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The Unenumerated Rights Doctrine Notes

Irish BCL Notes > Irish Constitutional Law Notes

This is an extract of our The Unenumerated Rights Doctrine document, which we sell as part of our Irish Constitutional Law Notes collection written by the top tier of Trinity College Dublin students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Irish Constitutional Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

The Unenumerated Rights Doctrine Article 40 s.3.1 The State guarantees in its laws to protect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen. s.3.2 The State shall, as far as practicable, 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.

Ryan v Attorney General (SC 1964) Facts

1. The plaintiff claimed that the fluoridation of the water supply was an infringement of her right to bodily integrity. IssueUnenumerated Rights - Means of determination

High Court Judgment (Kenny J)
? The words "in particular" show that sub-section 2 of Article 30 s.3 is a detailed statement of something which is already contained in Article 40 - however it protects rights that are mentioned nowhere else in the Article 40.
? Thus the first sub-section must also encompass rights which are enumerated nowhere else in the Constitution, that flow from the Christian and democratic nature of the State.
? One such right is that of bodily integrity - the existence of which is corroborated by a recent Papal Encycical. Supreme Court Judgment (O Dalaigh CJ)
? The trial judge is correct in stating that the guarantee of rights in Article 40 s.3(1) is not exhausted by the rights specificallly enumerated in Article 40.
? However the right to bodily integrity is not infringed in this case.

Macauley v Minister for Posts and Telegraphs (HC 1966) Facts

1. The plaintiff wished to sue the defendant for failing to provide him with a working phone service.

2. At that time anyone wishing to sue a Minister in his capacity as Minister required a fiat from the Attorney General which the Attorney General failed to grant in this case.

3. The plaintiff claimed he had an unenumerated right to have recourse to the Courts to assert and vindicate a legal right. IssueUnenumerated Rights - Means of determination

Judgment (Kenny J)
? The right in this case exists - it flows from Article 34.3.1 which states that the High Court has jurisdiction to determine all matters and questions, whether of law or fact, civil or criminal.
? The corollorary of this is that the citizen has a right to bring such matters and questions before the Court.

The State (M) v Attorney General (HC 1978) Facts

1. The prosecutors were the parents of an illegitimate child who wished to send the child to live with the parents of the father.

2. The law did not allow the removal from the State of a Irish citizen under the age of seven.

3. The prosecutor's challenged the constitutionality of this law, claiming that it was an infringement of the right to travel outside the State. IssueUnenumerated rights - means of determination

Judgment (Finlay P)
? Where a facility exists to allow people to travel outside the State, then there is a right to use those facilities without arbitrary or unjust interference by the State - this arises from the Christian and democratic nature of the State e.g. one of the hallmarks of an authoritarian state is the practise of putting wholsale restrictions on this right at the whim of the government.

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