Enumerated rights – discuss? ” Student Name: Circa Sheehan Word Count (inclusive of footnotes but exclusive of bibliography): 1247 McGee & Ryan Cases – Enumerated rights – discuss? Introduction: Enumerated rights are ‘Rights that are not expressly mentioned in the text of a Constitution but instead are inferred from the language, history, and structure of the Constitution, or cases interpreting it. L’ Articles 40-44 recognize guarantee and protect personal rights; both expressed and inferred. These articles have allowed recognition and vindication of personal rights.
The words ‘in particulars’ of Article 40. 3. 2 have allowed the courts to suggest that while the specified rights reserve special protection they are not the sole rights. Judicial activism in relation to enumerated rights can be seen in two of the founding cases on the matter: Ryan v AAA and McGee v GAG. Within this essay I will discuss the mentioned cases and their impact. I will examine the development of enumerated rights and both the advantages and disadvantages of the method of discovery of such rights. Discussion: The seminal case in the area of enumerated rights was Ryan v GAG.
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The plaintiff kook the case as she felt the fluoridation of water under the Health Act 1960 infringed her right to bodily integrity. The case attempted to call on a right not explicitly expressed but latent in the generalities of Article 40. 3. Although she did not win her case as the incident was deemed to be non-malicious the court did recognize the right to bodily integrity inferred in Article 40. 3. 2. This case established an enumerated right and opened the courts and the public to the idea that further rights may be found. Within his Judgment Kenny J said “the personal rights which may be invoked… E not confined to those specified in Article 40. 6” Teen years rearwards Kenny J acknowledged ten coalescence AT ten era wanly en had inaugurated. “Judges have become legislators, and have the advantage that they do not have to face an opposition. 7” This concept poses difficulty for Ireland as a democratic nation. The primary reason in that it allows an unelected body to find rights to protect or choose not to as the case may be. The people have no power to remove the Judiciary, unlike the legislature. Secondly, it infringes the concept of the separation of powers.
The legislature’s power may be affected by the Judiciary telling he legislature how they can or cannot legislate depending on rights that are discovered. “It ultimately falls to the courts to determine which enumerated rights the constitution implicitly guarantees. 8” The next case was that of Mac Gee v GAG. Mrs… Mac Gee was a married mother, she had been advised by her doctor not to have any more children. She was importing spermicidal Jelly for contraceptive purposes and it was seized by a customs officer under section 42 of the customs consolidation Act 187610.
The case was taken on the ground that the ban on contraception was an infringement of her marital privacy; a eight ancillary to those specifically mentioned in the Constitution. She was successful in her case and the court established the idea of marital privacy. The marital privacy found was later defined as a general right to privacy in Kennedy v Ireland 1, a case where a Journalist’s phone had been illegally tapped. This shows that the rights found in any such cases may in time be adapted or expanded. This caused a societal worry.
In the Mac Gee case reference was made to the American case Griswold v Connecticut 2. The marital privacy right found there was expanded to include abortion in Roe v Wadded. This worried people as there was a concern that our courts would also expand the accepted right of privacy to incorporate abortion. This can be linked to the issues mentioned above concerning the public inability to choose or remove a Judge. The Mac Gee case showed a change in the courts attitude, a movement away from the acutely Christian nature of our Constitution. The case created a platform for societal change.
The Norris case was taken under the remit of privacy. The enumerated rights found are a reflection of the society that the Constitution serves today rather than that of 1937. Thomas Jefferson argued that “each generation should draft its own Constitution in order to insure that a nation’s fundamental governing document was as harmonious as possible with the beliefs of the citizens that it governed. 14” The method of discovery of enumerated rights can be Justified when assessing the Constitution as a whole rather than as individual articles.
When the harmonious approach is used it can be seen where marital privacy was supported by Article 41 concerning the protection of the family. A purposive approach can also aid the detection of enumerated rights. When the Constitution is read as a flowing document it is easier to identify what ideals, as a whole, it guards. The constitution belongs to the people and may only be edited by the people and thus it is clear that It would Include a ruling to Dooly Integrity Tort tense people.
The clarity and surety of the fundamental rights section is not as clear as desired. There is no article or legislation that allows the people and the courts to know what rights are validated. The Constitution Review Group Report favors amending Article 40. 3. 1 to provide a comprehensive list of fundamental rights which ‘should confine rather recognition of fundamental rights by the courts to those necessarily implicit in the rights expressly listed. 15’ On the other hand this could ultimately end up limiting the rights that can be protected.
As discussed earlier the constitution needs to have some flexibility in order to sufficiently serve the changes in society that it governs. Conclusion: In conclusion enumerated rights are an essential part of the Constitution in order to allow it to adapt to changes in society and prevent it becoming obsolete. The concept of providing a permanent list of inalienable and imperceptible rights feats the purpose and the operative nature of the fundamental rights section. While providing for clarity it will annihilate future society’s prospect of a suitable constitution.
The case of Ryan v GAG and Mac Gee v GAG were the first of their kind and allowed for positive development of not only the rights they discovered but also the unearthing of further rights. Ultimately it is up the courts to decide whether a right is protected under the constitution. Although an element of control is lost by the people it also aids us in that rights are not confined by legislation thus allowing for expansion of an accepted right as in the Kennedy case. Finally, enumerated rights give the supreme legal document of our Jurisdiction currency and they protect the rights of the people it serves.