The Irish Constitution

cson

A testament to the drafters that has aged well or an outdated archaic creature of its time?

I'm firmly in the first camp. For a document crafted in 1937 it has withstood the passage of time relatively well and most of it is as relevant as it was in 1937.

cson

cson wrote: »

A testament to the drafters that has aged well or an outdated archaic creature of its time?

I'm firmly in the first camp. For a document crafted in 1937 it has withstood the passage of time relatively well and most of it is as relevant as it was in 1937.

I think the Constitutional Review Group would beg to differ.

The real genius of the Constitution is that it can be changed so relatively easily but never without the will of the majority of the people. It makes it flexible. The approach of the judiciary has also been beneficial in espousing the unenumerated rights doctrine via Art. 40. (They have been good in almost everything. Constitutional Family aside.)

nesf

cson wrote: »

A testament to the drafters that has aged well or an outdated archaic creature of its time?

The answer lies between the two. Some of it has aged well, some of it has been found to be at odds with the will of the modern people. We've modified it many times and we'll modify it many more and to treat the original form as being higher or better than the current form is something that I think both misses the point and sells the concept short. A constitution brings its power from it mutability and its capability to adapt as the country and its people adapt and change. I think of it as a living document and don't really attribute any real significance to it's drafters, it has outgrown them in a sense.

ChocolateSauce

cson wrote: »

A testament to the drafters that has aged well or an outdated archaic creature of its time?

I'm firmly in the first camp. For a document crafted in 1937 it has withstood the passage of time relatively well and most of it is as relevant as it was in 1937.

I'm closer to the second, except that I don't agree it is outdated in the sense that it was ever good. The constitution is rotten and always has been, and there is absolutely no excuse for it when there were plenty of good ones lying around in 1937 (including the 1922 one, for all its faults) which could have been copied. The US constitution is the finest legal document in human history, in my humble opinion. The EU constitution would have been a model one as well.

I find people who bang on about how wonderful ours is are almost always some mix of anti-British Catholic conservative nationalists.

ChocolateSauce

ChocolateSauce wrote: »

I'm closer to the second, except that I don't agree it is outdated in the sense that it was ever good. The constitution is rotten and always has been, and there is absolutely no excuse for it when there were plenty of good ones lying around in 1937 (including the 1922 one, for all its faults) which could have been copied. The US constitution is the finest legal document in human history, in my humble opinion. The EU constitution would have been a model one as well.

I find people who bang on about how wonderful ours is are almost always some mix of anti-British Catholic conservative nationalists.

Eh, what?

Which of the Constitutions are you referring to? The massively dangerous Weimar Constitution? I also like where you call the 1922 Constitution a good one; after all, who doesn't like a Constitution that can be amended by an act of the Oireachtas rather than by a public plebiscite? Oh, that reminds me of another Constitution that can be amended by an act of the legislature...let me see...oh yes, the American Constitution!!!

The American Presidential system is incredibly dangerous. As Bush has shown it allows far too much power to be vested in the Executive. It leans towards a post-monarchist system which is about the least revolutionary form of Government that the colonies could have chosen. The 1937 Constitution has been the model for others such as India to create free, democratic societies where the US model has lead down the road to dictatorships. Even the US don't support other countries, such as in Iraq, basing their constitutions on the US model! How severe and indictment do you need?

ChocolateSauce

Deleted User wrote: »

Eh, what?

Which of the Constitutions are you referring to? The massively dangerous Weimar Constitution? I also like where you call the 1922 Constitution a good one; after all, who doesn't like a Constitution that can be amended by an act of the Oireachtas rather than by a public plebiscite? Oh, that reminds me of another Constitution that can be amended by an act of the legislature...let me see...oh yes, the American Constitution!!!

The American Presidential system is incredibly dangerous. As Bush has shown it allows far too much power to be vested in the Executive. It leans towards a post-monarchist system which is about the least revolutionary form of Government that the colonies could have chosen. The 1937 Constitution has been the model for others such as India to create free, democratic societies where the US model has lead down the road to dictatorships. Even the US don't support other countries, such as in Iraq, basing their constitutions on the US model! How severe and indictment do you need?

