By Brónach Rafferty
Brónach Rafferty is a third-year law student at Trinity College in Dublin, Ireland.
The advent of the unenumerated rights doctrine in Ireland during the 1960s and 1970s could be said to align with a more modern version of Ireland, as envisioned by the Taoiseach from 1959 – 1965, Seán Lemass, who was seen as a progressive figure in Irish politics. Lemass “hoped that the court would become more like the US Supreme Court.”  As with the American system of law, the Irish Legal System was based upon its own Constitution. The ninth amendment of the American Constitution, however, acknowledged the existence of unenumerated rights
The most than can thus be said is that the framers of the ninth amendment intended it as a declaration, should the need for it arise, that the people had other rights than those enumerated in the first eight amendments, and the federal Judiciary and the State legislatures could so use it if they had to do so. 
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Article 40.3.2 of the Irish Constitution is worded similarly. It provides:
“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
The terminology of ‘certain rights’ in the American Constitution is reflected by the use of the clause ‘in particular’ in the Irish Constitution. Therefore, the question must be asked, was it Lemass’s desire that the Irish courts look to the example of their American counterparts that fed into the adoption of the unenumerated rights doctrine by the Irish courts? Perhaps the unenumerated rights doctrine was an appropriate response in these circumstances, as it advanced Lemass’ vision of a more progressive Ireland.
It is the use of the words ‘in particular’ coupled with the ‘personal rights’ as spoken of in Article 40.3.1 that implies that the Constitution does not contain an exhaustive list of rights to be protected, and it was this basis that provided the cornerstone for the unenumerated rights doctrine. The unenumerated rights doctrine provided the courts with a means to realize further ancillary or corollary rights so as to further strengthen the protection of the individual’s rights. In today’s society, on the other hand, they are neither necessary nor desirable. These rights, having been “secured as part the aquis constitutional,” have ensured that there is no longer a necessity to realise any further new rights within the unenumerated rights doctrine, for it is now possible to infer rights from provisions already made within the Constitution, and from precedent created and built upon from rights already enumerated under Article 40.3.1. 
Furthermore, it could be argued that the unenumerated rights doctrine is now unnecessary and undesirable due to doubts as to whether or not unenumerated rights are explicitly mentioned in the Constitution. Whereas America’s Constitution is obvious in its acknowledgement of unenumerated rights, the ninth amendment stating that ‘the enumeration... of certain rights shall not be construed to deny or disparage others’, there is no such obvious implication in the Irish Constitution. This is a perspective bolstered by Gerard Casey, who maintains that:
“[T]he US Constitution... given its role as a model for much that is found in Bunreacht na hÉireann (constitution of Ireland), and given that it contains an amendment dealing explicitly with unenumerated rights, it is, I believe, significant, that there is no explicit advertence to them in Bunreacht na hÉireann. That inadvertence, together with the lack of textual evidence for such rights and the obvious political problems to which they give rise, constitutes a presumption that,pace Mr. Kenny’s judgement, and the concurrence of the legal establishment, unenumerated rights, except when logically necessitated by the Constitutional text, are not to be found in Bunreacht na hÉireann.”
In this respect, the unenumerated rights doctrine is undesirable today because it is somewhat tainted due to its lack of any concrete provisions affirming its existence. It is no longer desirable because it is uncertain, and uncertainty in the law is ‘repugnant to the central value of the law itself’. 
The re-evaluation of Article 40.3 started in the 1950s, it wasn’t until 1965 however, that the unenumerated rights doctrine came to light, with Ryan v Attorney General.  Brian Doolan said of the realization of the doctrine, that it was ‘paving the way for one of the most innovative features of our Constitutional law’.  Perhaps it is no longer necessary or desirable today because it was simply a passing phase within the Irish legal system at that time.
It was at the start of the 1960s that the government appointed Cearbhall O Dálaigh as Chief Justice and Brian Walsh as a member of the Supreme Court, and it was at this point that Lemass alluded to his desires that the Irish courts look to the American court system for guidance. This was interpreted by O Dálaigh and Walsh as suggestion that they take a more flexible view of the Constitution, and it was the former who presided over Ryan, alongside Kenny J.
It was in Ryan that Kenny J ascertained that such personal rights as may be invoked to invalidate legislation are not limited to those made specific in Article 40, but stem from the “Christian and democratic nature of the State,” and it was in accordance with this argument, that constitutional protection was afforded to bodily integrity.  In the aftermath of the turning point that was the Ryan decision, other personal rights have been established as falling within the parameters of Article 40.3, for example: the right to litigate, the right to communicate, and, the right to work and earn a living.   
The unenumerated rights doctrine, as aforementioned, identified and offered protection in order to strengthen the rights of the individual during the 1960s and 1970s. Henchy J shared a similar view in McGee v Attorney General, who viewed such rights as being “fundamental to the personal standing of the individual in question in the context of the social order envisaged by the Constitution.”  It has also been implied, as in Murphy v PMPA, that such rights are, by virtue of personality, automatically inherent within the individual, whilst also relying on natural law. 
