I. Introduction
Articulated by Art. 40.3 of the Constitution1, the doctrine of unenumerated rights
allows the judiciary to identify rights not expressly provided fo r in the constitution. Different
techniques are used to achieve this.
A brief historical and definitional account of the doctrine and discuss relevant
methods used for identifying unenumerated rights, along with the problems associated with
each will be provided. Subsequently, general problems concomitant with the doctrine, as well
as reform proposals will be identified. On whether reform is necessary, discussion will be
made arguing that on balance, the current system is preferable. A heterodox theory
concludes, positing that the identification of various rights is inconsequential and regard
should be given to the arbitrary application of rights already identified.
II. What is the Doctrine of Unenumerated Rights?
(i) Historical Perspective
Re Article 26 and Offenses Against the State (Amendment) Bill2 operated a restrictive
approach to Art. 40.3 in requesting the Oireachtas to reconcile the rights of citizens as a
whole.3 Later, Re Philip Clarke4 took a more liberal approach where the Supreme Court
moved away from a purely procedural interpretation of the law to offer a substantive
justification.
Following this trend, Ryan v. Attorney General5 set down for the first time the doctrine
of unenumerated rights. Ryan concerned a plaintiff who claimed that fluoridation of the
1
Bunreacht na hÉireann
Re Article 26 and Offenses Against the State (Amendment) Bill 1940 [1940] 1 IR 470 at 483.
3
Oran Doyle, Constitutional Law: Text, Cases and Materials (Dublin: Clarius Press, 2008) at para 7-10
[hereinafter Doyle].
4
Re Philip Clarke [1950] IR 235.
5
Ryan v. Attorney General [1965] IR 294 [herinafter Ryan].
2
1
public water supply was noxious and thus interfered with her right to bodily integrity.6 This
notion of ‘bodily integrity’ stems from American jurisprudence where numerous cases
involving searches of the rectal cavity7, compelled blood tests8 and surgical removal of a
bullet9 had invoked this notion in earlier years.
Using textual analysis and perhaps some judicial wit, Kenny J’s findings were formed
from the words “in particular” qualifying a list of rights provided for in Art. 40.3.2.10 This
was harmoniously interpreted in accordance with “personal rights” as referenced in Art.
40.3.1.11 A myriad of cases followed identifying a profusion of unenumerated rights.12
(ii) A Simple Definition?
The doctrine, spawning from the text of Article 40.3 of allows judges to identify various
rights not explicitly provided for in the constitution.
III. Methods for Identifying Unenumerated Rights
Judges have used different methods for identifying unenumerated rights. Doyle’s four
broad modus operandi are used here.13
Note however, that some consider the human personality method as “merely a secular
version of earlier natural law theories”14 and the natural law approach as a “variant of the
‘Christian and democratic nature of the State’ test…”15
(i) Christian and Democratic Nature of the State
6
Ibid. at 314.
Huguez v. United States, 406 F.2d 366 (9th Cir. 1968), Henderson v. United States, 390 F.2d 805 (9th Cir.
1967), For more cases see L. H. Tribe, American Constitutional Law 2nd Edition, (New York 1988), 1331.
8
Schmerber v. California, 384 U.S. 757 (1966).
9
United States v. Crowder, 543 F.2d 312 (D.C.Cir.1976).
10
Ryan, ibid. at 313.
11
Doyle, ibid. at para 4-02.
12
See infra Appendix 1 for a comprehensive compiled by the Constitution Review Group.
13
Doyle, ibid. at 87-97.
14
Hogan, “Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990-92) Irish Jurist 95 at 106
[hereinafter Hogan].
15
Ibid. at 108.
7
2
It is believed that this method was inferred from the text of the Constitution in looking at
numerous theistic references and formalistic elements of democracy.16 Furthermore, Kenny J
cited Pacem in Terris, a papal encyclical in support of this method.
Although the textual analysis of Art 40.3.1 and 40.3.2 is illogically faultless, the
“Christian and democratic nature” principle is unconvincing.17 Democracy can be interpreted
both broadly and narrowly, the latter being a democracy considered only with regard to
formalistic elements such as elected officials, the right to vote etc. whereas broadly, it could
include typical associations such as the right of access to a fair trial and freedom from
torture.18 In terms of the Christian nature afforded by Kenny J, although there is
demonstrable evidence the State is founded “[i]n the name of the Most Holy Trinity…
acknowledging all [its] obligations to [its] Divine Lord, Jesus Christ…,” this is qualified by
various other provisions, namely Art. 44.2.2 where it is provided that “[t]he State shall not
endow any religion.”
