Constitution

Question 1

Constitution fundamental rights?

Answer 1

Articles 40-44

Criminal laws prohibited 15.5

Oireachtas must be in public 15.8

Right to vote 16.1.2

Question 2

Unenumerated rights?

Answer 2

40.3

State guarantees to defend & vindicate personal rights of citizens

State shall vindicate life, person, good name & property rights

Not considered to contain any additional rights until 1963

Question 3

Article 40.3 Reform?

Answer 3

Ryan v AG challenged health act 1960 claimed to infringe bodily integrity. SC agreed

Decision contains guarantee to protect unspecified rights (marry / privacy / travel)

Question 4

What rights have been recognised since Ryan?

Answer 4

Marital Privacy (McGee 1974)

Procreate (Murray 1985)

Question 5

Why do courts refuse to recognise socio economic rights?

Answer 5

Rights on the boundary between jurisdiction of courts & executive

Rights involve financial consequences & role of executive to determine spending policy of the state

OT v B J Keane called for judicial restraint & repeated in TD v min for education

Question 6

Constitution interpretation?

Answer 6

Can involve multiple approaches

Use of contrasting approaches in same case can be identified

Question 7

Literal approach?

Answer 7

Ensures courts stay true to text

Approach to 34.4.3 (SC appellate jurisdiction) controversial

O’Shea decision criticised - argued it ignored principles of double jeopardy & literal approach should consider constitution as whole

Question 8

Historical Approach?

Answer 8

Considers historical context

Intentions of drafters

Seeks to find meaning based on views of drafters

Inconsistent with concept living document

Question 9

Historical caselaw?

Answer 9

McGee rejected criminal law amendment act 1935 violated right to martial privacy, doubting constitution intended to

SC invalidated act, Walsh stating interpretation evolves

Questioned in Gilligan, (definition of marriage) Dunne rejected argument societal views had evolved to change definition

R v R, McGovern considered 1983 8th amendment, concluded unborn referred only to foetus or child within womb

Question 10

Purposive approach?

Answer 10

Seeks to determine why provision was included in first place

Used with historical approach

Question 11

Purposive approach?

Answer 11

Seeks to determine why provision was included in first place

Used with historical approach

Question 12

Harmonious approach?

Answer 12

Interprets provision in way that is consistent with general scheme of C

In O’Shea Henchy stated courts should avoid examining in isolation & ensure intergrated interpretation

Tormey v Ireland - conflict with article 34.3.1. Henchy used harmonious approach, observing literal approach would produce absurdity

HA closely aligned with CJEU in its interpretation of treaties

Question 13

Natural Law?

Answer 13

Subjective approach fallen out of favour & only to be used as last resort

Constitution does incorporate natural law language. 41.1 described family as moral institution with rights superior to positive law

McGee, Walsh ref natural law principles to conclude s17 breached rights under 40.3 & 41. Concluded prohibition on importing contraceptives violated right to marital privacy

Question 14

Natural Law?

Answer 14

Subjective approach fallen out of favour & only to be used as last resort

Constitution does incorporate natural law language. 41.1 described family as moral institution with rights superior to positive law

McGee, Walsh ref natural law principles to conclude s17 breached rights under 40.3 & 41. Concluded prohibition on importing contraceptives violated right to marital privacy