[Constitutional Convention][8][2 Nov 2013] The Offence Of Blasphemy

Phoebas

Palmach wrote: »

Most of the succesful coun tries in the world are majority Christian and have some references to Christianity in their constitution or have established religions.

Most of the 'successful' countries in the world are also majority white - but I wouldn't be so arrogant to suggest a causal link between race and success.

oscarBravo

Cody Pomeray wrote: »

The preamble is declaratory and is not justiciable, it serves as the prism through which the constitution is to be viewed.

Yes, that's the problem. Viewing things through prisms creates distortion. A secular society should have a secular constitution.

Also, it's not just the preamble. The constitution requires certain office holders to swear an oath in the presence of a deity they may not believe in; it also requires that the President and members of the judiciary seek guidance from the Christian god.

Whether you like it or not, liberal western values are constructed from the Christian tradition.

Liberal western values are not constructed exclusively from the Christian tradition. To say otherwise is to suggest that liberal western values are incompatible with secular humanism.

All of which is irrelevant to the wider point that it's possible to understand how our modern values have evolved from Christian morality without requiring that we permanently bind ourselves to that Christian ethos, and it's possible to remove religious references from the constitution without leaving superior court judges unable to know right from wrong.

Dave!

Cody Pomeray wrote: »

You're potentially correct, but only correct when taking an objective and historical view of Christianity, from the ante Nicene theologians to Pope Francis! Mercifully, the courts, along with all right minded adults, reject such approaches.

We live in the year 2013 (rare truth!).

The current moral paradigm (liberalism? Irishism? European socialism? secularism?) is itself a secondary paradigm to the relatively fundamental Christian tradition regarding the dignity and liberty of the individual in the Irish constitution, drawn from our preamble, without which there is scarce clarity.

As bad as moral relativism might be, at least we are not stuck with vague, secular predicates.

How do the countries with secular Constitutions manage to function?

Nodin

Cody Pomeray wrote: »

I'm really not sure why you felt the need to regurgitate the preamble; surely we already know about the references to Christianity, which is what was being discussed

.

....because the case you present and the reality differ remarkably.

Palmach

Phoebas wrote: »

Most of the 'successful' countries in the world are also majority white - but I wouldn't be so arrogant to suggest a causal link between race and success.

But there is. Most poor countries are black majority. Could be a coincidence.

However let's take another barometer. Here is the Mo Ibrahim index of African countries http://www.moibrahimfoundation.org/interact/ Note the top countries.

K-9

Cody Pomeray wrote: »

Couldn't agree with this more.

So many people think 'religion' and say the first thing that comes into their heads, like a case of mental diarrhea.

Do people understand how many 'liberal-friendly' constitutional cases have been won because the courts veered away from a literal, unforgiving, merciless interpretation of the constitution, to one where Christian charity and mercy were persuaded to the fore?

In the Supreme Court judgement on Marie Fleming's right to die, the Chief Justice specifically earmarked the Christian ethos of the Irish Constitution as one of the components guaranteeing to the citizen (or in fact, the visitor from abroad, in most cases) "a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual".

It would be exhausting to try and list all of the occasions when the Supreme Court, in particular, has invoked the Christian ethos of the constitution in guaranteeing personal freedoms and rights. None stands out moreso than the words of Judge Henchy in David Norris's 1984 challenge. In one of the most significant judgements of modern times, and drawing the Christian nature of the constitution, Henchy recalled the Christian opposition to homosexuality and then, remarkably, said "With respect, I do not think that should be treated as a guiding consideration"

He then expounded with memorable eloquence why the Christian ethos of the constitution (i.e. mercy and charity) would not permit an "inhumane" interference by the state, or "intolerance, harassment, blackmail and other forms of cruelty at the hands of those who would batten on the revulsion that such acts elicit in most heterosexuals".

So you can see, it is important to underline how great a help the Christian ethos of the constitution has been to the values of liberal society. Suggesting we remove all references to our Christian ethos is reactionary and foolish.