(ii) Natural Law
The natural law provides that some laws are basic and fundamental to human nature and
are discoverable by human reason without reference to specific legislative enactments or
judicial decisions.19 The most potent form of natural law theory came in McGee v. Attorney
General.20 Here, pregnancy would threaten the life of the woman (plaintiff). The right of
marital privacy was recognized.21 Walsh J took the view that “natural rights… are not created
by law but… the constitution confirms their existence…,” hereby giving positive law status
to the natural law.22
16
Doyle, supra note 3 at para 4-04.
Hogan, ibid. at 112.
18
Report of the Constitution Review Group, (Dublin: Stationery Office, 1996) (PDF Online) at 227 [hereinafter
Report of the Constitution Review Group]
19
Doyle, supra note 3 at para 4-21.
20
McGee v. Attorney General [1975] IR 284 [hereinafter McGee]
21
Ibid. at 313.
22
Ibid. at 310.
17
3
The central problem regarding natural law is that the Constitution “gives positive law
status to the natural law.”23 This suggests there is no clear text, theory, or any other
fundamental basis for identifying what the natural law may contain. As pronounced by Walsh
J, “what exactly natural law is and what it precisely imports is… not yet fully agreed.”24
(iii) Human Personality
McGee promulgated this view. However, Henchy J, in using harmonious interpretation to
reason his argument, provided that “it must be shown that [the] right… inheres in the
citizen… by virtue of his human personality.”25 A similar line of thought was employed in
Norris v. Attorney General26
The human personality method is clearly arbitrary in that there is no clear method for
determining what one’s human personality might consist of.
(iv) Other Sources
Other sources used for the identification include the preamble of the Constitution,27
international conventions28, and the directive principles of Art. 45.29
As evidenced, there are numerous methods for identification of unenumerated rights
and issues with each. More broadly, the doctrine in totality shares similar issues.
IV. General Problems with the Doctrine
There are various problems with the doctrine in its generic definitional form.
(i) Naturalistic Fallacy
Clarke argues that judiciaries utilize natural law theory, setting out how things ought to be
instead of how things are.30 This in essence is a reductionist theory where “no valid guidance
[is provided] to the court” in using it.31
23
Doyle, supra note 3 at para 4-20.
McGee, supra note 20 at 318.
25
Ibid. at 325.
26
Norris v. Attorney General [1984] IR 36 at 43.
27
McGee, supra note 20, In re Article 26 and the Regulation of Information (Services outside the State for
Termination of Pregnancies) Bill 1995 [1995] 1 IR 1.
28
Report of the Constitution Review Group, supra note 18 at 229.
29
Murtagh Properties v. Cleary [1972] IR 330 at 335.
30
Desmond M. Clarke, “The Role of Natural Law in Irish Constitutional Law” (1982) Irish Jurist 187 at 205.
31
Ibid. at 213.
24
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(ii) Ill-equipped Courts and Social Policy
It is well known that courts do not have the resources to make decisions regarding social
policy.32 The doctrine of separation of powers enunciates this supposition by subjecting this
duty to those who are electorally accountable.33 Self-restraint has been exercised in some
cases34 but, as evidenced, not in others.35
(iii) Lack of Objectivity
Without a single method for identifying unenumerated rights, and inherent in the uncertain
nature of each method as expressed above, there is a lack of objectivity.36 Various authors37
share the belief that unenumerated rights concepts lack precision and cannot offer the
objective standards necessary for consistent constitutional adjudication.38
(iv) Uncurbed Judicial Activism
Although to date there has been limited rejection of the doctrine on account of its
failures, there is speculation, as always, that the judiciary will run away with itself. McCarthy
J, before his death, wrote that “in the field of unenumerated rights the judicial power can only
be self-restrained.”39
V. Reform Proposal
The Constitution Review Group recommends that Art. 40.3.1 should be amended to
include a “comprehensive” list of fundamental rights which would include those recognized
by the Irish Courts to date and also those set out in the European Convention on Human
Rights and the International Covenant on Civil and Political Rights, “so far as they may be
considered appropriate,” in an Irish context.40 Further recognition of rights would be confined
to those implicit in the rights expressly listed.41
32
Report of the Constitution Review Group, supra note 18 at 230.
Ibid.
34
Mhic Mhathúna v. Ireland and the Attorney General [1995] 1 ILRM 69, O’Reilly v. Limerick Corporation
[1989] ILRM 181, L v. L [1992] ILRM 115.
35
See supra note 12.
36
Hogan, supra note 14 at 99
37
Ibid. at 99.
38
Ibid.
39
Hogan, supra note 14 at 107.
40
Report of the Constitution Review Group, supra note 18 at 235.