The US system is an extremely well balanced one. The parliamentary system we have gives governments too much power. You think India is a free and democratic society compared to the US? You have a long way to go in terms of understanding the structures of government and the layout of the US constitution in particular.

The US constitution is a deeply subversive and revolutionary document which doesn't grant any rights (rights cannot be granted), but merely tells the government what it can't do. The president appoints the entire government, which means that as the only elected member of the government he is responsible for their actions. This means Irish-style corruption where the party and government survives if individuals are found guilty cannot happen. The power of the president is limited by the congress and Senate, which not only have to pass every law (the government in the US cannot vote on bills, only implement them) but also have the power to remove the government (which the Dail or Commons does not have).

The supreme court then has the power to strike down laws if they are illegal, thus putting constraints on the power of the government and on the chambers.

How is this not balanced?

ChocolateSauce

ChocolateSauce wrote: »

The US system is an extremely well balanced one. The parliamentary system we have gives governments too much power. You think India is a free and democratic society compared to the US? You have a long way to go in terms of understanding the structures of government and the layout of the US constitution in particular.

The US constitution is a deeply subversive and revolutionary document which doesn't grant any rights (rights cannot be granted), but merely tells the government what it can't do. The president appoints the entire government, which means that as the only elected member of the government he is responsible for their actions. This means Irish-style corruption where the party and government survives if individuals are found guilty cannot happen. The power of the president is limited by the congress and Senate, which not only have to pass every law (the government in the US cannot vote on bills, only implement them) but also have the power to remove the government (which the Dail or Commons does not have).

The supreme court then has the power to strike down laws if they are illegal, thus putting constraints on the power of the government and on the chambers.

How is this not balanced?

Look at India in comparison to any other State in the region. Comparing it with the US is fallacious as the US has been an established democracy for far longer.

As for your other points:

1) The US Constitution is in no way subservise or revolutionary. The US did not have a revolution, it had a rebellion. This has been an area of argument for historians for a while so I am willing to accept that others may not share my view. However the US Constitution just put ideas which had been polished and shined in the Enlightenment into practical effect. The French Revolution was massively subversive and revolutionary. The American "Revolution" was just the next one.

2) I think Warren Harding would disagree with the idea that the US Constitution does not guarantee or confer rights. The First 10 amendments to it aside (I think they called those ten something...The Bill of...Rights?) were a recognition that the Constitution in its original form was woefully lacking in its protections. Furthermore the doctrine of unenumerated rights presupposes that the Constitution guarantees rights, even if not always explicitly. Oh and in case you say this is revolutionary, there had been an English Bill of Rights which guaranteed rights of citizens against the monarch through their representatives.

3) Your point about corruption not being possible as it is in Ireland is either blindly naive or just idiotic. Lobby groups in the US and special interests groups are as capable of influencing politicians in the US as they are anywhere. To say otherwise is just silly. The imperial Presidency has lead to a monarch-like situation in the US which makes the President almost impossible to touch. Even the legal position of Rex non potest peccare which exists in the US is a nod to the strength of the Presidency.

4) The Supreme Court has the power to strike down laws but in America not only does the President appoint the Supreme Court justices but the Senate has to confirm them. This is hardly the clearest example of separation of powers. I am not for a moment saying our system is better, I am simply pointing out that the US system is not the beacon of democracy that you paint it as.

turgon

Deleted User wrote: »

Look at India in comparison to any other State in the region.

What your saying is that because India is more democratic than its neighbors like China, its the best democracy in the work. It doesnt hold up to even the most elementary train of thought.

Deleted User wrote: »

Oh and in case you say this is revolutionary, there had been an English Bill of Rights which guaranteed rights of citizens against the monarch through their representatives.

Yeah, I heard this worked wonders for the people of Ireland at the time :rolleyes:

Deleted User wrote: »

3) Your point about corruption not being possible as it is in Ireland is either blindly naive or just idiotic. Lobby groups in the US and special interests groups are as capable of influencing politicians in the US as they are anywhere. To say otherwise is just silly.

How, pray tell, is this a negative reflection of the American Constitution?

