Leinsterfans.com Election Tally

[tate]

another question on dáil etiquette - rte today referring to taoiseach cowen http://www.rte.ie/news/2011/0303/midlands.html

I presumed as we had no government atm that we had no taoiseach Does cowen continue as taoiseach until the new gov and taoiseach get their seals from the president? Does this hold for other positions in gov?

Or are rte just lazy

[fourthirtythree]

another question on dáil etiquette - rte today referring to taoiseach cowen http://www.rte.ie/news/2011/0303/midlands.html

I presumed as we had no government atm that we had no taoiseach Does cowen continue as taoiseach until the new gov and taoiseach get their seals from the president? Does this hold for other positions in gov?

Or are rte just lazy

It's a constitutional contradiction as far as I know. The Taoiseach remains until the new government goes to the park but he's not even a TD in this case.

Just a tiny procedural point to be rectified when they take a broom to our constitution and get rid of the rubbish.

[tackle-bag]

Just a tiny procedural point to be rectified when they take a broom to our constitution and get rid of the rubbish.

I don't mean to be confrontational, but what "rubbish" is it that you're referring to? I don't agree with many of the policies adopted by Labour in the recent General Election campaign, but the suggestion of drafting a new constitution within 12 months using punters off the street is completely off the wall.

In order to justify such a radical step, it would need to be demonstrated that the 1937 document has suffered systemic failure (i.e. failure that is incapable of being remedied by one or more discrete referenda). By contrast, the reasons advanced by Labour and others in support of the proposal have amounted to nothing more than vacuous bluster regarding the need to modernise.

[johng]

Just a tiny procedural point to be rectified when they take a broom to our constitution and get rid of the rubbish.

I don't mean to be confrontational,

I'd say you could make an episode of "the Waltons" confrontational.

[fourthirtythree]

Just a tiny procedural point to be rectified when they take a broom to our constitution and get rid of the rubbish.

I don't mean to be confrontational, but what "rubbish" is it that you're referring to? I don't agree with many of the policies adopted by Labour in the recent General Election campaign, but the suggestion of drafting a new constitution within 12 months using punters off the street is completely off the wall.

In order to justify such a radical step, it would need to be demonstrated that the 1937 document has suffered systemic failure (i.e. failure that is incapable of being remedied by one or more discrete referenda). By contrast, the reasons advanced by Labour and others in support of the proposal have amounted to nothing more than vacuous bluster regarding the need to modernise.

I don't know where you are getting the idea that I think we should draft a new constitution. I said a broom to sweep out the rubbish, not a wrecking ball to demolish it.

When I mentioned rubbish that needs sweeping out of the constitution I was thinking of stuff like this:

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking 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, true social order attained, the
unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution.

It's embarrassing. I have no idea what it is meant to mean.The only kind of republic that this would be appropriate for would be something like an Islamic Republic of Ireland (need to change the details but the spirit is just right). I totally agree with you that a lot of populist guff was talked during the election about reform: getting rid of the Seanad or reducing the number of TDs will do absolutely nothing to reform the corruption at the heart of Irish politics. Simply changing the government is a good start at that though. Everywhere that one party is in power too long gets systematically corrupt (Japan, Mexico...)

[tackle-bag]

Just a tiny procedural point to be rectified when they take a broom to our constitution and get rid of the rubbish.

I don't mean to be confrontational, but what "rubbish" is it that you're referring to? I don't agree with many of the policies adopted by Labour in the recent General Election campaign, but the suggestion of drafting a new constitution within 12 months using punters off the street is completely off the wall.

In order to justify such a radical step, it would need to be demonstrated that the 1937 document has suffered systemic failure (i.e. failure that is incapable of being remedied by one or more discrete referenda). By contrast, the reasons advanced by Labour and others in support of the proposal have amounted to nothing more than vacuous bluster regarding the need to modernise.

I don't know where you are getting the idea that I think we should draft a new constitution. I said a broom to sweep out the rubbish, not a wrecking ball to demolish it.

When I mentioned rubbish that needs sweeping out of the constitution I was thinking of stuff like this:

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking 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, true social order attained, the
unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution.

It's embarrassing. I have no idea what it is meant to mean.The only kind of republic that this would be appropriate for would be something like an Islamic Republic of Ireland (need to change the details but the spirit is just right). I totally agree with you that a lot of populist guff was talked during the election about reform: getting rid of the Seanad or reducing the number of TDs will do absolutely nothing to reform the corruption at the heart of Irish politics. Simply changing the government is a good start at that though. Everywhere that one party is in power too long gets systematically corrupt (Japan, Mexico...)

