[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The author in this post formed part of a panel on “Towering Judges in Mature/Stable Democracies.” The introduction to the joint symposium can be found here.]
—Tom Gerald Daly, Melbourne Law School
It was only as I re-read my paper for the ‘Towering Judges’ conference on the flight from Melbourne to Hong Kong in January that I realised it read a bit more like a love letter than the objective analysis of a serious academic. In uncharacteristically breathless tones I set out the case, not only that Ireland’s first Chief Justice, Hugh Kennedy, should be more fully recognised as a towering judge in Ireland itself, but that he deserved a place among the global greats – the Marshalls, Baraks, Bhagwatis and Lord Cokes of this world. Kennedy, my title proclaimed, was ‘Ireland’s Judicial Visionary’.
Kennedy seemed a perfect fit for a conference whose concept note asked us to select a judge who is “individually dominant and charismatic, and…has a great deal of influence on the course his or her court, and sometimes his or her country, takes.” Effectiveness, personal qualities, tactics, legacy, and transnational effects were picked out as key items to focus on. After all, in under 15 years, from 1922-1936, Kennedy was a central architect of the Irish constitutional order. He was the dominant force in drafting the 1922 Constitution produced for the new Irish Free State created under the 1921 Anglo-Irish Treaty that ended the War of Independence with the British Empire, ensuring maximal autonomy for the new state within the Empire though a mixture of political nous and marshalling his capacious comparative knowledge of constitutional arrangements in territories across the Empire to Ireland’s advantage.
The Constitution he was key to producing was a highly innovative text, especially considering the imperial context. It emphasised popular sovereignty as its core value and empowered the superior courts to invalidate legislation incompatible with the constitutional text. This, at a time when no other common-law constitution contained such an express power (including the USA) and the notion of judicial review was still a novelty in Europe (in Weimar Germany, Austria, and Czechoslovakia). Felix Frankfurter described it as “the most arresting provision” of the new Constitution.[1] Kennedy also created a new court system capable of holding the confidence of the people after centuries marked by judicial action in service to (imperial) executive objectives. He crafted a jurisprudence unlike anything found in the existing British tradition. A pre-eminent figure, his impact on the Irish legal system is hard to overstate.
In truth, my Hong Kong love letter had been a rather long time coming. When I first began working in the Supreme Court of Ireland in 2005, as Executive Legal Officer to the Chief Justice (a sort of supercharged clerk role, encompassing research, management, and international relations), Kennedy was little more to me than a portly figure in a portrait right outside the Chief Justice’s chamber complex; a man who, the sitting CJ (The Hon. Mr. Justice John Murray) told me, was still remembered in the joke that barristers upon seeing him striding to court would say: “There he goes, pregnant with judgments”.
It was much later, when preparing for a Supreme Court visit to the Canadian Supreme Court in April 2011, that I began to grasp just how profound was Kennedy’s impact on Irish law – and just how much intellectual energy he brought to his multiple roles in crafting the Irish constitutional order. In truth, interest turned into something closer to hero worship. In Canada our hosts (including Chief Justice Beverley McLachlin, the subject of Monday’s post) were intrigued to hear just how much reliance Kennedy had placed on Canadian constitutional development to maximise the autonomy for Ireland as the newest-minted dominion in the British Empire – and the first in the very heart of the imperial territory. In crafting the Constitution of 1922, canny negotiation by Kennedy secured the greatest possible degree of autonomy by pursuing the same dominion status for the Free State as Canada and by expressly inscribing in the new Constitution the “law, practice and constitutional usage” pertaining in Canada. As Towey has observed:
The theoretically unfettered powers and prerogatives of the Crown found in other dominion constitutions were, through Kennedy’s efforts, circumscribed at every turn by expressing or clearly implying the reality behind the Canadian Constitution. As he explained to the Provisional Government, “what we have done is to take the full length and breadth of the Canadian position in the widest terms”.[2]
But Kennedy’s impact went far beyond his gifts as a constitution-drafter. As Ireland’s first Chief Justice he sought to craft a principled jurisprudence that made the most of the new Constitution, and which strongly vindicated key principles such as the separation of powers and the sovereignty of the people. Most notable is his blistering, principled, and learned dissent against the majority of the Supreme Court in The State (Ryan) v Lennon[3] in 1934, concerning a wide-ranging (and highly questionable) amendment to the 1922 Constitution[4] introducing draconian measures against armed subversives, which granted the State sweeping powers of arrest, detention, and military trial of defendants without the protection of established rules of evidence (at a time when the validity of the State itself was still challenged by those who wanted unambiguous independence in 1922).
