The Irish Constitution

cson · 06-12-2008 1:04am #1

A testament to the drafters that has aged well or an outdated archaic creature of its time?

I'm firmly in the first camp. For a document crafted in 1937 it has withstood the passage of time relatively well and most of it is as relevant as it was in 1937.

06-12-2008 1:37am

cson wrote: »

A testament to the drafters that has aged well or an outdated archaic creature of its time?

I'm firmly in the first camp. For a document crafted in 1937 it has withstood the passage of time relatively well and most of it is as relevant as it was in 1937.

I think the Constitutional Review Group would beg to differ.

The real genius of the Constitution is that it can be changed so relatively easily but never without the will of the majority of the people. It makes it flexible. The approach of the judiciary has also been beneficial in espousing the unenumerated rights doctrine via Art. 40. (They have been good in almost everything. Constitutional Family aside.)

nesf · 06-12-2008 2:08am

cson wrote: »

A testament to the drafters that has aged well or an outdated archaic creature of its time?

The answer lies between the two. Some of it has aged well, some of it has been found to be at odds with the will of the modern people. We've modified it many times and we'll modify it many more and to treat the original form as being higher or better than the current form is something that I think both misses the point and sells the concept short. A constitution brings its power from it mutability and its capability to adapt as the country and its people adapt and change. I think of it as a living document and don't really attribute any real significance to it's drafters, it has outgrown them in a sense.

ChocolateSauce · 06-12-2008 5:08pm

cson wrote: »

A testament to the drafters that has aged well or an outdated archaic creature of its time?

I'm firmly in the first camp. For a document crafted in 1937 it has withstood the passage of time relatively well and most of it is as relevant as it was in 1937.

I'm closer to the second, except that I don't agree it is outdated in the sense that it was ever good. The constitution is rotten and always has been, and there is absolutely no excuse for it when there were plenty of good ones lying around in 1937 (including the 1922 one, for all its faults) which could have been copied. The US constitution is the finest legal document in human history, in my humble opinion. The EU constitution would have been a model one as well.

I find people who bang on about how wonderful ours is are almost always some mix of anti-British Catholic conservative nationalists.

06-12-2008 5:26pm

ChocolateSauce wrote: »

I'm closer to the second, except that I don't agree it is outdated in the sense that it was ever good. The constitution is rotten and always has been, and there is absolutely no excuse for it when there were plenty of good ones lying around in 1937 (including the 1922 one, for all its faults) which could have been copied. The US constitution is the finest legal document in human history, in my humble opinion. The EU constitution would have been a model one as well.

I find people who bang on about how wonderful ours is are almost always some mix of anti-British Catholic conservative nationalists.

Eh, what?

Which of the Constitutions are you referring to? The massively dangerous Weimar Constitution? I also like where you call the 1922 Constitution a good one; after all, who doesn't like a Constitution that can be amended by an act of the Oireachtas rather than by a public plebiscite? Oh, that reminds me of another Constitution that can be amended by an act of the legislature...let me see...oh yes, the American Constitution!!!

The American Presidential system is incredibly dangerous. As Bush has shown it allows far too much power to be vested in the Executive. It leans towards a post-monarchist system which is about the least revolutionary form of Government that the colonies could have chosen. The 1937 Constitution has been the model for others such as India to create free, democratic societies where the US model has lead down the road to dictatorships. Even the US don't support other countries, such as in Iraq, basing their constitutions on the US model! How severe and indictment do you need?

ChocolateSauce · 06-12-2008 5:40pm

Deleted User wrote: »

Eh, what?

Which of the Constitutions are you referring to? The massively dangerous Weimar Constitution? I also like where you call the 1922 Constitution a good one; after all, who doesn't like a Constitution that can be amended by an act of the Oireachtas rather than by a public plebiscite? Oh, that reminds me of another Constitution that can be amended by an act of the legislature...let me see...oh yes, the American Constitution!!!

The American Presidential system is incredibly dangerous. As Bush has shown it allows far too much power to be vested in the Executive. It leans towards a post-monarchist system which is about the least revolutionary form of Government that the colonies could have chosen. The 1937 Constitution has been the model for others such as India to create free, democratic societies where the US model has lead down the road to dictatorships. Even the US don't support other countries, such as in Iraq, basing their constitutions on the US model! How severe and indictment do you need?

The US system is an extremely well balanced one. The parliamentary system we have gives governments too much power. You think India is a free and democratic society compared to the US? You have a long way to go in terms of understanding the structures of government and the layout of the US constitution in particular.

The US constitution is a deeply subversive and revolutionary document which doesn't grant any rights (rights cannot be granted), but merely tells the government what it can't do. The president appoints the entire government, which means that as the only elected member of the government he is responsible for their actions. This means Irish-style corruption where the party and government survives if individuals are found guilty cannot happen. The power of the president is limited by the congress and Senate, which not only have to pass every law (the government in the US cannot vote on bills, only implement them) but also have the power to remove the government (which the Dail or Commons does not have).

The supreme court then has the power to strike down laws if they are illegal, thus putting constraints on the power of the government and on the chambers.

How is this not balanced?

06-12-2008 6:28pm

ChocolateSauce wrote: »

The US system is an extremely well balanced one. The parliamentary system we have gives governments too much power. You think India is a free and democratic society compared to the US? You have a long way to go in terms of understanding the structures of government and the layout of the US constitution in particular.

The US constitution is a deeply subversive and revolutionary document which doesn't grant any rights (rights cannot be granted), but merely tells the government what it can't do. The president appoints the entire government, which means that as the only elected member of the government he is responsible for their actions. This means Irish-style corruption where the party and government survives if individuals are found guilty cannot happen. The power of the president is limited by the congress and Senate, which not only have to pass every law (the government in the US cannot vote on bills, only implement them) but also have the power to remove the government (which the Dail or Commons does not have).

