Rights matter when their exercise is unpopular. It is easy to exercise a right when no-one else objects. It is when some-one else objects, and seeks to prevent its exercise, that the right to do so becomes crucial. This is particular so when the majority object, and seek to rely on the force of numbers to prevent its exercise. That is precisely when the right is at its most important, and most necessary. As Kearns P (Carney and Hogan JJ concurring) put it in Fleming v Ireland [2013] IEHC 2 (10 January 2013),

51. … If, accordingly, the plaintiff’s constitutional rights extend as far as the manner claimed, then the fact that she is exercising those rights in a manner and for a purpose which some might consider contrary to their own ethical, moral or religious beliefs – or even the prevailing mores of the majority – is irrelevant.

This is an extremely important holding as to the nature of constitutional rights. Fleming itself is a very sad and difficult case in which a Divisional Court of the High Court unanimously upheld the the ban on assisted suicide in section 2(2) of the Criminal Law (Suicide) Act, 1993 (also here) (see Paul McMahon on Ex Tempore | Conor O’Mahony on Constitution Project @ UCC).

Assume for a moment that the legislative ban on assisted suicide does indeed represent the prevailing mores of the majority; assume further that the court had gone the other way and struck it down. Questions of legitimacy can be raised against this kind of judicial action, insofar as it runs counter to the majority view. For example, the Daily Mail often criticises unelected judges for making such decisions, to such an extent that the UK Prime Minister recently announced plans to curb the “massive growth industry” of Judicial Review, at least in planning cases. Here, that word “unelected” carries a great deal of judgmental freight, seemingly demanding judicial passivity in the face of majority decisions expressed by elected legislatures. But this kind of criticism carries weight only if the views of the majority are the exclusive source of legitimacy; and, in a constitutional democracy, this is simply not the case. Constitutional structure provides necessary checks against the tyranny of the majority, and prime among them are the rights of the individual. When the courts hold that a statute is unconstitutional, there is no dilemma or crisis of legitimacy – there is, rather, a reaffirmation of the constitutional aspects of constitutional democracy.

In this respect, therefore, the quote above from Kearns P’s judgment for the Divisional Court in Fleming shows that the courts are not so much haunted by the ghost of James Madison (pictured) as channelling the spirit of his views – and it’s a good thing too!