Who’s up for another referendum? Never mind the topic, just the idea. About anything. Or are we all just weary of them on principle? You would have thought so but not the gallant Charlie Flanagan who has waded in almost immediately with the pressing need to remove the so-called “blasphemy” clause from the Constitution as well as widely reported calls for the removal of the “woman in the home” clause as well. Now abortion is important, regardless of which way you voted I doubt there were many who didn’t care about the outcome very much one way or another. It was legally a question of whether the unborn child had an equal right to life to the mother, and if other issues and false information clouded people’s judgement that was nonetheless objectively the case. It mattered, it will continue to matter and the referendum result will not be the last word on this important, even imperative, question. Sorry, but that’s inescapable. Neither side gave up in 1983 and neither side will give up in 2018 either.

But blasphemy? Who knew it was even there until Stephen Fry did not get arrested for it? The stated right of a woman not to be forced by economic circumstances to work outside the home is easily as absurd. At no time has the State ever made the slightest effort to ensure that economic circumstances were not crucial to a woman deciding between employment or her supposed “duties in the home”. They’re both windmills to tilt at if you are feeling quixotic, but important they are not. Both are ignored in practice and have no meaning in the world of actual substantial things. It is nonetheless likely that the Irish people will endure a referendum on both by the end of the year, and now a meaningless Presidential election as well. You could be forgiven for forgetting that the country is closing on €250 Billion in debt, the Health Service doesn’t work (even those parts which tell the truth), Brexit could wreck the economy’s fragile (and fake) recovery and more and more people have nowhere to live, literally.

Two ignored clauses of the Constitution, and a job with no purpose…

The clause on blasphemy does raise the issue of freedom of speech, but that will not be addressed, since there are many ways in which the establishment wishes to restrict free speech, by law and in practical terms through media control. There will be no equivalent of the First Amendment to the US Constitution, a thing to be enthusiastically wished for, will not happen. Since the clause is more likely to be invoked to suppress discussion of the dangers on fundamentalist Islam and drawing pictures of Muhammed, and as such it should go. But since those things will probably be made illegal as “hate speech” at some point, it is without joy that one sees it go. Why anyone would want to set out to offend another person’s religious beliefs (unless dangerous) is beyond my comprehension, but it is and has been an everyday occurrence with Christianity to no great outcry, and ignorant poor taste aside, I don’t think there should be a law against it.

The second does make reference to a woman’s “duties in the home” and if you’re looking to be offended I suppose there is offence, though last time I checked with the real world I found duties in the home to be a non-gender biased term in itself. We all have them, whether we fulfill them or not is another discussion. We are really being asked to remove a right that women currently have in theory, but cannot practically access, and that men do not have. The gender bias if it is there, is against men. But it can go too, it’s not worth the fight mainly, and third wave feminists score against women yet again.

Certainly, the National Party will campaign on neither, and it’s not so much a conscience vote as it is party policy that “we don’t care”, which is a rarity for our members to be sure. As far as the Presidency is concerned, there are no contenders at the moment to lower its prestige beneath the current resident’s lauding of Fidel Castro or raise it very much either. It has less influence than the Senate, and the Senate failed to convince a majority that it was useless, so that’s its measure.

There is a big question, though. If passed the two would become the 37th and 38th Amendments to Bunreact na hÉireann since 1937 and while that might not seem a lot, in the first instance the number is gathering pace, and for contrast the United States has had eight since 1790, with the peculiarity that an amendment in and out counting as two (Prohibition), they have properly speaking had six. When asked by a passerby during the deliberations on the American Constitution what kind of government they were creating James Madison replied “A Republic, Madam, if you can keep it.” And there’s the essential, what kind of government do we have on foot on the ’37 Constitution. In the Eighth Amendment it contained the right to life of the unborn equal to the mother, it was in some sense the only absolute statement of any kind, the only thing to be gripped onto, unqualified by “here’s an idea, parliament will decide”.

Bunreacht na hÉireann is not the Constitution of a Republic, it didn’t even claim to be, there is no central concept at all, it is a mechanism for functioning governance, and it is increasingly proving to be a poor one as EU amendment after EU amendment chip away at the only tangible thing there was; sovereignty. The mechanism was self functioning within itself, it isn’t even that anymore. The potential for tyranny was present certainly but we didn’t see any change there since its author was the only real man of ambition to shape the State as opposed to climbing the ladder, and he already had the State in the state he wanted.

