New Constitution

234

Anybody else think Labour's plans to draw up a new constitution are a load of crap? I'm actually pretty pro-Labour but I think they have this one completely wrong. Most of the concerns that have some to light in recent years could be dealt with by a series of comprehensive ammendments. I think we would loose more than we would gain with a new constitution. A case of throwing the baby out with the bathwater.

dermot_sheehan

It depends if one wants to make a political statement of a break with the past or not.

De Valera could have made comprehensive amendments to the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 rather then a new constitution.

Tom Young

I agree with the OP. The Constitution does need some work, but the basis for where we are and what we has endured 74 years. There are aspects of rights and expunging church state references I would agree with.

The Seanad lark is also hard to swallow.

234

gabhain7 wrote: »

It depends if one wants to make a political statement of a break with the past or not.

De Valera could have made comprehensive amendments to the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 rather then a new constitution.

Absolutely agree on the deValera point. However the 1922 Constitution was not that developed by 1937 by comparison with the current constitution.
My greatest concern is that if we create a new constitution all our highly developed rights jurisprudence will all be set at nought. The current scope of some constitutional rights bears little resemblance to the bare text e.g. 40.3.1. Even if we reproduce the Fundamental Rights articles verbatim the current Supreme Court is not exactly the most liberal or daring that we have had to date and they could interpret these new rights is a more restrictive manner.
Most of the objections raised are points to do with the functioning of the political and democratic process. This could be solved with some comprehensive ammendments (granted the Attorney General's office would be very busy for a while) that would leave the good portions of our constitution untouched.

Manach

From a historican point of view, there is no year zero from which a fresh start can be made without any encumberances of the past, which seems to be the gist of what Labour are trying to do with this proposal.

johnnyskeleton

Whatever about the catch call to change the constitution (politically, many people believe that a change to the constitution would somehow change our whole society for the better), the manner in which they propose to do it is crazy.

They want to get 50 lawyers, 50 politicians and 50 random punters to sit in a big warehouse and discuss among themselves the changes that would take place.

If you put 2 lawyers or 2 politicians in a room and ask them to debate changes to 1 section of the constitution, it would take weeks if ever to reach agreement. Multiply that by 50 and add in 50 confused random punters and multiply the whole lot by the 50 odd articles of the constitution, and it would take years of full time work. No one is going to do that, realistically.

234

Manach wrote: »

From a historican point of view, there is no year zero from which a fresh start can be made without any encumberances of the past, which seems to be the gist of what Labour are trying to do with this proposal.

Agreed. I think we would end up reproducing most of the current constitution anyway. Some of the things people blame on the constitution is amazing. If they got there way there would be some artilce to the effect that "banks shall not behave like ****".

legaleagle10

From a study point of view NO..the thought of having to learn new constitutional law scares me!

234 wrote: »

Anybody else think Labour's plans to draw up a new constitution are a load of crap? I'm actually pretty pro-Labour but I think they have this one completely wrong. Most of the concerns that have some to light in recent years could be dealt with by a series of comprehensive ammendments. I think we would loose more than we would gain with a new constitution. A case of throwing the baby out with the bathwater.

Victor

gabhain7 wrote: »

It depends if one wants to make a political statement of a break with the past or not.

De Valera could have made comprehensive amendments to the Constitution of the Irish Free State (Saorstát Éireann) Act 1922 rather then a new constitution.

I thought that DeVelera's thing was a 'screw you' to not to be tied to a British implemented (but Irish agreed and later amended) constitution.

Manach wrote: »

From a historican point of view, there is no year zero from which a fresh start can be made without any encumberances of the past, which seems to be the gist of what Labour are trying to do with this proposal.

I think that year zero starts are possible, but are relatively rare, e.g. a communist revolution.

234

johnnyskeleton wrote: »

Whatever about the catch call to change the constitution (politically, many people believe that a change to the constitution would somehow change our whole society for the better), the manner in which they propose to do it is crazy.

They want to get 50 lawyers, 50 politicians and 50 random punters to sit in a big warehouse and discuss among themselves the changes that would take place.

If you put 2 lawyers or 2 politicians in a room and ask them to debate changes to 1 section of the constitution, it would take weeks if ever to reach agreement. Multiply that by 50 and add in 50 confused random punters and multiply the whole lot by the 50 odd articles of the constitution, and it would take years of full time work. No one is going to do that, realistically.

I think Labour's plan was to do it in less than one year. This would be impossible. In effect they would just come up with an ammended version of our current constitution. That, or one of the most poorly thought foundational legal documents in history. It took deValera and that other guy (anybody remember his name?) a few years to draw up the current constitution on a purely internal basis. Can you imagine what a "Citizens Assembly" would be like. Public consultation is a good thing but is more appropriate when committees are considering ammendments.

Our man in Havana

If a new constitution was adopted, would constitutional decisions of the Supreme Court made from 1937 to date be applicable?

johnnyskeleton

Our man in Havana wrote: »

If a new constitution was adopted, would constitutional decisions of the Supreme Court made from 1937 to date be applicable?

Applicable and highly persuasive, but not completely binding. So a new constitution means that we can re-litigate every previous constitutional challenge, including bills approved under Article 26 which are currently immune from challenge.

234

johnnyskeleton wrote: »

Applicable and highly persuasive, but not completely binding. So a new constitution means that we can re-litigate every previous constitutional challenge, including bills approved under Article 26 which are currently immune from challenge.

My problem exactly with Labour's proposal. Considering the attitudes of the current Supreme Court I think there would be a serious possibility that we could end up in a situation where we would have more restricted rights than we have at the moment, especially is the government is arguing for it.

Tom Young

234 wrote: »

Considering the attitudes of the current Supreme Court I think there would be a serious possibility that we could end up in a situation where we would have more restricted rights than we have at the moment, especially is the government is arguing for it.

What's wrong with the Supreme Court now?

234

Tom Young wrote: »

What's wrong with the Supreme Court now?

Absolutely nothing. They are just not as liberal as in the 1970s-1980s. They tend to be more deferential to the government in constitutional metters.

Hippo

234 wrote: »

Absolutely nothing. They are just not as liberal as in the 1970s-1980s. They tend to be more deferential to the government in constitutional metters.

Or perhaps just a little less enamoured of the 'living instrument' concept, and slow to adopt anything other than a fairly literal approach.

234

Hippo wrote: »

Or perhaps just a little less enamoured of the 'living instrument' concept, and slow to adopt anything other than a fairly literal approach.

Well if you look at the majority position on the seperation of powers in TD v Minister for Education it doesn't rely to much on the bare text but is very favourable to the position of the government. Maybe this might change a little once Murray is no longer Chief Justice. Anybody have predictions on who will be the next CJ?

Hippo

234 wrote: »

Well if you look at the majority position on the seperation of powers in TD v Minister for Education it doesn't rely to much on the bare text but is very favourable to the position of the government. Maybe this might change a little once Murray is no longer Chief Justice. Anybody have predictions on who will be the next CJ?

True to an extent, but you're rarely going to get any mandatory orders from the SC when it comes to the allocation of resources. I was thinking more of the Sinnott case.

No idea as to the next CJ!