SCHOOL OF LAW, UNIVERSITY OF LIMERICK
SCHOOL OF LAW, NUI, GALWAY
JUSTICE HENCHY MEMORIAL LECTURE
TEACH CEOIL, COROFIN, CO. CLARE
23 OCTOBER 2014
Elegantia juris: Mr. Justice Seamus Henchy
Some thoughts on two leading judgments*
Mr. Justice Seamus Henchy was a judge of the High Court between 1962 to 1972 and
a judge of the Supreme Court from 1972 until October 1988. Yet when he died in April 2009
it cannot be said that he was a household name. Insofar as he was remembered at all by the
general public, it was somewhat dimly as the judge who presided with great fairness (but also
with the necessary firmness) at the Second Arms Trial in October 1970. It does seem
surprising that a judge of this stature would be almost unknown to the general public. Judges
and poets were just short of having royal status in the Brehon system, but since then the Irish
public have not embraced judges as public personae in their own right. (In our own times Mr.
Justice Carney and Mr. Justice Kelly are, of course, exceptions to this rule).
2
Why is this? Part of the answer possibly lies in the historical association of the
judiciary and the executive in the 19th century. Judges were part of the administration of a
despised foreign regime and became associated with that which Henchy himself memorably
described in The People v. O’Shea as:
“…the bitter Irish race-memory of politically appointed and Executiveoriented judges, of the suspension of jury trial in times of popular revolt, of the
substitution therefore of summary trial or detention without trial, of cat-and-mouse
releases from such detention, of packed juries and sometimes corrupt judges and
prosecutors, had long implanted in the consciousness of the people…..”1
While there always has been a keen interest in legal matters on the part of the Irish
public, there is something in our popular culture which idolises the swashbuckling and
glamorous lawyer, whether it be the great orators or cross-examiners or the campaigning
human rights lawyers, defiantly battling against the odds.
Judges rarely get a look-in in these glamour stakes. We have no equivalent in our
popular culture of the great judicial prose of judges such as Marshall and Holmes being
memorised by generations of school children (as happens in the US) or the great reforming
judges such Warren, Brennan, Douglas and Denning who went onto become iconic figures
revered and admired by the general public. The Irish judge is nowadays much more likely to
be portrayed in withering terms either as a craven political lackey or else as an out of touch
figure straight from the pages of Trollope who, like the Rev. Septimus Harding, is “somewhat
too highly paid for duties which [are] somewhat too easily performed.”2
1
2
[1982] I.R. 384, 432.
A Trollope, Barchester Towers, (OUP, 1996) vol. 2, page 183.
3
Yet, for those in the legal community, Seamus Henchy is different. His judgments are
generally viewed as timeless expositions of legal principle and they are regarded as having
been endowed with an almost unique precedential status and standing. The judgments are
particularly admired – indeed, revered – for that special and indefinable quality of elegantia
juris: the ability to reach beyond the mundane, the formalistic and the technical in order to
identify true and coherent legal principles in elegant legal prose, often charting a new path for
the law in the process.
Elegantia juris is the rarest of legal gifts. This is an accolade which, surveying the
common world of the 19th and 20th centuries, providence has bestowed on a but a few judges
and jurists, although both England, Scotland and the United States have produced several
qualifying canidates: Brett, Atkin, Reid, Denning (especially the early Denning), Devlin and
in our times Browne-Wilkinson and Bingham for England and Scotland. The United States
have produced Marshall, Storey, Holmes, Brandeis, Cardozo, Jackson and Harlan. Seamus
Henchy enjoys a honoured place in that company.
In some ways, one could argue that his prodigious talents were wasted in a
jurisdiction which many foreigners would dismiss as a legal backwater, unable to hold a
candle to the great common law countries. That might be regarded as a harsh criticism of the
Irish legal system. But what we certainly say is that had Henchy the opportunity to sit, for
example, as a judge of the US Supreme Court in the 1970s and 1980s he would have been
regarded as a towering judicial jurist and the true successor to Holmes and Cardozo with Law
Schools and law journals named after him. For all the prestige and influence of the US
Supreme Court, the true believers have been waiting vainly for a judge who can match the
style and profoundity of Holmes, Brandeis and Cardozo and since the 1940s only Jackson
and Harlan have come close.
