I have agreed to give a paper at a forthcoming conference on the 70th anniversary of the Irish Constitution. The main focus of the session in which my paper will be given is unenumerated rights in the Constitution; and the main focus of my paper will be on speech rights. Other papers in the session are likely to focus on unenumerated rights generally and on privacy in particular. Against this background, I think the theme my of paper will be that unenumerated rights which the courts have spelled out of things mentioned on the face of the constitution are capable of being pernicious, illegitimately preventing the proper development of the text itself.
In particular, I will use the development of an unenumerated right to communicate against the background of the enumerated but (until recently, underdeveloped) right to express freely convictions and opinions in Article 40.6.1.(i) as the context in which to examine this thesis. My sense is that the cases which went down the road of the unenumerated right to communicate diverted energy from the development of Art 40.6.1(i). It was a dead end from which the caselaw has only recently recovered. Were it not for the unenumerated right to communicate, Article 40.6.1(i) would have developed more quickly and coherently that it did; it would have had to; and constituitonal interpreation in general and speech rights in particular would have been all the better for it.
The cry for help is therefore twofold: (i) my cry for help to any readers out there who have views about these issues, and (ii) the text’s own cry for help in its textual explication, without being dragged into the dead end of unenumerated rights where the text already expressly enumerates them, and where the right as enumerated is simply crying out for detailed analysis. I may even use the title of this post as the working title of my paper until/unless something better occurs to me. And when more information about the conference becomes available I shall blog about it. But, in the meantime, any and all ideas gratefully appreciated.
6 Reply to “A Cry for Help? Freedom of Expression and Unenumerated Rights in the Irish Constitution”
Not a terribly sophisticated or legal analysis, and not necessarily as focused on your theme as you might wish, but in the 1980s when we had that series of referendums on abortion (be patient, I do come to your theme), it occurred to me that Ireland and the USA were opposites: in Ireland, the right to life was absolute, but the right to freedom of speech was constrained (through censorship laws), whereas it was the other way around in the USA.
This is not unlike the situation the prevailed with marriage annulments before divorce was leagal. The variety of circumstances in which the courts were prepared to grant annulments, meant that the legitimate needs for divorce were ignored for longer than might have been possible otherwise.
While it’s essential that the courts be able to extrapolate unemnumerated rights from the core document, I agree that it’s not a substitute for enumerating them.
Some of the issues which will doubtless be covered in this conference have been covered in a Symposium on Unenumerated Rights in the Irish Constitution in (2007) 3 GSLR 208.
I feel the Natural Law enshrined in the Constitution is being steadily eroded and feel strongly that the people not the state should have more access to interpretation and indeed amendments to our Constitution rather than being spoon fed the issues only relevant to satisfy the states purposes – but more on that as I settle in to learning all I can about this important subject