{"id":11210,"date":"2021-04-05T12:20:20","date_gmt":"2021-04-05T11:20:20","guid":{"rendered":"https:\/\/cassandravoices.com\/?p=11210"},"modified":"2021-04-05T12:20:20","modified_gmt":"2021-04-05T11:20:20","slug":"unenumerated-constitutional-rights-erode-irish-democracy","status":"publish","type":"post","link":"https:\/\/casswp.eutonom.eu\/index.php\/2021\/04\/05\/unenumerated-constitutional-rights-erode-irish-democracy\/","title":{"rendered":"Unenumerated Constitutional Rights Erode Irish Democracy"},"content":{"rendered":"
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John Philpot Curran<\/figcaption><\/figure>\n

When the Federal Convention of 1878 had completed its work on the U.S. Constitution<\/a><\/span> in Philadelphia, Benjamin Franklin described its result as, \u201cA Republic, Madam, if you can keep it\u201d. <\/span><\/p>\n

Not much later, John Philpot Curran<\/a><\/span> gave a similar warning, now usually summarised as \u201cVigilance is the price of liberty\u201d.<\/p>\n

Each was saying that a written Constitution describes how a country should be governed, but does not promise that it will be. If we want to keep the system we have chosen, we must be vigilant. A single departure may not seem very significant, but if we ignore it we may realise too late that it was a step in undermining our system of government. It is not enough for political leaders to be alert. In a democracy we are all political leaders, our system of government and the freedoms it promises belong to us, and if we want to keep them we must be vigilant to protect them.<\/p>\n

This country has a democratic Constitution. Article 5 declares that it is to be a democratic state, and other Articles, read together, deliver on that promise. The D\u00e1il is to be the dominant power in the Oireachtas.\u00a0 Elections for it must be held at regular intervals, so that we can dismiss political leaders who do not serve us as we wish.\u00a0 Elections must be by single transferable vote.\u00a0 The \u201csole and exclusive power of making laws for the State\u201d is vested in the Oireachtas, the only limit being that its laws may not be \u201crepugnant to the Constitution\u201d.\u00a0 Laws are made in public, at sittings the public can attend and the media can report.<\/p>\n

That our only lawmakers are those the People choose is the foundation of our democracy, as of every representative democracy. By adopting a Constitution that said that the only people who could shape the country by making law were those we had elected, we gave ourselves a democracy in 1937 \u2013 if we could keep it.<\/p>\n

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Leinster House the meeting place of D\u00e1il Eireann.<\/figcaption><\/figure>\n

Have we? Partly seems to be the best answer. The Oireachtas is no longer our sole and exclusive lawmaker. In the 1960s Irish judges began to adopt what is called \u201cjudicial activism\u201d, the view that judges should play an active role in shaping the law.\u00a0 In 1965 the High Court advanced that view in the Gladys Ryan case<\/a><\/span>. The Oireachtas had decided that it would be good for our dental health if piped drinking water contained a tiny proportion of fluoride, and enacted the Health (Fluoridation of Water Supplies) Act, 1960, under which piped drinking water was and is fluoridated. Mrs Ryan complained that this meant she and her children had to drink contaminated water, and took High Court proceedings to have the Act annulled. After a hearing lasting many months Judge John Kenny decided she had not proved that fluoridated water was injurious to health and dismissed her claim.\u00a0 But he made it clear that if he had formed a different view he would have annulled the Act.<\/p>\n

That the case went to hearing is surprising. As we noted above, our Constitution vests in the Oireachtas the \u201csole and exclusive power of making law for the State\u201d. Those words seem to mean that if a citizen thought an Act was defective her only resource would be to campaign to have the Oireachtas repeal or amend it. If another authority within the State could examine the reasons that led the Oireachtas to pass the law, disagree with them and annul the legislation, the power of the Oireachtas to make law would not be \u201csole and exclusive\u201d. Those words seem to mean that the judge should not have heard the claim, because he had no authority to interfere with legislation that was consistent with the text of the Constitution. The Attorney General seems not to have made that argument. If so, he effectively abandoned the Constitutional authority of the Oireachtas as our sole and exclusive lawmaker.\u00a0 It seems never since to have been asserted in any Court.<\/p>\n

The Judgment was a blow to the authority of the Oireachtas in another way. The effect of Judge Kenny\u2019s decision was: \u201cThe Constitution includes a list of rights it guarantees to citizens, and the list is clearly not intended to be complete. Other rights may be added. The Oireachtas can add them. So can judges. A judge of the High Court or Supreme Court may decide to recognise a right<\/a><\/span> that a citizen claims but the Constitution does not mention and deem that right to be part of the Constitution, as though it had been included in the document the People adopted in 1937. An Act of the Oireachtas or a Section of an Act that is incompatible with a right a judge has decided to recognise will be annulled as if it were repugnant to the Constitution, even though it is not\u201d. (Rights so identified later came to be called \u201cunenumerated rights, and we will use that term, for simplicity.)<\/p>\n

The Ryan decision changed how we are governed, in three ways. First, judges could examine why the Oireachtas had passed legislation and interfere if they disagreed with its reasons.\u00a0 Secondly, the Oireachtas\u2019 authority to make laws was no longer sole and exclusive, because judges might decide to recognise and enforce an \u201cunenumerated right\u201d. Thirdly, such a decision by a judge would override legislation enacted by the Oireachtas. That may seem to be a transfer of power from one organ of State to another, but it was an erosion of our democracy<\/span>, because representative democracy depends on laws being made by those we have elected and by nobody else. Authorising people we had not elected and could not get rid of to override decisions of those we had elected was and is inconsistent with our claim to be a democratic state.<\/p>\n

The Ryan decision also undermined our authority in a less obvious way. Our Constitution provides that only we, the People, may amend it, but when judges import \u201cunenumerated rights\u201d into it they in effect amend it. Our authority to do so is no longer sole and exclusive.<\/p>\n

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Separation of Powers.<\/figcaption><\/figure>\n

Finally, it effectively changes the meaning of \u201cseparation of powers\u201d and \u201cseparation of functions\u201d. These used to mean that each of the three organs of government, the legislative, executive and judicial, had its separate function in which neither of the others should interfere. It now seems to mean only that the legislature and executive may not interfere in the judicial function.<\/p>\n

There was no protest. We did not show vigilance in defence of our freedom.<\/p>\n

Judges have invoked the \u201cdoctrine of unenumerated rights\u201d (a \u201cdoctrine\u201d is more impressive than a \u201ctheory\u201d) many times since 1965. Unlike legislators, judges deal only with issues others bring before them, so they produce new \u201cdoctrines\u201d or \u201crights\u201d only if litigation gives them the opportunity. However, a substantial number of unenumerated rights have been established and a substantial amount of legislation annulled in the last thirty-six years. For example:<\/p>\n