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Unenumerated rights

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Unenumerated rights are legal rights inferred from other rights that are implied by existing laws, such as in written constitutions, but are not themselves expressly stated or "enumerated" in law. Alternative terms are implied rights, natural rights, background rights, and fundamental rights.

Unenumerated rights may become enumerated rights when certainty is needed, such as in federal nations where laws of subordinate states may conflict with federal laws.

The term "unenumerated rights" may be used loosely to mean any unstated natural rights and legal rights or the intrinsic human rights of an individual.

In Australia

Main article: Implied rights in Australian constitutional law

Implied rights are the political and civil freedoms that necessarily underlie the actual words of the Constitution but are not themselves expressly stated directly in the Constitution. Since the 1990s, the High Court has discovered rights which are said to be implied by the very structure and textual form of the Constitution. Chief amongst these is an implied right to freedom of communication on political matters, which was first recognised in Nationwide News Pty Ltd v Wills. In addition, some protections of civil liberties have been the result of the High Court's zealous attempts to safeguard the independence of, and confidence in, the federal judiciary. A good example of this can be seen in Kable v Director of Public Prosecutions (NSW), in which the High Court struck down a criminal law passed by the New South Wales Parliament that was directed at a single, named individual in a similar manner to a bill of attainder. The High Court also inferred a limited right to vote from the text of the Constitution in Roach v Electoral Commissioner, invalidating legislation that prevented all prisoners from voting.

In Canada

Main article: Implied bill of rights

The implied bill of rights (French: déclaration des droits implicite) is a theory in Canadian jurisprudence which proposed that as a consequence of the British North America Act, certain important civil liberties could not be abrogated by the government. The significance of an implied bill of rights has decreased since the adoption of the Canadian Charter of Rights and Freedoms, an entrenched written bill of rights, but remains important for understanding the evolution of Canadian human rights law and the Constitution of Canada. In the 1938 decision of Reference Re Alberta Statutes, the Supreme Court of Canada first recognized an implied bill of rights.

The rights and freedoms that are protected under the Charter, including the rights to freedom of speech, habeas corpus, and the presumption of innocence, have their roots in a set of Canadian laws and legal precedents related to "implied rights". Although implemented in judiciary law and part of required reading in Canadian law schools, the theory was never codified either in legislation or in the constitution by the majority in the Supreme Court of Canada. Prior to the advent of the Canadian Bill of Rights in 1960 and its successor the Charter of Rights and Freedoms in 1982, the laws of Canada did not provide much in the way of civil rights and it was typically of limited concern to the courts.

In Ireland

Article 40.3 of the Irish Constitution refers to and accounts for the recognition of unenumerated rights. The Supreme Court is often the main source of such rights, such as the right to bodily integrity, the right to marry and the right to earn a living, among others.

In Portugal

Article 16 (titled Scope and interpretation of fundamental rights and known as the "open clause of fundamental rights") of the Portuguese Constitution explicitly refers to fundamental rights not enumerated in it, but in other legal sources, reading as follows: "1. The fundamental rights enshrined in the Constitution shall not exclude any others set out in applicable international laws and legal rules. / 2. The constitutional and legal precepts concerning fundamental rights must be interpreted and completed in harmony with the Universal Declaration of Human Rights."

Many fundamental rights are also commonly first pointed out by scholars and the Constitutional Court through the interpretation and breaking down of enumerated rights or general principles, namely the rule of law and human dignity.

In the Republic of China

Article 22 of the Constitution of the Republic of China guarantees unenumerated freedoms and rights of the people that are not detrimental to social order or public welfare, now in effect in Taiwan.

In the United States

In the United States, the Ninth Amendment to the U.S. Constitution protects against federal infringement of unenumerated rights. The text reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Supreme Court of the United States has also interpreted the Fourteenth Amendment to the U.S. Constitution to protect against state infringement of certain unenumerated rights including, among others, the right to send one's children to private school and the right to marital privacy.

The Supreme Court has found that unenumerated rights include such important rights as the right to travel, the right to vote, and the right to keep personal matters private.