That said, I would be in favour of the removal of references to blasphemy, because I can think of no legitimate function for it, whereas it causes confusion and some deserved offence.

You seem to be giving Christian ethos credit for solving problems that it contributes a big part in making big deals!

Take your homosexuality point, there's a reason why Ireland was very late to the game in legalising homosexuality, divorce and has very strict abortion laws.

If a judge liberalised our abortion laws based on Christian ethos tomorrow you would give Christianity credit for that, but that's ignoring the major flaw in that argument, Catholicism played a major part in creating the problem in the first place!

Cody Pomeray

Dave! wrote: »

How do the countries with secular Constitutions manage to function?

Well they have a different system to ours. The Irish constitution is a pretty unique beast because the courts are bound by precdent, i.e. we are a common law jurisdiction, and secondly because of its ownership at the hand of the People alone, which is quite unique in the common law world.

Nevertheless, we might tentatively compare the Irish constitution with the British constitution, which does have an underlying Christian ethos in terms of the established Church of England, the Lords Spiritual, and case law which similarly draws on the Christian ethos as a way of protecting individual dignity and freedoms.

We can't compare ourselves directly to the French, that's a completely different legal system, and not a particularly attractive one.

Nevertheless, I am not saying that it is impossible for us to have a desirable constitution without any reference to Christianity. No, that is not what I say. I merely say that (i) it would be cumbersome to change and (ii) that in tweaking it around, you risk wiping out some of the unenumerated rights, especially as they relate to the freedom and dignity of the individual, and which are not codified.

In case you think I am making all of this up, I will briefly quote from some well known, important judgements down through the years.

1960: Attorney General v. Southern Industrial Trust
"The Supreme Court, dictum of Lavery.
`The Declaration in the Preamble made in general terms may add little to
the more precise terms of the more relevant Articles.
Nevertheless the words of the Preamble declaring the purpose of the People in adopting, enacting and giving it to Themselves the Constitution may help in determining the meaning of and the effect to be given to particular provisions'


1974: McGee v. Attorney General
Supreme Court: Dictum of Walsh
"According to the Preamble the people gave themselves the Constitution to promote the common good with due observance of prudence justice and charity so that the dignity and freedom of the individual may be assured. The judges must therefore as best they can from their training
and their experience interpret these rights in accordance with their ideas
of prudence, justice and charity"

-dictim of Budd in the same ruling
`When the Preamble of the Constitution speaks of seeking to promote the common good by the observance of prudence justice and charity so that
the dignity and freedom of the individual may be assured, it most surely
informed those charged with its construction as to the mode of application
of its Articles'.

1981: King v. Attorney General
Judge McWilliam drew from the Christian spirit of the the Preamble in laying the ground for his finding that part of s 4 of the Vagrancy Act 1824, was inconsistent with the Constitution. (Think of The Good Samaritan). he would have been quite circumscribed in condemning that cruel piece of legislation were it not for the Christian tradition of vindicating the dignity of the human person.

K-9 wrote: »

Take your homosexuality point, there's a reason why Ireland was very late to the game in legalising homosexuality, divorce and has very strict abortion laws.

If a judge liberalised our abortion laws based on Christian ethos tomorrow you would give Christianity credit for that, but that's ignoring the major flaw in that argument, Catholicism played a major part in creating the problem in the first place!

But the courts are quite clear that they see Christianity, and morality, as a changing paradigm. The courts have never sought to implement Christian dogma, they opt simply to draw from the ideals of justice and charity in a Christian context - that is quite a different thing to blindly fretting over Catholic teaching, which as Judge Henchy said in Norris, he did not think ought to be a guiding principle.

Phoebas

Phoebas wrote: »

Most of the 'successful' countries in the world are also majority white - but I wouldn't be so arrogant to suggest a causal link between race and success.

Palmach wrote: »

But there is.

There is a causal link between race and success? What exactly is it?

