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Volume8
MonthMay
Year2007
Title"The United States Federal Judiciary May Not Be a 'Third, Co-Equal Branch' of Government. What are the Implications for the Irish Debate…
Author(s)Lawrence Donnelly
First Page459
AbstractIn support of this argument, this essay first examines the language of Article III of the United States Constitution and then briefly reviews the origins of the widely held perception that the federal judiciary is a â co-equal branch of government. It next considers Borkian constitutionalism, opining that if one is to read the Constitution as Bork urges, this essay's tentative proposition can't be far off the mark. The focus then shifts to the express language of the Irish Constitution, which accords a far greater responsibility to the judiciary than its American counterpart. In this context, it reviews some pronouncements in the recent case law of the Irish Supreme Court, notable for language that might alternatively be described as Borkian, Scalian, or originalism in nature, and the academic commentary that has emerged in its wake. This essay posits that the originalism judicial philosophy lacks the merit in Ireland that it rightly claims across the Atlantic and concludes by pondering the implications for the vindication of socio-economic rights in the Irish courts, given this philosophy's seemingly inexorable ascendancy.