The story of the rise and recent fall of natural law in Irish constitutional jurisprudence is inextricably bound up with the struggle for independence that consumed Ireland in the twentieth century. With that struggle went the urge to be different and to be seen to be different. The addition of confessional elements in the 1937 Constitution was intended to bring the Constitution closer to the reality of the people. But it also had the effect of enabling a very different judicial attitude to develop—one that favored religious conceptions of the natural law over the British tradition of parliamentary sovereignty and the legal positivism associated with that tradition. In the 1960s this constitutionally sanctioned natural law thinking emboldened the Irish courts to take fundamental rights seriously, or perhaps more seriously than originally intended. A Kulturkamph between ‘progressive’ and conservative forces in Ireland ensued—a struggle which was predictable given the secularization of the country, emergent after the decision was taken in the late 1950s to open the Irish economy to world market forces.

In this essay I trace the initial momentum for religiously motivated natural law thinking in the Irish legal system, its subsequent decline and, after 1995, dramatic fall. This history illustrates the extent to which democratic institutions of government are antithetical to the natural law tradition, not just in Ireland, but here in the United States as well. It also serves to demonstrate just how different two natural law traditions can be (the theocratic and the liberal one).

I. The ‘Problem’ with Natural Law in the Context of Constitutional Adjudication

Why is natural law so problematic in the context of constitutional adjudication? Most commentators focus on its indeterminacy. To my mind however, content is not the issue. It matters little whether the natural law in question owes an intellectual debt to John Locke, or Karl Marx or the Vatican. What matters more is the very use of natural law in the first place.

On the one hand, the Western constitutionalist tradition rests on a certain substantive conception of justice. Over the past three centuries a ‘liberal-democratic’ image of the just polity has emerged, founded on the values of human dignity, autonomy and equality as well as on the philosophical primacy of the ‘right’ over the ‘good’. This view constitutes a form of ‘natural law’ thinking, because it motivates the adjudicative view that lines must be continually redrawn in order to insure that novel legislation remains faithful to the original moral vision of the liberal-democratic polity. Judges should interpret, apply, or strike law in accordance with an ideal liberal polity based on the values and value theory referred to above.

On the other hand, the constitutionalist tradition is also closely tied to liberal political theory. The separation of powers, explicit recognition of fundamental rights, and the rule of law are all parts of that tradition, designed not to secure substantive justice, but to secure justice through law. The rule of law theory functions as a bulwark against arbitrariness—against undue encroachments on the private side of the much vaunted (and hotly disputed) public/private divide. It characteristically insists that people are ruled not by the whim or dictate of apparatchiks or by divine insight (theocratic guardianship) but by and through law. Bound up with this is the requirement that such law be positive and promulgated, that the mechanism (courts) for applying the law have sufficient guarantees of autonomy from other branches of government (so that the courts would apply the law and nothing but the law), and that adequate guarantees of procedural fairness are in place.

This alternate, more procedurally oriented conception of liberal constitutionalism tends to discourage reliance on natural law arguments. Under the rule of law theory, the safest option for a court is to apply interpretivist (as against more creative) tools in the interpretation of the ‘law’ of a constitution and to engage in activism only where the text specifically allows for it.1 Of course, this policy relies on the view that the text (whether parsed in words or phrases or sentences) securely cabins the meaning of the instrument. This attitude of non-activism toward the text is further fortified by reference to democratic theory.2 Democratic theory insists that it is the imprimatur of the people that gives the text legitimacy. If so, then only the will of the people can bring about legitimate change. These two arguments—the rule of law (albeit rendered formalistically) and democratic theory (albeit reduced to crude people power) interact to lean very strongly against the use of natural law thinking in the constitutional context.

Returning to the natural law approach to liberal constitutionalism, if the values (natural law) of the constitutional order are controlling, then judges are sometimes obliged to interpret the written word in light of an unwritten text (or in light of the commentary texts of natural law theorists whose ideas supposedly animate the constitutional text). But if the natural law controls the content of the written text, then parts of the text might be declared unconstitutional—the paradox of an unconstitutional constitution—or amendments inserted through popular referenda might be declared incompatible with the underlying nature of the document. At least one leading judicial figure in Ireland took this view (former High Court judge Roderick O’Hanlon). Here is where natural law most violently bumps up against popular sovereignty; viz., the right of the people to express their values whatever way they wish and indeed to change the textual expression of those values. After all, the authorizing element in the U.S. Constitution is the people ("We the People…"), and not the opening words of John Locke’s Two Treatises on Government.

The U.S. Supreme Court has long abandoned any pretended competence to import natural law considerations into the overall interpretative equation.3 This was done (under extreme political pressure during the Great Depression) to allow latitude for economic and social experimentation—experimentation which might be deemed incompatible with the underlying values of the Constitution but which didn’t do clear violence to any explicit portion of the text. The natural law in question pivoted on classic liberal (or libertarian) theory, especially concerning the dogma of free contract and the sanctity of private property. Of course, this has not meant that the American judiciary has abandoned non-interpretivist methods of ascribing meaning to the text to meet novel situations. Much of the debate in the U.S. since Brown v. Board of Education4 has revolved on the adequacy of the various justifications offered or whether non-interpretivist adjudication is essentially natural law in disguise (or ‘false interpretivism’).5

The Irish version of natural law rested primarily on Catholic social and moral teaching, rather than on the theories of John Locke or Herbert Spencer. While liberal or libertarian conceptions of natural law might be pushed to expand the aura of liberty that surrounds and protects the person against communitarian or majoritarian impulses, a religious conception of the natural law might be used to constrict liberty in order to honor ‘correct values’. In crude terms, the public/private divide is seen and drawn differently. Hence the Irish courts have been more willing than their American counterparts to limit liberty on moral grounds. The differences don’t end there. Religious conceptions of the natural law might be used to inspire a different agenda—one that pays as much regard to questions of distributive justice (economic, social and cultural rights) as it does to formal or juridical justice. Such rights find somewhat more expression in the 1937 Constitution, and there has been judicial activity in this area, especially as regards education.

Despite these dissimilarities, the Irish courts shared with their American counterparts a penchant for using natural law to expand the grounds on which legislation could be struck down as unconstitutional, grafting an unwritten constitution onto a written one.6 Nonetheless, the Irish courts—again like their American counterparts, but several decades later—were also eventually forced to confront the essentially undemocratic aspects of natural law and abandon it. In effect, the Irish Supreme Court was obliged to decide which element was primary, the ‘values’ embedded in the Constitution or the fact that those values were endorsed by the ‘preferences’ of the People, who were free to change their minds.

II. The Drafting of the 1937 Constitution and the Insertion of Natural Law Principles

To understand how this religious conception of natural law took root in Irish constitutional jurisprudence (and why it was eventually expunged by the Supreme Court) it is necessary to take a temporary excursion into History.

