Monday, January 30, 2006
Devs Constitution for a 21st century Ireland.
My thoughts on the All Party Oireachtas Committee on the Constitution's report on the family are not on par with Fiona de Londras and Richard Waghorne debate but this is a short thought I have about it. De Valera was a dreamer. He dreamt of an United Ireland of cosy rural homesteads of comely maidens dancing at the crossroads. In an Ireland that was Irish speaking god fearing nation. Of a deeply spiritual people who cared not for material possession but were content with spuds and tea. This was the Ireland he saw in 1937 when he wrote the constitution. Alas for Dev Ireland today is not what he wished for. The island is partitioned, the rural homesteads are being abandoned by the youth for the lights of the cities. The comely maidens are shaking their booty in ever decreasing amounts of cloth on dance floors across to country. The are more Polish speakers then Irish. Religious belief in god has been replaced by a religious belief in jimmy coo’s and English football. Material possession is are all anyone cares about, people want organic squid and decaffiniated mocha latte Americano coffee with cinnamon sprinkles on top. Some parts of the constitution have served us well like the stipulation that a change is made by the people via a referendum. This was shown in 1959 when the people voted against the government proposal to remove the PR voting system and replace it with the first past the post system. In a Sunday Independent poll 62% said that they are in favour of gay marriage yet the government think that they are not. This new Ireland however is still based primarily on the constitution written to govern the 1937 dream. So should we really interpret it as Dev meant. Especially in relation to the definition of the family.
Posted by Simon at 1/30/2006 11:46:00 am
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But why what ?
I havent a clue what you are getting at.
Why should we interpret it as Dev meant? Because he wrote it? Because it was written in 1937? Why??? I mean - if we took that approach then we'd have to write a new constitution every few years, wouldn't we?? Constitutions are not meant to keep countries in the past - they're meant to provide the framework for countries to grow into their future.
Why should we interpret it as Dev meant? Because he wrote it?
Oh i get .
Thats my point why should we. His ireland is different to ours.
I meant that we should interpert it as we see fit to reflect our society. I mean much of the debate on the family is that the family that is meant in the constitition is the women man family.
Why should we interpite in todays Ireland that family means that.
if you get me.
I got ya! :)
Irish Courts interpretation of the family set out in the Constitution is based on Article 41.3.1 which provides that "the State pledges itself to guard with special care the institution of marriage, on which the familiy is based, and to protect it from attack".
Based on this the Courts have restricted the constitutional marriage to the marital family. It has nothing to do with Dev's opinion, and everything to do with what was enacted by the Irish people in 1937.
In the past the Constitutional review group have recommended that whilst keeping the current pledge to protect the family based on marriage, it also recommended extending the constitutional guarantee to families regardless of their marital status. This would reflect what Ireland has signed up to under Article 8 of the ECHR, which the European Courts have accepted recognises the rights of families not based on marriage.
Whilst it appears prudent and sensible to extend the constitutional protection thusly, doing so would introduce ambiguity and uncertainty to the law as if you go beyond the marital base, definition becomes very difficult. The number of permutations of structure of the unit and their time together are such that it’s unlikely a definition could be found that wouldn’t eventually possess the same limitations as the current definition. Thus it would be left to the courts to decide on a case by case basis what a family is exactly.
Now as for the general question of interpreting the Constitution goes, i agree, Courts should as much as possible interpret Constitutional and legislative provisions to reflect todays society. As fdelondras states, Constitutionsa are not meant to keep Countries in the past.
However, it is not always possible to do so. The law requires a a certain degree of certainty and because of this provisions and terms cannot be set out allowing an infinite scope for interpretation. The constitutional family is one such example. If something appears to be outdated, then put it to the people to decide via referendum.
Are the courts decissions themselves not a sympatm of their times as well. Can a supmere court today over rule a supmere court of yesterday
Yes the Supreme Court can reject its own past decisions. However, in light of marriages protected status in the Constitution, it is highly unlikely to happen in this instance.
I missed your point - sorry
Tuathal is also right, btw, there is the potential for the Supreme Court to overturn their own precedent. Aiding factors would be changing Irish society, contemporary social mores, the EU and, particularly, ECHR decisions.
The All Party review Group also mentioned this as a possibility
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