4
One could choose any number of these timeless Henchy judgments to make this point,
but I propose to choose but two, not least because they can also be directly compared with
comparable US Supreme Court decisions dealing with the same subject matter: McGee v.
Attorney General and Norris v. Attorney General.
McGee v. Attorney General
In the early 1960s, two Connecticut physicians were delighted to find that they had
been finally prosecuted and convicted of a breach of Connecticut’s anti-contraceptive laws by
selling contraceptives from a family planning clinic. I say “delighted” advisedly, because the
singular feature of the Connecticut’s law was that it was not enforced. Indeed, the US
Supreme Court had famously dismissed two earlier challenges to the constitutionality of that
law, precisely for this reason.3 In those cases, the Court reasoned that as the plaintiffs could
not show that they were likely to be prosecuted, they had no standing to challenge the
constitutionality of the law. The plaintiffs in Griswold v. Connecticut4 were accordingly
delighted that this technical objection to a consideration of the merits of their constitutional
case had disappeared and a majority of the US Supreme Court duly obliged.
Unlike its Irish counterpart, the US Constitution contains no express provision
protecting family life and the autonomy of the family or – to use the words of the Preamble of
our Constitution which Henchy employed to great effect in McGee – a guarantee in respect of
the “dignity and freedom of the individual.”. The US Supreme Court accordingly struggled to
find the exact basis upon which the Connecticut law could be condemned. The dissent of
Potter Stewart is, however, of some interest. He described the Connecticut law as an
“uncommonly silly law”, but said that he was compelled to say that it was valid unless the
3
4
Tileston v. Ullmann 318 US 44 (1943), Poe v. Ullmann 367 US 497 (1961).
381 US 479 (1965).
5
plaintiffs could point to some express provision of the constitutional text which it was said to
contravene.
This was the general background to the challenge to the constitutionality of the Irish
anti-contraceptive statute in McGee v. Attorney General. While the challenge in Griswold
was brought by two physicians who were trying to be prosecuted, the challenge in McGee
was brought by a young married woman who had four children in quick succession. She had
suffered cerebral thrombosis in her second pregnancy and she had been medically advised not
to become pregnant again as her life might otherwise be in danger. The Revenue
Commissioners had seized contraceptives which she had endeavoured to import.
While the legal prohibition in Ireland – s. 17 of the Criminal Law (Amendment) Act
1935 – was expressed in similar terms as the Connecticut statute, there the similarity ended.
The law was rigidly enforced and no one – irrespective of what side of the argument you
were on – was going to describe it as an uncommonly silly law: it was rather Exhibit A to the
charge that the State in its laws endorsed Catholic social teaching.5 While McGee is often
5
Note the following exchange in O’Brien, States of Ireland (London, 1972) at 142-143 regarding laws which
may strike some as “uncommonly silly”. O’Brien described how in about 1952, while working for the
Department of Foreign Affairs, he brought a leading English Jesuit to see a Catholic Nationalist politician based
in Armagh, Senator JG Lennon. (The Jesuit Provincial was carrying out an inquiry for his Order as to the
conditions of Catholics in Northern Ireland):
“In Armagh, Senator JG Lennon showed us the electoral map of the city, providing the necessary key
of religious denominations by area…What he showed us was a classic gerrymander, thorough to the
point of pedantry: at one point the city boundary following the line of a particular terrace, suddenly
skipped behind the back-gardens of three houses, homes of Catholics. Gerry Lennon explained those
things, with considerable indignation, but at the same time a faint touch of local pride: it was not
everywhere you could see the like of this abomination. But Father Wingfield-Digby was simply
6
described as the Irish equivalent of Griswold, this is to miss the fundamentally different
context in which both cases were decided. The decision in McGee started a social revolution,
the consequences of which are still being played out. In that respect, McGee is much closer
the de-segregation decision of the US Supreme Court, Brown v. Board of Education in 1954.