1. The ‘Imposed’ Constitution of 1922—‘Badges of Inferiority’ and Royal Authority

During Easter week in 1916 a variety of armed groups led by the Irish Republican Brotherhood (IRB) staged an armed insurrection in Dublin, temporarily occupying the General Post Office in the city center. Although unsuccessful in purely military terms, it changed everything politically. The leader of the group—Padraig Pearse—proclaimed an Irish Republic from the Steps of the GPO, in a document which has come to be regarded as the functional equivalent of the American Declaration of Independence, and as the root of and title to the current Constitution of 1937 and all subsequent Irish law. It reads, in part:

In the name of God and of the dead generations from which she receives her old tradition of nationhood, Ireland, through us, summons her children to her flag and strikes for her freedom…We declare the right of the people of Ireland to the ownership of Ireland and to the unfettered control of Irish destinies, to be sovereign and indefeasible… Standing on that fundamental right, and again asserting it in arms in the face of the world, we hereby proclaim the Irish Republic as a Sovereign Independent State.7

Note that the Deity was invoked along with the people as the basis of authority for the revolution. This combination figures prominently in subsequent legal theory in Ireland.

When the British Government held a general election in 1918, the majority of outgoing Irish constitutional nationalist MPs were rejected by the voters in the south of the country, and replaced with members of the newly formed Sinn Fein party, the political wing of the IRB. Although they were entitled to take their seats in Westminister, the requisite oath of loyalty of the British crown was repugnant to the new Irish MPs, who convened instead in Dublin’s Mansion House to hold the first Dáil Éireann (Irish Parliamentary Assembly), an illegal assembly under British law. The First Dáil promptly reaffirmed the 1916 Proclamation of Independence, giving the declaration a retrospective democratic imprimatur. In accordance with the logic of the Proclamation, the First Dáil began to assume sovereign responsibilities and even began to organize a competing public administration, parallel to the British Administration.

In 1920 the British Government, belatedly recognizing political realities in Ireland, conceded on the need to legislate a dormant Home Rule Bill into law, and Parliament enacted the Government of Ireland Act. It envisaged a Home Rule Parliament for all of Ireland, but gave Ulster the right to opt out and form its own Home Rule Parliament (so-called "Home Rule within Home Rule"). Ulster exercised this right. But the Government of Ireland Act came too late. A violent ‘Irish War of Independence’ erupted throughout the island from 1919 to 1921. Nothing short of a separate sovereign republic would do.

A new (U.K.-wide) general election was held in May 1921. Again, the majority of MPs returned from Ireland were from Sinn Fein. They refused to take their seats in Westminister and convened in Dublin as the Second Dáil, and directed the War of Independence from there. Militarily, the IRB could not prolong the struggle, but political opinion in the U.S. and in the Dominions was moving decidedly against the U.K. The time seemed right to sue for peace. During the negotiations the British Government made it plain that the Irish side would have to abandon the claim for a Republic. If they persisted then the war would resume with extremely costly casualties. Confronted with the prospect of a prolonged war with dubious prospects of success, the Irish negotiating team brought back to Dublin "the Treaty", which in turn caused a brief but bloody Civil War between the "Free Staters" and the rump republicans (the ‘irregulars’), lasting from June of 1922 through May of 1923. It was resolved militarily in favor of the Provisional Government, but left a legacy of bitterness that lasts to this day. The losers, led by Eamon de Valera, a veteran leader of the 1916 rising who survived the subsequent round of executions because of his U.S. citizenship, eventually formed the Fianna Fáil Party in the late 1920s. This party began to take power from the early 1930s onwards, was the party in power during the drafting and ratification of the 1937 Constitution, and is still the single biggest party in the Republic.

It’s not hard to understand why the Treaty was so divisive. First of all, under Article 1 the new legal entity conceded by the British would have Dominion status, falling far short of a republic. It would be a Free State in much the same way as the Orange Free State. Under the Colonial Laws and Validity Acts of the 1880s this meant that the Westminister Parliament had the last say on any controversial legislation. Secondly, Article 4 required an oath of allegiance to the British Monarch to be taken by the members of the new Dominion Parliament. This was odious in the extreme to most Irish republicans. Thirdly, although the Treaty nominally applied to all of Ireland (giving the Dublin Dominion Government authority over all of the island) space was left under Articles 11 and 12 for the possibility of an Ulster opt-out. Eventually, six northern counties reverted to the model provided under the Government of Ireland Act 1920. Finally, the new Free State’s territorial integrity was not completely intact. The British navy was allowed continued use of certain deep sea ports (Art. 7).

After confirmation of the treaty a Provisional Government took office and took over from the British Government apparatus in Ireland. A general election held in May of 1922 produced the Third Dáil, whose main function was to draft the Constitution of the Irish Free State. The room for maneuver in drafting the new Free State Constitution was narrow since it had to navigate within the four corners of the treaty.8 The preamble to the resulting Irish Free State Act (the so-called ‘Constituent Act’) stated:

Dáil Éireann sitting as a Constituent Assembly in this Provisional Parliament, acknowledging that all lawful authority comes from God through the people and in the confidence that the National life and unity of Ireland shall thus be restored, hereby proclaims the establishment of the Irish Free State.

Note again the dual reference to the Deity and to the people. Both stood in stark contrast to British thinking. The reference to God meant to signal that Ireland was a religious country in contrast to secular England. The reference to the people stood in contrast to British theories of monarchy, and was reflected again in Article 2 of the 1922 Constitution (appended to the Constituent Act), which stated that: "All powers of government and all authority legislative, executive, and judicial in Ireland are derived from the people of Ireland." However, §2 of the Constituent Act conferred domestic legal status on the treaty, and made the treaty superior to the text of the Constitution itself in cases of conflict between the two. As if this weren’t bad enough, the text of the 1922 Constitution itself contained many so-called ‘badges of inferiority’, mirroring those already contained in the Treaty. Among the more important were the following.

First the Irish Free State created by the Constitution was only to have the status of other Dominions within the British Commonwealth (Art. 1). Secondly, the executive authority of the Free State was vested in the King or his personal representative (Art. 51). Thirdly, the King’s personal representative could withhold the Royal Assent (necessary to promulgate legislation) and reserve the matter effectively for the British Cabinet (Art. 41). Fourthly, the King was described as a constituent element of the Oireachtas (Dáil [popularly elected lower house of the Irish Parliament] plus Seanad Éireann [Irish Senate]). This meant that, from a theoretical perspective, it was the king’s presence in the Oireachtas that gave it authority—not the will of the people. Fifthly, an oath of loyalty to the King was demanded of each member of the Oireachtas. Lastly, the British Privy Council had the last say on legal matters. In other words, the Irish Supreme Court was not supreme and owed deference to a British court.

Despite this bleak picture there were some slender reeds on which to base hopes for a better future, apart from hints at popular sovereignty. A whole slew of provisions in the 1922 Constitution protected a range of civil and political rights including the right to liberty (Article 6), the inviolability of private dwellings (Article 7), freedom of conscious and free practice of religion (Article 8), freedom of expression (Article 9), the right to free primary education (Article 10), the right to trial in due course of law (Article 70), etc. The text pertaining to these rights was quite advanced. The real problem lay in the judicial attitude toward the text and indeed toward judicial review itself. Article 65 expressly envisaged a role for the new superior courts in determining the validity of any law having regard to the provisions of the new constitution. This was entirely new. It reads:

65. The judicial power of the High Court shall extend to the question of the validity of any law having regard to the provision of this Constitution…

A right of appeal on a constitutional matter from the High Court lay to the Supreme Court (Art.66). But despite the presence of Articles 65 and 66, not much use was made of these provisions, neither with respect to the newly enumerated civil and political rights, nor with respect to constitutional adjudication generally. This is not so surprising given that fact that the vast majority of Irish judges were trained in the British positivist school of jurisprudence.

