I have blatantly stolen the phrase “Something from Nothing” from Lawrence Krauss’ discussion of the origins of the universe to in his brilliant book “A Universe from Nothing“, to describe a somewhat less significant, but similarly mysterious aspect of Irish Constitutional Law. As I have been a bit busy lately, and am lagging behind in writing new content for the site, I decided once again to go back to some of my previous work, this time as a fresh-faced (actually, at age 19 I was probably still struggling with teenage-years skin, closer to acne than fresh-faced) first-year student in Trinity College. The doctrine of unenumerated rights is one of the more controversial, and possibly for that very reason, interesting areas of constitutional law. It is a central part of both the arguments between judicial activism and separation of powers, and natural law versus positive law; debates concerning the very essence of legality itself. Since its birth, both the legitimacy and the social utility of the practice of applying unenumerated rights have been widely debated. The following is a short overview of the Irish unenumerated rights doctrine, for those of you who, like my colleagues here in Germany, are curious about how Irish Constitutional law fills, or at least used to fill, gaps in our constitutional rights.
Natural Law v. Positive Law
The idea of constitutionally enforcing ‘unenumerated rights’[i] has been argued to have strong founding in the ideas of natural law. For those of you who weren’t forced to learn about this, or have forgotten your early years of studying law, natural law is a rather old idea that socially-constructed law derives its legitimacy from a fundamental basis, such as human reason, nature itself or a higher power such as a ‘god’. St. Thomas Aquinas (1224-1274) was one of the foundational and best known scholars to clearly establish ‘natural law’ as opposed to man-made ‘positive law’. His belief, and the belief of most natural law theorists, is that the natural law exists without having to be written down, and is the ultimate source of law, from which all human law derives its validity;
… the first rule of reason is the natural law. Thus all humanly enacted laws are in accord with reason to the extent that they derive from the natural law. And if a human law is at variance in any particular with the natural law, it is no longer legal, but rather a corruption of law.[ii]
The counter-argument to this is the theory of positivism; that a law only exists because people have decided it is a law and it has been written down or otherwise integrated into the social contract. Positive law does not simply mean law which is written down (though this will make up most of the positive law in most legal systems), but also includes case law and customary law, all of which can be consulted as a (relatively) definite authority on legality. Many positivists believe that strong expressions of judicial activism, such as the unenumerated rights doctrine, are abuses of the judicial power and that the legitimacy and validity of law can only come from legislation passed by the democratically elected parliament. Prof. John Hart Ely, one of the most widely cited critics of such unenumerated rights doctrines argued the illegitimacy of basing a judgment on natural law;
The advantage is that you can invoke natural law to support anything you want. The disadvantage is that everybody understands that.[iii]
History of Unenumerated Rights
The birth of unenumerated rights case law can be said to be found in the United States in what are known as “The Slaughter-House Cases”[iv], in which local butchers challenged a State-sanctioned monopoly on the slaughtering and processing of cattle on the basis that it denied them their right to pursue lawful employment in a lawful manner (that is, it denied the butchers this right, not the cattle – they sadly didn’t even get a mention).[v] However, in this case, Miller J led the majority of the court in finding that ‘privileges and immunities’[vi], as mentioned in the US Constitution, only protected rights already mentioned elsewhere in the constitution, or ones which owed their existence to “the Federal Government, its national character, its Constitution or its laws.” Nonetheless, the Ninth Amendment to the US Constitution indicates the possibility of the existence of unenumerated rights; “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and this has been used to argue for the existence of extra-constitutional rights with some success. The Supreme Court of the United States has also interpreted the Fourteenth Amendment to the US Constitution to protect against state infringement of certain unenumerated rights including, among others, the right to send one’s children to private school and the right to marital privacy.