Palmach wrote: »

Could be a coincidence.

Make up your mind.

Eggy Baby!

Whether you like it or not, liberal western values are constructed from the Christian tradition.

I would have assumed that they were descended from Greco-Roman political and philosophical traditions.

The only thing Christianity did to Europe throughout history was hold it back. Compare Spain in early modern history (1700s/1800s) to France or England in the same period. The influence of the church in Spain kept them lagging behind the other, more secular powers. Its clear (to me anyway) that the emergence of secularism in Europe led to an explosion in progress.

K-9

But the courts are quite clear that they see Christianity, and morality, as a changing paradigm. The courts have never sought to implement Christian dogma, they opt simply to draw from the ideals of justice and charity in a Christian context - that is quite a different thing to blindly fretting over Catholic teaching, which as Judge Henchy said in Norris, he did not think ought to be a guiding principle.

But, bringing it back to the OP in some way, why are judges using Christian morality in the first place?

Because the constitution is so heavily wrapped up with Christian references a judge in particular is going to refer to what he derives the law from.

In other words, if there was no reference to Christianity in the constitution, he wouldn't need to even consider what the Christian ethos is. To exaggerate your claim, they are basically theologians, not judges in a secular state.

Cody Pomeray

Eggy Baby! wrote: »

I would have assumed that they were descended from Greco-Roman political and philosophical traditions.

I bristle when people say this for the simple reason that of course Christian ideals have their root in the Jewish, Greek and Roman tradition; that is simply not up for debate.

"Christainity" is short-hand. Just as I say "glass of Shiraz" instead of saying "Ferment of the sugars extracted from the syrup of the Shiraz grape, associated with France, but originating from Asia Minor... bla bla bla". It's simply a tag that people can understand, without resorting to an essay.

Christian ideals are christian ideals without having to resort to belief in the supernatural. As I said earlier, I am not a Christian believer but as an atheist I endorse the themes of Christian scripture - justice, mercy, charity, peace, and forbearance.

K-9 wrote: »

But, bringing it back to the OP in some way, why are judges using Christian morality in the first place?

Because the constitution is so heavily wrapped up with Christian references a judge in particular is going to refer to what he derives the law from.

In other words, if there was no reference to Christianity in the constitution, he wouldn't need to even consider what the Christian ethos is.

You're right, he probably wouldn't. Or at least, the Christian ethos would diminish in importance.

But my central point is what happens when you delete it? I am about to answer.

The unenumerated, fundamental rights are drawn heavily from from the preamble, and its Christian vindications. You know your constitutional right to privacy, which I'm sure you cherish? *not written down*. You know your constitutional right to bodily integrity? *not written down*. You know your constitutional right to beget children, access the courts, and your constitutional right to earn a living, among others? *not written down*

These core constitutional rights which pertain to your fundamental freedoms, have been established by the courts, with special references to the preamble, with its Christian ideal of human dignity and justice.

What happens when you delete that? What happens to those rights?

I don't mind us having a secular constitution, although I would be concerned about what philosophical reference point would be available to the courts. Nevertheless to do so, we would need to rewrite the entire constitution. You can't just delete the preamble and wipe your hands free.

So tell me, what happens to all the unenumerated constitutional rights?

RangeR

Can we not use a humanitarian pre amble, rather than a religious one?

Cody Pomeray

Because, as above, we don't know that all the unenumerated rights (marry, practice religion, etc) would survive the deletion.

Lets go mad and say the unenumerated constitutional rights survive.

Lets say I am a Muslim and my wife's a Muslims and so, indeed, are all my many wives.

Lets say I demand that my constitutional right to marry should respect my right to practice my religion, and marry all the women I desire.

Without a nod to the Christian prism of Irish moral values, what do you say?

Nodin

Cody Pomeray wrote: »

Because, as above, we don't know that all the unenumerated rights (marry, practice religion, etc) would survive the deletion.

Lets go mad and say the unenumerated constitutional rights survive.