Both decisions changed their countries irrevocably and both decisions required real judicial
courage and a high degree of judicial imagination.
A month ago I had the privilege of listening to Professor Maireád Enright speaking at
a conference in DCU about the decision in McGee. Professor Enright had recently
interviewed some of those involved with the case, including Donal Barrington SC (counsel
for Ms. McGee) and Ms. McGee herself. Professor Enright recounted how, rather splendidly,
Ms. McGee was quite unabashed by the fact that she had lost in the High Court at first
instance before the then President of the High Court, Mr. Justice O’Keeffe since, after all,
“when did you know a man who listened to what women had to say?”
The Supreme Court afforded Ms. McGee a more receptive audience, as to the surprise
of many and, indeed, the consternation of some, the Court invalidated as unconstitutional the
prohibition on the importation of contraceptives, with two towering judgments from Mr.
Justice Walsh and Mr. Justice Henchy in particular. The latter’s judgment amounted to a
sustained legal rodomontade against the section:
“It is the informed and conscientious wish of the plaintiff and her husband to maintain
full marital relations without incurring the risk of a pregnancy that may very well
result in her death or in a crippling paralysis. Section 17 of the Act of 1935 frustrates
disgusted by such an example of rustic bigotry. ‘Good Heavens!’ he exclaimed. ‘How perfectly
stupid!’ Gerry Lennon looked sourly at the Jesuit. ‘In the name of God’ he asked. What’s stupid about
it?’
7
that wish. It goes further; it brings the implementation of the wish within the range of
the criminal law. Its effect, therefore, is to condemn the plaintiff and her husband to a
way of life which, at best, will be fraught with worry, tension and uncertainty that
cannot but adversely affect their lives and, at worst, will result in an unwanted
pregnancy causing death or serious illness with the obvious tragic consequences to the
lives of her husband and young children. And this in the context of a Constitution
which in its preamble proclaims as one of its aims the dignity and freedom of the
individual; which in sub-s. 2 of s. 3 of Article 40 casts on the State a duty to protect as
best it may from unjust attack and, in the case of injustice done, to vindicate the life
and person of every citizen; which in Article 41, after recognising the family as the
natural primary and fundamental unit group of society, and as a moral institution
possessing inalienable and imprescriptible rights antecedent and superior to all
positive law, guarantees to protect it in its constitution and authority as the necessary
basis of social order and as indispensable to the welfare of the nation and the State;
and which, also in Article 41, pledges the State to guard with special care the
institution of marriage, on which the family is founded, and to protect it against
attack.”6
This is an example of what I had previously described as “the technique of sustained
rhetoric leading to an ultimate crescendo”, adding that this represented one of the “most
difficult feats of prose writing”.7 When it did come, however, the crescendo was
uncompromising:
6
[1974] I.R. 284.
7
Hogan, “The Judicial Thoughts and Prose of Mr. Justice Seamus Henchy” (2011) 46 Irish Jurist 96, 99.
8
“Section 17, in my judgment, so far from respecting the plaintiff's personal rights,
violates them. If she observes this prohibition (which in practice she can scarcely
avoid doing and which in law she is bound under penalty of fine and imprisonment to
do), she will endanger the security and happiness of her marriage, she will imperil her
health to the point of hazarding her life, and she will subject her family to the risk of
distress and disruption. These are intrusions which she is entitled to say are
incompatible with the safety of her life, the preservation of her health, her
responsibility to her conscience, and the security and well being of her marriage and
family. If she fails to obey the prohibition in s. 17, the law, by prosecuting her, will
reach into the privacy of her marital life in seeking to prove her guilt…
In my opinion, s. 17 of the Act of 1935 violates the guarantee in sub-s. 1 of s. 3 of
Article 40 by the State to protect the plaintiff personal rights by its laws; it does so not
only by violating her personal right to privacy in regard to her marital relations, in a
wider way, by frustrating and making criminal any efforts by her to effectuate the
decision her husband and herself, made responsibly; conscientiously and on medical
advice, to avail themselves of a particular contraceptive method so as to ensure her
life and health as well as the integrity, security and well-being of her marriage and her
family. Because of the clear unconstitutionality of the section in this respect, I do not
find it necessary to deal with the submissions made in support of the claim that the
section violates other provisions of the Constitution.”8
In many ways, the decision represented the finest hour in the entire history of the
Supreme Court. The majority judgments make for powerful and inspired reading. The Court’s
judgment transformed the political landscape and set the country on a new course and such a
8
[1974] I.R. 284,
9
momentous decision required real judicial courage and insight. Most of all, the decision
helped many to appreciate the real strengths of the Constitution and debunked – albeit
perhaps not entirely – the myth that it was the product of reactionary Catholic teaching.9
Norris v. Attorney General
In 1986 Bowers v. Hardwicke10 a majority of the US Supreme Court upheld the
constitutionality of essentially the same type of anti-sodomy laws as were at issue in Norris v.
