Separation of Powers
SYMPOSIUM UNENUMERATED RIGHTS IN THE IRISH CONSTITUTION: THE DEBATE CONTINUES UNENUMERATED CONSTITUTIONAL RIGHTS: THE CURRENT PROBLEMATIC POSITION
ORLAITH MOLLOY The Irish Constitution’s fundamental rights provisions are found in Articles 40 to 44. The Irish courts have found that the Constitution guarantees both the rights specified and those unspecified, which have been implied to date by the judiciary. This article questions the legitimacy of the courts’ actions in the past with respect to unenumerated rights and advocates a solution to the problem currently at hand: the unstable and dubious situation of such unenumerated rights. To resolve this situation, the article advocates that specific unenumerated rights be enshrined either in statute or in the Constitution. However, while cognisant of the constitutional design and the potential danger of a “runaway” Supreme Court creating or eliminating “rights” on its own whim or on wholly ethereal grounds, the article posits that future circumstances may justifiably provoke and, indeed, necessitate the Supreme Court’s development of unenumerated rights, even if they are not spelled out in legislation or endorsed by referendum. In order to put the current Supreme Court’s attitude toward unenumerated rights in context, it is first necessary to review the development of the jurisprudence in this area. Initially, very little litigation was taken before the courts on the question of justiciable rights. This reluctance stems from the earliest case worthy of note, The State (Ryan) v Lennon,1 which established the dominance of the positivist view. Stated another way, there are no constitutional
1
The State (Ryan) v Lennon [1935] I.R. 370.
208
rights guaranteed, other than those expressly mentioned. An element of “timidity”2 characterised the early years of constitutional litigation as the judiciary were accustomed to the common law system. Keane has commented that constitutional jurisprudence was “inhibited” by
ORLAITH MOLLOY The Irish Constitution’s fundamental rights provisions are found in Articles 40 to 44. The Irish courts have found that the Constitution guarantees both the rights specified and those unspecified, which have been implied to date by the judiciary. This article questions the legitimacy of the courts’ actions in the past with respect to unenumerated rights and advocates a solution to the problem currently at hand: the unstable and dubious situation of such unenumerated rights. To resolve this situation, the article advocates that specific unenumerated rights be enshrined either in statute or in the Constitution. However, while cognisant of the constitutional design and the potential danger of a “runaway” Supreme Court creating or eliminating “rights” on its own whim or on wholly ethereal grounds, the article posits that future circumstances may justifiably provoke and, indeed, necessitate the Supreme Court’s development of unenumerated rights, even if they are not spelled out in legislation or endorsed by referendum. In order to put the current Supreme Court’s attitude toward unenumerated rights in context, it is first necessary to review the development of the jurisprudence in this area. Initially, very little litigation was taken before the courts on the question of justiciable rights. This reluctance stems from the earliest case worthy of note, The State (Ryan) v Lennon,1 which established the dominance of the positivist view. Stated another way, there are no constitutional
1
The State (Ryan) v Lennon [1935] I.R. 370.
208
rights guaranteed, other than those expressly mentioned. An element of “timidity”2 characterised the early years of constitutional litigation as the judiciary were accustomed to the common law system. Keane has commented that constitutional jurisprudence was “inhibited” by