1
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 andMr. Justice Kelly are, of course, exceptions to this rule).
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 associatedwith that which Henchy himself memorably described in The People v. O’Shea as:
“…the bitter Irish race-memory of politically appointed and Executive-oriented 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-examinersor 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 muchmore likely to be portrayed in withering terms either as a craven political lackey or else as an out of touchfigure straight from the pages of Trollope who, like the Rev. Septimus Harding, is “somewhat too highly paid for duties which [are] somewhat tooeasily performed.”[2]
Yet, for those in the legal community, Seamus Henchyis 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 specialand indefinable quality ofelegantia 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 hadHenchy 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.
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. Connecticut[4] 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 theConnecticut law as an “uncommonly silly law”, but said that he was compelled to say that it was valid unless the 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 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-segregationdecision 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 DCUabout 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 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:
“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 anew course and such a 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 1986Bowers v. Hardwicke[10] a majority of the US Supreme Court upheld the constitutionality ofessentially 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 - such as, for example, had occurred in the1950s in Britain prior to repeal in 1967[12] - 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 de-criminalisation 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 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]