The Constitution - a fundamental question.

IrishExpat

Please note: my background in law is zero to none, so please bear with this if it seems overly simplified.

A thought has hit me on what I see as one of the most basic premises of Irish (or an country's) law. Assuming that the constitution is the framework under which all legislation and key decisions are made.

Ok, wikipedia explains it better:

"... a set of fundamental principles or established precedents according to which a state or other organization is governed."

Now, would it be naive of me to assume that a Constitution only holds power or legitimacy when the majority of the citizens of a country accept it?

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What in theory or in practice would happen if, say 51% of the Irish people turned around and said 'this Constitution is fundamentally flawed, we demand a re-write'?
--

Again, my knowledge of law is not great, so please explain it to me at a layman level.

Procrastastudy

IrishExpat wrote: »

What in theory or in practice would happen if, say 51% of the Irish people turned around and said 'this Constitution is fundamentally flawed, we demand a re-write'?

This is exactly what happened in 1937.

More wikipedia for you. Note the two day reunification of Ireland!

johnnyskeleton

IrishExpat wrote: »

Please note: my background in law is zero to none, so please bear with this if it seems overly simplified.

A thought has hit me on what I see as one of the most basic premises of Irish (or an country's) law. Assuming that the constitution is the framework under which all legislation and key decisions are made.

Ok, wikipedia explains it better:

"... a set of fundamental principles or established precedents according to which a state or other organization is governed."

Now, would it be naive of me to assume that a Constitution only holds power or legitimacy when the majority of the citizens of a country accept it?

--
What in theory or in practice would happen if, say 51% of the Irish people turned around and said 'this Constitution is fundamentally flawed, we demand a re-write'?
--

Again, my knowledge of law is not great, so please explain it to me at a layman level.

If 51% wanted a rewrite, they should elect a government that will give them that rewrite to redraft it.

Then, that new draft is put to them again in a referendum and if 51% of people agree the old constitution is gone and the new one comes in.

But a snap opinion poll that 51% of people don't like the constitution as is does not invalidate it. That usually means that 51% of people don't like one or more provisions of the constitution, but do like the rest of it.

IrishExpat

Procrastastudy wrote: »

This is exactly what happened in 1937.

More wikipedia for you. Note the two day reunification of Ireland!

My old history teacher would come over and bang me on the head for not remembering this chapter.

The reason I bring this up is that I recently purchased a copy of 'Bunreacht na hEireann' and to me (guy on the street) it seems written for a different time and attitude (social, religious).

We 'are' a progressive country, I like to think, but in terms of so many things - abortion, fathers rights, religious references, no mention of accountability from our elected representatives ... all this and more has been covered before.

So, I wonder what mechanism, if any, is in place when a majority demand a rewrite.

Procrastastudy

It doesn't need a rewrite and frankly to do so would be unwise. We've the doctrine of unenumerated rights as just one reason not to rewrite it. Not to mention the other law that has come out of interpreting the Constitution - all of which would have to start again.

If you want to amend it then all that is needed is a referendum.

Also bear in mind the people who believe they are in the majority aren't always in the majority. The religious reference one is a typical example. I doubt the majority of Ireland would remove religious references from the Constitution.

ResearchWill

IrishExpat wrote: »

My old history teacher would come over and bang me on the head for not remembering this chapter.

The reason I bring this up is that I recently purchased a copy of 'Bunreacht na hEireann' and to me (guy on the street) it seems written for a different time and attitude (social, religious).

We 'are' a progressive country, I like to think, but in terms of so many things - abortion, fathers rights, religious references, no mention of accountability from our elected representatives ... all this and more has been covered before.

So, I wonder what mechanism, if any, is in place when a majority demand a rewrite.

Its simple the majority elect a party that will rewrite the constitution. While your opinon on the constitution being written in a different time is correct, any rewrite will only be a snap shot of what we think at that time, imagine if the constitution had been written in 1980's Ireland. A constitution is a living breathing document, being interpeted by the Courts on an ongoin basis.

I usually give the example of the US constitution, the exact same constitution allowed segregation and did not allow it, there are many more examples.

MagicSean

In the majority of cases it is not the constititution that is the problem, it is the way it has been interpreted by judges down through the years.

johnnyskeleton

MagicSean wrote: »

In the majority of cases it is not the constititution that is the problem, it is the way it has been interpreted by judges down through the years.

Or worse, by the media and commentators. So we end up having a refenedum
On children's rights that changes nothing of substance but possibly will lead to increased litigation. But by passing the referendum people can stop thinking about children's rights and not worry about the issue anymore.

NoQuarter

I, for one, am all for a complete rewrite.

Procrastastudy

NoQuarter wrote: »

I, for one, am all for a complete rewrite.

Really? Why and how often do you do it?

MagicSean

Procrastastudy wrote: »

Really? Why and how often do you do it?

