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In this article the legal basis of three great historical decisions of the Supreme Court—McGee v Attorney General (December 1973), Norris v Attorney General (April 1984) and Attorney General v X (February/December 1992)—are re-examined. The author points out that although the corresponding US decisions—Griswold v Connecticut and Roe v Wade—were based on the substantive due process doctrine of the 14th Amendment of the US Constitution, the textual provisions of the Constitution of Ireland—particularly Art.40.3.2 and Art.41—provided a firmer foundation for the decision in McGee as compared with Griswold. The author further points out that the analysis contained in McGee is on the whole very close to the “derivative rights” approach subsequently enunciated by Clarke C.J. in Friends of the Environment v Government of Ireland (2020) so that the rights to marital privacy and autonomy enunciated in McGee are very closely derived from the text of the Constitution itself. Having examined the reasoning in both Norris and X, the author states that the latter case was almost the inevitable by-product of the unsatisfactory of the wording of Art.40.3.3. The author concludes by saying that this trilogy of remarkable cases in their own way illustrated that the very strength of the express text of the Constitution has paradoxically in one way proved to be its greatest weakness: it was at its heart too radical a document fully and easily to be incorporated into a legal system which had for hundreds of years rested on the bedrock of the common law and a more modest judicial approach to the resolution of these contentious social issues.

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. InRestoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a \"presumption of liberty\" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. As clearly argued as it is insightful and provocative,Restoring the Lost Constitutionforcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.

How to determine whether fundamental unenumerated constitutional rights exist, and if so, what they are? The questions are of obvious enormous importance—witness the current controversy over abortion—and yet courts have generally been content to address the issues superficially, sometimes, cavalierly. Their treatment of the most common rationale, an historical/traditional consensus, exemplifies this shallow approach. The underdeveloped character of the argumentation on this topic stubbornly remains one of the most glaring shortfalls of modern constitutional law.

Much of contemporary constitutional theory underestimates the disharmonies within and disharmonies of constitutional orders. This article examines the dissonance characterizing constitutional identity that is present either in the disjunction between a constitution and the social order within which it functions, or between commitments internal to the document itself. From very early on, American framing of rights has revealed a tension between individual and collective meanings, between rights of persons and rights of the people. This article explores the manifestation of this tension in the evolution of the vexing concept of unenumerated rights. While expressive of the particularities of the American constitutional experience, the story illustrates a broader developmental process that is endemic to the constitutional condition.

The U.S. Constitution found in school textbooks and under glass in Washington is not the one enforced today by the Supreme Court. In Restoring the Lost Constitution, Randy Barnett argues that since the nation's founding, but especially since the 1930s, the courts have been cutting holes in the original Constitution and its amendments to eliminate the parts that protect liberty from the power of government. From the Commerce Clause, to the Necessary and Proper Clause, to the Ninth and Tenth Amendments, to the Privileges or Immunities Clause of the Fourteenth Amendment, the Supreme Court has rendered each of these provisions toothless. In the process, the written Constitution has been lost. Barnett establishes the original meaning of these lost clauses and offers a practical way to restore them to their central role in constraining government: adopting a \"presumption of liberty\" to give the benefit of the doubt to citizens when laws restrict their rightful exercises of liberty. He also provides a new, realistic and philosophically rigorous theory of constitutional legitimacy that justifies both interpreting the Constitution according to its original meaning and, where that meaning is vague or open-ended, construing it so as to better protect the rights retained by the people. As clearly argued as it is insightful and provocative, Restoring the Lost Constitution forcefully disputes the conventional wisdom, posing a powerful challenge to which others must now respond. This updated edition features an afterword with further reflections on individual popular sovereignty, originalist interpretation, judicial engagement, and the gravitational force that original meaning has exerted on the Supreme Court in several recent cases.

Critics of the \"imperial judiciary\" have accused the United States Supreme Court of usurping authority from legislators and executives by creating new rights that are found nowhere in the text of the Constitution. In this paper, I use two case studies to argue that unenumerated rights can be reconciled with democratic values. First, the protection of aggressive palliative care in Washington v. Glucksberg (1997) exemplifies a consensus-building decision whereby the Court holds that a broadly accepted norm or practice has constitutional underpinnings. Second, the invalidations of durational residency requirements for welfare benefits in Shapiro v. Thompson (1969) and Saenz v. Roe (1999) represent broadened-access decisions in which the state is required to extend a benefit to an excluded group yet retains the authority to define the benefit's content. These types of decisions are compatible with democratic norms insofar as they do not disable elected representatives from performing their quintessential task: deciding what policy values the state should pursue and how it should purse them. My argument suggests that a focus on Roe v. Wade (1973) exaggerates the ambitions and consequences of judicial protection for unenumerated rights and overlooks how such protection may enhance democratic politics.

Has contemporary liberalism's devotion to individual liberty come at the expense of our society's obligations to children? Divorce is now easy to obtain, and access to everything from violent movies to sexually explicit material is zealously protected as freedom of speech. But what of the effects on the young, with their special needs and vulnerabilities?Freedom's Orphansseeks a way out of this predicament. Poised to ignite fierce debate within and beyond academia, it documents the increasing indifference of liberal theorists and jurists to what were long deemed core elements of children's welfare. Evaluating large changes in liberal political theory and jurisprudence, particularly American liberalism after the Second World War, David Tubbs argues that the expansion of rights for adults has come at a high and generally unnoticed cost. In championing new \"lifestyle\" freedoms, liberal theorists and jurists have ignored, forgotten, or discounted the competing interests of children. To substantiate his arguments, Tubbs reviews important currents of liberal thought, including the ideas of Isaiah Berlin, Ronald Dworkin, and Susan Moller Okin. He also analyzes three key developments in American civil liberties: the emergence of the \"right to privacy\" in sexual and reproductive matters; the abandonment of the traditional standard for obscenity prosecutions; and the gradual acceptance of the doctrine of \"strict separation\" between religion and public life.

The subject of unenumerated rights and how it applies to the case of \"Roe vs Wade\" are discussed. The abortion argument is not about whether a fetus is a person, but rather whether and how far government may enforce an official view about the right understanding of the sanctity of human life.

Two different views of legal reasoning--the top-down and the bottom-up theories--are discussed. The issue of unenumerated rights as it applies to these theories is addressed.

As anyone who has studied constitutional law knows, the era in which the Court attempted to scrutinize the necessity and propriety of state and federal restrictions on liberty came to a close as the perceived legitimacy of legislative activism continued to grow. What is not well known today is that the doctrinal vehicle used by the New Deal Court to overturn the Progressive Era precedents was the adoption of a presumption of constitutionality. In this chapter, I describe the revival of the presumption of constitutionality, its almost immediate qualification in the form of the most famous footnote in constitutional history,