2. The ‘Imposed’ Constitution of 1922—The Corrosive Legacy of Legal Positivism

The real test of a constitution resides not so much in what the text provides but in the attitude of the judiciary toward the text. Political violence continued to disrupt the fledgling Free State. To hard-line republicans the existence of the Free State was a betrayal of the Proclamation of Independence. To them political violence was fully justified. Thus, a new state had come into existence whose legitimacy was challenged at the very outset. The government was bound to react. But it was the manner of the reaction and the attitude of the courts towards that reaction that was to reveal just how hollow the protections of the 1922 Constitution had been.

Article 50 of the 1922 Constitution enabled the Oireachtas to legislate for amendments to the Constitution through ordinary (i.e., majoritarian parliamentary) legislation for a grace period of eight years, without reference to the people through popular referendum. The idea was to give the Oireachtas time to fine-tune the document without the necessity of having to consult the people on each occasion. There were three safety nets. In addition to the time limit, Article 47 required any constitutional amendment to be submitted to popular referendum if two-fifths of the Dáil (lower House) voted to send the matter to the people. Finally, a mandatory referendum on the amended Constitution was required at the expiration of the eight years.

During that eight-year grace period, however, feeling the pressure of the republican element constantly questioning the government’s legitimacy, the Oireachtas proceeded to use its temporary amendment powers to dismantle the safety net. Amendment 10 was enacted by the Oireachtas in 1928 to the effect that the Article 50 power was severed from any reference to referendums. That is to say, the second safety net was abolished. Henceforth no minority could delay the amendment by voting to put it to the people. Then Amendment 16, enacted by the Oireachtas in 1929, almost at the very end of the first period of eight years grace, extended the grace period to sixteen years, effectively postponing application of the first and third safety nets.

In 1931, on foot of the extended period of grace, the Oireachtas enacted Amendment 17, inserting a wholly new Article 2a into the Constitution. Article 2a could be invoked whenever the Executive Council deemed it expedient. It effectively created a parallel penal system. Once invoked, then anything to the contrary in the Constitution was suspended and neutralized. Special military courts were given authority to try a range of offences and the trial of ordinary offences could be easily transferred to it. The court was to be composed of military officers who need not have (and did not have) any legal training. They were granted specific immunity against civil suit for their actions. Any penalty up to and including the death penalty could be substituted for the penalty that might ordinarily be imposed. No appeal lay to the regular courts. No coroner’s inquest could be demanded after execution as was normal. Extensive powers of arrest and detention were created. Failure to co-operate or to account for one’s movements was itself an offence.

The application of Article 2a was famously tested in the courts through habeas corpus proceedings (not through ordinary appeal since none existed).9 The essence of the challenge was to the effect that the proposed amendment of the eight years grace to sixteen was unwarranted under the text of the Constitution and that, even if it was, the parallel penal system erected by it was so antithetical to the fundamental tenets of the Constitution that it had to be declared unconstitutional. The threshold question was whether one should read the text of the Constitution literally—as a legal positivist—or whether one should read it with certain normative anchors in mind concerning human rights and the right to fair trial.

If, as a legal positivist, one were to read the text literally, then there would appear to be nothing in the text to stop the Oireachtas from using its amending power to amend the amending power itself. In other words, if one took the doctrine of parliamentary sovereignty to its logical conclusion, then Article 2a was valid. If, however, one probed for deeper normative commitments in the text then Article 2a was at least challengeable, if not invalid.

The majority of judges in both the High Court and Supreme Court took the positivist view even though that meant that the Oireachtas could, if it wished, amend the Constitution to cede its own authority to the executive, to make civil servants out of judges, to abolish elections and even to abolish the right of judicial review itself. In other words, the German Enabling Laws would have been perfectly valid from this perspective (assuming a free vote in Parliament, which of course did not happen in Germany).

The one lone voice against this was that of Judge Hugh Kennedy in the Supreme Court. He took the view that an amending power does not confer authority to amend itself. He felt that the mention of both God and popular sovereignty in the Constituent Act as well as in Article 2 of the Constitution changed things utterly. To him this meant that the normative anchors of the Constitution as reflected in the various rights set out thereunder could not be expunged so easily. He then went on to characterize Article 2a as the very epitome of totalitarian rule and a negation of the rule of law. Kennedy’s argument anticipated both the theistic and democratic elements in the Constitution of 1937, a recipe for future judicial activism.10

What this case shows above all else is that the text is not necessarily the most vital variable in determining whether a constitution will be made effective or not. What matters most is the conceptual apparatus of the courts. Clearly, although the seeds of judicial activism were present in the Constituent Act and in the text of the 1922 Constitution, and although the first glimmer of a shift away from the dogma of parliamentary sovereignty was also present in the text, the judiciary of the day lacked the mental apparatus to see this and run with it.

3. The Making of the 1937 Constitution—From Royalist Theory to Popular Sovereignty and Natural Law

From the late 1920s the leader of the anti-treaty side of the Civil War—Eamon de Valera—decided to enter ‘normal’ politics and take his seat in the Oireachtas even though this meant taking the oath of loyalty, for the moment. He and his party (Fianna Fáil) won power from the early 1930s onwards. They rejected the Treaty and vowed to wipe out all vestiges of the crown in the Irish polity. In this they were helped by the activities of the previous government which had lobbied successfully for a repeal of the Colonial Laws Validity Acts. The Statute of Westminster, 1931, gave effective autonomy to the Dominions to pursue their own legislative agendas even if they were at odds with that of London. De Valera exploited this statute to the full. He used it to repeal §2 of the Constituent Act. Henceforth the treaty would not form the anchor to the Constitution and the Constitution would not be read in light of the treaty. The right of the Governor General to reserve matters for the British cabinet was also abolished. The oath of loyalty was abolished. The King was removed as the executive head of State. In this way, power was brought closer to the people and was premised more and more openly on the notion of popular sovereignty.

De Valera had a keen eye for the main chance. Seizing his opportunity during the constitutional crisis occasioned by the unexpected abdication of King Edward VIII in 1936, de Valera first persuaded the Oireachtas to enact the Executive Authority (External Relations) Act. Its effect was to vest all authority with respect to external relations in the Executive Council. Then de Valera proposed a new constitution to the Irish people, which was ratified by the voters in a plebiscite on 1 July 1937.12

For our purposes, the most important elements of the new Constitution begin with the lengthy preamble:

In the name of the most Holy Trinity, from Whom is all authority and to whom, as our final end, all actions both of men and States must be referred, We, the people of Eire, humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial…and seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution.

Note again the implication in the preamble that there are two interacting bases of authority for the new legal order—divine authority and the will of the people. These elements were also reflected in the body of the Constitution. Article 5 reflects the element of popular sovereignty, asserting that: "Ireland is a sovereign, independent and democratic state." Article 6 again melds the two bases of authority. It reads: "All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy according to the requirements of the common good." This appeal to a theocratic conception of the common good was highly relevant during the first period of judicial activism (see below).