To remove the religion, gender discrimination and redefine how we are governed. As often as necessary.

Procrastastudy

MagicSean wrote: »

To remove the religion, gender discrimination and redefine how we are governed. As often as necessary.

Why can't that be done through a referendum? Why do you think the majority would want religion removed?

NoQuarter

Procrastastudy wrote: »

Really? Why and how often do you do it?

Its 75 years old, Ireland was a different place back then. We need to modernise and start fresh. The Constitution is still open to historical interpretation. We should learn from all the mistaked made throughout the last 75 years and write a much better one.

How often? Doesnt matter to me. Either way, I think we need one now and thats all im considering.

Procrastastudy

NoQuarter wrote: »

Its 75 years old, Ireland was a different place back then. We need to modernise and start fresh. The Constitution is still open to historical interpretation. We should learn from all the mistaked made throughout the last 75 years and write a much better one.

How often? Doesnt matter to me. Either way, I think we need one now and thats all im considering.

I think it would be a monumental task which results in a document almost identical to the one we now have. Interesting that people feel its out of date after only 75 years.

NoQuarter

Well the '22 one was out of date in 15. I just think we have moved on as a country now and need a new one. Actually the task is already under hand, there are consitutional discussions happening at the moment through the office of An Taoiseach.

Procrastastudy

NoQuarter wrote: »

Well the '22 one was out of date in 15. I just think we have moved on as a country now and need a new one. Actually the task is already under hand, there are consitutional discussions happening at the moment through the office of An Taoiseach.

The '22 constitution was totally different, it's more likely that something flawed would fall in a relatively short period. Those discussions are to rewrite the Constitution? I find that very odd. I would have thought an edit of certain aspects, a larger amendment would the the most that is necessary.

NoQuarter

Procrastastudy wrote: »

The '22 constitution was totally different, it's more likely that something flawed would fall in a relatively short period. Those discussions are to rewrite the Constitution? I find that very odd. I would have thought an edit of certain aspects, a larger amendment would the the most that is necessary.

As far as I know, I stand to be corrected but they are discussing constitutional topics every week.

Peregrinus

The people can endorse a partial or complete rewrite of the Constitution through a referendum. They won't get the referendum, though, unless they elect a Dail which will decide to have one.

Like Procrastastudy, I wouldn't favour a complete rewrite. You'd be throwing a great deal of solid democratic progressive baby out with the pietistic bathwater. If you think the focus of a rewrite would be getting rid of the bits you don't like, you are mistaken; it would be getting rid of the bits politicians find irksome.

johnnyskeleton

Peregrinus wrote: »

The people can endorse a partial or complete rewrite of the Constitution through a referendum. They won't get the referendum, though, unless they elect a Dail which will decide to have one.

Like Procrastastudy, I wouldn't favour a complete rewrite. You'd be throwing a great deal of solid democratic progressive baby out with the pietistic bathwater. If you think the focus of a rewrite would be getting rid of the bits you don't like, you are mistaken; it would be getting rid of the bits politicians find irksome.

Good point. While selling a new constitution with references to god removed, the people might not notice that important rights such as free speech, fair trials and the right to liberty are being diminished. Then distract everyone with a controversial abortion provision with a dramatic climb down at the last minute to keep people from noticing the other parts.

If you think about how much stuff is thrown up at each election, in particular European ones, voting on one change can be difficult. Voting on hundreds of changes to 50 odd provisions would be madness.

Manach

First, whilst the reference to Religion might seem dated at least it reflected a committement to some sense of social mores and morality existing in a universal sense, with any attempt to remove such will provoke a strong counter-reaction.
Second, the Irish Constitution has held up well in regard basic rights, when compared to the ECHR there have been in very few acts in comparision to other country's.
Finally, given the poor knowledge of the government in regard the handling of how a constitution operates - especially the AG and her willful ignoring the key underpinings of the McKenna case - then a typical government pushing a new one would hardly fill one with confidence.

ezra_pound

Do you find art 44 repugnant to modern Irish views? What's wrong with religion in constitution?
What gender discrimination?


Religion Article 44 1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion. 2. 1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. 2° The State guarantees not to endow any religion. 3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. 4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. 5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes. 6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensatio

MagicSean wrote: »

To remove the religion, gender discrimination and redefine how we are governed. As often as necessary.

valleyoftheunos

Procrastastudy wrote: »

I think it would be a monumental task which results in a document almost identical to the one we now have. Interesting that people feel its out of date after only 75 years.

Ireland has changed utterly since our constitution, the country, its people and many of our values have chaged utterly in just the last 20 years. That is illustrated by the amount of amendments we have had, over 30.

It's a document for a different people and I feel that full rewrite would not be a bad idea. Of course it would be a massive task and would take years but that is not a reason to shy away from it.

