Two constitutional referenda were held in Ireland on the 8th of March to revise the wording of the constitution, to widen the definition of family and redefine gender roles in the provision of care. The Irish government claimed that this would modernize the constitution and align it to current views and needs.
The proposed changes were as follows:
The Thirty-ninth Amendment would add the text between brackets to Article 41.1.1:
“The State recognizes the Family, [whether founded on marriage or on other durable relationships], as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.”
It would also remove the text between brackets from Article 41.3.1:
“The State pledges itself to guard with special care the institution of Marriage, [on which the Family is founded], and to protect it against attack.”
The Fortieth Amendment would delete Article 41.2 :
“1° In particular, the State recognizes that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavor to ensure that mothers shall not be obliged by economic necessity to engage in labor to the neglect of their duties in the home.”
And it would insert Article 42B in its place:
“The State recognizes that the provision of care, by members of a family to one another by reason of the bonds that exist among them, gives to Society a support without which the common good cannot be achieved, and shall strive to support such provision.”
From a strictly legalistic perspective, it is important to bear in mind that a constitution is not an exact legal code, but a list of guidelines and principles that ought to govern decision-making. Decisions, let us not forget, that are by no means guaranteed by said constitution —Articles 40.6.1.ii and 40.3.1 guarantee the right to peaceful assembly and freedom of movement respectively, which were no impediment for passing the Health Act 2020 to curtail those very rights—. Therefore, we ought not to bestow more importance on these matters than they actually deserve.
Following up on its purely legalistic analysis, we can define two basic types of constitutional provisions: disabling and enabling. In the former, I include those that essentially seek to limit the capacity of agency of the State and to protect the individual rights of the citizen. In the latter, those that seek to increase that capacity in order to correct societal flaws. A good example of a constitution leaning towards disabling provisions is the American one, which tends to emphasize individual rights against the government. And we can find an enabling counterpart in Spain, whose constitution emphasizes the role of the State in providing for inequalities and injustices in society (e.g. with the right to housing or a fair wage). Although most European constitutions would tend towards the latter, the Constitution of Ireland, thanks to its tradition of Common Law (and, why not, even Brehon Law) contains a combination of both.
In light of the aforementioned, we can determine that Article 41.1.1 has a fundamentally disabling nature, acknowledging the natural rights of a social structure (family, in this case) “…antecedent and superior to all positive law”. This is a very positive provision that, in theory, protects our freedom against any government abuse and it would be desirable to expand to more sectors of society. Thus, an amendment that enlarges its scope of protection would be in principle something to cherish. Ideally it ought to reach, not only families, but every individual.
Contrarily, Article 41.2 is clearly of an enabling nature. Here the State takes an active role, recognizing some flaw in society and endeavoring to amend it. These are the kinds of provisions that fuel social engineering and State intervention and that we ought to be wary of. Equality Minister Roderic O'Gorman rightly quipped that a “Yes” vote would place a new obligation on the State (obligation that, in my opinion, we are better off without). And so, unlike the previous article, widening of its scope would be something undesirable.
We have seen how, from a strictly legalistic perspective, one of the proposed amendments could have some theoretical justification (although probably little practical application). In praxis, though, no one believes that this punctilious analysis of natural vs. positive rights was the driving force behind the immense endeavor. Firstly, this whole affair was a costly ego trip for politicians to leave a durable impression on their mandate and enhance their profile vis-à-vis their future career. And, secondly, it was a clear ideological enterprise driven by the most (wrongly labelled) progressive faction in government (i.e. the Green Party) and their acolytes and ancillary organizations (i.e. academics, media and NGOs). Equating marriage to any other relationship and removing a specific mention to mothers constitute a clear disregard for traditional institutions. Minister Eamon Ryan, as a good positivist, said that “…this referendum is to set out our values”. Unfortunately, many self-professed conservatives seem to follow the same logic and rue the fact that these constitutional amendments will erode our core principles, acknowledging positive law as a moral source.
And so, the referenda became an ideological rather than a legal matter, much as their proponents intended. A double “yes” vote would align you with the progressive faction, whereas a double “no” would bespeak a position of a more conservative persuasion —notwithstanding the votes prompted by more pragmatic reasons, such as the rigmarole that would follow from widening the meaning of “family” to the vague concept of “durable relationship” from a legal perspective—.
In their efforts to fuel ideological identitarianism, state-sanctioned media continuously endeavored to explain to the public how a double “yes” would mean a vote for progress, tolerance and a more modern, inclusive, egalitarian and caring society. Nevertheless, and much to their dismay, the result was a resounding double “no” by a rate of two thirds to one third (and a participation of less than 50 percent). Lofty pseudo-intellectuals and academics quickly blamed the government for having failed to explain the proposal adequately to the great unwashed (clearly the voters did not understand the virtues of the amendments, or they would not have voted incorrectly), and the shockwaves of this reality check started to be felt through the administration. The taoiseach (prime minister) Leo Varadkar resigned from his position only 12 days after the vote, evidently adducing “personal and political reasons” which had nothing to do with the result.
The aftermath of this charade has left us with a discombobulated political and intellectual class who fell victim to their own arrogance, trying to shift the blame and doubling down on yet more virtue signaling as they lick their wounds. The most significant consequence, though, is the election of Simon Harris as new leader of the governing party Fine Gael and, consequently, new taoiseach. The worrying curriculum of Mr. Harris, Minister for Health during 2016-2020, includes his responsibility in the country’s response to the COVID-19 pandemic and the aforementioned Health Act 2020 which heavily curtailed civil liberties. So it will be interesting to see how he handles the hot potato of the infamous hate speech bill: legislation which seeks to regulate free speech and which is currently being proceeded through the Seanad (upper house) not without controversy. Rather unexpectedly, he has just mentioned crime and immigration as two focal points of his mandate; uncomfortable issues that have been previously ignored but that have been a matter of concern for Irish citizens over the past years —perhaps this debacle triggered a moment of epiphany in the political class—.
Fine Gael’s senator Barry Ward insisted that the ca. 20 million € that the fiasco cost the taxpayer was not a waste of money. I would tend to agree that it was money well spent if, at least, it served to make our political class and their acolytes in academia and NGOs realize how out of touch they are with the needs of the average citizen of the country.
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