Apart from citing these twin sources of authority, the 1937 Constitution also provided for extensive protection of fundamental rights under Articles 40-45. Catholic teaching is especially evident in Article 40.3. on equality (when interpreted in light of Article 41), in Article 41 (the Family- especially the high regard for the role of women within the home), and in Articles 42 (Education), 43 (the right to private property), 45 (Directive Principles on Social Justice), and also in the basis on which members of the Upper House (Seanad Éireann) are to be appointed (vocationalism). Derogation from rights is possible under emergency situations (Article 28.3.3.). But unlike Article 2a of the 1922 constitution, the derogation provision does not give the executive carte blanche in this regard. Moreover, the rights provisions were reinforced by Article 34.3.2, giving the judiciary explicit authority (once again) to engage in judicial review of legislation for its compatibility with the constitution, the same invitation the judiciary failed to take up in Article 65 of the 1922 Constitution.

III. Judicial Activism under the 1937 Constitution

So in 1937 there was a new constitution premised on popular sovereignty as well as on theistic ideas (natural law) providing for a broad range of human rights. As such, it was clearly different from its 1922 predecessor, hedged, as it was, by the terms of the Treaty.13 Both elements stood in contrast to the past and to Britain. One element (the religious element) tended to lend support to judicial activism (at least of a particular sort). The only question remaining in this regard was whether the judiciary would recognize this to be so and take up the renewed invitation to begin scrutinizing legislation in earnest. The other element (popular sovereignty) tended however in the opposite direction. That invited a different question: when would the courts recognize the irreconcilable tension between the two, and in favor of which alternative would they resolve that tension? The answer to the second question came much later, but even the first suffered a considerable time lag before the judiciary digested the reality of the new jural order.

1. The Role of Natural Law in the Beginnings of Judicial Activism in the 1960s

The delayed judicial response to Article 34.3.2’s invitation to assume interpretive authority for constitutional text had the same source as judicial dormancy during the years Ireland was governed by the 1922 Constitution: the fact that, up until the 1940s and 1950s, most of the judges had been appointed by the British and—more important—were partial to the positivist school of thought. Those judges who were anyway different were so different because they were educated outside of these islands. At least one judge noted for his opposition to positivism during this period was education in Belgium under the influence of Catholic natural law thinking (George Gavan Duffy14).

Several factors accounted for the gradual disenchantment with positivism on the part of the judiciary. First, most appellate judges appointed after 1950 had been educated under the direction of Professor Gilligan at University College, Dublin. He broadened their perspectives and in particular guided his pupils toward natural law thinking. Second, a new political culture was evolving—one in which popular sovereignty was beginning to be seen as more than just anti-royalist rhetoric. Third, Ireland was undergoing dramatic economic and social change. The decision taken in the mid-1950s to open up the Irish market to the world market made it easier for people to see themselves as rights-bearing individuals and less as deferential members of an organic group. This in turn called for reforms which, because religious influences were still strong, the legislative branch was slow to provide. In default of legislative action people began to look to the judiciary for reform. Fourth, the U.S. Supreme Court provided inspiration for what could be done.

The real beginnings to Irish judicial activism date back to 1965.15 In that year the Oireachtas enacted a law that required all local authorities to put fluoride into the water supply in order to lower the incidence of dental caries in the country. Gladis Ryan took umbrage at this. The irony is that she took great care with her children’s teeth and allowed them candy only on special occasions. She resented the paternalism inherent in the legislative measure and engaged the services of Sean McBride to mount a constitutional challenge: Ryan v. Attorney General.16

The challenge was mounted on three fronts. First, the legislation was impugned on the basis that it ousted the decision-making autonomy of the family with respect to the care of its members, contrary to Article 41. Second, it was impugned on the basis that it violated the right of the family to provide education for its children—which is explicitly stated in the text to include physical nurturing—contrary to Article 42. Thirdly, it was impugned on the basis that it violated an unspecified (i.e., unwritten) right to bodily integrity. It was argued that such unspecified rights form part of the corpus of Irish constitutional law and are hinted at by Article 40.3.2.

In what is perhaps the most important judgment ever given by an Irish High Court judge, John Kenny rejected the first two arguments and accepted the third in principle. He held that the family had no decision-making autonomy in respect of matters where it is clear that a certain course of action is for the best interests of the children. After hearing much scientific evidence he held that the addition of fluoride to the water supply was one such measure. In other words, decision-making autonomy ends where objective science begins. This is of course a dangerous line of thinking, partly because all scientific knowledge is provisional, and also because the problem with science is that it can lead to social determinism, which only serves to expand the power of the State. He rejected the second argument by effectively reading the terms ‘physical’ and ‘nurture’ out of the Constitution.

Kenny clearly wanted to reach the novel issue presented and did not want to dispatch the case on ordinary constitutional grounds. He agreed with the assertion that the Constitution protected a web of unwritten or unspecified rights. He put a highly peculiar gloss on the first two sections of Article 40.3, which state:

40.3.1 The State guarantees in its laws to respect, and so far as is practicable, by its laws to defend and vindicate the personal rights of the citizen.

40.3.2 The State shall, in particular, 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.

Unlike earlier courts, he did not treat these provisions as mere ‘umbrella’ clauses that simply repeated protections provided elsewhere in the text and as adding nothing of substance. Rather, he treated 40.3.1. as separable from 40.3.2. That being so, he reasoned that the sweep of rights to which it refers goes beyond those specified in Art. 40.3.2 and indeed those specified elsewhere in the Constitution. The test he provides for the identification of unspecified (but equally effective) rights are whether they ‘fit’ with the ‘democratic and Christian nature of the State’ which is of course a curiously state-centered way of identifying human rights.

He went on to identify the right to bodily integrity as one such right. In order to fortify this conclusion he referred approvingly to paragraph 11 from a recent papal encyclical, Pacem in Terris (1963). Interestingly, the passage to which he refers not only endorses the right to bodily integrity as a human right but then goes on to talk of the right to housing, food, etc. It reads:

Beginning our discussion of the rights of man, we see that every man has a right to life, to bodily integrity, and to the means which are necessary and suitable for the proper development of life. These means are primarily, food, clothing, shelter, rest. Medical care and finally the necessary social services…

Curiously (maybe not) the Irish courts have never made much of these socio-economic rights even though they are as much endorsed by Catholic teaching as are the more usual civil and political rights.

In the result, Mrs Ryan was allowed to challenge the fluoridation of the water supply on the basis that it might violate the right to bodily integrity. Kenny reached the conclusion that it did not amount to such a violation. So her victory was purely theoretical. Nevertheless, this judgment changed everything.

The Ryan decision wrapped up Marbury v. Madison17 and Lochner v. New York18 into one. It stood not merely as authority for the proposition that the Constitution is law and that the courts have the last say on its interpretation, which is the essence and legacy of Marbury v. Madison in the Anglo-American constitutional tradition, but also as authority for the far more sweeping proposition that there is an unwritten constitution which judges are free to call in aid when determining the benchmarks against which legislative and executive action are the be evaluated. This unwritten constitution was informed by Catholic natural law thinking. Kenny’s judgment was considered so authoritative that it was merely affirmed by the Supreme Court on appeal.

