbook on Comparative Constitutional Change, and co-editing (with Richard Albert) a collection on Constitutional Conventions in the Civil Law Tradition (OUP). Prof Doyle was the PI for NSLMap (2022), a New Foundations research project funded by the Irish Research Council and the Shared Island Initiative that maps the convergence and divergence of laws on either side of the Irish border. Prof Doyle is a regular contributor to public debates on issues of constitutional law in Ireland and his work has been frequently cited in Supreme Court judgments. He was a constitutional law advisor to the Citizens' Assembly considering the pro-life provision in the Irish Constitution, the founder and director of the COVID-19 Law and Human Rights Observatory, and a member of the Working Group on Unification Referendums on the Island of Ireland.

School of Law:

Founded in 1740 and ranked in the top 100 of Law Schools globally, Trinity law School is located – both geographically and intellectually – at the intersection of relationships between government, courts, big tech, and financial services. The School has a long and proud tradition of active engagement on issues of social justice. Members of the faculty and student body alike have been at the forefront of debates around social change in Ireland over many decades: from divorce, decriminalisation of homosexuality, and reproductive rights to the protection of the environment, tackling apartheid, and non-discrimination. Academic rigour and commitment to the public realm remain the values that animate how we teach, how we research, and how we engage in policy formation. The School is home to the Trinity Centre for Constitutional Governance (TriCON) and research groups on corporate law, governance and capital markets; crime and punishment; private law; and technologies law and society. The School is in the middle of an exciting development that will introduce new educational programmes, increase staff numbers, and bring all members of the Law School community together into a state of the art educational building, scheduled to open in 2029.

I'm away and at conferences all next week, but I'll be back 16 February so perhaps we could schedule a meeting then to review everything? We're working on invitation lists in the Law School and in TDA.

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