NoQuarter wrote: »

Its 75 years old, Ireland was a different place back then. We need to modernise and start fresh. The Constitution is still open to historical interpretation. We should learn from all the mistaked made throughout the last 75 years and write a much better one.

How often? Doesnt matter to me. Either way, I think we need one now and thats all im considering.

+1

Peregrinus

Bear in mind that we have a whole structure of rights, recognised and defended by the courts, that rests on the constitution. Ditch the constitution and adopt a new one, and you reset all that - back to square one. So you don’t have a right to marital privacy (and therefore a right to access contraception) unless the new constitution explicitly says so, or unless it contains language which - when a suitable case comes forward - the courts decide give rise to such a right. A woman facing a real and substantial risk to her life will have no right to an abortion, unless we put that in the new constitution. You don’t have a right to work and a right to strike any more unless, again, that is specified in the new constitution. You don’t have a right to bodily integrity, and a right not to have your health endangered by the state. Or any right to individual privacy. Or any right to travel.

There are all “unenumerated personal rights” which are not explicitly stated in the current constitution, but which the courts have identified and which they hold to be constitutionally protected under art. 40.3. Ditch art. 40.3 and all these rights disappear. And they do not reappear unless the new constitution sets them out explicitly, or unless it looks all but identical to the current constitution - in which case, what’s the point of a rewrite?

If there are aspects of the current constitution that you think are objectionable or outdated, by all means remove them by referendum. But ditching the constitution and starting again because you find the articles on religion and the family out-of-date is like demolishing your house and rebuilding it in order to install double glazing in the upstairs bedroom.

NoQuarter

Article 1: Nothing in this Constitution invalidates the unernumerated rights grounded upon the 1937 Constitution unless expressly provided for in this Consitution.

Problem solved.

Peregrinus

NoQuarter wrote: »

Article 1: Nothing in this Constitution invalidates the unernumerated rights grounded upon the 1937 Constitution unless expressly provided for in this Consitution.

Problem solved.

No, problem created. Because now you've got two constitutions, the 1937 Constitution and the (let's say) 2013 Constitution, and litigants claiming infringment of their rights can now ground their claims in either or (for good measure) both. And since the unenumerated rights have been held to be grounded in "the Christian and democratic nature of the State" you've abandoned in Art. 1 the objective of removing religious ideology from the Constitution. In which case, what is the point of the new Constitution?

Besides, it makes little sense to do this unless you are also going to preserve the enumerated rights - that, presumably, will be Art 2. If the point of a new constitution is to supersede the old constitution, starting it off by preserving and entrenching the old constitution, or parts of it, suggests that the project has been derailed at an early stage.

This is the recipe for a legal and constututional nightmare. I'm still waiting for someone to explain why amending the problematic parts of the 1937 Constitution - the obvious course - is not a good idea.

MagicSean

Procrastastudy wrote: »

Why can't that be done through a referendum? Why do you think the majority would want religion removed?

I like to thing the majority would make the right decision.

Manach wrote: »

First, whilst the reference to Religion might seem dated at least it reflected a committement to some sense of social mores and morality existing in a universal sense, with any attempt to remove such will provoke a strong counter-reaction.
Second, the Irish Constitution has held up well in regard basic rights, when compared to the ECHR there have been in very few acts in comparision to other country's.
Finally, given the poor knowledge of the government in regard the handling of how a constitution operates - especially the AG and her willful ignoring the key underpinings of the McKenna case - then a typical government pushing a new one would hardly fill one with confidence.

Yes you have rights if you are in a family with heterosexual married parents. As you move away from that "norm" your rights are eroded quite severely.

Second, it has become evident in the last decade that the catholic church is pretty empty as regard morals or social responsability. I think we could find away to dedicate ourselves to morality without having to rely on the dying control mechanism which is religion.

ezra_pound wrote: »

Do you find art 44 repugnant to modern Irish views? What's wrong with religion in constitution?
What gender discrimination?


Religion Article 44 1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion. 2. 1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen. 2° The State guarantees not to endow any religion. 3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. 4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school. 5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes. 6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensatio

ironically the article on religion is the least discriminatory other than the first line and a half. What i object to goes throughout the Constitution from the preamble to the focus on religious marriage and the catholic definition of a family. It can be said that this is down to interpretation as opposed to wording but these interpretations that have been given to things like the family unit are based in the backward past.

MagicSean

Peregrinus wrote: »

Bear in mind that we have a whole structure of rights, recognised and defended by the courts, that rests on the constitution. Ditch the constitution and adopt a new one, and you reset all that - back to square one. So you don’t have a right to marital privacy (and therefore a right to access contraception) unless the new constitution explicitly says so, or unless it contains language which - when a suitable case comes forward - the courts decide give rise to such a right. A woman facing a real and substantial risk to her life will have no right to an abortion, unless we put that in the new constitution. You don’t have a right to work and a right to strike any more unless, again, that is specified in the new constitution. You don’t have a right to bodily integrity, and a right not to have your health endangered by the state. Or any right to individual privacy. Or any right to travel.

