Are we plucking up Constitutional Rights from the sky?

Irish Constitution

Source: Catholicireland.net

The Irish Constitution is at the core of Irish Law. It sets out who we are as a nation and how we should run our country and it provides that all individuals are guaranteed certain fundamental rights.

In our Constitutional law module this week, we discussed the topic of unenumerated rights. These are those rights which are not expressly written in the Constitution, but are implied. Natural law allows for these rights to be inherited on a basis of basic human rights, superior to the Constitution.

Below are some of the rights which have been established as unenumerated rights:

  1. Right to Marital Privacy (McGee v Attorney General)
  2. Right to earn a Livelihood without discrimination of Sex (Murtagh Properties v Cleary)
  3. Right to access of the Courts (Macauley v Minister for Posts and Telegraphs)

This topic reminded me a lot of our recent Jurisprudence topic on American Realism. Both topics are common in that they highlight the weaknesses with our Court’s system and how the written law and legislation is not the only decision making factor.

What are the issues with this doctrine?

I understand the principle, that similar to American Realism, the unenumerated rights doctrine allows for justice to prevail and that it allows for the development of rights in an ever changing society. However, I have an issue with the fact that the judiciary are ultimately making laws, when this is contrary to the Separation of Powers – as the legislature should be the only body making laws. The other massive issue is that we are also unaware of which rights exist until they are brought before a Court. And even in doing so, the judge presiding over the case has complete discretion to shape the Constitution as they see fit.

The certainty in law is simply lost by following this theory and it worries me!

In studying this topic, I found an interesting blogger, who delves deeper into the concept of Natural Law and the Unenumerated Rights Doctrine and makes some interesting points on the issue.

Until next time,

Laura

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