Constitutionitis

Can you enshrine things in the constitution, or is that exression just in my head? Is the constitution a house of relics wherin dwell the sacred cows of the nation? Think how worked up people get about these texts. Is it merely legal concern or do we attach more signifigance to them than they're due?

To use a well-worn example, look at Turkey. Yes, I'm bitching about secularism again. The judiciary have decided to give the military a break and overthrow the government by constitutional means. That Tukishness is 'enshrined' in the constitution is well-known, but secularism is just as jealously protected. So the constitution triumphs over democracy.

Of course, it could be argued that the constitution and law in general trump democracy. If the population suddenly embraced anti-Semitism would that make it all right to indulge in a holocaust?

The thing about having a written constitution is that they can't change the rules by stealth. Our constitution is a statement of the principles which we the people have agreed to live by, and how the democratic bodies are to operate to keep that system working. The idea is that if we demand that the rules be adhered to then we should be able to maintain a state that treats people fairly and guarantees fundamental rights. If we start to talk of the constitution as outmoded then we are in danger of losing the essence of our country, in the same way as George Bush and his cronies have diminished international security by diminishing international law and the UN.

Oh, I'm not saying it's outmoded; it's legal importance is undisputed. But is it doing harm when we store sacred cows in there? Examples would be Ireland's territorial claims to Norn Iron and Turkey's 'Turkishness'. America's right to bear arms might be considered, and did France have big problem with minority (i.e. un-French) languages at one point due to its constitution?

I suppose that, like more conventional laws, there's bound to be some harmful stuff in there too. No text is perfect.

This all reflects back to the difference between a republic and a democracy.
Taking the US Constitution. Every state has it's own constitution of which the Massachusetts State Constitution is the oldest. The US Constitution was to define the powers given to the Federal Government. What was written was to be the law and nothing else.. The focus has been changed to infer what was not written is allowed.

Perhaps no text is perfect but at least with a written constitution the smart lads have to ak you before they change it. Americans are not willing to give up their right to bear arms. They are not about to be enslaved. Also, what is wrong with Turkey's commitment to Turkishness? The Courts will always interpret things but, with a written Constitution, a free press and a decent literacy rate, the people can keep a bit of an eye on them.

What is the alternative to a Constitution? No human organisation can survive without commitment to some idea even if that idea is simply unity of action or loyalty. If you lose sight of the idea then the organisation crumbles or changes into something different. If organisations have no consistency then men cannot achieve goals which require effort lasting longer than any one man's life.

It was different in the past when much fewer people were educated and power was wielded fully by the few. Today such a system is an anathema so the population must be organised to resist such oppression by the powerful and power must be kept under control. to do that you need rules which everyone adheres to and so a written constitution is the best format.

The other good thing about a written constitution is that it can be changed by the will of the people and so it does have a certain flexibility over time.

905 wrote:

Oh, I'm not saying it's outmoded; it's legal importance is undisputed. But is it doing harm when we store sacred cows in there?

Constitutions are great and all that but there is a tendency to use them to send out 'moral signals' which is when their value is undermined. All that stuff about the Family in our constitution was no doubt well-intentioned, but it has actually resulted in children suffering harm. Similarly, trying to enshrine our attitude to abortion in the Constitution has resulted in a legal quagmire that now makes it easier to have an abortion than ever before.

If I could change one thing in the Constitution I'd remove the sections that deal with property rights and re-insert them in a way that makes it clear that all land is finally owned by the State and that the State is bound to use land in ways that are consistent with the exigiences of the common good.

How has the family stuff resulted in children suffering harm? Are you talking about the adoption case where the married couple got the child back?

Zhou_Enlai wrote:

How has the family stuff resulted in children suffering harm? Are you talking about the adoption case where the married couple got the child back?

No. I'm talking in general terms about the State's inability to extract children from potentially harmful situations because of the inviolate rights of the family.

e.g.

1998 C Case, when the father of a 13 year old girl who had been raped and was suicidal sought to prevent her having an abortion because he had come under the influence of pro-life groups.

The problems with Turkishness are well documented. Their constitution prevents a free-press because insulting their nationality is illegal.

The American case is interesting. I have a theory that most cultures have some potentially harmful activity that they accept as inevitable. For the Brazilians it's their obsession with sex, for the Irish it's drink. Neither of these are in the constitution. America's fondness for guns, and the resulting consequences, are protected in the constitution though.