Attorney General, a case where a majority of the Supreme Court had upheld the
constitutionality of such legislation some three years earlier. Unlike the situation in Norris,
these laws had, in fact, been applied in the State of Georgia and a male couple were arrested
for private consensual homosexual activity. We in Ireland, on the other hand, had adopted the
classic Irish solution to an Irish problem and the laws had, in effect, been allowed to fall into
disuse.11 While there was no public enthusiasm for the active enforcement of these laws -
9
In the first edition of his magisterial study, Church and Study in Modern Ireland Professor JH Whyte stated
that the Constitution “was framed on the basic of Catholic social teaching” But by the time of the second edition
in 1980, the decision in McGee had been delivered over seven years previously and Professor Whyte was left to
wonder how “this judgment [had been] wrung out a Constitution so specifically Catholic as the 1937 document
had been?” But, perhaps, the true answer lies in the fact that Professor Whyte had been entirely misled by the
existence of a few specific provisions which did reflect tradional Catholic orthodoxies (e.g., the original ban on
divorce) and failed to take into account the extent to which the Constitution was based on secular and rationalist
theory.
10
11
478 US 186 (1986).
Perhaps not completely. The existence of the criminal sanction pushed elements of the homosexual
community underground, often leading to a state of affairs where homosexual men had sexual encounters in
compromising positions in public toilets and parks which in turn led humiliating prosecutions: see, e.g., D.
Ferriter, “Gay Rights campaign breaches many barriers, but battle is far from over” Irish Examiner, June 12,
2008.
10
such as, for example, had occurred in the 1950s in Britain prior to repeal in 196712 - this did
not mean that the Irish public in general regarded such laws as “uncommonly silly”. Rather,
the issue was one which large elements of the public preferred would simply remain hidden
from view, with the spectre of the criminal law remaining in the background as a symbol of
the fact that homosexuality was regarded as unacceptable and that homosexuals should
preferably engage in an active deceit regarding their true orientation. Others objected to decriminalisation on the ground that this would send the wrong signal, as (along with the
decision in McGee regarding contraception) it was another step along the road to
secularisation and the ending of traditional Irish (Catholic) values.
This was the background to the Supreme Court’s decision in Norris in April 1983.
And the legal historian cannot ignore the social pressures which must have weighed with the
Court. The 8th Amendment (i.e., what became Article 40.3.3) hovered over the entire
proceedings and, following a bruising debate in the Oireachtas, the amendment itself was
later to be held in September 1983. One also cannot ignore the unease which McGee had
caused and certain supporters of the Amendment were determined that to ensure that its
passage would serve as a warning to the Supreme Court to leave these type of delicate and
sensitive matters alone.
The majority judgment in Norris is, however, now almost universally regarded as a
significant wrong turning on the part of the Supreme Court. It is perhaps striking that the
reasoning of the majority has never subsequently been endorsed by that Court and, quite
independently of the European Court of Human Rights, one can safely say that it would never
12
This, ironically enough, happened under the stewardship of David Maxwell Fyfe as British Home Secretary,
even though Maxwell Fyfe had been the rapporteur of the legal committee of the Council of Europe
Parliamentary Assembly which was responsible for the drafting of the European Convention of Human Rights.
