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Essay on constitutional interpretation
identifies two cases that exemplify its use, the second of which is The People (Director of Public books on how to write a business plan Prosecutions) v OShea, 6 which case concerned a Supreme Court decision on whether or not a prosecution is entitled to appeal a jury acquittal. However, he remarks that an overt reliance on this method has fallen from favour due to the perception of natural law as nebulous and as failing to provide reliable guidelines to interpretation. This example though shows that once again the distinction between the methods of interpretation proposed by Kelly is not entirely clear-cut. He says that this approach is desirable because it militates against a high degree of judicial interpretation, but it can also be unhelpful because it obliges the courts to fall back on standard Common Law principles of statutory interpretation which may not be appropriate. Similarly, when Professor Kelly discusses the OByrne J" from Sullivan v Robinson 13 that A Constitution is to be liberally construed so as to carry into effect the intentions of the people as embodied therein" 14 he neglects to note that the same judge. As each method was viewed as equally legitimate by the judges in short they were not constrained by law to reach the conclusion they did." 56 Oran argues that this absence of constraints makes Sinnott a quintessentially activist decision and not the stand against judicial. There are many to argue that natural law may be regarded only as an ethical concept and as such is a re-affirmation of the ethical content of law in its ideal of justice. The natural or human rights to which I have referred earlier in this judgment are part of what is generally called the natural law. Kelly points out that the relevance attributed by the judiciary to the state of affairs in 1937 rests at least in part on long-established cannons of statutory (and not constitutional) interpretation. He suggests that this cannon of interpretation is often held to be of secondary importance by the Courts 35 although it is submitted that his later reference to the unevenness of judicial practice in the area is more accurate than saying that the historical approach.
In Chapter.1 of The Irish Constitution Kelly identifies five different approaches to the interpretation of the Constitution in the case law. Christopher Wolfe believes that the framers would tend to give preferences in such cases to the fair reading of the document itself. In relation to the public opinion of 1937 Kelly raises the valid point that it probably can only be deduced from sources outside the law or the Constitution and this begs the difficult question of what sources are accurate enough to be permissible in serving. Kelly notes that it is partly based on the presumption that the drafters did not intend internal constitutional dissonance. Cite weblastTeacher firstLaw urlp? The deeper assumption underlying these early rules of interpretation was a fairly traditional realist epistemology: that the constitution has a fixed, determinate meaning intelligible to those who give it a fair reading. Irish Constitutional interpretation is not a clear-cut exercise in which judges decide on one of Kellys five methods and then use that as the prism through which they view the Constitution.