Deleted User wrote: »

the President appoint the Supreme Court justices but the Senate has to confirm them.

Firsty,as far as I know, the president can only appoint a new judge when an old one dies or resigns, so he cant really control the whole court.

Secondly, would you prefer a situation where an unaccountable, unelected body, appoints judges at its own will?

brianthebard

Deleted User wrote: »

Eh, what?

Which of the Constitutions are you referring to? The massively dangerous Weimar Constitution? I also like where you call the 1922 Constitution a good one; after all, who doesn't like a Constitution that can be amended by an act of the Oireachtas rather than by a public plebiscite? Oh, that reminds me of another Constitution that can be amended by an act of the legislature...let me see...oh yes, the American Constitution!!!

Wasn't there a court case that led to the need for a referendum to amend the constitution? Which means it wasn't a part of the 1937 constitution either.

Also, Dev made the system of governance completely unbalanced, putting as much power as possible in the Taoiseach's position. We've had to deal with the legacy of that ever since. Anyone who bitches about parish pump politics at national level is complaining about Dev messing around with government bodies. Also, you complain about the need for a plebiscite to amend the constitution, but ignore the fact that the 1922 constitution allowed for popular referendum, a very powerful tool which Dev was afraid of.

Add to that the position of the Church (needs to be noted that 20th century "republics" should not be giving any church special favours) and the position of women in the document, not to mention the pathetic lack of protection for fathers, and you begin to see that it is a backward, inefficient document, that retards rather than promotes citizen participation in the governance of the state.

turgon

turgon wrote: »

What your saying is that because India is more democratic than its neighbors like China, its the best democracy in the work. It doesnt hold up to even the most elementary train of thought.

If that was what I had said then yes, it would fail to hold up. However what I was actually saying was that a comparison of India and the USA as democracies is fallacious as the US was based in post-Enlightenment ideas on the rule of law and the people who wrote the Constitution were almost exclusively taken from one class of people and they wrote it for that class. The Indian Constitution had a far greater task and a far more diverse group of people to work with and for.

turgon wrote: »

Yeah, I heard this worked wonders for the people of Ireland at the time :rolleyes:

Newsflash: Imperial Power considers one of it's colonies to be inferior!!!

The rights were granted for the members of the Commons to protect them from the King. Consider when it was written and you might just have an idea why that was important. After all, the Lord Protector was dead. Rights granted in a Constitution are designed to protect the people from the machinations of the State. That is exactly what the Bill of Rights did.

turgon wrote: »

How, pray tell, is this a negative reflection of the American Constitution?

I was refuting the arguments made by ChocolateSauce. I made no judgment on how it reflected upon the US Constitution. ChocolateSauce stated that the President appointing the Cabinet circumvented the corruption which allows the Party and Government to survive if someone is shown to be corrupt. Unless you are Nixon and commit a felony, in which case your party not only survives but your Vice-President can then acquit you of your crimes.

turgon wrote: »

Firsty,as far as I know, the president can only appoint a new judge when an old one dies or resigns, so he cant really control the whole court.

This is very true. However, given the nature of the court a President, who can sit for 8 years, may have the opportunity to appoint 2 or 3 judges in that time. Warren Harding waited until a Democrat was in the White House before he resigned just so a Democratic President could appoint a liberal to the Court so as to ensure that the balance of the court could be maintained. In recent years the Republicans have been trying to get as many Conservatives on the Court as possible so that they can overturn Roe -v- Wade.

turgon wrote: »

Secondly, would you prefer a situation where an unaccountable, unelected body, appoints judges at its own will?

Not at all. I stated that our system wasn't perfect either. The American system in modern times has become more problematic since Oliver Wendell Holmes and others began to espouse American Realist jurisprudence which has lead to an increase in people forensically analysing the way judges have ruled in the past. When John L. Murray was appointed Chief Justice of Ireland in 2004 nobody asked what his position on abortion or gay marriage or what his record was in reference to immigration cases. He was appointed under the Constitution in line with the Courts and Court Officers Act 2002 and under the terms of eligibilty listed here.