There are all “unenumerated personal rights” which are not explicitly stated in the current constitution, but which the courts have identified and which they hold to be constitutionally protected under art. 40.3. Ditch art. 40.3 and all these rights disappear. And they do not reappear unless the new constitution sets them out explicitly, or unless it looks all but identical to the current constitution - in which case, what’s the point of a rewrite?

If there are aspects of the current constitution that you think are objectionable or outdated, by all means remove them by referendum. But ditching the constitution and starting again because you find the articles on religion and the family out-of-date is like demolishing your house and rebuilding it in order to install double glazing in the upstairs bedroom.

That's just scaremongering. if the original article from the old article has been replaced with a similar one with different wording then the rights can easily be transferred. Sure there will be challenges but it wouldn't be a case of all rights being ceased because the exact wording has changed. If that were the case then the same situation would arise wih referendums.

Most things in the constitution are outdated, underused or made redundant due to legislation. To use your house analogy, the whole foundation is based on a country emerging from violent conflict declaring religious and political freedom from an opressor and the structure and contents of it reflect that. Perhaps now it is time to build a constitution on a more solid foundation of human rights.

IRLConor

Out of curiosity, does anyone know if there's any side effects from simply deleting Article 44 (1) and leaving 44 (2) alone?

As I can see 44 (1) is the state expressing a particular position on religion which I believe can do no good and a lot of harm. The rest of Article 44 seems quite reasonable to me.

Among my circle of friends and acquaintances, there'd be considerable support for removing the overtly religious bits (the preamble, 44 (1) and the incidental references to god in 6 (1) and the various oaths) but I'm not sure if those views would be widely-held enough to pass a referendum.

johnnyskeleton

johnnyskeleton wrote: »

Good point. While selling a new constitution with references to god removed, the people might not notice that important rights such as free speech, fair trials and the right to liberty are being diminished. Then distract everyone with a controversial abortion provision with a dramatic climb down at the last minute to keep people from noticing the other parts.

Do we even have free speech in Ireland?

I always thought we didn't, and it was assumed we did because of all the US stuff we get over here?

Peregrinus

MagicSean wrote: »

That's just scaremongering. if the original article from the old article has been replaced with a similar one with different wording then the rights can easily be transferred. Sure there will be challenges but it wouldn't be a case of all rights being ceased because the exact wording has changed. If that were the case then the same situation would arise wih referendums.

But, remember, the unspecified personal rights arise out of the "Christian and democratic nature of the State". If we have a new constiition which doesn't mention Christianity, then even if that Constitution replicates the provisions of Art 40.3 which allow the courts to identify unenumerated rights, there can be no presumption that the same unenumerated rights arise. At the very least, you have to wait for a string of cases to establish that the rights previously recognised still arise out of the new Constitutional dispensation, even though it has a fundamentally different philosophical basis. It will be decades before you know for sure which rights have survived and which haven't.

MagicSean wrote: »

Most things in the constitution are outdated, underused or made redundant due to legislation. To use your house analogy, the whole foundation is based on a country emerging from violent conflict declaring religious and political freedom from an opressor and the structure and contents of it reflect that. Perhaps now it is time to build a constitution on a more solid foundation of human rights.

Most things? Seriously? Have you read the Constitution lately?

Plus, I think you need to remember that it was the 1922 Constitution which emerged in the circumstances you describe. The 1937 was a considerably more mature document which, on the whole, has served us pretty well.

Peregrinus

Deleted User wrote: »

Do we even have free speech in Ireland?

I always thought we didn't, and it was assumed we did because of all the US stuff we get over here?

There's a qualified guarantee of "the right of the citizens to express freely their convictions and opinions" in art. 40.6.

MagicSean

Peregrinus wrote: »

But, remember, the unspecified personal rights arise out of the "Christian and democratic nature of the State". If we have a new constiition which doesn't mention Christianity, then even if that Constitution replicates the provisions of Art 40.3 which allow the courts to identify unenumerated rights, there can be no presumption that the same unenumerated rights arise. At the very least, you have to wait for a string of cases to establish that the rights previously recognised still arise out of the new Constitutional dispensation, even though it has a fundamentally different philosophical basis. It will be decades before you know for sure which rights have survived and which haven't.

I'm sure you can replace the word Christianity with humanity and still have a pretty stable underlying philosophy. You are labouring under the asumption that people morals should be based on christian values whereas I am of the belief that christianity should be based on societies values.

And nobody said it would be a quick and easy process

Peregrinus wrote: »

Most things? Seriously? Have you read the Constitution lately?