The supreme court then has the power to strike down laws if they are illegal, thus putting constraints on the power of the government and on the chambers.

How is this not balanced?

Look at India in comparison to any other State in the region. Comparing it with the US is fallacious as the US has been an established democracy for far longer.

As for your other points:

1) The US Constitution is in no way subservise or revolutionary. The US did not have a revolution, it had a rebellion. This has been an area of argument for historians for a while so I am willing to accept that others may not share my view. However the US Constitution just put ideas which had been polished and shined in the Enlightenment into practical effect. The French Revolution was massively subversive and revolutionary. The American "Revolution" was just the next one.

2) I think Warren Harding would disagree with the idea that the US Constitution does not guarantee or confer rights. The First 10 amendments to it aside (I think they called those ten something...The Bill of...Rights?) were a recognition that the Constitution in its original form was woefully lacking in its protections. Furthermore the doctrine of unenumerated rights presupposes that the Constitution guarantees rights, even if not always explicitly. Oh and in case you say this is revolutionary, there had been an English Bill of Rights which guaranteed rights of citizens against the monarch through their representatives.

3) Your point about corruption not being possible as it is in Ireland is either blindly naive or just idiotic. Lobby groups in the US and special interests groups are as capable of influencing politicians in the US as they are anywhere. To say otherwise is just silly. The imperial Presidency has lead to a monarch-like situation in the US which makes the President almost impossible to touch. Even the legal position of Rex non potest peccare which exists in the US is a nod to the strength of the Presidency.

4) The Supreme Court has the power to strike down laws but in America not only does the President appoint the Supreme Court justices but the Senate has to confirm them. This is hardly the clearest example of separation of powers. I am not for a moment saying our system is better, I am simply pointing out that the US system is not the beacon of democracy that you paint it as.

turgon · 06-12-2008 7:07pm

Deleted User wrote: »

Look at India in comparison to any other State in the region.

What your saying is that because India is more democratic than its neighbors like China, its the best democracy in the work. It doesnt hold up to even the most elementary train of thought.

Deleted User wrote: »

Oh and in case you say this is revolutionary, there had been an English Bill of Rights which guaranteed rights of citizens against the monarch through their representatives.

Yeah, I heard this worked wonders for the people of Ireland at the time :rolleyes:

Deleted User wrote: »

3) Your point about corruption not being possible as it is in Ireland is either blindly naive or just idiotic. Lobby groups in the US and special interests groups are as capable of influencing politicians in the US as they are anywhere. To say otherwise is just silly.

How, pray tell, is this a negative reflection of the American Constitution?

Deleted User wrote: »

the President appoint the Supreme Court justices but the Senate has to confirm them.

Firsty,as far as I know, the president can only appoint a new judge when an old one dies or resigns, so he cant really control the whole court.

Secondly, would you prefer a situation where an unaccountable, unelected body, appoints judges at its own will?

brianthebard · 06-12-2008 7:17pm

Deleted User wrote: »

Eh, what?

Which of the Constitutions are you referring to? The massively dangerous Weimar Constitution? I also like where you call the 1922 Constitution a good one; after all, who doesn't like a Constitution that can be amended by an act of the Oireachtas rather than by a public plebiscite? Oh, that reminds me of another Constitution that can be amended by an act of the legislature...let me see...oh yes, the American Constitution!!!

Wasn't there a court case that led to the need for a referendum to amend the constitution? Which means it wasn't a part of the 1937 constitution either.

Also, Dev made the system of governance completely unbalanced, putting as much power as possible in the Taoiseach's position. We've had to deal with the legacy of that ever since. Anyone who bitches about parish pump politics at national level is complaining about Dev messing around with government bodies. Also, you complain about the need for a plebiscite to amend the constitution, but ignore the fact that the 1922 constitution allowed for popular referendum, a very powerful tool which Dev was afraid of.

Add to that the position of the Church (needs to be noted that 20th century "republics" should not be giving any church special favours) and the position of women in the document, not to mention the pathetic lack of protection for fathers, and you begin to see that it is a backward, inefficient document, that retards rather than promotes citizen participation in the governance of the state.

06-12-2008 7:34pm

turgon wrote: »

What your saying is that because India is more democratic than its neighbors like China, its the best democracy in the work. It doesnt hold up to even the most elementary train of thought.

If that was what I had said then yes, it would fail to hold up. However what I was actually saying was that a comparison of India and the USA as democracies is fallacious as the US was based in post-Enlightenment ideas on the rule of law and the people who wrote the Constitution were almost exclusively taken from one class of people and they wrote it for that class. The Indian Constitution had a far greater task and a far more diverse group of people to work with and for.

turgon wrote: »

Yeah, I heard this worked wonders for the people of Ireland at the time :rolleyes:

Newsflash: Imperial Power considers one of it's colonies to be inferior!!!

The rights were granted for the members of the Commons to protect them from the King. Consider when it was written and you might just have an idea why that was important. After all, the Lord Protector was dead. Rights granted in a Constitution are designed to protect the people from the machinations of the State. That is exactly what the Bill of Rights did.

turgon wrote: »

How, pray tell, is this a negative reflection of the American Constitution?

I was refuting the arguments made by ChocolateSauce. I made no judgment on how it reflected upon the US Constitution. ChocolateSauce stated that the President appointing the Cabinet circumvented the corruption which allows the Party and Government to survive if someone is shown to be corrupt. Unless you are Nixon and commit a felony, in which case your party not only survives but your Vice-President can then acquit you of your crimes.

turgon wrote: »

Firsty,as far as I know, the president can only appoint a new judge when an old one dies or resigns, so he cant really control the whole court.