Despite its unsuccessful beginning in US law, the idea of unenumerated rights found safety in the landmark Irish case of “Ryan v. Attorney General”[vii], where Kenny J found that there was a right to bodily integrity and that it was impliedly protected as an unenumerated personal right by Article 40.3 of the Irish Constitution – “Bunreacht na hÉireann”.[viii] In his judgment, Kenny J said that these personal rights stemmed from ‘the Christian and democratic nature of the state’,[ix] a logic that could best be classified as natural law – specifically the traditional “because God says so” idea of natural law, but with the important inclusion of “democratic nature” as a basis for a non-religious justification for such rights, more tied to the ideas of the social contract or human dignity and reasoning . On appeal Ó Dálaigh CJ and the Supreme Court upheld the decision of Kenny J in the High Court to recognise an unenumerated right to bodily integrity, however in a much less enthusiastic fashion that Kenny J had originally done so;
The Court agrees with Mr. Justice Kenny that the ‘personal rights’ mentioned in Article 40.3 are not exhausted by the enumeration of ‘life, person, good name and property rights’ in Article 40.3.2 as is shown by the use of the words ‘in particular’; nor by the more detached treatment of specific rights in the subsequent sections of the Article.[x]
However it was made clear in “Moynihan v. Greensmyth”[xi] by O’Higgins CJ that unenumerated rights are by no means absolute, emphasising that the guarantee of protection for these under Article 40.3.2º was qualified by the words ‘as best it may’ – meaning that in certain cases the State could balance the protection of rights with the ‘common good’.[xii] Kenny J had also mentioned a number of other unenumerated rights in his judgment in Ryan, one of which was ‘free movement within the State’; this was later elaborated on by Finlay P in “State (M) v. Attorney General”[xiii]. Next to Ryan, perhaps the next most significant victory for unenumerated rights in Irish courts came in “McGee v. Attorney General”[xiv], where, though unsuccessful in the High Court, Mrs. McGee was found to have an unenumerated right to marital privacy by a 4-1 majority in the Supreme Court. In “Norris v. Attorney General”[xv] Henchy J introduced the ‘human personality’ basis for unenumerated rights, and though the plaintiff lost on facts (a fascinating case itself, the starting point for the decriminalisation of consensual sex between two [or more, come to think of it] men in Ireland), a greater right to privacy was recognised.
Of late the tendency of the courts has been to shy away from introducing new unenumerated rights or to rely heavily on them in judgments. This loss of power for the doctrine of unenumerated rights is best seen in the (comparatively) recent case of “TD v. Minister for Education”,[xvi] where essentially there was found a fundamental right ‘to be locked up for your own good’, however its protection did not go so far as to authorise the imposing of mandatory orders on the Government, and the court reiterated its reluctance to recognise any new unenumerated rights which were not implicit in the constitution itself, or which collided with other rights and powers.
Views on The Unenumerated Rights Doctrine
The thinking behind natural law proponents of the unenumerated rights doctrine is that ‘justice’ is based directly on natural law, and that therefore justice is above positive law (this is not a view I’m entirely sure I find all that convincing, but I admit it certainly helps arguments if accepted). This view is put forth by Walsh J in McGee;
The structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of Article 40.3 expressly subordinate the law to justice.[xvii]
The idea behind this stems from the fact that, in the preamble of the Constitution, justice, along with prudence and charity, is sought to be observed. Therefore, rather than see themselves as acting outside the constitution, the proponents of this theory believe that they are in fact ‘compelled’ by the constitution to uphold this abstract idea of ‘justice’, even to the extent where they must read into the Constitution rights not specifically mentioned therein. In “State (Healy) v. O’Donoghue”,[xviii] O’Higgins CJ claims that it is the duty of the courts to administer justice and that no court in the country has the authority to act contrary to justice.[xix] Interestingly there are instances where the judges in favour of this approach do admit that inherent to this theory is that each judge will have an individual take on ‘justice’ – a refreshingly honest, but somewhat amusing and even moreso worrying indication that this sacrosanct “natural law” might in fact be subjective, or at least functionally so.