Yes, there are wuite a few articles which act only to confer a right to legislate and administer as long as they stay within certain guidelines, particularly with regard to the running of the state. The whole area on rights is outdated and largely discriminates against people.

Peregrinus wrote: »

Plus, I think you need to remember that it was the 1922 Constitution which emerged in the circumstances you describe. The 1937 was a considerably more mature document which, on the whole, has served us pretty well.

True, but the influence can still be seen throughout.

schemingbohemia

There is currently a constitutional convention going on

http://www.thejournal.ie/constitutional-convention-dublin-696238-Dec2012/

Whether it will actually come up with anything useful given the narrow focus it has is another question.

Procrastastudy

I don't see how anything raised in this thread couldn't be dealt with by an amendment. I also don't see how changing attitudes means we need a re-write. The Constitution is a 'living breathing document'. If historic interpretation is an issue then surely it's easier to deal with that rather than rewrite the Constitution?

The US Constitution has been around a tad longer than ours and seems to work for them. Perhaps doing away with it all together and simply dealing with issues through acts? Seems to be if you're going to rewrite it every decade or so then it's of no more importance than a piece of legislation.

valleyoftheunos

Procrastastudy wrote: »

I don't see how anything raised in this thread couldn't be dealt with by an amendment. I also don't see how changing attitudes means we need a re-write. The Constitution is a 'living breathing document'. If historic interpretation is an issue then surely it's easier to deal with that rather than rewrite the Constitution?

The US Constitution has been around a tad longer than ours and seems to work for them. Perhaps doing away with it all together and simply dealing with issues through acts? Seems to be if you're going to rewrite it every decade or so then it's of no more importance than a piece of legislation.

The Us Constitution differs in that it is a much shorter document that in many ways was designed to limit government rather than enable it. It is also worth remembering that each individual state in the US has its own constitution most of which are much longer and detailed.

Our Constitution sets out to do much more than the american one and has been broadly successful. However I personally feel it is out dated and out moded. increasingly we see questions come before the Supreme court that the constitution is unable to deal with because the issues simply did not and could not exist when the constitution was written.

The constitution struggles to deal with issues such as those relating to frozen embros and transgender people but it is also finding itself increasingly out of step with the changing mores and beliefs of the population. attitudes to Homosexuality and gay marriage is a perfect example, 30 years ago it was illegal, then it was merely taboo, then it was socially acceptable and now increased numbers of people believe gay people should be allowed to marry, not just enter a civil union.

This tells us that not only has our attitude towards homosexuality changed but also that our idea of the very concept of marriage is changing to one which is no longer reflected by our constitution. 75 years ago a wedding and a marriage was something that happened in a church between a man and a woman. Now it is something that two people chose to do as and where they see fit. We have changed, the constitution has not been able to keep up with us.

I'll accept the point that these issues can be dealt with by amendment but by so doing we risk turning the constitution into an old sock. an old sock that has become full of holes and has been mended, repaired and darned over and over again until it reaches the point where it might look like a sock, might be properly called a sock but can't and shouldn't be actually worn as a sock lest it fall apart.

jill_valentine

Procrastastudy wrote: »

I think it would be a monumental task which results in a document almost identical to the one we now have. Interesting that people feel its out of date after only 75 years.

Even as constitutions go, I don't feel ours has aged well.

If a rewrite was an option tomorrow, what core principles do you think it has that would make it worth preserving, rather than scrapping in favour of something that has learned from its lessons?

A do-over seems to me the best way to undo all the fundamental weirdness Dev and friends wove into it. In the meantime, I don't think you'll find many gay, female or non-Christian Irish people with any sentimental attachment to the thing.

jill_valentine

Procrastastudy wrote: »

I don't see how anything raised in this thread couldn't be dealt with by an amendment. I also don't see how changing attitudes means we need a re-write. The Constitution is a 'living breathing document'. If historic interpretation is an issue then surely it's easier to deal with that rather than rewrite the Constitution?

In any country other than this one, perhaps. Change worth making happens at a glacial pace here though, and as the poster above has pointed out, the Constitution has done a fairly poor job off keeping up. It's not simply a matter of reflecting some fad, but in unravelling the weirdly of-their-time mechanisms that were installed in it to start with.

Procrastastudy

valleyoftheunos wrote: »

The Us Constitution differs in that it is a much shorter document that in many ways was designed to limit government rather than enable it. It is also worth remembering that each individual state in the US has its own constitution most of which are much longer and detailed.

Our Constitution sets out to do much more than the american one and has been broadly successful. However I personally feel it is out dated and out moded. increasingly we see questions come before the Supreme court that the constitution is unable to deal with because the issues simply did not and could not exist when the constitution was written.