This is very true. However, given the nature of the court a President, who can sit for 8 years, may have the opportunity to appoint 2 or 3 judges in that time. Warren Harding waited until a Democrat was in the White House before he resigned just so a Democratic President could appoint a liberal to the Court so as to ensure that the balance of the court could be maintained. In recent years the Republicans have been trying to get as many Conservatives on the Court as possible so that they can overturn Roe -v- Wade.

turgon wrote: »

Secondly, would you prefer a situation where an unaccountable, unelected body, appoints judges at its own will?

Not at all. I stated that our system wasn't perfect either. The American system in modern times has become more problematic since Oliver Wendell Holmes and others began to espouse American Realist jurisprudence which has lead to an increase in people forensically analysing the way judges have ruled in the past. When John L. Murray was appointed Chief Justice of Ireland in 2004 nobody asked what his position on abortion or gay marriage or what his record was in reference to immigration cases. He was appointed under the Constitution in line with the Courts and Court Officers Act 2002 and under the terms of eligibilty listed here.

However, overall your arguments are glib and unconvincing. If you have anything genuinely constructive to say I'd love to hear it though.

06-12-2008 7:46pm

brianthebard wrote: »

Wasn't there a court case that led to the need for a referendum to amend the constitution? Which means it wasn't a part of the 1937 constitution either.

I think I know the case you are referring to but I cannot find the reference at the minute. The referendum procedure was in place in the 1937 draft of the Constitution, it replaced Article 50 of the 1922 Constitution.

brianthebard wrote: »

Also, Dev made the system of governance completely unbalanced, putting as much power as possible in the Taoiseach's position. We've had to deal with the legacy of that ever since. Anyone who bitches about parish pump politics at national level is complaining about Dev messing around with government bodies.

The Taoiseach has almost no express powers in the Constitution. It is the Oireachtas that determines the powers of the Taoiseach.

brianthebard wrote: »

Also, you complain about the need for a plebiscite to amend the constitution, but ignore the fact that the 1922 constitution allowed for popular referendum, a very powerful tool which Dev was afraid of

I am not afraid of it! I love that our Constitution can be amended only by a popular vote. It is the most beautiful element of the document, it is what keeps it alive and makes it so flexible when the will of the people demands it.

brianthebard wrote: »

Add to that the position of the Church (needs to be noted that 20th century "republics" should not be giving any church special favours) and the position of women in the document, not to mention the pathetic lack of protection for fathers, and you begin to see that it is a backward, inefficient document, that retards rather than promotes citizen participation in the governance of the state.

There is a fantastic article by our current President Mary McAleese which lays the blame for the seemingly misgonistic attitude of the Constitution at the feet of the judiciary and their interpretation of it rather than at DeValera. This opinion has been backed by numerous commentators who recognise that the "Constitutional Family" is a judicial construction first and foremost.

turgon · 06-12-2008 8:49pm

Deleted User wrote: »

Newsflash: Imperial Power considers one of it's colonies to be inferior!!!

Newsflash: Ireland wasnt a colony of the United Kingdom, it was a part of it. If your trying to put down America's sense of democracy and revolution, comparing it to the UK circa 1800 is a bad bad bad tactic.

brianthebard wrote: »

Wasn't there a court case that led to the need for a referendum to amend the constitution? Which means it wasn't a part of the 1937 constitution either.

No, that only stated that EU treaties need an amendment to the constitution. Ever since 1942 ammendments have required referenda (the first 5 years dont count so as to give room for the parliament to make any changes in the constitution should certain elements of it not work out properly)

brianthebard wrote: »

Also, Dev made the system of governance completely unbalanced, putting as much power as possible in the Taoiseach's position.

Which is why we dont have altogether that much democracy in Ireland, unlike what we like to think. Cowen controls all and can make the worst mistakes, **** over people, and u-turn, without even having to be afraid of losing his position. Example Budget 2008.

06-12-2008 9:12pm

turgon wrote: »

Newsflash: Ireland wasnt a colony of the United Kingdom, it was a part of it. If your trying to put down America's sense of democracy and revolution, comparing it to the UK circa 1800 is a bad bad bad tactic.

While on the pedantic issue of colony -v- territory of the United Kingdom you may be right (I'm not sure it was in 1689, I think the UK only existed after 1800 as a legal entity but I am not bothered checking just now, I'll accept your point) the point I am trying to make is that the ideas of the "American Revolution" were not unique by any means. They were already in place in England, France, Italy, the Netherlands etc through the Enlightenment.

Also, since my tactic of comparing the shining light of democracy that is the US to England circa 1800 (I was actually going all the way back to post-Cromwellian 17th century but who cares about detail?) how democratic was it that the Constitution of the US included (indeed still includes to THIS VERY DAY) this expression in Article 1 Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

That three fifths refers to the slaves, African Americans who the framers distinguished from the self evident truth that all men are created equal because black people were not real people at all, simply three-fifths of a real person. Not exactly a shining declaration of the virtue of the land of hope and glory.

turgon wrote: »

Which is why we dont have altogether that much democracy in Ireland, unlike what we like to think. Cowen controls all and can make the worst mistakes, **** over people, and u-turn, without even having to be afraid of losing his position. Example Budget 2008.

Explain to me the difference between what you have written here and the Presidency of George W. Bush. A man who received his office by virtue of a tainted Supreme Court decision and who held it over the last 4 years despite being the most unpopular President in US history. (and Lincoln fought a war against half the US, even fewer like Bush!)

turgon · 07-12-2008 12:02pm

Deleted User wrote: »

Explain to me the difference between what you have written here and the Presidency of George W. Bush. A man who received his office by virtue of a tainted Supreme Court decision and who held it over the last 4 years despite being the most unpopular President in US history. (and Lincoln fought a war against half the US, even fewer like Bush!)