Four decades before the Indian Supreme Court’s 1973 judgment in Kesavananda v State of Kerala[5] setting out its famous ‘basic structure’ doctrine (asserting the power to review constitutional amendments), Kenendy set out a fully reasoned judgment explaining why this constitutional amendment, though enacted in compliance with the formal amendment rules in the constitutional text, was nevertheless invalid: it was incompatible with rule-of-law principles, due process, the Anglo-Irish Treaty (in light of which the Constitution had to be interpreted), and the natural law itself. His thinking set the scene for the dramatic expansion of the Supreme Court’s power in the 1960s and 1970s, which seized on natural-law thinking to dramatically expand rights protection and recalibrate the balance of power between the judiciary and the political branches.
So, why am I re-thinking the love letter? True, Kennedy was a central figure in Irish legal and political history. But the discussions at the Towering Judges conference, and putting together this Symposium, has forced me to reflect more deeply on why I chose Kennedy in the first place.
In terms of Kennedy himself, he was evidently not perfect – no individual is. Was his dissent in Lennon entirely principled? Or was it pique at ‘his’ Constitution being dismantled through successive amendments? Is it, as one sitting Supreme Court judge has offered, easier to laud his dissent precisely because it was a dissent?[6] If he had not partly grounded his judgment on an appeal to natural law, could it have convinced his colleagues on the Bench? Questions with no easy answers.
More fundamentally, the Towering Judges conference has prompted me to reflect on key questions. Do we gravitate toward male ‘towering judges’ because female judges are (historically speaking) a new phenomenon, or because male judges fit more neatly with our cultural lenses of what ‘towering’ means; of notions of leadership that value a masculinist concept of dominance, of power, of superiority? Why did I not even think to pick our first female Chief Justice, for example – Chief Justice Susan Denham? Partly, perhaps, it is simple: Kennedy was already a presence in my mind, and the latter-day Supreme Court since the 1980s has long been more a safe pair of hands than site of genuine constitutional interest or intellectual ferment. If it’s constitutional innovation you want, that happens outside the courts – with Ireland’s Citizens’ Assembly a prime example.
So I’ve shelved the love letter (sorry Hugh!), but I still think Kennedy deserves to be better known as a judge and a jurist – whatever term we use to describe ‘toweringness’.
Suggested Citation: Tom Gerald Daly, Joint Symposium on “Towering Judges”: Re-thinking my ‘Love Letter’ to Hugh Kennedy, Ireland’s Judicial Visionary, Int’l J. Const. L. Blog, Mar. 13, 2019, at: http://www.iconnectblog.com/2019/03/joint-symposium-on-“towering-judges”:-re-thinking-my-‘love-letter’-to-hugh-kennedy,-ireland’s-judicial-visionary
[1] See L Cahillane, ‘The Influence of the Post-war European Constitutions on the Constitution of the Irish Free State’ (2011) 15(1) Electronic Journal of Comparative Law 1, 5.
[2] T Towey, ‘Hugh Kennedy and the Constitutional Development of the Irish Free State, 1922-1923’ (1977) 12(2) Irish Jurist 355, at 360.
[3] [1935] 1 IR 170.
[4] Article 2A (Emergency Powers).
[5] (1973) 4 SCC 225.
[6] D O’Donnell, ‘The Sleep of Reason’, Dublin University Law Journal (forthcoming, 2019).
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