However, overall your arguments are glib and unconvincing. If you have anything genuinely constructive to say I'd love to hear it though.

brianthebard

brianthebard wrote: »

Wasn't there a court case that led to the need for a referendum to amend the constitution? Which means it wasn't a part of the 1937 constitution either.

I think I know the case you are referring to but I cannot find the reference at the minute. The referendum procedure was in place in the 1937 draft of the Constitution, it replaced Article 50 of the 1922 Constitution.

brianthebard wrote: »

Also, Dev made the system of governance completely unbalanced, putting as much power as possible in the Taoiseach's position. We've had to deal with the legacy of that ever since. Anyone who bitches about parish pump politics at national level is complaining about Dev messing around with government bodies.

The Taoiseach has almost no express powers in the Constitution. It is the Oireachtas that determines the powers of the Taoiseach.

brianthebard wrote: »

Also, you complain about the need for a plebiscite to amend the constitution, but ignore the fact that the 1922 constitution allowed for popular referendum, a very powerful tool which Dev was afraid of

I am not afraid of it! I love that our Constitution can be amended only by a popular vote. It is the most beautiful element of the document, it is what keeps it alive and makes it so flexible when the will of the people demands it.

brianthebard wrote: »

Add to that the position of the Church (needs to be noted that 20th century "republics" should not be giving any church special favours) and the position of women in the document, not to mention the pathetic lack of protection for fathers, and you begin to see that it is a backward, inefficient document, that retards rather than promotes citizen participation in the governance of the state.

There is a fantastic article by our current President Mary McAleese which lays the blame for the seemingly misgonistic attitude of the Constitution at the feet of the judiciary and their interpretation of it rather than at DeValera. This opinion has been backed by numerous commentators who recognise that the "Constitutional Family" is a judicial construction first and foremost.

turgon

Deleted User wrote: »

Newsflash: Imperial Power considers one of it's colonies to be inferior!!!

Newsflash: Ireland wasnt a colony of the United Kingdom, it was a part of it. If your trying to put down America's sense of democracy and revolution, comparing it to the UK circa 1800 is a bad bad bad tactic.

brianthebard wrote: »

Wasn't there a court case that led to the need for a referendum to amend the constitution? Which means it wasn't a part of the 1937 constitution either.

No, that only stated that EU treaties need an amendment to the constitution. Ever since 1942 ammendments have required referenda (the first 5 years dont count so as to give room for the parliament to make any changes in the constitution should certain elements of it not work out properly)

brianthebard wrote: »

Also, Dev made the system of governance completely unbalanced, putting as much power as possible in the Taoiseach's position.

Which is why we dont have altogether that much democracy in Ireland, unlike what we like to think. Cowen controls all and can make the worst mistakes, **** over people, and u-turn, without even having to be afraid of losing his position. Example Budget 2008.

turgon

turgon wrote: »

Newsflash: Ireland wasnt a colony of the United Kingdom, it was a part of it. If your trying to put down America's sense of democracy and revolution, comparing it to the UK circa 1800 is a bad bad bad tactic.

While on the pedantic issue of colony -v- territory of the United Kingdom you may be right (I'm not sure it was in 1689, I think the UK only existed after 1800 as a legal entity but I am not bothered checking just now, I'll accept your point) the point I am trying to make is that the ideas of the "American Revolution" were not unique by any means. They were already in place in England, France, Italy, the Netherlands etc through the Enlightenment.

Also, since my tactic of comparing the shining light of democracy that is the US to England circa 1800 (I was actually going all the way back to post-Cromwellian 17th century but who cares about detail?) how democratic was it that the Constitution of the US included (indeed still includes to THIS VERY DAY) this expression in Article 1 Section 2:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

That three fifths refers to the slaves, African Americans who the framers distinguished from the self evident truth that all men are created equal because black people were not real people at all, simply three-fifths of a real person. Not exactly a shining declaration of the virtue of the land of hope and glory.

turgon wrote: »

Which is why we dont have altogether that much democracy in Ireland, unlike what we like to think. Cowen controls all and can make the worst mistakes, **** over people, and u-turn, without even having to be afraid of losing his position. Example Budget 2008.

