On May 25, Irish citizens will each have the personal responsibility of deciding a question in our fundamental law concerning the natural right to life of other human beings. We have been invited by the Oireachtas (the Irish legislature – R<) to withdraw the present acknowledgement of the right to life of the unborn in Article 40.3.3, to rescind our guarantee to respect, defend, and vindicate that right, and to create an implied right to elective abortion, which the Oireachtas may eventually regulate to some unspecified extent. This should give any rational person pause for thought.
Some people advocate that we should trust others in this matter, by removing the current protection from the Constitution. It may be tempting to follow this advice, rather than engage in the demanding work of reflection involved in any important act of lawmaking. If we value and respect the notion of human rights, which set limits to what the Oireachtas may do in our name, we will rise to this challenge. Citizens cannot outsource this responsibility when human lives are at stake.
It is instructive to review what the Supreme Court has been saying about human rights. The evidence of the past twenty-five years shows that, whatever the people may agree to or reject in a referendum, the Court will tend to neutralise the notion of natural rights mandated by the text of the Constitution, and follow their own preferences in these matters.
This I believe is the nub of the problem. In five instances in the Constitution, two of them enacted in 2012, the personal and family rights that it guarantees are described as “natural” rights. They are said to be recognised, acknowledged, and affirmed —but never “conferred”— by the Constitution. They are also variously described as inalienable and imprescriptible rights, antecedent and superior to all positive law.
This is a very clear affirmation by the people of the principle that our fundamental rights are not created or conferred by a vote in a referendum, but that we owe them to one another as human beings. A “natural” right is precisely one that is inherent in human nature. It does not depend for its origin or authority on any human law, although it requires such laws for its effectiveness. Recognition of such rights is not optional or elective. As the basic rule of justice in society, our Constitution must and does acknowledge and vindicate them.
The Supreme Court, however, has rejected this constitutional affirmation of an objective basis for natural rights. Despite a generation of supportive judicial observations, they held in 1995 that “the courts … at no stage recognised the provisions of the natural law as superior to the Constitution.” Citing a supposed incompatibility between an inherent human law and the sovereignty of a democratic state, the Court has nullified the constitutional text in this respect.
The principle of objective natural rights was explicitly acknowledged once more in 2012 by a sovereign decision of the people. The text of the new Article 42A twice affirmed an inalterable basis in human nature for the rights of the child. On the “positive law” principles adopted by the Court itself, this should have been sufficient to reverse their 1995 policy decision. If the people reject a judicial policy and insist on acknowledging a “natural and imprescriptible” standard for human rights, the Courts must accept and abide by that. That is what democratic sovereignty means.