Why did Kenny get away with this? The answer has, I think, a lot to do with the nature of Irish society in the 1950s and 1960s. It was easy for the courts to use a purposive ethos—even one that floated above the Constitution—since Irish society was relatively homogeneous in terms of its value-system. Doing the ‘right thing’ was not as controversial where everyone knew what the ‘right thing’ was. Furthermore, doing the ‘right thing’ was not necessarily perceived as undemocratic since the legislature had not shown itself to be fully in tune with the reformist zeal of the people. Thus, activism based on natural law was not seen (or experienced) as being in fundamental contradiction with democratic theory. However, as natural law drew the judiciary into novel fields, and as secularization broke down the old conventions revealing deep divisions over first principles—it became harder to credibly assert that there was ‘one right way’ and that the courts were uniquely positioned to identify it.

Many unenumerated rights were ‘discovered’ by the judiciary using natural law reasoning. In a later case (McGee—see below) Supreme Court Justice Brian Walsh asserted that: "Articles 41, 42 and 43… indicate that justice is placed above the law and they acknowledge that natural rights…are not created by law but that the Constitution confirms their existence and gives them protection." Another eminent judge wrote:

By proclaiming the Christian beliefs of those who enacted the Constitution an assertion is being made that the legal order established by it should be informed by the values which Christians hold. By requiring the observance of the virtues of Justice, Prudence and Charity the pre-eminence of precepts of the moral law is also proclaimed. A relationship between moral and positive law is established which requires in important respects that positive law should accord with moral law or otherwise be invalid. The fact that certain rights are declared to be antecedent to positive law and to be inalienable pre-supposes a concept of natural law from which the inalienable rights are derived and which is superior to positive law. The particular concept of the natural law is, by virtue of the proclamation of Christian beliefs, associated with that elaborated by Christian philosophers rather than with secular notions developed in the 17th and 18th centuries.19

Some judges are of course more philosophically able than others. But even the most able had trouble clearly pinning down the content of natural law. That proved no obstacle to its invocation, however. A public debate of sorts took place in the early 1990s between retired High Court Justice Roderick O’Hanlon and a law lecturer (Tim O’Connor) concerning the status of natural law.20 The context was the so-called ‘liberal agenda’ of an incoming government concerning divorce and other issues. The debate is of historic interest now, but it did constitute explicit articulation of (and challenge to) a core implication of the natural law view: the thesis that parts of the Constitution might be held unconstitutional because they violated the natural law. As will be seen, the Supreme Court directly contradicted this view in 1995.

2. The Unenumerated Right of Privacy and the Right to Life Amendments—The Beginning of the End for Natural Law

One of the rights identified by the courts as unspecified but equally valid is the right of privacy. This right was first recognized in the landmark case of McGee v. Attorney General,21 argued before the Courts by future President of Ireland Mary Robinson. Mrs. McGee had been living in a caravan with her fisherman husband and had several young children. She was medically advised that another pregnancy would mean almost certain death. She was therefore advised to start using a contraceptive. At the time no contraceptives were manufactured in Ireland, and importation of contraceptives was criminalized under the Criminal Law Amendment Act 1935. She sent for a supply from England. The package was impounded by Irish customs officers under the terms of the 1935 Act. She sought a declaration that the 1935 Act was invalid having regard to several provisions of the Constitution.

The first argument put forward on her behalf was that the relevant provisions violated her right of marital privacy under Article 42. Article 42 does not refer explicitly to a right of marital privacy but it could be strongly argued that it was implicit. After all, if the walls separating the family from the outside world could be easily penetrated then why belong to a family at all? Another argument held that the legislation violated her individual right of privacy under Article 40.3.1.

All her arguments were rejected by the High Court. Somewhat implausibly even on a textual basis, High Court Judge O’Keefe found no right of privacy to subsist within the family. He found that there were unenumerated rights (he had to follow the Supreme Court in Ryan) but doubted whether privacy was one of them. He essentially held that the test whether the unspecified right existed was to be determined at the point in time when the 1937 Constitution was enacted. Using this test he held it inconceivable that the drafters of the 1937 Constitution who had just enacted the legislative measures in question (the 1935 Act) contemplated a right of privacy that was capable of subverting these very same measures. Lastly, he distinguished American case law by stating that the Irish law merely forbade importation rather than manufacture or use. In effect, Mrs. McGee could be consoled by the right to make her own contraceptives.

The Supreme Court famously disagreed. Brian Walsh found a right of marital privacy to exist within Article 42 on the family. He was wise to do so. This was the most conservative possible basis for a right of privacy. In choosing Article 42 he was sending out a subliminal message to the people and to the Oireachtas that the right could be judicially controlled. Such a basis would enable a future court to differentiate between different beneficiaries of the right. It could mean that there was a hierarchy of applications of privacy. It might apply at its strongest for married couples, less strongly for unmarried couples, and not at all for same sex couples or individuals. He also explicitly stated that his judgment had nothing whatever to do with abortion or with the destruction of life (which of course only serves to beg the central question about when life begins). He took issue with O’Keefe’s view that the Constitution was time-locked to 1937. He therefore engineered room to "find" rights that met the needs of the living generation. Other judges in the majority (Henchy, Budd, Griffin) were less careful. They tended to let the new right rest on the more slippery footings of Article 40.3.1. This being so, it could be cut loose from conservative moorings of the family.

McGee was a landmark in many respects and had lasting repercussions. It was clear, even on the conservative basis of judgment proffered by Walsh, that the Court was ahead of the people and significantly ahead of the political branch. Although the language of judgment was cast in neutral or technocratic terms, the Court was widely perceived as taking sides on one of the great issues that divided secularists from those imbued with a religious perspective. From then on the Court became seen as the epicenter of the struggle between ‘progressive’ and ‘conservative’ forces in Irish society. Constitutional law became a lightening rod for many of the issues that divided Irish citizens.22

Many issues caught up in this maelstrom were viewed from the perspective of warring creeds, rather than being evaluated on their secular merits. Abortion is the main example. From the outset, the philosophical confusion that lay at the heart of McGee led some to fear that the Irish Supreme Court might be going down the route set out by Roe v. Wade only one year earlier in the US Supreme Court. As one commentator put it:

Whilst Mr. Justice Walsh’s statements in McGee may have closed the door to abortion, the privacy concept espoused by that decision provides the key for opening that door in the future…The fact remains that the concept of privacy espoused [in McGee]…is a time bomb which, with changing attitudes, may yet explode in a manner which most of our citizens…would deeply regret.23

A campaign therefore grew to constitutionalize the right to life for the unborn.24 Eventually, perhaps in conditions of political weakness, the main political parties agreed to allow the issue to go to the people by way of referendum. The 8th Amendment (commonly called the Pro-Life Amendment) was adopted by the people in 1983. It states:

40.3.1 The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.

The 8th Amendment led to a series of remarkable constitutional cases. It emboldened pro-life groups to resort to the courts in order to tackle the abortion phenomenon. At the time there were various outlets for information concerning the availability of abortion overseas. The initial effort was aimed mainly at drying up that well of information. The first case—Attorney General (At the relation of the Society for the Protection of the Unborn Child) v. Open Door Counseling and the Dublin Well Woman Centre25—concerned two clinics that were admittedly engaged in ‘non-directive counseling’ concerning abortion. That is, information about the availability of abortion as well as other options were provided to clients. SPUC sought (through the Attorney General) (1) a declaration that non-directive counseling is unlawful having regard to the Constitution, (2) a declaration that non-directive counseling amounts to an actionable conspiracy to corrupt public morals contrary to the 8th Amendment, (3) an order prohibiting the defendants from engaging in non-directive counseling.