Maybe now you will understand why they call him a lame duck. Because of his unpopularity people went against him in the 2006 elections. In America you can actually curtail the power of the President be voting in the opposition in Congress. So his unpopularity did come and bite him the ass, which is something that wouldnt happen here.

Look, in terms of democratic systems Ireland is a farce, with one man the Taoiseach holding power as he wants, and because of party loyalty he can do mostly what he pleases. Yet this strikes you as a good thing?

Just get over the fact our 'brilliant' constitution isnt the divine document you think it is.

brianthebard · 07-12-2008 12:09pm

Deleted User wrote: »

Explain to me the difference between what you have written here and the Presidency of George W. Bush. A man who received his office by virtue of a tainted Supreme Court decision and who held it over the last 4 years despite being the most unpopular President in US history. (and Lincoln fought a war against half the US, even fewer like Bush!)

Lets not make claims for history that we can't back up ok? Bush has the lowest ratings since ratings began, that's it. That's a relatively recent invention too. Lincoln was assassinated ffs, a slight sign of unpopularity? Now can we please get back to discussing the Irish constitution on its own merits, rather than comparing it to other documents that just muddy the waters.

07-12-2008 12:45pm

turgon wrote: »

Maybe now you will understand why they call him a lame duck. Because of his unpopularity people went against him in the 2006 elections. In America you can actually curtail the power of the President be voting in the opposition in Congress. So his unpopularity did come and bite him the ass, which is something that wouldnt happen here.

There is nothing stopping any deputy in the Dail from voting against their party. That is why Fianna Fail have called a 3 line whip for the Finance Bill next week. Nobody is going to pair off and the Party Whip obviously thinks he might lose some of the back benchers.

Furthermore, there was a period in the mid-1980's when Governments collapsed constantly. Our Proportional Representation system makes it almost impossible for any one party to have an outright majority (the last one was in 1977).

In the last number of years it has been the political acumen of Bertie Ahern that has lead to FF holding onto power for so long. People power has lead to a number of measures which were on the Finance Bill being retracted because TD's do not want to have to face their clinics after voting for those most unpopular of measures.

Your arguments are actually quite valid, but they are to do with a culture within the Oireachtas rather than a failure on the part of the Constitution. Beyond that, it was the Irish people who gave FF their power. They have until the next election to convince the people to do it again. If they fail then the democratic right of the people to remove them can be exercised. If the people choose to give FF power once more then so be it, that is the Government that we as a people deserve.

turgon wrote: »

Look, in terms of democratic systems Ireland is a farce, with one man the Taoiseach holding power as he wants, and because of party loyalty he can do mostly what he pleases. Yet this strikes you as a good thing?

Just get over the fact our 'brilliant' constitution isnt the divine document you think it is.

I never claimed it to be a divine document (although it certainly gives that impression in the preamble). I simply made the point that it has the great advantage of being so easily changed by the will of the people to ensure that it always reflects the will of the people. The article which outlines the powers of the Taoiseach and the Government is Article 28 and it is left very much oblique and, as Professor Kelly notes, this leaves the executive power of the State to be constructed as "what is left over when one deducts the legislative and judicial powers".

The Constitution also contains a provision that a defeated Taoiseach (losing a vote in the Dail) must resign. You say that voting against a President in the US lets you curb his powers. A President who loses a vote stays in office. a Taoiseach who loses a vote loses his. Your criticism is with party loyalty and that has absolutely nothing to do with the Constitution.

brianthebard wrote: »

Lets not make claims for history that we can't back up ok?

It was a joke, don't get your knickers in a twist.

brianthebard wrote: »

Lincoln was assassinated ffs, a slight sign of unpopularity?

Kennedy was massively popular and Reagan won 49 States. Popularity is not a direct corollary to assassination attempts.

Permabear · 07-12-2008 11:21pm

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jill_valentine · 07-12-2008 11:31pm

I think it's shamefully outdated, and the fact that it has been allowed to become so without any real challenge is symptomatic of many of the problems in Irish politics. Many of which it has fostered.

08-12-2008 12:07am

donegalfella wrote: »

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Arthur Schlesinger really put it best in his book "The Imperial Presidency". I would advise reading that. Prof. Froomkin has written some good work on this but I can't find a link other than this older article.

donegalfella wrote: »

Maybe I'm being annoyingly obtuse here, but can you show me a country which adopted a constitution modeled on that of the United States, and which became a dictatorship because of it?

In the Harvard Law Review 2000, Prof Bruce Ackerman of Yale Law School wrote an article entitled "The New Separation of Powers". In that article he states that since the end of the second world war no third world country which has adopted a Presidential system akin to the US model has failed to "succumb to the nightmare [of collapse or coup d'etat] one time or another, often repeatedly."

brianthebard · 08-12-2008 12:29am

Deleted User wrote: »

In the Harvard Law Review 2000, Prof Bruce Ackerman of Yale Law School wrote an article entitled "The New Separation of Powers". In that article he states that since the end of the second world war no third world country which has adopted a Presidential system akin to the US model has failed to "succumb to the nightmare [of collapse or coup d'etat] one time or another, often repeatedly."

Why hasn't the US become a dictatorship so? There are a lot of external factors involved in the failure or otherwise of Third world governments. Can we please get back to the Irish constitution now?

08-12-2008 12:37am

brianthebard wrote: »

Why hasn't the US become a dictatorship so? There are a lot of external factors involved in the failure or otherwise of Third world governments. Can we please get back to the Irish constitution now?

The underlying element, in my opinion, is the idea of the rule of law. I remember reading an article about Russian people actually being psychologically predisposed to a single strong leader and perhaps there is an element of that in third world countries that doesn't exist in America.