Article 8 of which guaranteed the right to privacy and a private life..
11
be followed in the modern era. While previous judgments had previously traced the strong
inter-linking of natural law concepts and the Christian tradition, no Supreme Court judge had
ever so closely aligned constitutional jurisprudence with the values of a particular religious
tradition. This is reflected in the following passage from the judgment of O’Higgins C.J.:
“The Preamble to the Constitution proudly asserts the existence of God in the
Most Holy Trinity and recites that the people of Ireland humbly acknowledge their
obligation to ‘our Divine Lord, Jesus Christ.’ It cannot be doubted that the people, so
asserting and acknowledging their obligations to our Divine Lord Jesus Christ, were
proclaiming a deep religious conviction and faith and an intention to adopt a
Constitution consistent with that conviction and faith and with Christian beliefs. Yet it
is suggested that, in the very act of so doing, the people rendered inoperative laws
which had existed for hundreds of years prohibiting unnatural sexual conduct which
Christian teaching held to be gravely sinful. It would require very clear and express
provisions in the Constitution itself to convince me that such took place. When one
considers that the conduct in question had been condemned consistently in the name
of Christ for almost two thousand years and, at the time of the enactment of the
Constitution, was prohibited as criminal by the laws in force in England, Wales,
Scotland and Northern Ireland, the suggestion becomes more incomprehensible and
difficult of acceptance.”13
This reasoning has been viewed with considerable scepticism ever since it was first
written. As a very distinguished comparative constitutional scholar has written:
“Chief Justice O’Higgins’ reasoning hinged crucially on the claim that
Christian values were imported into the Irish Constitution by virtue of the Preamble
13
[1984] I.R. 36, 64.
12
and, therefore, the question of whether legislation was constitutional depended on
whether it complied with those values. O’Higgins C.J. did not discuss natural law.
Nor did he cite a single case of the Irish Supreme Court or High Court on
constitutional adjudication to support his decision.”14
While these criticisms are measured, it is nonetheless hard to gainsay them. Any
assessment of Norris has to be balanced – although it rarely is in popular discussion – by the
fact that Henchy delivered a magnificent dissent. He first pointed out that, if the majority
reasoning was correct, then McGee could never have been decided the way that it was, given
that this “was declared to be morally wrong according to the official teaching of the Church
to which about 95% of the citizens along.”15 He next pointed out that there was no necessary
linkage between moral teaching and the criminal law:
Henchy continued:
“The learned judge16 (who dealt with this difficult case with commendable
thoroughness), in substituting his own conclusions on the personal and societal effects
of the questioned provisions, seems to have laid undue stress on the fact that the
prohibited acts, especially sodomy, are contrary to the standards of morality
advocated by the Christian Churches in this State. With respect, I do not think that
should be treated as a guiding consideration. What are known as the seven deadly sins
are anathematised as immoral by all the Christian Churches, and it would have to be
conceded that they are capable, in different degrees and in certain contexts, of
undermining vital aspects of the common good. Yet it would be neither
14
15
16
Kavanagh, “Natural Law, Christian Values and the Ideal of Justice” (2012) 48 Irish Jurist 71, 83.
[1984] I.R. 36, 71.
I.e., the judge in the High Court, McWilliam J.
13
constitutionally permissible nor otherwise desirable to seek by criminal sanctions to
legislate their commission out of existence in all possible circumstances. To do so
would upset the necessary balance which the Constitution posits between the common
good and the dignity and freedom of the individual. What is deemed necessary to his
dignity and freedom by one man may be abhorred by another as an exercise in
immorality. The pluralism necessary for the preservation of constitutional
requirements in the Christian, democratic State envisaged by the Constitution means
that the sanctions of the criminal law may be attached to immoral acts only when the
common good requires their proscription as crimes. As the most eminent theologians
have conceded, the removal of the sanction of the criminal law from an immoral act
does not necessarily imply an approval or condonation of that act. Here the consensus
of the evidence was that the sweep of the criminal prohibition contained in the
questioned provisions goes beyond the requirements of the common good; indeed, in
the opinion of most of the witnesses it is inimical to the common good. Consequently,
a finding of unconstitutionality was inescapable on the evidence.