In McGee, Walsh J blatantly states that judges must interpret rights, “… in accordance with their ideas of prudence, justice and charity.”[xx] There is absolutely no arguing with the fact that this statement is a clearly judicially activist one, however some scope is given to the argument in the later comments of O’Higgins CJ during the State (Healy) case, regarding ‘justice’;
… which may gradually change or develop as society changes and develops and which falls to be interpreted from time to time in accordance with prevailing ideas.[xxi]
This comment lends itself to the idea of the Constitution as a ‘living document’, and that is it beneficial to see it this way as the values and principles protected by it may change over time as the values and principles of the society it governs change. If you accept this idea that the character of the Constitution is not a rigid or set, then O’Higgins CJ would argue that the unenumerated rights doctrine is a legitimate one, in that the recognition of previously constitutionally unprotected rights is necessary to keep the human rights protection in the Constitution up to date. I personally feel that this idea of the constitution as a living document, which can and should react to changes in society can also be justified without relying on strict natural law, but rather as an acknowledged compromise within the social contract, but that’s a topic for another day.
From 1965 until it reached its peak during the 80’s, the unenumerated rights doctrine enjoyed many victories in Ireland; with new rights being discovered on the basis of natural law, justice and the Christian and democratic nature of the State. Indeed in the mid-80’s Costello J makes a strong argument in “Murray v. Ireland”[xxii] as to justifying the existence of rights which are above positive law;
It does not follow, therefore, that because the Constitution ascribes to only some rights, characteristics of inalienability and imprescriptibility, the Constitution should be construed as implying that other fundamental human rights lack these qualities, or that only those rights are superior to the positive law which are so expressly described in the Constitution.[xxiii]
In the end, the natural law theorists try not to rely on natural law itself to prove the legitimacy of enforcing natural law unenumerated rights, but rather argue that permission, if not duty, to do so can be read directly from the Constitution. This is most probably best summed up by the comments of Walsh J in the McGee case, saying that the provisions of Article 40.3, among others;
… emphatically reject the theory that there are no rights without law, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights, or human rights, are not created by law but that the Constitution confirms their existence and gives them protection.[xxiv]
‘Slaughter-House’ or ‘Strict Positivism’
The critics of the doctrine of unenumerated rights often advocate the strict positivist or ‘Slaughter-House’ approach to constitutional rights, which it could be said is not so much an ‘approach’ as a lack thereof. A simplified version of the idea is that judges are only to recognise constitutional rights that are specifically written into the Constitution. The proponents of this approach don’t preach the virtues of this approach from a justice or consequentialist point of view, but rather argue that there are simply too many inherent dangers with the idea of judges recognising unenumerated rights. Prof. Ely makes the important point that the law-makers and moral philosophers in this area are more than likely going to be from the upper-middle or professional classes and therefore only likely to enshrine fundamental ‘freedoms’ like;
… expression, association, education, academic freedom, the privacy of the home, personal autonomy,[xxv]
..and other similar rights, which you might notice, seem like particularly upper-middle class concerns.. He argues that this only benefits the better-off in society, as judges are slow to recognise socio-economic rights that might be of benefit to the most vulnerable in society. Mention a right to ‘jobs, food, or housing’[xxvi] and watch as the judge manages to explain that these rights are not ‘fundamental’. The problem here is of course one tied to the idea of separation of powers, in that the courts are slow to tell the Government what to do, lest they be accused of usurping executive or legislative power, and hence tend not to enforce socio-economic rights which would force State expenditure. Indeed, the courts recognising socio-economic rights and enforcing them would be them acting as little more than ‘ a third House of the Oireachtas’.[xxvii]