Such as? If it's not in the Constitution then all the SC needs do is wait for the Oireachtas to legislate as happens in the UK and US. (As per your valid point that the US constitution is much shorter)

valleyoftheunos wrote: »

The constitution struggles to deal with issues such as those relating to frozen embros and transgender people but it is also finding itself increasingly out of step with the changing mores and beliefs of the population. attitudes to Homosexuality and gay marriage is a perfect example, 30 years ago it was illegal, then it was merely taboo, then it was socially acceptable and now increased numbers of people believe gay people should be allowed to marry, not just enter a civil union.

This tells us that not only has our attitude towards homosexuality changed but also that our idea of the very concept of marriage is changing to one which is no longer reflected by our constitution. 75 years ago a wedding and a marriage was something that happened in a church between a man and a woman. Now it is something that two people chose to do as and where they see fit. We have changed, the constitution has not been able to keep up with us.

I'm not sure that anywhere in the Constitution deals with any of the points above it's been interpreted to under the values of the time. Even if it does an amendment would suffice. The other issue is many people, in regard to civil unions, believe they are in the majority. I'm not convinced they are. The Constitution should not remove the special protections on marriage if the majority don't want it removed.

valleyoftheunos wrote: »

I'll accept the point that these issues can be dealt with by amendment but by so doing we risk turning the constitution into an old sock. an old sock that has become full of holes and has been mended, repaired and darned over and over again until it reaches the point where it might look like a sock, might be properly called a sock but can't and shouldn't be actually worn as a sock lest it fall apart.

Where as I think rewriting the thing more than twice in a hundred years relegates it to mere legislation.

Procrastastudy

jill_valentine wrote: »

Even as constitutions go, I don't feel ours has aged well.

If a rewrite was an option tomorrow, what core principles do you think it has that would make it worth preserving, rather than scrapping in favour of something that has learned from its lessons?

Me personally? I think the current one is pretty much on the money, obviously. That said I would keep special protections on marriage, although I would amend the Constitution to override the common law issues around gay marriage. I would keep the abortion prohibition but I would resolve the legislative issues.

jill_valentine wrote: »

A do-over seems to me the best way to undo all the fundamental weirdness Dev and friends wove into it. In the meantime, I don't think you'll find many gay, female or non-Christian Irish people with any sentimental attachment to the thing.

Such as?

jill_valentine wrote: »

In any country other than this one, perhaps. Change worth making happens at a glacial pace here though, and as the poster above has pointed out, the Constitution has done a fairly poor job off keeping up. It's not simply a matter of reflecting some fad, but in unravelling the weirdly of-their-time mechanisms that were installed in it to start with.

I don't think Ireland changes any slower than most of the western world. For all this talk that we're a state of God bothering, Victorian moralists, I've yet to meet a creationist and am more than familiar with Copperface Jacks. The types of reform needed in out society would never make it in to a full rewrite!

valleyoftheunos

Procrastastudy wrote: »

I'm not sure that anywhere in the Constitution deals with any of the points above it's been interpreted to under the values of the time. Even if it does an amendment would suffice. The other issue is many people, in regard to civil unions, believe they are in the majority. I'm not convinced they are. The Constitution should not remove the special protections on marriage if the majority don't want it removed.

I can't agree with you on that point, the special protection on marriage is also a limitation on other peoples rights. Limiting the rights of a minority because the majority things its a good idea is not necessarily right, in fact history has repeatedly shown that it can be a fundamental injustice.

Procrastastudy wrote: »

Where as I think rewriting the thing more than twice in a hundred years relegates it to mere legislation.

That might be your opinion but it's misguided and ill-considered. Redrafting the constitution would be a massive undertaking and would of course require a referendum. Equally legislation isn't defined by the frequency with which it is written or rewritten but rather by who writes it and for what purpose.

There's a remarkable trend in this thread where people seem to assume that there is a version of the Constitution that could be written that would reflect "modern values" that somehow most people would agree with.

You are VASTLY underestimating the deeply conservative core of this country. Marriage, reproductive rights and innumerable other issues would be divisive in a way we haven't seen since the vitriolic debates around abortion in the 80's.

When the current Constitution was written you are assuming it was written to exactly reflect the opinions of the drafters. Andrew McCarthy and Dermot Keogh's excellent work amply demonstrates that they fought off pressure from the Church and others.

You have to remember that this Constitution was voted upon and had to be passed. There were and are political realities that have to be accepted. Anyone who thinks that a Constitution allowing reproductive rights and gay marriage would pass in this country right now needs to get a dose of reality real quick.

johnnyskeleton

LaughingJoker91 wrote: »

Do we even have free speech in Ireland?

I always thought we didn't, and it was assumed we did because of all the US stuff we get over here?

Art 40.6.1.i. It is subject to exception such as public order, the right to a good reputation and (somewhat outsatedly) blasphemy laws.

It's not as strong as the us (sometimes the is is described as free speech but here free expression).