I began with the Irish Constitution, it was others who brought America into it.

brianthebard · 08-12-2008 12:40am

Please let's not bring biological determinism into this thread, the idea that certain people are predisposed to a certain type of leadership is just silly and backward.

jill_valentine · 08-12-2008 12:42am

He said psychologically predisposed, not biologically, ie. a cultural product.

08-12-2008 12:50am

brianthebard wrote: »

Please let's not bring biological determinism into this thread, the idea that certain people are predisposed to a certain type of leadership is just silly and backward.

As is misrepresenting my position. I said psychologically predisposed. Meaning that due to social conditioning as a product of their history they were more used to interacting with strong leaders in Presidential type systems than bicameral parliamentary systems.

I would appreciate an apology for what you accused me of.

Permabear · 08-12-2008 7:27am

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Permabear · 08-12-2008 7:51am

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08-12-2008 11:35am

donegalfella wrote: »

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You make a very good point. My view on this is certainly based on the works of Prof. Ackerman. I pointed to that one article because it contained a statistical underlining that the US Presidential model is essentially dangerous to new democracies. He further goes on to state that 2/3 of new states that adopt a parliamentary system do not have such problems.

A well written Constitution, say one which deserves the monicker "the finest legal document in human history", should contain constraints on Executive power which would not allow the Imperial Presidency to occur. The loopholes and problems which have been exploited to create the imperial presidency are the very ones which emerging third world democracies have seen used to usurp the power of the people.

Permabear · 08-12-2008 1:51pm

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08-12-2008 3:10pm

donegalfella wrote: »

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I am starting to think that our positions are a lot closer than they first appeared.

Once again, I never bestowed any praise on the Irish Constitution other than I think its referendum procedure is excellent. I would counter your criticism of the Irish Constitution by referring back to my point in an earlier post of the US Constitution in Article 2.1 stating the following:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

Institutionalised racism is hardly a tenet of a document one could honestly consider to be "masterful" as you put it.

sceptre · 08-12-2008 4:18pm

Deleted User wrote: »

how democratic was it that the Constitution of the US included (indeed still includes to THIS VERY DAY) this expression in Article 1 Section 2

The "three fifths of all other persons" part was deleted in 1868.

Outside the remit of the thread but anyone with interest on why it was three-fifths can do a google or wiki search for "federal ratio" or "three fifths ratio".

Permabear · 08-12-2008 4:32pm

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partyguinness · 08-12-2008 4:36pm

Ireland has the longest surviving Constitution in Europe and many countries in Africa/S America consulted it when drafting their own Constitutions.

Just a little fact.

Permabear · 08-12-2008 4:46pm

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partyguinness · 08-12-2008 5:01pm

donegalfella wrote: »

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You must remember most countries basically started from scratch after WWII with their constitutions.

Belgium is not a Republic.

Permabear · 08-12-2008 5:08pm

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partyguinness · 08-12-2008 5:12pm

Yes thats true. Perhaps I should have clarified i was referring to Republican constitutions in the EU.

Permabear · 08-12-2008 5:40pm

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partyguinness · 08-12-2008 5:45pm

donegalfella wrote: »

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The Constitution has been in place since the 29th December 1937 with the first President being elected in June 1938. The 1949 Act was only a legislative formality.

turgon · 08-12-2008 6:21pm

partyguinness wrote: »

The Constitution has been in place since the 29th December 1937 with the first President being elected in June 1938. The 1949 Act was only a legislative formality.

Nottrue, it repealed the External Relations Act of 1936, which had the King as head of state in external relations. It wasnt a republic until the Republic of Ireland Act in 1949.

ChocolateSauce · 08-12-2008 11:24pm

Deleted User wrote: »

1) The US Constitution is in no way subservise or revolutionary. The US did not have a revolution, it had a rebellion. This has been an area of argument for historians for a while so I am willing to accept that others may not share my view. However the US Constitution just put ideas which had been polished and shined in the Enlightenment into practical effect. The French Revolution was massively subversive and revolutionary. The American "Revolution" was just the next one.

Not subversive? Are you joking? Have you ever read it? In the second section it forbids the government from making guns illegal. The primary purpose of this section is to make sure that the people have the ability to rise up against the government in armed insurrection if it should ever become oppressive. The constitution asserted that power came from the people and that all men were born equal. It also asserted that government had no right to silence detractors- can you imagine how this must have looked to the monarchies of Europe at the time? Subversive is a word that comes to mind. The French revolution came after the US (and arguably because of it).

2) I think Warren Harding would disagree with the idea that the US Constitution does not guarantee or confer rights. The First 10 amendments to it aside (I think they called those ten something...The Bill of...Rights?) were a recognition that the Constitution in its original form was woefully lacking in its protections. Furthermore the doctrine of unenumerated rights presupposes that the Constitution guarantees rights, even if not always explicitly. Oh and in case you say this is revolutionary, there had been an English Bill of Rights which guaranteed rights of citizens against the monarch through their representatives.

Well there are many people (myself included) who disagree with Warren Harding on that one; rights cannot be given, only guaranteed. If it is given it is a privilege, not a right. The US constitution does not confer any rights (saying only that man is born with certain (unspecified) inalienable ones), what it does is forbids the government from passing certain laws, for example anti-freedom of speech laws. The original constitution, as you put it, was scrapped and the modern constitution was the founding document of the country. The bill of rights is the first 10 articles of the constitution and is the part which forbids the government from interfering with people's rights; the remainder lays out the structure of the states and the government, creating the checks and balances. I must also assume you are joking when it comes to the English bill of rights; to say that in 1800 the English were in any measure as free as the Americans is a gross miscalculation.