33
5
This reform proposal will serve as the basis for arguments against reform.
VI. Is Reform Needed?
It may be argued that judicial activism, in its uncertainty and lack of objectivity might
garner rights that do not carry popular sentiment.
Hypothetically, if we were to assume something imbecilic such as that the right to steal
was recognized, how might this play out in reality?
(i) Precedential Use
In American jurisprudence on the topic, as well as Irish, there is no indication that the
law is taking such a subversive route, this being, towards recognition of rights carrying
unpopular sentiment. Since the 1960s, no attempt has ever been made to modify this
develoment by way of constitutional amendment.42 Judicial activism in this area has been
received well.
Furthermore, since the late 1990s the courts have employed a restrictive approach
concerning Art. 40.3 as of late. The Abortion Bill43 indicated the caution that should be had
when making reference to the natural law and Keane J in O’T v. B44 noted “…judicial
restraint is called for in identifying new rights…”45 It is suggested that the “hey day of the
unenumerated rights doctrine [is] over”46 and that the abortion debate has claimed “its latest
victim... a corpus of law.”47 Perhaps what we are witnessing here is similar to that of the
United States Constitutions’ XIV Amendment, a ‘dead-letter.’48
(ii) Separation of Powers? – Not So Separate
The judiciary is merely one organ of the State. The relationship shared between the Irish
legislature, citizens and judiciary is remarkably intimate in comparison to other common law
41
Ibid.
Whyte, “Discerning the Philosophical Premises of the Report of the Constitution Review Group: An Analysis
of the Recommendations on Fundamental Rights” in Contemporary Issues in Irish Law and Politics (No. 2)
(Dublin, Round Hall, Sweet & Maxwell, 1998, 216-238 at 227 [hereinafter Whyte]
43
Re Article 26 and the Regulation of Information (Services Outside the State for Termination of Pregnancies)
Bill 1995 [1995] 1 IR 1.
44
O’T v. B [1998] 2 IR 321.
45
Ibid. at 370
46
Doyle, supra note 3 at para 4-45.
47
Adrian Twomey, “The Death of Natural Law” (1995) ILT 270 at 272.
48
Hogan, supra note 17 at 97-98.
42
6
jurisdictions.49 Consequentially, a simple majority vote by the people is all that is required to
amend the constitution.50
This argument can be pushed further to divulge the State of its requirements to foster the
doctrine of separation of powers and respond to its citizens needs when perhaps a hugely
unpopular right is recognized, as perhaps theorized above, the right to steal.
(iii) Judicial Activism’s Uncertainty
The two arguments posited above culminate in the overarching principle of judicial
activism and its uncertainty. In simple measure, Prof. James Bradley criticized the “durable
myth” of legal certainty in that, “the illusion that the law is, or can be made, a
comprehensive, eternized set of rules which embrace all possible legal disputes and settle
them in advance.”51 Although a somewhat weak argument by virtue of its philosophical basis,
it is profound nonetheless in provoking reform proposals calling for restrictions on the
judiciary.
VII. Is Reform Needed? A Heterodox Theory
Whether the doctrine should be reformed is not the essential question. Instead, we should
consider how the application of rights already recognized may cause injustice.
It is not the rights identified that have caused problems, instead it has been the
application of those rights. A clear example is McGee and the recognition of the right to
marital privacy. It would be hard, if not impossible, to find an individual in Irish society who
would object to holding this right. However, it was used in Kenny J’s judgment to warrant
the striking of legislation prohibiting the importation of contraceptives – obviously a
contentious issue.
Looking at perhaps more fundamental rights such as the right not to be tortured or illtreated52 and the right to have access to the courts53, these once again provide notions that are
49
Parker, “Must Constitutional Rights be Specified? Reflections on the Proposal to Amend Article 40.3.1°”
(1997) Irish Jurist 102 at 108.
50
Ibid. at 109.
51
Whyte, supra note 42 at 235.
52
The State (C) v Frawley [1976] IR 365.
7
incontrovertible in Irish society. Even those more trivial on the spectrum, such as the right to
maintenance, provide us with limited hostile arguments.
The problem it seems is not so much the identification of rights puris naturalibus54 but
rather the application of these rights vis-à-vis the relevant case law. As postulated by
Humphreys, we must consider the “relevant scope of the rights.”55
Seen in McGee, it is not the right that was disputed, but rather the effects that right had
on allowing for contraceptives to be imported. As such, concern should be given towards the
application of those existing rights or those implicit. What perhaps might a right to privacy
presuppose… anonymity on the internet? privacy with regard to State intervention in
monitoring web 2.0?