I fully agree that a commitment to some idea is neccessary for a group to survive, but that doesn't mean the idea has to make sense.

I think it has to be acknowledged that just because it's in a constitution, that doesn't mean it is therefore perfect. Constitutions are surely like every other human endevour, slightly flawed.

While the reality is that all human endeavour is slightly flawed it is important to treat the Constitution somthing close to sacred because unless it is held in that high respect then it will not act as an effective guarantee of our rights. While there may be difficulties in interpretation it cannot be ignored and people should insist that it be treated as rules rather than as a set of guidelines which might be ignored in certain circumstances. If we say it is flawed then we are effectively saying it is not always binding as men will not be bound by a flawed logic. That is why it is elevated to such a high status.

To my mind, it was misguided to suggest that Bertie should ignore the Constitutional prohibition on TDs being amenable to bodies other than the Dail. It would have set a terrible precedent if a TD allowed the Constitution to be ignored and co-operated in a breach of a provision of the Constitution which separates the powers of the State.

Seinfeld - the abortion issue stems not from the difficulties of the Constitution but from the difficulties of the moral issue. It may be easier to deal with it in legislation but so far the people have not agreed to give that power over to the politicians. Also, people tend to see difficulties where they disagree with the Constitution. That is not the same as a flaw in the concept of having a constitution at all.

I find it rather depressing that constitutions have to be regarded and indeed constructed as 'almost sacred' for them to have any importance. I think a critical eye is neccessary for any structure, but with the sanctity of the constitution criticism becomes treason and blasphemy.

'Rights' are another (potentially flawed) human construct of course, which is pretty self-evident. To simply blame the failure of universal rights on those who don't adopt them is a reasonable and logical response but attention also has to be paid to the rights themselves.

It reminds me of the failure of Friedmanite economics. The lack of devotion to the economic theory was blamed rather than the theory itself and more and more cutbacks and privitisations were vainly attempted, thus doing more damage.

905 wrote:

I find it rather depressing that constitutions have to be regarded and indeed constructed as 'almost sacred' for them to have any importance.

It is necessary to treat them as 'almost sacred' for them to be effective rather than important. This is a because of human nature, which sometimes is depressing.

905 wrote:

I think a critical eye is neccessary for any structure, but with the sanctity of the constitution criticism becomes treason and blasphemy.

I think that is over-stating it. The fact that the Constitution can be amended ensures that it will be constantly criticised. The Constitution enshrines people's rights to attack the constitution by democratic means.

905 wrote:

'Rights' are another (potentially flawed) human construct of course, which is pretty self-evident.

Rights are human concept but I do not see any obvious flaws in the concept. If you don't have rights then do you just follow orders?

905 wrote:

To simply blame the failure of universal rights on those who don't adopt them is a reasonable and logical response but attention also has to be paid to the rights themselves.

We are all responsible for the protection of rights where we seek the protection of the structures that guarantee those rights.

905 wrote:

It reminds me of the failure of Friedmanite economics. The lack of devotion to the economic theory was blamed rather than the theory itself and more and more cutbacks and privitisations were vainly attempted, thus doing more damage.

You have me there - never met the guy

Zhou_Enlai wrote:

Seinfeld - the abortion issue stems not from the difficulties of the Constitution but from the difficulties of the moral issue. It may be easier to deal with it in legislation but so far the people have not agreed to give that power over to the politicians. Also, people tend to see difficulties where they disagree with the Constitution. That is not the same as a flaw in the concept of having a constitution at all.

I used the C Case as an example of situation in which the rights of children are diminished due to the superior rights of the family rather than as a direct reference to abortion.

There seems to be a general consensus that the inviolate rights of the family are a cause for concern in respect of children's rights. Its why we're proposing to have a referendum on the issue.

Zhou_Enlai wrote:

905 wrote:

I think a critical eye is neccessary for any structure, but with the sanctity of the constitution criticism becomes treason and blasphemy.

I think that is over-stating it. The fact that the Constitution can be amended ensures that it will be constantly criticised. The Constitution enshrines people's rights to attack the constitution by democratic means.

Mmm, good point.

Zhou_Enlai wrote:

905 wrote:

'Rights' are another (potentially flawed) human construct of course, which is pretty self-evident.