3) Your point about corruption not being possible as it is in Ireland is either blindly naive or just idiotic. Lobby groups in the US and special interests groups are as capable of influencing politicians in the US as they are anywhere. To say otherwise is just silly. The imperial Presidency has lead to a monarch-like situation in the US which makes the President almost impossible to touch. Even the legal position of Rex non potest peccare which exists in the US is a nod to the strength of the Presidency.

My point about corruption is that it is far less likely in the government. If there is a corrupt member of government, the president is the one who answers for it- ie the whole government. Not like here where even if the head of government (Bertie) is corrupt, the government continues.

When exactly did I say politicians couldn't be influenced by lobby groups?

You exaggerate the office of president by a long shot, almost certainly because of the last 8 years. Bush was a powerful president for his first 6 years because his party also controlled both houses, but there have been presidents (like Cleaveland) who were totally lame because they couldn't get any of their legislation through. Yes, the president as the head of state and of government is a powerful man, but he is limited by 2 terms only and by the constitution and by the Congress and the Senate and he is the only person in the whole country directly elected by the whole country. If the houses are against him strongly enough, they can overturn his veto and even remove him from office.

4) The Supreme Court has the power to strike down laws but in America not only does the President appoint the Supreme Court justices but the Senate has to confirm them. This is hardly the clearest example of separation of powers. I am not for a moment saying our system is better, I am simply pointing out that the US system is not the beacon of democracy that you paint it as.

On the contrary, your example above is a fantastic example of seperation of powers. The elected head of state appoints New justices (he cannot remove old ones), who must be confirmed by the elected Senate, which represents the states, not the people. The court has the power to strike down laws made by the Senate but has very little power over the president, and the Senate/Congress has power over the President (purse strings, the power to declare war, the power to remove him and pass laws even against his wishes, etc).

Bush has seriously eroded freedom and democracy, but he as done so illegally, playing on fear and using his republican cronies to help him (the fact that many Americans appear to be idiots doesn't help), but the unspoiled structure of the state(s) is the finest in the world, though by no means perfect. But that's what democracy is- the acceptance that there can be no perfect state or government, and the hope of a compromise.

On another note, I'd just like to point out that it is imperative that the courts are never elected, and a judge's opinion is supposed to be irrelevant. A good judge will always act in accordance of the law, which is decided by the people.

The Taoiseach has almost no express powers in the Constitution. It is the Oireachtas that determines the powers of the Taoiseach.

And it just so happens that Oireachtas will invariably be controlled by the party which is headed by the Taoiseach.

I am not afraid of it! I love that our Constitution can be amended only by a popular vote. It is the most beautiful element of the document, it is what keeps it alive and makes it so flexible when the will of the people demands it.

In one state, this is all very well and good, but in a federation of 50 states you cannot have a nation-wide referendum. It would mean the people of one state are having a constitutional say in the affairs of another. In the US, the constitution can only be amended if 75% of the states vote to do so.

They were already in place in England, France, Italy, the Netherlands etc through the Enlightenment.

The American revolution happened in 1776. At that time Britain was the only major country in Europe which was not an absolute monarchy. Ireland became a part of Britain in 1801. Britain was controlled by the upper-classes almost exclusively. It wasn't until around 1840 that even the middle classes had a say, and 1918 that the vote was extended to all men.

That three fifths refers to the slaves, African Americans who the framers distinguished from the self evident truth that all men are created equal because black people were not real people at all, simply three-fifths of a real person. Not exactly a shining declaration of the virtue of the land of hope and glory.

Yes, but blacks weren't people, as you said. Today, the US is one of the least racist places on Earth. Don't come back and tell me it's a problem there, I know it is, it is everywhere. I'm just saying relative to other places.

I have to go now to get the last bus, I'll see if I can get around to more later.

Permabear · 09-12-2008 12:18am

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The Raven. · 09-12-2008 1:37am

donegalfella wrote: »

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According to Wikipedia:

A revolution (from the Latin revolutio, "a turn around") is a fundamental change in power or organizational structures that takes place in a relatively short period of time. Aristotle described two types of political revolution:
1. Complete change from one constitution to another
2. Modification of an existing constitution.[1]

Rebellion is a refusal of obedience[1]. It may therefore be seen as encompassing a range of behaviors from civil disobedience and mass nonviolent resistance, to violent and organized attempts to destroy an established authority such as the government. Those who participate in rebellions are known as "rebels".

09-12-2008 1:40am

donegalfella wrote: »

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It's actually quite a contentious area within historical circles. EDIT: The Raven's definitions are perfect.

Russia and France totally changed the way the country was run.

Arguably America simply altered their system slightly to cope with a non-monarchist system. The President is the head of state in a pre-Cromwellian monarch-esque way, albeit with constraints on his powers. The bi-cameral legislature of the Houses of Congress are structurally similar to the British system. The Cabinet is reflective of the King's Privy Council. There is no monumental overhaul in terms of administrative formation.

Certainly there is a philosophical shift in the position of the US from that of the British but in a pre-Benthamite Britain (actually Bentham was a contemporary of the Declaration of Independence but his influence in American thinking is difficult to gauge given his distinct lack of publishing talent.) it is hardly surprising that a shift in the idea of the source of the State's power was considered radical.

In a strict linguistic sense the American war of independence was a rebellion rather than a revolution. However the terms are so interchangeable in modern parlance that it is a semantic distinction used more to point to the relative lack of innovation in the formation of the US administrative system of government. Remember the whole thing started over them just wanting a say in Westminster. They didn't disagree with the system, just how they were being forced to interact with it, so when they came to design their own system they based it on the model which they knew best.

cson · 09-12-2008 1:49am

And when De Valera came to design the Constitution he based it on the model he knew best; as far removed from the Crown as possible

This has been very interesting, great input from all sides.