Apologies, I misunderstood your original post. I appreciate that there are certain aspects of the Constitution which may require reconsideration. However, the preamble which you have quoted doesn't have any true legal effect, so it can't really do too much harm.

[CRAZYDAVE]

Just a tiny procedural point to be rectified when they take a broom to our constitution and get rid of the rubbish.

I don't mean to be confrontational, but what "rubbish" is it that you're referring to? I don't agree with many of the policies adopted by Labour in the recent General Election campaign, but the suggestion of drafting a new constitution within 12 months using punters off the street is completely off the wall.

In order to justify such a radical step, it would need to be demonstrated that the 1937 document has suffered systemic failure (i.e. failure that is incapable of being remedied by one or more discrete referenda). By contrast, the reasons advanced by Labour and others in support of the proposal have amounted to nothing more than vacuous bluster regarding the need to modernise.

I don't know where you are getting the idea that I think we should draft a new constitution. I said a broom to sweep out the rubbish, not a wrecking ball to demolish it.

When I mentioned rubbish that needs sweeping out of the constitution I was thinking of stuff like this:

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking 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, true social order attained, the
unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution.

It's embarrassing. I have no idea what it is meant to mean.The only kind of republic that this would be appropriate for would be something like an Islamic Republic of Ireland (need to change the details but the spirit is just right). I totally agree with you that a lot of populist guff was talked during the election about reform: getting rid of the Seanad or reducing the number of TDs will do absolutely nothing to reform the corruption at the heart of Irish politics. Simply changing the government is a good start at that though. Everywhere that one party is in power too long gets systematically corrupt (Japan, Mexico...)

IIRC Thats' just the preamble and has no force in law

[fourthirtythree]

However, the preamble which you have quoted doesn't have any true legal effect, so it can't really do too much harm.

IIRC Thats' just the preamble and has no force in law

There's nothing in the constitution saying that any part is less important than any other so it's as much the law as, say, article 44 which guarantees certain religious rights and prevents the establishment of a church. It's been used as a basis for judgments in significant cases. In fact it has been used to justify judicial construction of the constitution and express how that power should be used. It establishes that the ethos of the state is christian, and in fact catholic. And it is the law in Ireland that the constitution be interpreted throughout to "give life to these phrases". It was part of the argument for example in a rather famous case which concluded the state had a right to make bum sex for boys illegal but is much more important in its application to judicial interpretation of law.

If I were to seek judicial review against the Department of Education for their failure to provide non-denominational education it would be trotted out in court along with the provisions of Article 44 which seem to suggest freedom to worship and respect for it (particularly if part of the traditions of the religions of the book) but none for non-religious persons. It would be an unanswerable case, particularly with the nonsensical "original intention" that the Supreme Court currently favours. I would lose.

So yes, it's important, it's repugnant, and it is rubbish which needs to be swept away in constitutional reform as a matter of urgency.

[tackle-bag]

However, the preamble which you have quoted doesn't have any true legal effect, so it can't really do too much harm.

IIRC Thats' just the preamble and has no force in law

There's nothing in the constitution saying that any part is less important than any other so it's as much the law as, say, article 44 which guarantees certain religious rights and prevents the establishment of a church. It's been used as a basis for judgments in significant cases. In fact it has been used to justify judicial construction of the constitution and express how that power should be used. It establishes that the ethos of the state is christian, and in fact catholic. And it is the law in Ireland that the constitution be interpreted throughout to "give life to these phrases". It was part of the argument for example in a rather famous case which concluded the state had a right to make bum sex for boys illegal but is much more important in its application to judicial interpretation of law.

If I were to seek judicial review against the Department of Education for their failure to provide non-denominational education it would be trotted out in court along with the provisions of Article 44 which seem to suggest freedom to worship and respect for it (particularly if part of the traditions of the religions of the book) but none for non-religious persons. It would be an unanswerable case, particularly with the nonsensical "original intention" that the Supreme Court currently favours. I would lose.

So yes, it's important, it's repugnant, and it is rubbish which needs to be swept away in constitutional reform as a matter of urgency.

You are right that the Preamble has been used as an aid to construction in the past, although the religious references therein have hardly ever been invoked in the last 20 years. More often, secular phrases such as "true social order" are seized upon to provide heremeneutic assistance in cases concerning the actions of law enforcement agencies etc.

The one aspect of your post which I am afraid is just wrong is your remark concerning the use of an originalist theory of constitutional interpretation. It has been the position of the Supreme Court for almost 40 years now that the Constitution is a vibrant document, the interpretation of which needs to be adapted over time, in keeping with changes to the mores and attitudes of society. It is for this reason that, in my view, the need for any root and branch reform of the Constitution is considerably more limited than has been suggested by, among others, the Labour Party.