See also

References

  1. ^ "Committee on the Judiciary Tushnet Statement re Hearing on 'the Origin and Scope of Roe v. Wade' Archived 2007-08-08 at the Wayback Machine. United States House Committee on the Judiciary, United States House of Representatives (Washington, D.C. April 22, 1996.
  2. ^ Mads Tønnesson Andenæs; Duncan Fairgrieve, eds. (2015). Courts and Comparative Law. Oxford University Press. pp. 381–. ISBN 978-0-19-873533-5. OCLC 1034568354.
  3. Gibson 1966, p. 497. sfn error: no target: CITEREFGibson1966 (help)
  4. MacLennan, C. (2003). Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960. McGill-Queen's University Press. p. 132. ISBN 978-0-7735-7100-6. Retrieved Sep 14, 2024.
  5. "Canadian Wrongs: Jehovah's Witnesses and the Era of Rights · Canadian Law and Canadian Identity · Exhibits". Retrieved 2024-09-13.
  6. Greene, I.; Russell, P.H. (1989). The Charter of Rights. Canadian issues series. James Lorimer Limited, Publishers. p. 20. ISBN 978-1-55028-185-9. Retrieved Sep 14, 2024.
  7. "Unwritten Constitutional Principles: What is Going On?". Supreme Court of Canada. Sep 4, 2008. Retrieved Sep 14, 2024.
  8. ^ Charter., the (Apr 1, 2001). "Human Rights and the Courts in Canada (BP-279E)". Publications du gouvernement du Canada. Retrieved Sep 14, 2024.
  9. McLachlin, Beverly (Jun 30, 2014). "Human Rights Protection in Canada". " Osgoode Hall Review of Law and Policy.
  10. Jonathon W Penney, Ivan Rand's Ancient Constitutionalism, 2010 34-1&2 Manitoba Law Journal 43, 2010 CanLIIDocs 229, Even today, the judicial work of (Ivan Rand) “one of the greatest— if not the greatest— jurists in Canadian history” remains required reading in law schools; and many of his most important decisions retain a central place in the minds of judges and legal commentators. For example, his judgments in the so-called “implied bill of rights” cases were called the Supreme Court of Canada’s “most distinguished achievements,” “the ‘golden’ moments of the civil liberties decade” and the theory of implied rights described as “valuable”, “one of the most original and provocative contributions ever made to Canadian constitutional law
  11. Eric H Cline et al, Case Comments: Whither the Implied Bill of Rights? - A.G. Canada and Dupond v. The City of Montreal, Saskatchewan Law Review 137, 1980 CanLIIDocs 227,Much of the concern has focused on the court's changing approach to the Bill of Rights, but the Bill or Rights is not the only protection for civil liberties which has been recognized by the Supreme Court. Switzmann v. Elbing, and Saumur v. Attorney General for Quebec, the leading civil liberties decisions of the 1950's, rested in part on a doctrine created by the court itself: the implied Bill of Rights.
  12. Hirschl, R. (2009). Towards Juristocracy: The Origins and Consequences of the New Constitutionalism. Harvard University Press. p. 75. ISBN 978-0-674-03867-7. Retrieved Sep 14, 2024.
  13. Kincaid, J.; Tarr, A. (2005). Constitutional Origins, Structure, and Change in Federal Countries. Global Dialogue on Federalism Booklet Series. McGill-Queen's University Press. p. 128. ISBN 978-0-7735-7255-3. Retrieved Sep 14, 2024.
  14. Morton, F.L. (2002). Law, Politics and the Judicial Process in Canada. University of Calgary Press. p. 482. ISBN 978-1-55238-046-8. Retrieved Sep 14, 2024.
  15. Clément, D. (2016). Human Rights in Canada: A History. Laurier Studies in Political Philosophy. Wilfrid Laurier University Press. p. 62. ISBN 978-1-77112-164-4. Retrieved Sep 14, 2024.
  16. Joan Church; Christian Schulze; Hennie Strydom (2007). Human rights from a comparative and international law perspective. Unisa Press. p. 82. ISBN 978-1-86888-361-5.
  17. "Canadian Wrongs: Jehovah's Witnesses and the Era of Rights · Canadian Law and Canadian identity". Trinity College, TRN 304Y "Law & Social Issues", University of Toronto Libraries. Retrieved Sep 10, 2024.
  18. TheUndisciplined.com – Something from Nothing: The Irish Unenumerated Rights Doctrine
  19. Supreme Court of Ireland – The Legal System (Fundamental Rights)
  20. "Ninth Amendment: Non-Enumerated Rights Retained by People - National Constitution Center". National Constitution Center – constitutioncenter.org. Retrieved 2021-11-05.
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