You might also be thinking of the right to silence in the us - here, we only have the right against self incrimination which is mostly the same but not as strong.

valleyoftheunos

Deleted User wrote: »

There's a remarkable trend in this thread where people seem to assume that there is a version of the Constitution that could be written that would reflect "modern values" that somehow most people would agree with.

You are VASTLY underestimating the deeply conservative core of this country. Marriage, reproductive rights and innumerable other issues would be divisive in a way we haven't seen since the vitriolic debates around abortion in the 80's.

When the current Constitution was written you are assuming it was written to exactly reflect the opinions of the drafters. Andrew McCarthy and Dermot Keogh's excellent work amply demonstrates that they fought off pressure from the Church and others.

You have to remember that this Constitution was voted upon and had to be passed. There were and are political realities that have to be accepted. Anyone who thinks that a Constitution allowing reproductive rights and gay marriage would pass in this country right now needs to get a dose of reality real quick.

Fair points all but none of them mean that these issues shouldn't be addressed in a constitutional context.

C14N

I know hating the Catholic Church is a highly popular passtime these days but it seems like it's an awful lot of effort to re-write an entire constitution just so we can remove the word "God". How do theses religious references actually affect anybody in real life?

Also would be a bit optimistic that it would even pass in a country where over 85% of citizens are self-declared Catholics (and where many of the smaller irreligious group are surely under 30 and statistically a lot less likely to vote).

Procrastastudy

valleyoftheunos wrote: »

I can't agree with you on that point, the special protection on marriage is also a limitation on other peoples rights. Limiting the rights of a minority because the majority things its a good idea is not necessarily right, in fact history has repeatedly shown that it can be a fundamental injustice.

I disagree. Secular marriage available to two people. Job done.

valleyoftheunos wrote: »

That might be your opinion but it's misguided and ill-considered. Redrafting the constitution would be a massive undertaking and would of course require a referendum. Equally legislation isn't defined by the frequency with which it is written or rewritten but rather by who writes it and for what purpose.

Careful now - I've not attacked you only your opinions. In this instance my opinion is just as valid as yours. This thread has highlighted the issues with a whole sale rewrite. The danger is people would get fixated on one issue, probably God, while various other freedoms were curtailed.

EDIT: Can I also ask - I assume all the main issues are from Arts 40-44 or are there issues earlier on? Surely if the issues just surround personal rights you could just incorporate the ECHR into the Constitution as a replacement to Arts 40 -44 as was suggested, I believe, in the early noughties. Or indeed amend this section in other ways.

valleyoftheunos

valleyoftheunos wrote: »

Fair points all but none of them mean that these issues shouldn't be addressed in a constitutional context.

I never said they shouldn't. I said that doing it in one stroke would not work. In fact it would likely hinder each individual cause.

The simple fact is that our Constitution works. Why throw it away so easily when it can be changed to suit us when needs be?

valleyoftheunos

Procrastastudy wrote: »

I disagree. Secular marriage available to two people. Job done.

Is that your suggested amendment? I'm sure all our elected Legislators wish amending our constitution was as simple as that.

Procrastastudy wrote: »

Careful now - I've not attacked you only your opinions. In this instance my opinion is just as valid as yours. This thread has highlighted the issues with a whole sale rewrite. The danger is people would get fixated on one issue, probably God, while various other freedoms were curtailed.

I was explicitly addressing your opinion not you, no offence was intended. Are you suggesting that the drafters are likely to fixate on removing God from our constitution and fail in their duty to include and address our freedoms? There are of course dangers involved in rewriting the constitution but no one has cared to address the dangers of amending our current constitution ad nauseum, specifically as I pointed the possibility that after repeated changes it fails to stand together as a single document. A constitution is not just a collection of articles and rights, it must be capable of being read and understood as one document.

Deleted User wrote: »

I never said they shouldn't. I said that doing it in one stroke would not work. In fact it would likely hinder each individual cause.

I was merely providing a counterpoint, not trying to put words in your mouth.

Deleted User wrote: »

The simple fact is that our Constitution works. Why throw it away so easily when it can be changed to suit us when needs be?

Whether it works or not very much depends on who you are, does it work for single parents, particularly single fathers? Does it work for children? does it work for expectant mothers who know their child will not survive to term but must wait to miscarry?

My point is that there are issues upon issues upon issues which could easily be the subject of an amendment, in my opinion there is a strong case for drafting a new constitution that addresses all the issues, fits the nation that we are now and hangs together as a holistic document.

jill_valentine

Deleted User wrote: »

The simple fact is that our Constitution works. Why throw it away so easily when it can be changed to suit us when needs be?

For who? For you, perhaps, but there are vast chunks of Irish society that it leaves in difficult or vulnerable positions. Perhaps more of us than it actually serves properly.

