Dr Conor O’Mahony
The Irish courts have long operated on the basis that the Constitution is a living document to be interpreted in light of changing standards and conditions in society. As Irish society has changed dramatically in recent years, the courts have been presented with difficult questions regarding whether the degree of change justifies reinterpreting a constitutional provision.
This has led some members of the judiciary to have reservations about the democratic legitimacy of such reinterpretations, and to doubt their own institutional competence to accurately reflect views in society. Accordingly, in two recent cases regarding same sex marriage and frozen embryos, the courts have chosen to defer to the legislative position as reflective of the will of society instead of exercising an independent judgment. This article critically assesses judicial deference as a method of reflecting societal change in constitutional interpretation, and argues that while it is superficially appealing, it is ultimately problematic. In this light, alternative methods of facilitating the evolution of constitutional principles will be considered.