VIII. Conclusion
Although the doctrine of unenumerated rights has virtually disappeared since the late
1990s, the possibility still remains for its regeneration. Whether reform is needed or not is a
question that is somehow misplaced. It seems we have reached a pinnacle in the culmination
of required fundamental rights and the most pressing issue is the possibility of those rights
being managed in a way contrary to their amiable intent.
53
Macauley v Minister for Posts and Telegraphs [1966] IR 345.
Definition: entirely natural state.
55
Humphreys, “Interpreting Natural Rights” (1993-1995) Irish Jurist 221 at 224.
54
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Table of Cases
Irish Cases
L v. L [1992] ILRM 115.
Macauley v. Minister for Posts and Telegraphs [1966] IR 345.
McGee v. Attorney General [1975] IR 284.
Mhic Mhathúna v. Ireland and the Attorney General [1995] 1 ILRM 69.
Murtagh Properties v. Cleary [1972] IR 330.
Norris v. Attorney General [1984] IR 36.
O’Reilly v. Limerick Corporation [1989] ILRM 181.
Re Article 26 and Offenses Against the State (Amendment) Bill 1940 [1940] 1 IR 470.
Re Article 26 and the Regulation of Information (Services outside the State for Termination
of Pregnancies) Bill 1995 [1995] 1 IR 1.
Re Philip Clarke [1950] IR 235.
Ryan v. Attorney General [1965] IR 294.
State (C) v. Frawley [1976] IR 365.
O’T v. B [1998] 2 IR 321.
United States Cases
Henderson v. United States, 390 F.2d 805 (9th Cir. 1967).
Huguez v. United States, 406 F.2d 366 (9th Cir. 1968).
Schmerber v. California, 384 U.S. 757 (1966).
United States v. Crowder, 543 F.2d 312 (D.C.Cir.1976).
Bibliography
Adrian Twomey, “The Death of Natural Law” (1995) ILT 270 at 272
Desmond M. Clarke, “The Role of Natural Law in Irish Constitutional Law” (1982) Irish
Jurist 187
Hogan, “Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990-92) Irish
Jurist 95
Humphreys, “Interpreting Natural Rights” (1993-1995) Irish Jurist 221.
Oran Doyle, Constitutional Law: Text, Cases and Materials (Dublin: Clarius Press,
2008)
Parker, “Must Constitutional Rights be Specified? Reflections on the Proposal to Amend
Article 40.3.1°” °” (1997) Irish Jurist 102
Whyte, “Discerning the Philosophical Premises of the Report of the Constitution Review
Group: An Analysis of the Recommendations on Fundamental Rights” in Contemporary
Issues in Irish Law and Politics (No. 2), (Dublin, Round Hall, Sweet & Maxwell, 1998) at
216-238.
9
Appendix 1
Per -- Report of the Constitution Review Group, (Dublin: Stationery Office, 1996) at 222.
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
xviii.
The right to bodily integrity (Ryan v Attorney General)
The right not to be tortured or ill-treated (The State (C) v Frawley [1976] IR 365)
The right not to have health endangered by the State (The State (C) v Frawley
[1976] IR 365)
The right to earn a livelihood (Murphy v Stewart [1973] IR 97)
The right to marital privacy (McGee v Attorney General [1974] IR 284)
The right to individual privacy (Kennedy v Ireland [1987] IR 587)
The right to have access to the courts (Macauley v Minister for Posts and
Telegraphs [1966] IR 345)
The right to legal representation on criminal charges (The State (Healy) v
Donoghue [1976] IR 325)
The right to justice and fair procedures (In re Haughey [1971] IR 217, Garvey v
Ireland [1980] IR 75)
The right to travel within the State (Ryan v Attorney General)
The right to travel outside the State (The State (M) v Attorney General [1979] IR
73)
The right to marry (Ryan v Attorney General, McGee v Attorney General)
The right to procreate (Murray v Ireland [1985] IR 532)
The right to independent domicile (CM v TM [1991] ILRM 268)
The right to maintenance (CM v TM)
The rights of an unmarried mother in regard to her child (The State (Nicolaou) v
An Bord Uchtála [1966] IR 567, G v An Bord Uchtála [1980] IR 32)
The rights of a child (In re Article 26 and the Adoption (No 2) Bill 1987 [1989] IR
656, G v An Bord Uchtála, PW v AW [Ellis J unreported High Court, 21 April
1980], FN (a minor) v Minister for Education and Others [1995] 2 ILRM 297)
The right to communicate (TheState(Murray) v Governor of Limerick Prison
[D’Arcy J unreported High Court, 23 August 1978], Attorney General v Paperlink
Ltd [1984] ILRM 343)
10