For married male heterosexuals, I'm sure it's grand, but the rest of us are often either left in weird limbos by it or actively damaged by some of the ideas woven into the original text. It's not a question of making up some off the cuff version of it to suit some trendy contemporary agenda, but of getting out from under the intrusive agenda of the original drafters. It was not a sacred document. It's not just that it failed to age well, it wasn't even written well enough to age gracefully. It's time to have a serious think about why we're hanging on to it as if it's inherently good or worthwhile.

McQuaid's day is gone and we've seen what it resulted in for the people, so it's high time we started eyeing the drawing board for something better.

MagicSean

Procrastastudy wrote: »

I don't see how anything raised in this thread couldn't be dealt with by an amendment. I also don't see how changing attitudes means we need a re-write. The Constitution is a 'living breathing document'. If historic interpretation is an issue then surely it's easier to deal with that rather than rewrite the Constitution?

The US Constitution has been around a tad longer than ours and seems to work for them. Perhaps doing away with it all together and simply dealing with issues through acts? Seems to be if you're going to rewrite it every decade or so then it's of no more importance than a piece of legislation.

By decade I assume you mean 75 years?

The US system of governance is a mess. The senate is held by the republicans and the presidency by the democrats. The whole country is at a stalemate when it comes to governance. You also have the issue of the right to posess a weapon, a right enshrined in wartime but now defended with no reason other than because it is in the constitution.

C14N wrote: »

I know hating the Catholic Church is a highly popular passtime these days but it seems like it's an awful lot of effort to re-write an entire constitution just so we can remove the word "God". How do theses religious references actually affect anybody in real life?

Also would be a bit optimistic that it would even pass in a country where over 85% of citizens are self-declared Catholics (and where many of the smaller irreligious group are surely under 30 and statistically a lot less likely to vote).

Self declared by mammy more like and under duress. I know of one couple that were afraid not to mark themselves as Catholic in case they had trouble getting their kids into a school in the are as a result. There's no chance that 85% of the country are practicing catholics. And I'd be surprised if even a quarter believed in their backward position on abortion, gay rights, contraception and.

How do they affect people in real life? A family who isn't married have less rights than a married couple. They are entitled to less benefits. Women can be forced to give birth to a dying child just so a life isn't terminated in the womb. People are forced to live out lives of pain and degradation instead of being able to choose when to die. I could go on but if you dont see it by now then you just dont want to.

Deleted User wrote: »

I never said they shouldn't. I said that doing it in one stroke would not work. In fact it would likely hinder each individual cause.

The simple fact is that our Constitution works. Why throw it away so easily when it can be changed to suit us when needs be?

It only works if you conform to certain criteria

Procrastastudy

MagicSean wrote: »

By decade I assume you mean 75 years?

No I mean every decade - what's to stop us rewriting it every ten years, every year or even more frequently. A constitution is supposed to be something that lays down the fundamental. Those fundamentals don't, and haven't changed over 75 years.

On gay marriage - I've had a quick look through - I'm still trying to find the constitutional prohibition on it.

On the rights of non-married couples - my view is the least you can do if you are going to bring children into the world - children that the entire state supports, you should enter into a legal union of some sort. Now again that doesn't have to be catholic marriage but it's only a minor change from what we have now and easily handled in an amendment.

MagicSean wrote: »

The US system of governance is a mess. The senate is held by the republicans and the presidency by the democrats. The whole country is at a stalemate when it comes to governance. You also have the issue of the right to posess a weapon, a right enshrined in wartime but now defended with no reason other than because it is in the constitution.

The second amendment farce is a typical example of crap interpretation rather than an issue with the constitution itself. I have to agree re US system of governance. That said we don't, in my view, have such an issue. We've the British parliamentary system which works quite well.

EDIT: I still think we're all only arguing over 4 articles here.

MagicSean

Procrastastudy wrote: »

No I mean every decade - what's to stop us rewriting it every ten years, every year or even more frequently. A constitution is supposed to be something that lays down the fundamental. Those fundamentals don't, and haven't changed over 75 years.

On gay marriage - I've had a quick look through - I'm still trying to find the constitutional prohibition on it.

On the rights of non-married couples - my view is the least you can do if you are going to bring children into the world - children that the entire state supports, you should enter into a legal union of some sort. Now again that doesn't have to be catholic marriage but it's only a minor change from what we have now and easily handled in an amendment.



The second amendment farce is a typical example of crap interpretation rather than an issue with the constitution itself. I have to agree re US system of governance. That said we don't, in my view, have such an issue. We've the British parliamentary system which works quite well.

EDIT: I still think we're all only arguing over 4 articles here.

You pointed to the American Constitution as one that has stood the test of time but admit that the system of governance and openess to interpretation are a farce. So what exactly in the American Constitution is there that has stood the test of time?

I'm not sure why exactly you think a legal union makes two parents better at raising children. The only benefits people in a legal union have are the benefits granted to them by law and not granted to others because of the constitution.