The origins of the 1937 Constitution which is still substantially in place as law, unless someone seeks a judgement from abroad which affords many options from a binding EU Court of Justice ruling, to rulings from other non-descript bodies that Irish governments have consistently behaved as though they were binding, is shrouded in mystery. It seems primarily that Eamonn De Velara locked himself in a room with a stack of books for a few weeks and emerged with the document, on which he had fairly limited consultations and even fewer changes and then we had a referendum. It’s not actually the worst way to write a national constitution, various successful and unsuccessful attempts to amend it by wider consultation involving more people are evidence enough of that. Had the man in the room been anyone but Mr. De Valera it has much to recommend it as a process. It was and is nonetheless a bit of a mess.

For if Eamonn didn’t consult so widely face to face it seems he looked into his heart etc. etc. and forgot no interest group he could think of without some mention. It has “worked” so to say in that the country did not fall into immediate or subsequent chaos, and we have avoided the post-colonial nightmares of many a former British subject. Though that may arguably be because we were a nation, and not a randomly drawn jurisdiction without regard to ethnic loyalties or geographical sense, as were so many of the “countries” that emerged from Empire. We pride ourselves, not without cause, with only one Civil War since the foundation of the State and none within the 26 county area since the enactment of said Constitution. All’s well that ends well?

Except that history is a process not a destination, and “well” or not it certainly hasn’t ended. And the foundational legal document of the State grows more convoluted with each amendment and increasingly difficult to define, even in the ordinary sense of a degree of certainty. That this is the law, this is what it means and as a citizen I can go before the court to receive the acknowledgement and enforcement of my rights, so long only as I have the evidence of fact. Law, or more precisely entry into court proceedings of any kind has become a calculated guess with the stakes ever higher as you rise through the system up to the Supreme Court, wherein no barrister of sound mind will tell you on the facts of the case such will be the outcome.

In brevity what is lacking in the current Constitution is a central Idea. Liberals think it too Catholic, and maybe it is, but it wasn’t framed that way, a product of its time it was endorsed by Archbishop McQuaid to be sure (one of the few consulted), but on the other hand Cardinal McRory wanted a condemnation from Rome which in 1937 would have killed it stone dead, and possibly have done irreparable damage to Fianna Fáil in the process. It is a mechanism without an idea. And because it has no idea, the default was inevitably the British “unwritten” Constitutional model.

It is not at all clear in the British model where power lies, theoretically speaking, and the primacy of parliament has only been established by time and usage, the actual powers the Crown might have, were a politically ambitious and charismatic monarch to take the throne, are vague and potentially very great indeed. The only point of clarity then is that Bunreact na hÉireann establishes absolutely the primacy of parliament, not only over individual rights, no small thing, but over the principle of democracy itself. It provides for emergency powers, (Article 28.3.3) which incidentally were never voted for, that are potentially suspensive of all rights, including the dissolution of parliament itself. Not so very much time or usage underpins the notion that such emergency powers might not at any time be invoked by a parliamentary majority. And no straight read of the text suggests any limitation.

Ireland is not only not a Republic, the Act of 1948 declaring the Republic by name can itself be suspended or revoked, it is a parliamentary dictatorship. Within the ordinary text of the working Constitution (not suspended), are declarations of “rights” which are then “subject to public order and morality”, as provided by legislation of parliament, or surrounded by other such legal instruments as may practically nullify their exercise. There are no real separation of powers, the executive has almost none, the judiciary is appointed by the government drawing its power to do so from parliament and any judge may be removed by a motion of parliament. All covered over by the right to dismiss the entire thing altogether if it’s too awkward.

So, there was the Eighth Amendment. It provided for the right to life of the unborn equal to the right to life of the mother, and while untrampled by the X case decision, prevented the direct and intentional killing of the unborn child. It’s gone. By vote of the electorate. The Liberals want the ban on blasphemy gone. Can’t care, don’t care. They want the “special role” of women gone. Can’t care, don’t care. No direct mention of the Preamble in public discourse yet, but in a document providing for legalised murder it’s blasphemous surely, ironic certainly. They will want it gone. Can’t care, don’t care.

Mr. De Valera’s Constitution was always unworthy, it is now worthless. Let’s be rid of it by a single amendment repealing the entire thing, and the enactment of a Constitution of rights and responsibilities in accordance with the Natural Law as befits a genuine Republic, a free Nation of a Free People.

That’s worth a fight.

Justin Barrett
Uachtarán An Pháirtí Náisiúnta