Rights are human concept but I do not see any obvious flaws in the concept. If you don't have rights then do you just follow orders?

Well human rights are a recent development, what did we do before we had them? They are a little flawed because they depend on state approval (is the state violating a criminal's rights by locking him up?), because my rights might violate yours and it's not clear what counts as a 'right' (right to die, right to abortion etc.)

Zhou_Enlai wrote:

905 wrote:

To simply blame the failure of universal rights on those who don't adopt them is a reasonable and logical response but attention also has to be paid to the rights themselves.

We are all responsible for the protection of rights where we seek the protection of the structures that guarantee those rights.

Guh?

Zhou_Enlai wrote:

905 wrote:

It reminds me of the failure of Friedmanite economics. The lack of devotion to the economic theory was blamed rather than the theory itself and more and more cutbacks and privitisations were vainly attempted, thus doing more damage.

You have me there - never met the guy

Well, I got that example from Naomi Klein's book which might not be the most objective account. But you can see how an idea which needs critical assesment often merely gets dogmatic.

seinfeld wrote:

I used the C Case as an example of situation in which the rights of children are diminished due to the superior rights of the family rather than as a direct reference to abortion.

There seems to be a general consensus that the inviolate rights of the family are a cause for concern in respect of children's rights. Its why we're proposing to have a referendum on the issue.

How did the rights of the family interfere in that case? (if you have time)

905 wrote:

Zhou_Enlai wrote:

905 wrote:

'Rights' are another (potentially flawed) human construct of course, which is pretty self-evident.

Rights are human concept but I do not see any obvious flaws in the concept. If you don't have rights then do you just follow orders?

Well human rights are a recent development, what did we do before we had them? They are a little flawed because they depend on state approval (is the state violating a criminal's rights by locking him up?), because my rights might violate yours and it's not clear what counts as a 'right' (right to die, right to abortion etc.)

I agree that rights give rise to complications but I have to say I am committed to them as they are something a man can rely on beyond the his own personal power and the unregulated power groups he pays tribute to.

905 wrote:

Zhou_Enlai wrote:

905 wrote:

To simply blame the failure of universal rights on those who don't adopt them is a reasonable and logical response but attention also has to be paid to the rights themselves.

We are all responsible for the protection of rights where we seek the protection of the structures that guarantee those rights.

Guh?

I wasn't sure what you meant - crossed wires. I was saying that cannot just blame people who ignore rights. Those who tolerate are at fault too. What did you mean ?

905 wrote:

Zhou_Enlai wrote:

905 wrote:

It reminds me of the failure of Friedmanite economics. The lack of devotion to the economic theory was blamed rather than the theory itself and more and more cutbacks and privitisations were vainly attempted, thus doing more damage.

You have me there - never met the guy

Well, I got that example from Naomi Klein's book which might not be the most objective account. But you can see how an idea which needs critical assesment often merely gets dogmatic.

I agree.

Zhou_Enlai wrote:

905 wrote:

Zhou_Enlai wrote:

905 wrote:

To simply blame the failure of universal rights on those who don't adopt them is a reasonable and logical response but attention also has to be paid to the rights themselves.

We are all responsible for the protection of rights where we seek the protection of the structures that guarantee those rights.

Guh?

I wasn't sure what you meant - crossed wires. I was saying that cannot just blame people who ignore rights. Those who tolerate are at fault too. What did you mean ?

I meant what I said about Friedmanite economics; sometimes the problem is the idea itself, rather than just blaming those you think are obstructing the idea.


I didn't want to talk too much about rights. My opinion on both human rights and constitution is that they are not perfect. But they are certainly worth defending.

Seinfeld. Do you want the state to own all property.

Zhou_Enlai wrote:

seinfeld wrote:

I used the C Case as an example of situation in which the rights of children are diminished due to the superior rights of the family rather than as a direct reference to abortion.

There seems to be a general consensus that the inviolate rights of the family are a cause for concern in respect of children's rights. Its why we're proposing to have a referendum on the issue.

How did the rights of the family interfere in that case? (if you have time)

The Court was reluctant to interfere with the decision of the Child's father.

youngdan wrote:

Seinfeld. Do you want the state to own all property.

I think the State should own all *land*, not property.

Technically, all land does ultimately vest in the State, given that our land laws derive largely from feudal times. Land 'ownership' is a very woolly legal concept.