Having given careful consideration to all the evidence, I find that the essence of the
unconstitutionality claimed lies not in the prohibition, as a crime, of homosexual acts
between consenting adult males but primarily in making that prohibition apply
without qualification to consenting adult males who are exclusively and obligatorily
homosexual. The combined effect of the questioned sections is to condemn such
persons, who are destined by nature to be incapable of giving interpersonal outlet to
their sexuality otherwise than by means of homosexual acts, to make the stark and
(for them) inhumane choice between opting for total unequivocal sexual continence
(because guilt for gross indecency may result from equivocal acts) and yielding to
their primal sexual urges and thereby either committing a serious crime or leaving
14
themselves open to objectionable and harmful intrusion by those who would wish to
prevent such acts, or to intolerance, harassment, blackmail and other forms of cruelty
at the hands of those who would batten on the revulsion that such acts elicit in most
heterosexuals.”17
It is perhaps surprising that two prominent intellectuals would take issue with one isolated
phrase used by Henchy in that dissent – where he said that Norris’s public espousal of the
cause of male homosexuals was “tinged with a degree of that affected braggadocio which is
said by some to distinguish a ‘gay’ from a mere homosexual.”18 Can these chaps not take a
joke or laugh at what was at worst a form of minor jeu d’esprit?
More fundamentally, the objections totally miss the real point which was that here was a
prominent judge of the Supreme Court reaching out to explain in remarkable language the
true plight of the homosexual community and was thereby the first member of “Official
Ireland” to do so. It is also somewhat depressing to think that an isolated comment would
meet with such pointed objections, while these commentators more or less simultaneously
ignored the magnificent and innovative legal prose which had been marshalled in support of a
cause which is now much easier to support than it was in 1983. By contrast, many US
intellectuals (whether lawyer or non lawyer) (rightly) applaud the language and prose of their
judicial greats such as Holmes and Brandeis – especially when they dissented - often more or
less saying: “forget about the wretched judgment of the majority – isn’t it wonderful what we
Americans (home of the brave and free etc.) have got such great judges who can deliver such
17
[1984] I.R. 36 at 77-78.
18
[1984] I.R. 36, 70. D. Ferriter, “Gay Rights campaign breaches many barriers, but battle is far from over”
Irish Examiner, June 12, 2008 (“idiotic observation”); C. Tóibín, “A brush with the law” The Dublin Review
(2007)(“an uncharacteristically stupid comment”).
15
magnificent dissents?”19 At another level this yet again shows up a further cultural gap
between the US and Ireland. The US approach is to accentuate the positive and optimistic –
i.e., the dissent shows the way forward, is it not wonderful that only America would produce
such great judges and great dissenting judgments and how we can do better next time –
whereas the Irish one is so typical of our negativity, pessimism, cynicism and, at times, self
loathing. Why bother praising a magnificent and courageous judgment from a great judge
when – hey! - if you look hard enough, you can find something with which you happen to
disagree and use it to poke fun at the “establishment” and get a laugh in the process?
At all events, I had previously stated of this judgment:
“The majesty of this language sweeps all before it and gets to the essence of the
human condition. That is why, in many ways, the judgment is so remarkable. It was
not even that Henchy was prepared to find for the plaintiff in Norris – although that
itself was a striking fact in the Ireland of 1983 – but that the language and reasoning
of the judgment looked beyond conventional wisdom and inherited assumptions and
sought to educate, challenge and enlighten society about the true nature of [human]
freedom. …History has been on the side of Henchy in Norris, as indeed has been in
almost all of his striking and original contributions to jurisprudence. One measure of
judicial greatness is correctly to identify the future path of the law and to persuade
others – and, indeed, society at large - to follow it. This is why of the many
outstanding judgments which this remarkable judge has produced - the judgments in
McGee, Cahill v. Sutton, King, Murphy and O’Shea are all obvious candidates for
inclusion in this list – his judgment in Norris is the greatest of them all.”20
19
20
See, e.g., Anthony, Lewis, Make no Law
Hogan, Thought and Prose, at 116.
