The New Irish Constitution: An Exposition and Some Arguments
History
The New Irish Constitution: An Exposition and Some Arguments
Home rule -- Ireland; Ireland -- Politics and government
The Irish Parliament is given a general power to make laws for “the peace,
order, and good government” of Ireland. The words are those usually
employed in the grant of legislative power in colonial constitutions, and
they have been interpreted as authorising “the utmost discretion of
enactment for the attainment of the objects appointed to them.”(21) No
considerations of policy or equity or repugnancy to the common law would
avail to challenge an Irish statute on the ground that it was _ultra
vires_. Within the limits assigned to it the Irish Parliament will have
authority as plenary and as ample as the Imperial Parliament itself
possesses or can bestow, and it may, if it so pleases, delegate this
authority.(22) The Irish legislature will, however, have no power to
legislate extra-territorially.(23) It could not, for example, pass a law
to punish the Irish subjects of the Crown for offences committed outside
Ireland.
Now, these powers are undeniably large—larger, indeed, than is usually the
case even in Federal systems where the unenumerated or “residuary” powers
are left to the State. It is conceivable that they might be exercised to
the prejudice of the Imperial Government and of the union of the two
kingdoms, and there is nothing in these clauses of the Act to prevent them
being so exercised. Treating it as a statute on the ordinary principles of
the interpretation of statutes, the Judicial Committee would have no
option but to regard as valid any legislation of the Irish Parliament that
did not come within the exempted powers. With policy they are not and
would not be concerned. But then it must be remembered that there is the
possibility of the exercise of the veto of the Imperial Government in
cases where legislation, though _intra vires_, is inequitable,
inexpedient, or contrary to Imperial interests. This executive veto is
really a juristic fact of great importance—it has always been present to
their lordships’(24) mind as a reason for refusing to apply to the
interpretation of the Federal constitutions of Canada and Australia the
restrictive principles of the Supreme Court, as laid down in Marshall’s
famous doctrine of “implied restraints.”(25) When no such veto is in the
hands of the Central Government, it becomes necessary to restrict, either
in the text of the constitution, or in judicial interpretation of it, with
considerable precision, the powers of the local legislatures. This is why
a true Federal system always involves a very large amount of litigation.
But litigation is a thing to be avoided, if possible. It encourages
political parties to carry test cases into the courts.
Constitutional Restrictions.(26)
Public-domain text, read in full here on John Shaqi.
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