In his article on the subject, Dr. Gerard Hogan suggests adopting the ‘Bork approach’, and adhering to the position taken in Slaughter-House; that courts should not read into the Constitution fundamental rights that are not already mentioned elsewhere therein.[xxviii] However, in the Irish context this would make Article 40.3.1º as well as the words ‘in particular’ in Article 40.3.2º meaningless inclusions, and one of the fundamental rules of statutory, or in this case constitutional, interpretation is that all words or sections should have meaning. As a quick refresher, this rule was stated by Viscount Simon in “Hill v. William Hill (Park Lane) Ltd.”[xxix], in which he proposed that;
The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is a good reason to the contrary, the words add something which would not be there if the words were left out.[xxx]
Therefore, even from a positivist viewpoint, it is hard to prove that there is absolutely no legitimate basis for the suggestion that the Constitution allows the existence of unenumerated rights. Yet, positivist or not in outlook, all judges are essentially agents of positive law, and therefore the paradox, as put by Dr. Oran Doyle, is, “… that of an agent of positive law determining what is superior to the positive law.”[xxxi] Critics have been relatively successful in picking holes in the argument for a natural-law-based doctrine of unenumerated rights, but a good example of an apparent contradiction inevitable with this approach came from Desmond M. Clarke, an associate professor of Philosophy at University College, Cork: He pointed out that the logic in the McGee case may be flawed in that the court recognised an unenumerated right to marital privacy, based on natural law logic, then proceeded to strike down legislation banning contraceptives based on the fact that it breached this right. However, contraceptives were at the time, and still are, strongly against Catholic teaching, which had been the wellspring of much of the natural law theory behind unenumerated rights in Ireland.[xxxii] If this logic is correct, then the Court used Catholicism-related natural law to strict down legislation which had been ‘protecting Catholic values’.
Whether this logic stands or not (and it may well not, as many at the time, and moreso now, argued for a democratic or reason-based natural law rather than a religious one), it is hard to deny that there is a certain cyclical or contradictory nature to trying to justify a completely non-positivist natural law approach based on an undeniably positive document, the Constitution. Whether the evolution of the unenumerated rights doctrine has been a beneficial one or not, it is hard, in the presence of such abstract theories for proponents of natural law-based unenumerated rights, to pin down a definitive justification for their existence. This paradox is again elegantly summed up by Dr. Oran Doyle;
This is because the agents of positive law in a given system must view the ultimate source of validity as binding in order for it to become the ultimate source of validity, but it cannot be viewed as binding unless or until it is the ultimate source of validity.[xxxiii]
Solutions and a ‘Pragmatic Approach’
As in almost all arguments, there is room within the debate on the benefits and legitimacy of the unenumerated rights doctrine, for reasoning that is not one extreme or another, but rather an attempt at a ‘happy medium’. First and foremost is an approach which mirrors the natural law justification almost identically, however under a different name. In Norris a new basis for the validity of unenumerated rights was suggested by Henchy J, this manifested itself in what is now known as the ‘Human Personality Test’. Henchy J proposed that these rights were indeed inherent in the Constitution without having to be mentioned, however rather than on a basis of natural law being above the Constitution, he reasoned that these rights inherently belonged to people by virtue of their humanity;
The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution.[xxxiv]
Now, it is important to point out at this junction, that this sort of reasoning could be subsumed as a form of natural law, based on human dignity or reason, but it certainly breaks with the traditional natural law justifications, and was proposed as such. Henchy J, like many, believed there was a very real social utility to the unenumerated rights doctrine, and that it was something that needed to be protected and upheld. Therefore in lieu of the not entirely watertight theory of natural law he proposed a more modern pragmatist approach.