The case was heard in December 1986, by High Court Justice Liam Hamilton, who held for the plaintiffs. He held that there was no need for legislation to enable the courts to give effect to the 8th Amendment, even as between private parties. Arguably this was the first and main mistake of the courts in this field. If Hamilton had held that the matter was political until such time as legislation was enacted then the issue would have remained political rather than constitutional. But he didn’t. One suspects that the courts were over-zealous in order to demonstrate their popular credentials. Secondly, he characterized non-directive counseling as a conspiracy to corrupt public morals, effectively saying that the Constitution informs the substantive content of the criminal law. It was as if he were erecting constitutional crimes. This is unusual to say the least. Lastly, he granted the injunction in wide terms. Hamilton pointed out en passent that the general right of privacy, the rights of association and freedom of expression, and the right to disseminate information cannot be invoked to interfere with such a fundamental right as the right to life of the unborn.

The Supreme Court upheld Hamilton’s judgment.26 The injunction granted by the High Court was therefore affirmed and substantial costs awarded against the defendants. An application against Ireland was then lodged with the European Commission on Human Rights by the two defendants on foot of the Supreme Court decision. The gravamen of the application was that the 8th Amendment as interpreted by the Supreme Court amounted to an unjustified infringement on freedom of expression as guaranteed under Article 10 of the European Convention on Human Rights. The European Commission, as the gatekeeper for private petitions to the European Court of Human Rights in Strasbourg (i.e., those initiated by individual citizens or residents of signatory States to the ECHR, as distinct from those initiated by the States themselves), found there was a violation of Article 10, and passed the application along to the European Court.27 The European Court of Human Rights affirmed the result, despite holding that the injunction did have a legitimate aim.28

Interestingly, the Court did not characterize this aim as the protection of the rights of others (which is possible under Article 10.2.) for that would answer the query whether the unborn was "an other" capable of bearing rights ("rights of others"). Since European law was divided on that point the Court wished to avoid it. Rather, the Court held that it had the legitimate aim of protecting public morals (also specified as a legitimate aim under Article 10.2). The Court probed whether the restriction represented by the injunction was "necessary in a democratic society". A key factor in this equation is whether the restriction is proportionate to the mischief sought to be regulated. The Court found the injunction to be disproportionate and therefore a violation of Article 10.

The European Court of Human Rights noted as relevant the fact that to travel for an abortion is not a crime and that the services are lawfully available in other countries. It reasoned that where a person’s health and well-being are at stake that a particularly close form of scrutiny was called for. The Court was struck by the absolute nature of the injunction. It applied regardless of age, health status or any other reason. For that reason alone it appeared overbroad. This conclusion was fortified by reference to other factors. For example, the Court questioned whether non-directive counseling had such a direct link to the ultimate destruction of the unborn. If there was such a close link then the injunction should have had a dramatic effect on the numbers of Irish women going to the U.K. for an abortion. In fact there was no such drop in numbers. It was just as likely that when faced with such information many women would set themselves against this option. Non-directive counseling was generally available and tolerated by the State right up until the action by SPUC. The information provided was not made available to the public at large. In any event, the information was otherwise freely available. Further the injunction affects those with critical health problems and probably has a disproportionate effect on the poor. For all these reasons the European Court of Human Rights found Ireland in breach of the European Convention on Human Rights. Clearly something had to be done to reform the 8th Amendment with respect to freedom of information.

SPUC pursued another series of 8th Amendment cases in a similar vein against the student unions in Irish Universities, who were also providing abortion service information (to university students).29 This dispute ultimately wound up in the European Court of Justice in Luxembourg, the international adjudicatory body for European Community law, which ruled that abortion counts as a service.30 Under EC law, the right to provide information concerning the availability of that service and the right to gain access to that service through unrestricted travel between EC member States should then follow. However, the Court reasoned that the student unions were too remote from the actual provision of the service to be covered by the benefit of the new informational right. Technically this is right. But it very hard to see how a rational market could evolve unless all choke points on the availability of information are loosened up. In effect, the ECJ bought time and signaled to the Member States that this was a reckonable issue at the EC level. So at this point, the Irish judiciary’s interpretation of the 8th Amendment was being squeezed not only by internal political pressure from citizens who thought Ireland’s position on abortion ought to be liberalized, but also by external pressure from the two international courts whose opinions mattered most for Ireland’s reputation and good relations among its European neighbors.

1. The X Case and Related Constitutional Amendments

If the 8th Amendment asserted that the right to life of the unborn had equal weighting with the right to life of the mother, then how should the courts resolve a straightforward clash between the two? In 1992 the inevitable happened in Attorney General v. X,31 a case which eventually led to the abandonment of natural law in Ireland. The case itself was tragic. It involved a fourteen year old girl who had been impregnated as a result of being raped by a friend of her family’s. She traveled with her parents to the UK for an abortion. While there they phoned their local police station in Ireland to find out if a fetal tissue sample might be used in evidence against the alleged rapist in any future criminal trial. The police apprised the Attorney General’s Office of the query. The Office immediate sought proceedings in the High Court against the abortion. X and her family returned pending the outcome of the High Court case.

The case was fast-tracked in the High Court before Declan Costelloe who was arguably the most eminent President of the High Court in the history of the State. The Attorney General sought (1) an injunction against X and her parents prohibiting them from doing anything contrary to the 8th Amendment, (2) an injunction against X from traveling outside the jurisdiction for 9 months and against anyone for assisting in this regard, (3) an injunction against X for procuring an abortion whether within or without the State and against anyone else for assisting.

There was no external—i.e., medical—threat to the life of X. Rather the threat was one of self-destruction or suicide if she had to persist with the pregnancy. Evidence to this effect was given by a clinical psychologist in the High Court. Costelloe granted everything sought by the Attorney General. He held that on any hierarchy of rights and on the facts of this case the right to life of the unborn should ranked higher because the threat to the life of the unborn was definite whereas the threat to the right to life of X was less clearly so. In granting an injunction against travel he asserted that the right to liberty could be curtailed for preventative purposes. With respect to the right to travel for services under EC law he held that the main Council Directive in the field left open the possibility of derogation on the grounds of public policy. He treated the 8th Amendment as an effective derogation, an exception carved out of EC law out of deference for local moral standards.

The result—especially the ban on travel—caused a huge uproar. The pro-choice movement was obviously unhappy with the restriction on the right to travel as well as with the substantive view taken which was that the right of the unborn outranked the rights of the mother. Elements of the pro-life movement were also alarmed at the outcome since they (or some of them) had assumed that the 8th Amendment reached the legality of abortion only in Ireland and left intact the right to travel for abortion in another jurisdiction. The case was immediately appealed to the Supreme Court.