Lets say I am a Muslim and my wife's a Muslims and so, indeed, are all my many wives.

Lets say I demand that my constitutional right to marry should respect my right to practice my religion, and marry all the women I desire.

Without a nod to the Christian prism of Irish moral values, what do you say?

I've no problem with polygamy meself. However I might point out that bigamy is already a specific offence....?

Cody Pomeray

Nodin wrote: »

I've no problem with polygamy meself. However I might point out that bigamy is already a specific offence....?

Obviously, but statutory and common law are subordinate to constitutional.

Presumably the object of the action would be to strike down the law on bigamy.

I am not asking people whether they personally think we should allow shariah law, or bigamy or whatever. Clearly some people do, which proves nothing except that they are "some".

RangeR

With the greatest of respect, if your Muslim and you come to Ireland; you live by Irish laws. Endof. I'm not in favour of allowing total religious freedom if that religion freedom breaks our laws.

Cody Pomeray

RangeR wrote: »

With the greatest of respect, if your Muslim and you come to Ireland; you live by Irish laws. Endof. I'm not in favour of allowing total religious freedom if that religion freedom breaks our laws.

I agree with you, but it's unfair (on us, the public, and on the immigrant community) to expect judges to rule by their own personal opinions , without regard to some external reference point. Think of a judge like a computer, he can only work with the commands he is given. He does not have intrinsic wisdom.

If you sterilize the constitution by stripping the words back to their most literal translation, then it's easy to see how you make them malleable to the point where the courts cannot take note of local morality.

I am the last person you;re going to have defending an image of Catholic Ireland. I just think people need to be aware that if you;re going to remove the Christian ethos, you have to do some serious editing elsewhere to make up for it, in fact you might as well just start from scratch with a new document.

Nodin

RangeR wrote: »

With the greatest of respect, if your Muslim and you come to Ireland; you live by Irish laws. Endof. I'm not in favour of allowing total religious freedom if that religion freedom breaks our laws.

....I'm speaking generally. It comes up most often in discussions in related to gay marriage - '"what next, 3 men marrying?" to which I reply "Why not." If any grouping of people of the age of consent want to get married, I've no objections.

Nodin

Cody Pomeray wrote: »

Obviously, but statutory and common law are subordinate to constitutional.

Presumably the object of the action would be to strike down the law on bigamy.

...I don't see how they would do that on the basis of the lack of the existing preamble. It's only been mentioned in 5 cases since its inception afterall.

Cody Pomeray

Nodin wrote: »

...I don't see how they would do that on the basis of the lack of the existing preamble. It's only been mentioned in 5 cases since its inception afterall.

what's only been mentioned in 5 cases? the preamble? The preamble has been brought up in way more than 5 cases. A failing law student should be able to recall about 5; a library would give in or about 40.

Are you saying that you favour a literal-only reading of the constitution?

Nodin

Cody Pomeray wrote: »

what's only been mentioned in 5 cases? the preamble? The preamble has been brought up in way more than 5 cases.

Me not being a legal student or with access to a legal library, you might give a few more examples.

Cody Pomeray

I really wouldn't be able to list them all, Corway v. Independent Newspapers is another, Thomas Mcnally v Ireland is another, I mentioned Marie Fleming v Ireland I think, The People v Shaw 1982 is another major one, O Shea v Ireland 2003 is another. These are big recent ones, and are some of the most significant decisions of modern legal history, covering matters of major public concern. I think it's unreasonable to expect me to recall or try to go on a library hunt for every significant of them, there are clearly plenty.

Cody Pomeray

http://highcourtsearch.courts.ie/hcslive/terms_conditions.processAction

Nodin

Cody Pomeray wrote: »

I really wouldn't be able to list them all, Corway v. Independent Newspapers is another, Thomas Mcnally v Ireland is another, I mentioned Marie Fleming v Ireland I think, The People v Shaw 1982 is another major one, O Shea v Ireland 2003 is another. These are big recent ones, and are some of the most significant decisions of modern legal history, covering matters of major public concern. I think it's unreasonable to expect me to recall or try to go on a library hunt for every significant of them, there are clearly plenty.

