The judiciary of the Irish Free State

The 1922 Constitution was an experiment which ended in failure. Although it was replaced with a new Constitution in 1937, it was responsible for the introduction of several constitutional innovations which remain with us to this day. One innovative feature which the 1922 Constitution introduced to Ireland was the concept of judicial review of legislation. This new power was, however, not significantly invoked during the lifetime of the Free State. What accounts for this failure? Two answers have typically been given. First, the Irish Free State Constitution provided for constitutional amendment by the Oireachtas. Second, the judiciary of the Irish Free State, overly-reliant on their legal training under the British system, were not receptive to the potential innovations that were available under the new Free State Constitution. This article questions whether the second answer is a fair appraisal of the tenure of the judiciary of the Free State. In particular, it addresses whether the conservativism of the judiciary has been overstated, having regard to the vagaries of the common law system, cases which were decided under the Free State Constitution, and the overwhelming deficiencies inherent in the amending power.