Chief Justice Thomas Finlay quickly went to the heart of the matter, which concerns the question of how one should approach the balance between the two conflicting rights. What was the appropriate test? It could not be that the right to life of the unborn always and in every circumstance outranked the right to life of the woman. If so, then the 8th Amendment should have said so. In reality the 8th Amendment spoke of a notional equality of rights. Contrariwise, it could not be that the right to life of the woman always and in every circumstance overrode the right to life of the unborn. To hold so would be to negate the intent of the 8th Amendment. The answer must lie somewhere in between these two extremes.

Counsel on behalf of the Attorney General stated that the test should be whether there is a risk of immediate and inevitable death. If this were accepted then it would have to be admitted that there were doubts about the nature of the risk to X or that if it were real it was also controllable (viz., her own suicidal tendencies). That being so the injunction should issue. Counsel for X on the other hand argued that the test should be whether there was a real and substantial risk to the life of the mother. If this were accepted then there was arguably enough evidence before the courts in which to deny the injunction and effectively uphold the right to life of X against her unborn child. The Supreme Court (with one dissenting voice—Hederman) accepted the test as propounded by counsel for X. Finlay stated that in opting for this test they were mindful of the need to seek ‘justice, prudence and charity’ as set out in the preamble to the 1937 Constitution. That is to say, the factor that swayed them toward one test rather than another was a decision to read the language of the preamble as an appeal to natural law. The result of the judgment was as follows.

First of all, the 8th Amendment yielded to the right to life of the mother in circumstances where there was a substantial threat of self-destruction as here. That is, the amendment which was intended to be iron-clad against abortion was now used to create legal space for abortion (under very limited circumstances) in Ireland. It was thus maintained that the Court confounded the intention of the framers in 1983 on the so-called substantive question. To give the Court some credit it has to be noted that the text of the 8th Amendment (whatever the intentions of the framers) was not cast in such absolutist terms. Incidentally, one result of the ruling was that the wide or near absolute injunction granted in the SPUC cases stood to be modified since a right of abortion (even in limited circumstances) gave rise to a right to information about abortion (provided one could satisfy the X test).

Secondly, the Court slammed shut the door to travel abroad. Many who argued for the 8th Amendment did so on the basis that this right remained intact. The Supreme Court need not have reached this issue since it was plain that if X had a right to abortion in Ireland then, a fortiori, she had a right to travel for that abortion overseas.

Regardless of how much one might sympathize with the Court, it is extremely difficult to see how the invocation of ‘justice, prudence and charity’ provides a killer argument one way or another. Pressure grew for another amendment or set of amendments to the Constitution in order to reverse the substantive holding in X, in order to restore the right to travel and in order to restore freedom to receive information. The latter was required in any event as a result of the ruling from the European Court of Human Rights. In 1992 the Government proposed a set of three amendments to the Constitution as follows:

Proposed 12th Amendment: It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.

13th Amendment: This subsection [i.e., Article 40.3.3, containing the original 8th Amendment] shall not limit freedom to travel between the State and another State.

14th Amendment: This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state.

The 12th Amendment was voted down by the people. Therefore the governing law is to be found still in the old 8th Amendment and in the gloss put on it by the X case. It is not hard to fathom why the proposed Amendment failed. To those who opposed abortion under any circumstance it still would have allowed abortion—albeit under more circumscribed circumstances than in the X case. They would therefore be inclined to vote against it. To those who were in favor of the substantive outcome in X (and indeed to those who would have wished for a widening of the X test) it represented a substantial curtailment of the new right of abortion and therefore had to be voted down.

The 13th and 14th Amendments were accepted by the people. The 13th is now in force without the need for legislation. In effect, it restores the plenary right to travel already established under EC law. The 14th Amendment is another story, however. It was, in one sense, a logical reaction to the ruling of the European Court of Human Rights under Article 10 of the ECHR. It was presumed that it operated to effectively overturn the first set of SPUC cases which had erected a wide injunction against the provision of abortion information. Logically, therefore, the clinics affected by the earlier cases brought an application to the Supreme Court seeking the quashing of the injunction on the basis of the 14th Amendment.32 Although the 14th Amendment speaks in terms of ‘law’ or legislation, the view was taken that the Amendment—like the 8th Amendment itself—was self-executing. Amazingly, the Supreme Court took the opposite view. It effectively found that it had no jurisdiction over the matter and that legislation was required. A trenchant dissenting judgment was issued by Justice Susan Denham. The result is hard to square with the first line of cases giving self-executing status to the 8th Amendment, notwithstanding its reference to ‘laws’.

2. Farewell to Natural Law—Unsuccessful Constitutional Challenge to Abortion Information Legislation on the Grounds of Natural Law

Legislation on the information issue was required and legislation was duly proposed: Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill, 1995. §3 of the Bill allowed the media to carry information on abortion provided it was not accompanied by advocacy. §4 prohibited unsolicited matter with respect to abortion information. §5 of the Bill regulated the doctor/patient relationship. It specifically allowed a doctor to present the patient with abortion information but not in a way that advocated that course of action. §8 prohibited a doctor from making ‘referrals’ to clinics outside the jurisdiction. In other words, there was a cutoff between words and actions. §13 contained a right of conscientious objection. That is, a doctor could lawfully refuse to give abortion information.

This bill was bound to be controversial. Article 26 of the 1937 Constitution gives a sitting President the power to refer a bill (which has been passed by the Oireachtas but before it is promulgated into law) to the Supreme Court for a binding ruling as to its compatibility with the Constitution. This bill was in fact sent by President Robinson to the Supreme Court in 1995 for such a ruling.

Counsel for the unborn argued that if the 8th Amendment did not provide sufficient anchor to secure the rights of the unborn, then the natural law did. If this argument were accepted, the 14th Amendment would have to be read narrowly (if not to the point of extinction) because the provision of information about abortion amounts to assisting in the ultimate destruction of life and therefore falls foul of the natural law. Another way of putting this would be to say that the 14th Amendment itself is unconstitutional as violating the unwritten constitution or the natural law, despite the fact that a majority of voters accepted it. This was an entirely logical argument, consistent with many of the earlier judgments of the courts on the basis and breadth of their jurisdiction under the constitution.

In effect, the Court was been asked: "Who is sovereign—the people or God?" In reality both are, since the preamble makes it plain that the underlying authority of the constitution is split between popular sovereignty and religious conceptions of what is right. But a choice was necessary to dispatch this case. After careful examination of the 14th Amendment and the ambit it allowed for abortion information the Supreme Court came to the conclusion that an appropriate balance had been struck between citizens’ right to information and the right to life of the unborn. In a remarkable and quite historic passage in the judgment of the Supreme Court, we find the following response to counsel for the unborn:

It is fundamental to this argument that, what is described as ‘the natural law’ is the fundamental law of this State and as such it is antecedent and superior to all positive law, including the Constitution, and that it is impermissible for the People to exercise the power of amendment of the Constitution by way of variation, addition or repeal, as permitted under Article 46 [power of popular referendum] of the Constitution unless such amendment is compatible with the natural law and existing provisions of the Constitution and if they purport to do so, such amendment had no effect.

The Court does not accept this argument. By virtue of Article 5 of the Constitution, Ireland is a sovereign, independent, democratic State.