16
To put all of this in context, it should be pointed out that when the matter came before
the US Supreme Court in Bowers some three years later in 1986, that Court arrived at the
same result. White J. said that the essential question was whether the US Constitution confers
“a fundamental right upon homosexuals to engage in sodomy.” White J.’s judgment answered
this question in the negative, stating that “to claim that a right to engage in such conduct is
'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered
liberty' is, at best, facetious.” There are also remarkable echoes of the judgment of O’Higgins
C.J. in the judgment the US Chief Justice, Burger C.J., who said that:
“Decisions of individuals relating to homosexual conduct have been subject to
state intervention throughout the history of Western civilization. Condemnation of
those practices is firmly rooted in Judeao-Christian moral and ethical standards.To
hold that the act of homosexual sodomy is somehow protected as a fundamental right
would be to cast aside millennia of moral teaching.”21
The entire Norris debate was overtaken by events. It was completely predictable – as
Henchy J. himself had observed – that the legislation would be found to amount to a breach
of the guarantee of private life in Article 8 of the European Convention of Human Rights by
the European Court of Human Rights in 1988.22 And Bowers too would would go the way of
all flesh, overruled in 2003 by the US Supreme Court’s decision in Lawrence v. Texas.23
Influenced in part by an amicus brief submitted by a certain Mary Robinson – who had been
counsel for Mr. Norris - which referred to the Norris saga, Kennedy J. stated bluntly that
21
478 US 186, 196.
22
Norris v. Ireland (1989) 13 EHRR 186.
23
593 US 558 (2003).
17
Bowers was “not correct when it was decided, and it is not correct today. It ought not to
remain binding precedent. Bowers v. Hardwick should be and now is overruled.”
Perhaps before closing I can add a personal note. I recall speaking at a conference in
the early 1990s which dealt with these themes where I spoke in praise of Henchy’s dissent in
Norris. A Professor of Constitutional Law at one of the very great US law schools came over
to me afterwards and literally grabbed my copy of that judgment as if it were a legal
equivalent of the Dead Sea Scrolls. Having devoured the judgment he came up to me later
and said “This is it. This is the true dissent in Bowers v. Hardwick….” And I have it on a
good authority that prior to Lawrence v. Texas half a generation of Yale law students were
directed to read the Henchy dissent in Norris instead of the Blackmun dissent in Bowers.
Shortly after the enactment of the Constitution – this would be about 1938-1939 – de
Valera and his drafting team had plans for a new public holiday – a Constitution Day24 – and
for the instruction of the next generation of schoolchildren in the basic elements of
constitutional law. It can scarcely be a surprise that, given the exigencies of the times, the
plan floundered. It is unfortunate that this was so, because generations of schoolchildren have
– in contrast to their US counterparts – being denied a true knowledge of the document which
created our modern State. No wonder so many misconceptions and cynical observations
abound. To take one example: a Leaving Certificate History textbook asserts that the change
in the contraception laws was brought about by a decision of the European Court of Human
Rights, with no mention at all of the Supreme Court’s decision in McGee. Can you imagine a
corresponding US school textbook which deals with de-segregation without dealing with
Brown v, Board of Education?
24
See, Hogan, Origins of the Irish Constitution (Dublin, 2012) at 620-624.
18
But if I were the Minister for Education for the proverbial day, I would not only
change the history textbooks so as not only to do justice to the Supreme Court and also to
paint a portrait of those courageous litigants, Mary McGee and David Norris, but I would
also insist that some extracts from the Henchy judgments in those two cases would be
included in an anthology of English Prose for Leaving Certificate students. Any one who
reads these judgments – be they lawyer or layfolk – cannot but be inspired by the glorious
prose which has been harnessed so powerfully in the cause of freedom and liberty. That is the
essence of elegantia juris and the genius that was Seamus Henchy.
* Gerard Hogan, Judge of the High Court.