The problem therein, with the acceptance of the unenumerated rights doctrine today, lies with the concept of natural law. Whereas positive law is seen as statutory, man made law; the body of law imposed by the state, natural law, is said to come from a divine source, to be discovered and formulated in accordance with what is morally right and just and will promote the common good. Aquinas cites God as being the source of divine law, with positive law being derived from such and combined with practical reasoning. Aristotle and Plato agree with the concepts of law and justice as deriving from nature and reason, which govern actions to move towards a higher good.  Natural law is seen as a greater entity and superior to positive law, however, there is vagueness in what can be interpreted as morally right and just. Such interpretation is subjective in nature, leaving it down to the judiciary to observe and judge in accordance with the ‘Prudence, Justice and Charity’ mentioned in the Constitution. The elusive nature of natural law was recognized in McGee v Attorney General, with Walsh J’s opinion aligning with Aquinas’ theory, citing natural law as ‘the law of God... the ultimate governor of all the laws of men’.   It is the uncertainty surrounding natural law and what is right and just that causes Hogan to question the use of natural law in the doctrine of unenumerated rights:
“...the nature or extent of natural law is a matter of...dispute... it falls to the judiciary to determine its extent and application... the Constitution does not provide any real guidance to a judge seeking to discern the content of this higher law...this is almost acknowledged by him when he states that the judges must interpret the natural law by reference to their ideas of prudence, justice and charity. This is...an open invitation to the judiciary to become latter-day philosopher-kings via the guise of constitutional adjudication.” 
It is this lack of precision and absence of clarity in the Constitution, as well as the subjectivity with which natural law is governed by, the judge having to decide upon what he views as moral and just, that render the unenumerated rights doctrine no longer desirable in modern society. Dworkin shares this sentiment, writing that there is an argument to say that ‘judges have no authority to add to the enumerated. If we allow judges to roam at will beyond the “four corners” of the Constitution... we abandon all hope of limiting judicial power.”  Similarly, in McGee, Walsh J argues that natural rights are not within the creation of law.
Regarding natural law, the unenumerated rights doctrine is no longer necessary or desirable due to the inconsistency of authorities used by the courts in making decisions during the 1960s and 1970s. Ryan used a papal encyclical as a means of authority, yet Magee directly contravened Catholic doctrine and, in contrast, Norris v Attorney General  draws upon Catholic teaching, with Higgins C.J. alluding to Catholic philosophy and prejudiced fears of homosexuality. Some might view such an unsettled approach by the authorities by which they justified their decisions as undesirable, for the ‘form of judicial creativity which appeared to have been sanctioned with the emergence of the doctrine of unenumerated rights could also encounter serious jurisprudential problems’.  Such concerns were voiced by Keane CJ in making his decisions in O’T v B, and TD v Minister for Education, where he called for judicial restraint in the identification of new rights.  
In conclusion, whilst the unenumerated rights doctrine may have been an appropriate response by the courts to the social situation in Ireland in the 1960s and 1970s, it is no longer necessary or desirable. A vagueness and uncertainty as to the roots of the unenumerated rights doctrine resulted in:
“a...blurring of definition, a...bursting of conceptual banks...as though legal rivers finding their confluence in the estuary of liberty and justice...had their courses confused by flooding further upstream, leaving a somewhat trackless delta for the constitutional geographer.” 
All avenues within the unenumerated rights doctrine have been explored and exhausted. Any such rights affirmed have been added to the Constitutional canon, and it would be unnecessary to enumerate further rights when there exists wide enough scope within the provisions of the Constitution and from rights already enumerated under Article 40.3.1.
Diarmaid Ferriter, ‘When judges intervene...’ The Irish Independent (Dublin, 12 December 2012).
 O. John Rogge, ‘Unenumerated Rights’ (1959) 47 California Law Review 787 793.
 Oran Doyle, Constitutional Law: Text, Cases and Materials (Clarus Press 2008) 108.
 Gerard Casey, ‘Are there Unenumerated Rights in the Irish Constitution’ (2005) 23 Irish Law Times 123
 John Kelly, Fundamental Rights in the Irish Law and Constitution (2nd edn, Dublin 1967) 360.
 Gerard Hogan and Gerry Whyte eds, Kelly:The Irish Constitution (4th edn, Tottel Publishing 2003).
Ryan v Attorney General  IR 294.
 Brian Doolan, Constitutional Law & Constitutional Rights in Ireland (Dublin 1994) 152.
Ryan v Attorney General  IR 294 SC (312).
 McCauley v Minister for Posts and Telegraph  IR 345.
 AG v Paperlink  ILRM 373.
 Cafolla v O’Malley  IR 486.
 McGee v Attorney General  IR 284 (SC) 325.
 Murphy v PMPA Insurance Co.  ILRM 25.
 Simona Vieru, ‘Aristotle’s Influence on the Natural Law Theory of St. Thomas Aquinas’ (2010) The Western Australian Jurist Vol. 1 115.
 McGee v Attorney General  IR 284.
 McGee v Attorney General  IR 284 (SC) 317.
 Gerard Hogan, ‘Unenumerated Personal Rights: Ryan’s Case Re-evaluated’ (1990-1992) 25 – 27 Irish Jurist 95.
 Ronald Dworkin, ‘The Concept of Unenumerated Rights – Unenumerated Rights: Whether and How Roe Should be Overruled’ (1992) 59 University of Chicago Law Review 381.
 Norris v Attorney General  IR36.
 Ronan Keane, ‘Judges as Lawmakers: The Irish Experience’ (2003)
Radharc, Vol. 4, Special Commemorative Issue: Ten Years of Glucksman Ireland House 91.
 O’T v B  2 IR 321
 TD v Minister for Education  4 IR 259.
 John Kelly, The Irish Constitution (3rd edn, Dublin 1994) 755 – 756.
Photo Credit: Flickr User Anna & Michal
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