By virtue of the provisions of Article 6, all powers of Government, legislative, executive and judicial, derive under God from the people, whose right it is to designate the rules of the State, and in final appeal to decide all questions of national policy, according to the requirement of the common good.33

In a long and rambling part of the judgment the Court goes on to state (at 58):

The Courts…recognized the Constitution as the fundamental law of the State to which the organs of the State were subject and at no stage recognized the provisions of the natural law as superior to the Constitution. The people were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the people.

No matter how much one might applaud the unceremonious abandonment of a clearly undemocratic portion of prior Irish jurisprudence, one is still uneasy with the result. First of all, the Court gives the impression that natural law thinking had not achieved an elevated status in Irish constitutional law in the past. In fact it had, and the Court’s reasoning in this regard fails to convince. Secondly, the outcome is reminiscent of the situation pertaining under the 1922 Constitution. What would the courts do if the people democratically voted to abolish democracy and to purge human rights from the Constitution, especially, say, as regards foreigners? Would the court really take the view of ‘gesetz als gesetz’ (the law is the law)?

V. Conclusions

Two general conclusions seem to follow from the above analysis. First of all, it reveals the deep fissure that exists between concepts of popular sovereignty and natural law. When push comes to shove both the American and Irish courts have preferred the former to the latter. Thus, ultimately the politics of normative choice through the democratic process (e.g., referenda) is open and not bounded by fixed notions of natural law.

Secondly, the analysis raises some old and disturbing questions in a new context. If the politics of normative choice (in terms of the positive content of a constitution) is open, then what is there to stop the people from democratically deconstructing the constitutional order itself (the so-called "tactic of legality" in Nazi Germany). In other words, are there any non-natural law arguments one can use against the slide into totalitarianism? Perhaps one might refer to democratic theory as a source of values with which to halt the slide into totalitarianism. But which theory of democracy? And is this not another way of reinstating a kind of natural law into the legal order? Perhaps one might refer to the rule of law and the principle of legality.34 But here again it has to be admitted that this is historically tied up with liberal constitutional theory, which in turn rests on its own natural law precepts. In other words, the consensus appears to be that natural law is undemocratic. But something has to be put in its place to save democracy from itself.

Notes

1. The term ‘interpretivism’ originated in the writings of John Hart Ely. See Ely, Democracy and Distrust: a Theory of Judicial Review (Harvard U. Press, 1980).

2. See. e.g., Edwin Meese, "Toward a Jurisprudence of Original Intent," Harvard J. of Law & Public Policy 11 (1985): 5.

3. See generally Cass Sunstein, "Lochner’s Legacy," Columbia Law Rev. 87 (1987): 837 and, by the same author, Constitutionalism after the New Deal, Harvard Law Rev. 101 (1987): 421.

4. 349 U.S 249 (1955).

5. See e.g., Robert Bork, The Tempting of America: The Political Seduction of the Law (Free Press, 1990).

6. See Thomas C. Grey, "Do We Have an Unwritten Constitution?," Stanford L.Rev. 27 (1975): 703.

7. Reproduced in Sean Cronin, Irish Nationalism: A History of its Roots and Ideology (Academy Press, 1980).

8. See generally Leo Kohn , The Constitution of the Irish Free State, (Allen & Unwin, 1932).

9. The State (Ryan and Others) v. Lennon, 1935 XIX Irish Law Times Reports, 125.

10. See Thomas Towney, "Hugh Kennedy and the Constitutional Development of the Irish Free State," Irish Jurist 12 (1977): 355.

11. See Brian Farrell, De Valera’s Constitution and Ours, (Gill & McMillan, 1988); Frank Litton, The Constitution of Ireland 1937-1987, (Institute of Public Administration, 1988); Murphy & Twomey, Ireland’s Evolving Constitution, (Hart, 1998).

12. The vote was 56.6% for, 42.4% against. Most opposition came from women’s groups.

13. The main textbooks on the 1937 Constitution are J.M. Kelly, The Irish Constitution, 3rd Ed., Hogan & Whyte, eds., (Butterworth, 1994); James Casey, Constitutional Law in Ireland, 2nd Ed. (Sweet & Maxwell, 1992); Michael Forde, Constitutional Law of Ireland (Mercier Press, 1987); David Gwynn Morgan, Constitutional Law of Ireland (Round Hall Press, 1990).

14. See G.M. Golding, George Gavan Duffy, 1882-1951: A Legal Biography (Irish Academic Press, 1982).

15. See Loren Beth, The Development of Judicial Review in Ireland, 1937-1967 (Institute of Public Administration, 1967). For an overview of the case law of this period see J.P. Casey, "The Development of Constitutional Law under Chief Justice O’Dalaigh," Dublin University Law Journal (1983) and, by the same author, "The Development of Constitutional Law under Chief Justice O’Higgins," Irish Jurist 21 (1986): 8.

16. (1965) I.R. 294.

17. 1 Cranch 137 (1803).

18. 198 U.S. 45 (1905).

19. Declan Costello, "Aspects of a Judicially Developed Jurisprudence of Human Rights in Ireland," in Alan Falconer, Understanding Human Rights: in Interdisciplinary and Inter-Faith Study (Irish School of Economics, 1978).

20. Roderick J. O’Hanlon, "Natural Rights and the Irish Constitution," Irish Law Times 11 (January 1993): 8; Tim Murphy, "Democracy, Natural Law and the Irish Constitution," Irish Law Times 11 (April 1993): 81; Roderick J.O’Hanlon, "The Judiciary and the Moral Law," Irish Law Times 11 (June 1993): 129.

21. (1974) I.R. 284.

22. See G. Quinn, "Legal Change, Natural Law and the Authority of the Courts," in G. Whyte & B. Tracey, Religion, Morality and Public Policy (Doctrine and Life special, Dominican publications, 1995), at 97.

23. William Binchy, "Marital Privacy and Family Law—A Reply to Mr James O’Reilly," Studies (Winter, 1977): 331-332.

24. Many of the arguments against such a referendum were drawn together by Peadar Kirby & Mavis Arnold, The Abortion Referendum—The Case Against, (undated and issued by the anti-amendment campaign).

25. (1987) ILRM 477.

26. (1988) ILRM 19; (1998) I.R. 593.

27. Open Door and Well Woman Centre v. Ireland: Report of the European Commission on Human Rights, 7 March, 1991.

28. Open Door and Well Woman Centre v. Ireland: Judgment of the European Court of Human Rights, 29 October, 1992.

29. See, e.g., SPUC v. Coogan (1989) ILRM 526 and SPUC v. Grogan (1990) ILRM 70.

30. Case C-159/90. Judgment of the Court, 4 October, 1991.

31. The High Court and Supreme Court judgments in the X case are reported together in (1992) ILRM 314. See Ailbe Smyth (ed.), The Abortion Papers—Ireland (Attic Press, 1992).

32. The Attorney General (at the relation of the Society for the Protection of Unborn Children (Ireland)) v. Open Door Counseling and Dublin Well Woman Centre Ltd (applicant), judgment of the Supreme Court, 20 July, 1993.

33. In the Matter of Article 26 of the Constitution and in the Matter of the Reference to the Court of the Regulation of (Services Outside the State for Termination of Pregnancies) Bill, 1995, judgment of the Supreme Court, 12 May, 1995 at 46 ([1995] I.R. 1)