....where/how was it used/referenced in the people v shaw and O'shea v Ireland (which was 2006, I think)? A link, if you could.

Cody Pomeray

Nodin wrote: »

....where/how was it used/referenced in the people v shaw and O'shea v Ireland (which was 2006, I think)? A link, if you could.

Nodin I provided the High Court Search page...

But because this is a fascinating thing to discuss on a Friday night, I will humour you.

During the hearing of the challenge in o'Shea, & O'Shea, counsel for the applicant had raised the preamble. If you read the judgement, Laffoy then refers to the preamble in terms of the promotion of the common good when she agreed to strike down a provision of the Deceased Wife's Sister's Marriage Act.

In doing so, Laffoy quoted another important judgement, Ryan v. Attorney General 1965

“It follows, I think, that the general guarantee in sub-section I must extend to rights not specified in Article 40. Secondly, there are many personal rights of the citizen which flow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all-the right to free movement within the State and the right to marry are examples of this … This also leads to the conclusion that the general guarantee extends to rights not specified in Article 40.”

In DPP v Shaw 1982 IR 1, per Kenny J, I will quote the most relevant extract.

There is a hierarchy of constitutional rights and, when a conflict arises between them, that which ranks higher must prevail. This is the law for the exercise of all three powers of Government and flows from the conception that all three powers must be exercised to promote the common good: see the preamble to the Constitution. The decision on the priority of constitutional rights is to be made by the High Court and, on appeal, by this Court. When a conflict of constitutional rights arises, it must be resolved by having regard to (a) the terms of the Constitution, (b) the ethical values which all Christians living in the State acknowledge and accept and (c) the main tenets of our system of constitutional parliamentary democracy.

Nodin

Cody Pomeray wrote: »

Nodin I provided the High Court Search page...

But because this is a fascinating thing to discuss on a Friday night, I will humour you.

During the hearing of the challenge in o'Shea, & O'Shea, counsel for the applicant had raised the preamble. If you read the judgement, Laffoy then refers to the preamble in terms of the promotion of the common good when she agreed to strike down a provision of the Deceased Wife's Sister's Marriage Act.

In doing so, Laffoy quoted another important judgement, Ryan v. Attorney General 1965



In DPP v Shaw 1982 IR 1, per Kenny J, I will quote the most relevant extract.

I'll concede the latter case but not the former.

Cody Pomeray

It was one of the two bases for the applicant's successful case

[477] Laffoy: The defendants' defence of the consistency of s.3(2) with the Constitution is founded on two constitutional imperatives: the State's obligation to promote the common good, a concept referred to in the Preamble; and

Laffoy then goes on to discuss, in some detail, the constitutional right to marry, which has itself been "unearthed" with regard to the preamble.

[468] Laffoy: "the High Court has jurisdiction to consider whether an Act of the Oireachtas respects, and as far as practicable, defends and vindicates the personal rights of the citizen, including all those rights which result from the Christian and democratic nature of the State..."

If you're not willing to "concede" it, it's hard to avoid the conclusion that you're not basing your position on any facts.

I consider that as clear as day, I don't think there's anything more to ask, except now to find out why you asked the question.

Are you asking the question because you thought the preamble was irrelevant?
or
Are you asking the question because you thought the preamble was causing harm.

I feel I have shown that the preamble has been used in important constitutional cases right up to the present day, and has been used in a positive sense, in vindicating fundamental freedoms.

Even in the only case I can think of where the preamble has been used against the liberal agenda, (Norris v Ireland), the judgements of the Supreme Court which have stood the test of time were those of McCarthy and Henchy in Norris, who used the preamble, and its Christian tone in particular, to find in favour of David Norris, even where they were outvoted.


So to sum up.