Critics, however, of Henchy J.’s logic argue, as mentioned before, that the ‘Human Personality Test’ is no more than the natural law dressed up in a more secular name and is no more legitimate a justification than its predecessor. Initially, Dr. Gerard Hogan suggests that to avoid the dangers of unrestrained judicial activism, it might be safer to adopt a strict Slaughter-House approach, yet ironically concludes on a rather inconclusive point;that the wording of the Constitution strongly suggests the presence of unenumerated rights, yet there is no legitimate fair mechanism whereby their existence can be objectively ascertained.[xxxv] McCarthy J, writing extra-judicially, took a pragmatic approach, which relied upon trust in the judiciary. Like Henchy J he firmly believed that the doctrine of unenumerated rights benefited society as a whole, but feared the dangers of a judicial abuse of power;
The judiciary, must not err by adopting either extreme, that of the refusal to go outside the expressed terms of the Constitution at one end or of an excessive role of judicial law-making at the other.[xxxvi]
In conclusion, was the unenumerated rights doctrine a beneficial and legitimate development in constitutional law? Well it could be easily argued that neither of these questions are answerable in light of the considerable debate on the issue, however it is hard to say that as a practice it was in no way beneficial. This doctrine came into existence and gained popularity within the courts at a time where the ideas and values of Irish society were rapidly changing, and perhaps this muddled contradictory line of case law, if nothing else, shows the attempts of the courts to find a way to legitimately keep up to date with this change. One approach is to say that the doctrine was incorrect in its legitimacy, but not to say it was not, “..politically necessary or, indeed, morally required.”[xxxvii] Who is to say that, even if illegitimate and lacking validity, the unenumerated rights doctrine wasn’t a beneficial or worthwhile undertaking of the courts? Even St. Thomas Aquinas, in his defence of natural law, said that an injustice was merely a ‘corruption’ of law and not an invalidation, and often for the greater good, social utility and avoiding civil disorder unjust law must be abided by. So whether unjust or invalid, there are good arguments for the worth and the benefits of the unenumerated rights doctrine.
[i] That is, rights not explicitly mentioned, yet still guaranteed, by a constitution.
[ii] Summa Theologica, qu. 95, art.2.
[iii] John Hart Ely, “Democracy and Distrust” (Harvard University Press, 1980) at 50.
[iv] 83 U.S. 36 (1872).
[v] Closely resembling what would later become the Irish right to earn a livelihood, derived from Article 40.3 of the Irish Constitution.
[vi] The equivalent of Irish ‘unenumerated rights’.
[vii]  I.R. 294, hereinafter referred to as Ryan.
[viii] Gerard Hogan, “ Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990-1992) 25-27 Irish Jurist 95, at 101.
[ix]  I.R. 294, at 313.
[x] Ibid. at 344-345.
[xi]  I.R. 55.
[xii] Ibid. at 71.
[xiii]  I.R. 73.
[xiv]  I.R. 284, hereinafter referred to as McGee.
[xv]  I.R. 36, hereinafter referred to as Norris.
[xvi]  4 I.R. 259.
[xvii]  I.R. 284, at 318.
[xviii]  I.R. 325, hereinafter referred to as State (Healy).
[xix] Ibid. at 348.
[xx]  I.R. 284, at 319.
[xxi]  I.R. 325, at 347.
[xxii]  I.R. 532.
[xxiii] Ibid. at 539.
[xxiv]  I.R. 284, at 310.
[xxv] John Hart Ely, “Democracy and Distrust” (Harvard University Press, 1980) at 58-59.
[xxvi] Things often taken for granted in the wealthier levels of society.
[xxvii] Gerard Hogan, “ Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990-1992) 25-27 Irish Jurist 95, at 108.
[xxviii] Ibid. at 111.
[xxix]  2 All E.R. 452.
[xxx] Ibid. at 461.
[xxxi] Oran Doyle, “Legal Validity; Reflections on the Irish Constitution” (2003) D.U.L.J. 56, at 66.
[xxxii] Desmond M. Clarke, “The Constitution and Natural Law: A Reply to Mr. Justice O’Hanlon” (1993) 11 I.L.T. (n.s.) 177.
[xxxiii] Oran Doyle, “Legal Validity; Reflections on the Irish Constitution” (2003) D.U.L.J. 56, at 57.
[xxxiv]  I.R. 36, at 71.
[xxxv] Gerard Hogan, “ Unenumerated Personal Rights: Ryan’s Case Re-evaluated” (1990-1992) 25-27 Irish Jurist 95, at 114.
[xxxvi] Mr. Justice Henchy, “Observations on the Protection of Fundamental Rights in the Irish Constitution” in Curtin and O’Keefe, eds.,” Constitutional Adjudication in European Community and National Law” (London, 1992) at 179, 181.
[xxxvii] Donal Coffey, “Article 28.3.3º, The Natural Law and the Judiciary – Three Easy Pieces” (2004) 22 I.L.T. 310.