09-12-2008 2:41am

ChocolateSauce wrote: »

Not subversive? Are you joking? Have you ever read it? In the second section it forbids the government from making guns illegal. The primary purpose of this section is to make sure that the people have the ability to rise up against the government in armed insurrection if it should ever become oppressive. The constitution asserted that power came from the people and that all men were born equal. It also asserted that government had no right to silence detractors- can you imagine how this must have looked to the monarchies of Europe at the time? Subversive is a word that comes to mind. The French revolution came after the US (and arguably because of it).

A few things on this section:

1)Nothing you have stated above was an original idea. It all came from Enlightenment thinkers, every last thing. Even some of the Enlightenment thinkers ideas went back as far as the 2nd century BC. The US simply put it into practise, and even then they did not put it into practise fully. (all men are created equal - not getting into that one again but still...)

As for the French Revolution thing, that was a slip on my part and an inexcusable one.

ChocolateSauce wrote: »

Well there are many people (myself included) who disagree with Warren Harding on that one; rights cannot be given, only guaranteed. If it is given it is a privilege, not a right. The US constitution does not confer any rights (saying only that man is born with certain (unspecified) inalienable ones), what it does is forbids the government from passing certain laws, for example anti-freedom of speech laws. The original constitution, as you put it, was scrapped and the modern constitution was the founding document of the country. The bill of rights is the first 10 articles of the constitution and is the part which forbids the government from interfering with people's rights; the remainder lays out the structure of the states and the government, creating the checks and balances. I must also assume you are joking when it comes to the English bill of rights; to say that in 1800 the English were in any measure as free as the Americans is a gross miscalculation.

Are you arguing against the unenumerated rights doctrine? This may be a philosophical difference between us on our ideas of where "rights" come from. Although you make the point that rights are not given but guaranteed which is interesting as I use the word guaranteed 3 times in the section you quote and confer once, and then only referring to Harding's position. As I stated in another post in this thread constitutional rights are there to protect the citizens from the machinations of the state. That is exactly what the English Bill of Rights purported to do.

Also, claiming that England in the 1800's was less free than America is ok as long as you are referring to the monied classes. Slavery was abolished in England in 1833, 30 years before the American Civil War. A direct comparison of England and the US at the time though is, of course, completely pointless as the US had massive territorial expansion going on and the UK was sitting in the middle of Europe which was going through enormous wars every 10 or so years and England was having a problem with Napoleon trying to take over Europe at the time. Makes the promotion of civil liberties a little more difficult than the systematic genocide of an indigenous population does in America wouldn't you agree?

ChocolateSauce wrote: »

My point about corruption is that it is far less likely in the government. If there is a corrupt member of government, the president is the one who answers for it- ie the whole government. Not like here where even if the head of government (Bertie) is corrupt, the government continues.

What happened after Nixon resigned? Did his administration collapse?

ChocolateSauce wrote: »

You exaggerate the office of president by a long shot, almost certainly because of the last 8 years. Bush was a powerful president for his first 6 years because his party also controlled both houses, but there have been presidents (like Cleaveland) who were totally lame because they couldn't get any of their legislation through. Yes, the president as the head of state and of government is a powerful man, but he is limited by 2 terms only and by the constitution and by the Congress and the Senate and he is the only person in the whole country directly elected by the whole country. If the houses are against him strongly enough, they can overturn his veto and even remove him from office.

You criticise Ireland because of the party system allowing Bertie and co. to get away with things but then when the same thing happens in the US you seem less concerned. Bush got legislation that limited civil liberties, legalised torture and bugging civilians on US soil through because of a willing Congress. Bush oversaw Abu Ghraib and never even got a censure motion. Clinton got a blowjob (not against any law I am aware of) and got an impeachment procedure. Who acted less Presidential?

The two term limited was only introduced in 1951 and it was just a convention before that helped by circumstance and accepted behaviour. Also, as someone clearly read on American Constitutional theory, you should know that the people do not directly elect the President.

ChocolateSauce wrote: »

On the contrary, your example above is a fantastic example of seperation of powers. The elected head of state appoints New justices (he cannot remove old ones), who must be confirmed by the elected Senate, which represents the states, not the people. The court has the power to strike down laws made by the Senate but has very little power over the president, and the Senate/Congress has power over the President (purse strings, the power to declare war, the power to remove him and pass laws even against his wishes, etc).

Again I think our differences here are down to how we view things. Though all politics are local, I am of the opinion that the party system erodes the heart of democracy and makes the argument for Senate -v- Judiciary -v- Executive more one of theory than of reality. As Justice Clark wrote about Japanese internment during the Second World War:

The truth is—as this deplorable experience proves—that constitutions and laws are not sufficient of themselves...Despite the unequivocal language of the Constitution of the United States that the writ of habeas corpus shall not be suspended, and despite the Fifth Amendment's command that no person shall be deprived of life, liberty or property without due process of law, both of these constitutional safeguards were denied by military action under Executive Order 9066

Who exactly is empowered to sign Executive Orders? It is not just Bush that abuses the power of the Presidency.

ChocolateSauce wrote: »

Bush has seriously eroded freedom and democracy, but he as done so illegally, playing on fear and using his republican cronies to help him (the fact that many Americans appear to be idiots doesn't help), but the unspoiled structure of the state(s) is the finest in the world, though by no means perfect. But that's what democracy is- the acceptance that there can be no perfect state or government, and the hope of a compromise.

I don't quite get what you mean by the highlighted part to be honest. As for the acceptance of the system not being perfect, of course the US system accepts that. The words, "We the people, In order to form a more perfect Union" seem apt as evidence.