1. The preamble's Christian tone has overwhelmingly been used to deduce unenumerated rights, such as the right to bodily integrity, marry, beget children, and so on. What would happen to these unenumerated constitutional rights if we deleted the preamble? You cannot say they would survive.

2. Even where it has not created an express constitutional right, the preamble has been used on many occasions to promote liberal ideals, i.e. fundamental freedoms

3. No theme emerges of the preamble's Christian tone being used to constrain Irish people's liberty or freedoms; quite the opposite.

drkpower

The Christian nature of the preamble has also been used in a very illiberal fashion, the Norris case being a pretty horrible example.

From the earliest days, organised religion regarded homosexual conduct, such as sodomy and associated acts, with a deep revulsion as being contrary to the order of nature, a perversion of the biological functions of the sexual organs and an affront both to society and to God. ... t remains the teaching of all Christian Churches that homosexual acts are wrong. ... The preamble to the Constitution proudly asserts the existence of God in the Most Holy Trinity ... It cannot be doubted that the people, so asserting and acknowledging their obligations to our Divine Lord Jesus Christ, were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs

But this issue can't be resolved by simply weighing up those court judgments that have used the preamble in a liberal fashion, against those that have done so in a regressive manner. There is no particular eviðence to suggest that those 'good' judgments which leaned on the preamble would not have been made had the preamble never existed (or if it were amended to remove God and instead to refer to authority being derived solely from the people).

Ultimately I am happy to go with the judgment of the constitutional review group who considered that the Preamble as it stands is inappropriate, that it's language, reflecting the ethos of the 1930s, is overly Roman Catholic and who recommended the replacement of the present Preamble by the basic formula of enactment of the Constitution by the people of Ireland.

They did not appear concerned that removal of the preamble would have the effect of reversing some judgments that leaned on the preamble and I am comfortable that their assessment is correct.

Cody Pomeray

drkpower wrote: »

The Christian nature of the preamble has also been used in a very illiberal fashion, the Norris case being a pretty horrible example.

I have adverted to that, including its more favourable interpretations by Henchy and McCarthy jj.

Which other examples have you?

But this issue can't be resolved by simply weighing up those court judgments that have used the preamble in a liberal fashion, against those that have done so in a regressive manner.

I'm not surprised someone would say that; the overwhelming majority of the time, the preamble is invoked in order to contribute to fundamental freedoms or to help ground some unenumerated right, as has been discussed at length.

If I wanted the preamble out, I'd not be wanting to weigh up the trend either.

I don't want to retain the preamble for any personal or religious reason. I have no interest in that, and I take the opinion that the Constitutional Review Group made an irresponsible recommendation, given the general theme the preamble has caused to arise in Irish legal history, and given the unknown repercussions for unenumerated personal rights, such uncertainty itself being harmful to society.

They did not appear concerned that removal of the preamble would have the effect of reversing some judgments that leaned on the preamble and I am comfortable that their assessment is correct.

This is something that is thematic of your posts. You seek to defeat an argument which actually uses references with one that you literally caught from the passing breeze.

drkpower

Cody Pomeray wrote: »

I don't want to retain the preamble for any personal or religious reason. I have no interest in that, and I take the opinion that the Constitutional Review Group made an irresponsible recommendation, given the general theme the preamble has caused to arise in Irish legal history, and given the unknown repercussions for unenumerated personal rights, such uncertainty itself being harmful to society. .

But you haven't done anything to actually convince anyone that the CRG, populated by fairly knowledgable and experienced practitioners, are wrong and you are right.

Your argument isn't much more than that the preamble has been referenced in some cases which recognised various different rights. But that isn't the argument you need to make. You need to convince others that those rights would not have been recognised (a) if the preamble didn't exist or (b) if the preamble was rejigged such that the constitution derived from the people rather than god? Even if you can do that, you need to demonstrate that the negative effects of the preamble are outweighed by the positive). You haven't come close to demonstrating all of that.

And with the weight of the CRG against you, you have quite a lot of work to do.