Explain to me the difference between what you have written here and the Presidency of George W. Bush. A man who received his office by virtue of a tainted Supreme Court decision and who held it over the last 4 years despite being the most unpopular President in US history. (and Lincoln fought a war against half the US, even fewer like Bush!)

turgon

Deleted User wrote: »

Explain to me the difference between what you have written here and the Presidency of George W. Bush. A man who received his office by virtue of a tainted Supreme Court decision and who held it over the last 4 years despite being the most unpopular President in US history. (and Lincoln fought a war against half the US, even fewer like Bush!)

Maybe now you will understand why they call him a lame duck. Because of his unpopularity people went against him in the 2006 elections. In America you can actually curtail the power of the President be voting in the opposition in Congress. So his unpopularity did come and bite him the ass, which is something that wouldnt happen here.

Look, in terms of democratic systems Ireland is a farce, with one man the Taoiseach holding power as he wants, and because of party loyalty he can do mostly what he pleases. Yet this strikes you as a good thing?

Just get over the fact our 'brilliant' constitution isnt the divine document you think it is.

brianthebard

Deleted User wrote: »

Explain to me the difference between what you have written here and the Presidency of George W. Bush. A man who received his office by virtue of a tainted Supreme Court decision and who held it over the last 4 years despite being the most unpopular President in US history. (and Lincoln fought a war against half the US, even fewer like Bush!)

Lets not make claims for history that we can't back up ok? Bush has the lowest ratings since ratings began, that's it. That's a relatively recent invention too. Lincoln was assassinated ffs, a slight sign of unpopularity? Now can we please get back to discussing the Irish constitution on its own merits, rather than comparing it to other documents that just muddy the waters.

turgon

turgon wrote: »

Maybe now you will understand why they call him a lame duck. Because of his unpopularity people went against him in the 2006 elections. In America you can actually curtail the power of the President be voting in the opposition in Congress. So his unpopularity did come and bite him the ass, which is something that wouldnt happen here.

There is nothing stopping any deputy in the Dail from voting against their party. That is why Fianna Fail have called a 3 line whip for the Finance Bill next week. Nobody is going to pair off and the Party Whip obviously thinks he might lose some of the back benchers.

Furthermore, there was a period in the mid-1980's when Governments collapsed constantly. Our Proportional Representation system makes it almost impossible for any one party to have an outright majority (the last one was in 1977).

In the last number of years it has been the political acumen of Bertie Ahern that has lead to FF holding onto power for so long. People power has lead to a number of measures which were on the Finance Bill being retracted because TD's do not want to have to face their clinics after voting for those most unpopular of measures.

Your arguments are actually quite valid, but they are to do with a culture within the Oireachtas rather than a failure on the part of the Constitution. Beyond that, it was the Irish people who gave FF their power. They have until the next election to convince the people to do it again. If they fail then the democratic right of the people to remove them can be exercised. If the people choose to give FF power once more then so be it, that is the Government that we as a people deserve.

turgon wrote: »

Look, in terms of democratic systems Ireland is a farce, with one man the Taoiseach holding power as he wants, and because of party loyalty he can do mostly what he pleases. Yet this strikes you as a good thing?

Just get over the fact our 'brilliant' constitution isnt the divine document you think it is.

I never claimed it to be a divine document (although it certainly gives that impression in the preamble). I simply made the point that it has the great advantage of being so easily changed by the will of the people to ensure that it always reflects the will of the people. The article which outlines the powers of the Taoiseach and the Government is Article 28 and it is left very much oblique and, as Professor Kelly notes, this leaves the executive power of the State to be constructed as "what is left over when one deducts the legislative and judicial powers".

The Constitution also contains a provision that a defeated Taoiseach (losing a vote in the Dail) must resign. You say that voting against a President in the US lets you curb his powers. A President who loses a vote stays in office. a Taoiseach who loses a vote loses his. Your criticism is with party loyalty and that has absolutely nothing to do with the Constitution.

brianthebard wrote: »

Lets not make claims for history that we can't back up ok?