This doesn't mean that the State should send out the Gardai to clear people off their land. What it means is that from a legal perspective, registered interest in land would be inferior to any claim the State has to land.

This would mean that we could do sensible things like force the development or release of land, apply 100% windfall taxes in respect of re-zoning and generally limit the use of land as an investment vehicle.

I am open to everyones opinion. An argument can surely be made for a sizeable tax on instant millions made from rezoning decisions. I would worry that someone would take actions like Stalin did when he forced the peasants off the land and into collectives. The easily predicted result was a famine. We are at an interesting point in time now. We are seeing here two sets of voices. Those calling for the government to save them and those calling for the government to get off their backs before the whole economy collapses.

youngdan wrote:

I am open to everyones opinion. An argument can surely be made for a sizeable tax on instant millions made from rezoning decisions.

Well, according to our esteemed former Taoiseach, St. Bertie Ahern, it can't, precisely because of the private property provisions of the Constitution.

I'd tend to disagree myself, but until such time as the Constitution is cleaned up on this issue, no Government is going to test it in the Supreme Court.

He would not be in favour of his cronies getting taxed on millions. He wants to tax a lad on the breadline addicted to a few fags.

seinfeld wrote:

No. I'm talking in general terms about the State's inability to extract children from potentially harmful situations because of the inviolate rights of the family.

e.g.

1998 C Case, when the father of a 13 year old girl who had been raped and was suicidal sought to prevent her having an abortion because he had come under the influence of pro-life groups.

On the other hand in Britain (unwritten constitution) the stae can steal your children wholesale;

Quote :

1991: Orkney 'abuse' children go home

The children at the centre of satanic abuse allegations in the Orkney Islands off Scotland have been reunited with their families after the case was thrown out of court.
The judge, Sheriff David Kelbie, criticised the social workers who took the children away from their homes on the island of South Ronaldsay more than five weeks ago.
Sheriff Kelbie said their handling of the case had been "fundamentally flawed" and the children had been subjected to cross-examinations designed to make them admit to being abused.
"There is no lawful authority for that whatsoever, in my view," he said.
The parents were accused of involving their children in ritual sexual abuse but Sheriff Kelbie said he was "unclear" what the evidence produced by the social services proved.
Orkney social workers had failed to learn the lessons of the Cleveland and Rochdale child abuse cases, he added.
After the judgement the parents said they just wanted their families back together.
"The important thing now is to get our children back quickly and start to repair the damage," one father said.
More than 100 people gathered at the airport to welcome home the children, aged from eight to 15.
Foster homes
They had been taken by social workers in dawn raids on their homes after allegations of ritual sexual abuse by their parents and the local Church of Scotland minister.
The five boys and four girls were placed in foster homes on the Scottish mainland.
Their parents complained the children were taken away solely on the basis of allegations made by three other children.
After their children's return they said they were planning to sue for damages and called for a judicial inquiry into the handling of the case.
Orkney's social services director, Paul Lee, said he would be taking legal advice about appealing against Sheriff Kelbie's decision.

Constitutions, written and unwritten, don't seem to be too good at protecting the rights of children, who often seem to be treated as though they were property rather than people.

At the moment it is very interesting to compare today's UK judicial decision taken in the absence of a written constitution that the means of ratification of the Lisbon Treaty/Constitution was a political matter in which the Court should not interfere. I am not a legal person so I couldn't give a quick comparison with the Crotty case.

The fact that an Act had been passed to provide for ratification was taken as fairly conclusive.

Does the primacy of Parliament in Britain means that Parliament is taken perhaps more seriously than the Dail is here ? Our Constitution and our very independent judiciary gives the citizen a comfort zone that does not exist in the U.K.

Quote :

Lord Justice Richards and Mr Justice Mackay’s strong comments appear in their joint written judgment handed down today in which they reject the spreadbetting tycoon’s legal bid to force the government to order a vote.

They said that to order government ministers to introduce a bill for a referendum into parliament in their capacity as MPs “would plainly trespass impermissibly on the province of parliament”.

They said Mr Wheeler’s reformulated application was seeking to require ministers to introduce into parliament a bill, or an order, providing for a referendum.

Mr Wheeler claimed that a legitimate expectation of a vote arose because one had been promised by former premier Tony Blair in relation to the failed EU Constitution.