ChocolateSauce wrote: »

On another note, I'd just like to point out that it is imperative that the courts are never elected, and a judge's opinion is supposed to be irrelevant. A good judge will always act in accordance of the law, which is decided by the people.

Many US judges are elected, including State Supreme Court judges. As for good judges opinions not mattering, again we are into a philosophical argument about the role of judges in terms of legislating from the bench. Also, people do not make the law, legislators do. But again we are into theories on the creation of valid laws so lets move on.

ChocolateSauce wrote: »

In one state, this is all very well and good, but in a federation of 50 states you cannot have a nation-wide referendum. It would mean the people of one state are having a constitutional say in the affairs of another. In the US, the constitution can only be amended if 75% of the states vote to do so.

Why is that bad? One nation under God, indivisible after all. Also, regardless of how it is done, one State will have a say in the affairs of another given the Senators are supposed to be State representatives.

ChocolateSauce wrote: »

The American revolution happened in 1776. At that time Britain was the only major country in Europe which was not an absolute monarchy. Ireland became a part of Britain in 1801. Britain was controlled by the upper-classes almost exclusively. It wasn't until around 1840 that even the middle classes had a say, and 1918 that the vote was extended to all men.

I said the ideas were in place. I still maintain that. I never made any argument about practical effects.

ChocolateSauce wrote: »

Yes, but blacks weren't people, as you said. Today, the US is one of the least racist places on Earth. Don't come back and tell me it's a problem there, I know it is, it is everywhere. I'm just saying relative to other places.

I'm not interested in arguing race relations in the US as it is a poisoned chalice and not in the scope of this debate. My point wasn't about the US today though, it was simply refuting your claim about the US Constitution being such a laudible document. The 14th Amendment removed the term 3/5ths of all other persons after the Civil War anyway.

09-12-2008 2:43am

cson wrote: »

And when De Valera came to design the Constitution he based it on the model he knew best; as far removed from the Crown as possible

This has been very interesting, great input from all sides.

If you want a really good book on Bunreacht na hEireann you should read "The Making of the Irish Constitution" by Dermot Keogh (my old Prof. down in UCC) and Andrew McCarthy. It is a brilliant book on the drafting process and the reasoning/political manouevring that went on to make the 1937 Constitution.

It also contains copies of the original correspondence and early drafts so it is a serious eye opener

Permabear · 09-12-2008 2:59am

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partyguinness · 09-12-2008 9:40am

turgon wrote: »

Nottrue, it repealed the External Relations Act of 1936, which had the King as head of state in external relations. It wasnt a republic until the Republic of Ireland Act in 1949.

What is not true? Yes it wasnt a republic until 1949 but the Constitution has been in place since the December 1937.

09-12-2008 11:12am

donegalfella wrote: »

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You're welcome.

donegalfella wrote: »

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Perhaps, less so in France than in Russia.

donegalfella wrote: »

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I will ignore the subtle reference that I am being hoodwinked by some left-wing anti-American conspiracy. I am fully aware of the historiographical bias of those whom I choose to read. My opinions on the US Constitution are my own. If you read back over what I said I stated that the US Constitution contained many revolutionary ideas, but that those ideas were not of American design. Instead they came from Enlightenment thinkers. Even the writer of "Common Sense" was an Englishman. Structurally there really is no denying that the US model is very close to the British one. In fact I notice you have not denied it at all.

donegalfella wrote: »

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Two things about this:

1) I would consider myself left-leaning in terms of my politics and I, as evidenced by my previous posts, think that the Bill of Rights is a fantastic document. My criticisms are never levelled against the intention, just against the implementation of those intentions which, due to drafting issue and political realities of the time, has lead to problems further down the line as the US has grown to a size which the original Framers could not possibly have foreseen.

2) This is slightly off-topic but still: I have stated more than once in this thread that the purpose of a right in a Constitutional sense is to protect a citizen from the machinations of the State. This in and of itself contains a presupposition that the State shall exercise its power for the betterment of the people as a whole. Rights are there to ensure that Government doesn't overstep its boundaries.

The ideological difference between the left and the right as to how Government should interact with the people should not spill over into a subtle attempt to undermine my arguments as misinformed because I am unaware of some liberal agenda trying to turn me against Thomas Jefferson & co.

Also the agenda of the left isn't to assert the State's power over the people, it is to use the State's power to make a better society, a more perfect Union. Liberals in America abolished slavery, liberals passed the Voting Rights Act, the Civil Rights Act, the Clean Air Act. Liberals established the New Deal. Conservatives passed the Patriot Act, approving domestic surveillance and tracking measures that made civil liberties advocates balk. This was all done under the cover of "country" and "patriotism".

Permabear · 09-12-2008 12:15pm

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09-12-2008 1:35pm

donegalfella wrote: »

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I am only gonna reply to this cause we are definitely hijacking this thread.

1) I never said a liberal (and I use the true meaning of the word, not the US one) had to be a Democrat and a conservative a Republican. I mentioned the abolition of slavery as a liberal achievement. That was a Republican President.

2) You cannot definitely say the New Deal extended the Depression. The only country in the world that had a booming economy by 1935 was Germany and for well documented reasons. Also, it was unregulated American capitalism that lead to the Wall Street Crash, which, in turn, led to the calling in of loans from the Weimar Republic, which caused huge job losses and lead to the country being so downtrodden that it turned to anyone with a promise of work and prosperity. The American Dream was a causative factor in the rise of Nazism. (Godwin's Law be damned!) It was one of many factors, but one nonetheless. State oversight and regulation of industry is a necessary compromise to ensure stability. State assistance in times of dire economic need is equally so. FDR was the only President ever elected 3 times. He can't have been all that bad (although I do disagree with his internment policy, as I have states previously)

The Irish Constitution

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