It was a joke, don't get your knickers in a twist.

brianthebard wrote: »

Lincoln was assassinated ffs, a slight sign of unpopularity?

Kennedy was massively popular and Reagan won 49 States. Popularity is not a direct corollary to assassination attempts.

Permabear

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jill_valentine

I think it's shamefully outdated, and the fact that it has been allowed to become so without any real challenge is symptomatic of many of the problems in Irish politics. Many of which it has fostered.

donegalfella

donegalfella wrote: »

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Arthur Schlesinger really put it best in his book "The Imperial Presidency". I would advise reading that. Prof. Froomkin has written some good work on this but I can't find a link other than this older article.

donegalfella wrote: »

Maybe I'm being annoyingly obtuse here, but can you show me a country which adopted a constitution modeled on that of the United States, and which became a dictatorship because of it?

In the Harvard Law Review 2000, Prof Bruce Ackerman of Yale Law School wrote an article entitled "The New Separation of Powers". In that article he states that since the end of the second world war no third world country which has adopted a Presidential system akin to the US model has failed to "succumb to the nightmare [of collapse or coup d'etat] one time or another, often repeatedly."

brianthebard

Deleted User wrote: »

In the Harvard Law Review 2000, Prof Bruce Ackerman of Yale Law School wrote an article entitled "The New Separation of Powers". In that article he states that since the end of the second world war no third world country which has adopted a Presidential system akin to the US model has failed to "succumb to the nightmare [of collapse or coup d'etat] one time or another, often repeatedly."

Why hasn't the US become a dictatorship so? There are a lot of external factors involved in the failure or otherwise of Third world governments. Can we please get back to the Irish constitution now?

brianthebard

brianthebard wrote: »

Why hasn't the US become a dictatorship so? There are a lot of external factors involved in the failure or otherwise of Third world governments. Can we please get back to the Irish constitution now?

The underlying element, in my opinion, is the idea of the rule of law. I remember reading an article about Russian people actually being psychologically predisposed to a single strong leader and perhaps there is an element of that in third world countries that doesn't exist in America.

I began with the Irish Constitution, it was others who brought America into it.

brianthebard

Please let's not bring biological determinism into this thread, the idea that certain people are predisposed to a certain type of leadership is just silly and backward.

jill_valentine

He said psychologically predisposed, not biologically, ie. a cultural product.

brianthebard

brianthebard wrote: »

Please let's not bring biological determinism into this thread, the idea that certain people are predisposed to a certain type of leadership is just silly and backward.

As is misrepresenting my position. I said psychologically predisposed. Meaning that due to social conditioning as a product of their history they were more used to interacting with strong leaders in Presidential type systems than bicameral parliamentary systems.

I would appreciate an apology for what you accused me of.

Permabear

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Permabear

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donegalfella

donegalfella wrote: »

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You make a very good point. My view on this is certainly based on the works of Prof. Ackerman. I pointed to that one article because it contained a statistical underlining that the US Presidential model is essentially dangerous to new democracies. He further goes on to state that 2/3 of new states that adopt a parliamentary system do not have such problems.

A well written Constitution, say one which deserves the monicker "the finest legal document in human history", should contain constraints on Executive power which would not allow the Imperial Presidency to occur. The loopholes and problems which have been exploited to create the imperial presidency are the very ones which emerging third world democracies have seen used to usurp the power of the people.

Permabear

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donegalfella

donegalfella wrote: »

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I am starting to think that our positions are a lot closer than they first appeared.

Once again, I never bestowed any praise on the Irish Constitution other than I think its referendum procedure is excellent. I would counter your criticism of the Irish Constitution by referring back to my point in an earlier post of the US Constitution in Article 2.1 stating the following:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

Institutionalised racism is hardly a tenet of a document one could honestly consider to be "masterful" as you put it.

sceptre

Deleted User wrote: »

how democratic was it that the Constitution of the US included (indeed still includes to THIS VERY DAY) this expression in Article 1 Section 2

The "three fifths of all other persons" part was deleted in 1868.

Outside the remit of the thread but anyone with interest on why it was three-fifths can do a google or wiki search for "federal ratio" or "three fifths ratio".

Permabear

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