Constitutional Convention Lost in Semantics


The Constitutional Convention met for the first time on the 1st December 2012, since then they have voted on a number of issues the government felt pertained to modern Irish life, and that they felt should be altered on the constitution. Since making their recommendations no bills have be published by Dáil Éireann, and in fact none have come under vote within the Oireachtas. One of their primary activities has been examining Article 41 of the constitution, and multiple subsections there-in. This article has been under debate for many, many years, as it makes clear the state’s position on marriage, the role of women, the protection of children, and the rights of the family. The article seems on the surface very specific, but after reading it over again and again I have begun to think think that it might be open ended than we allow ourselves to believe. The constitution has this to say about the family:

The State recognises the Family 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.

Article 41, subsection 1.1. Bhunreacht na hEireann

Now, Bhunreacht na hEireann or the Constitution of Ireland is a formal document laying out article sand rules on which the laws and governance of the Irish state should be based upon. It is clear cut, specific and while I don’t agree with all of it, it’s on the whole a fair document that provides us with our fundamental rights. Constitutional Law, is the laws that come from how the constitution is interpreted, but unlike the constitution, does not need a referendum to be changed. These interpretations come from legal cases and examples which serve to demonstrate an interpretation of the constitution generally recognised as fact. And if the constitution was written just for these solicitors or indeed only for the person to whom these case pertain then perhaps I can accept that. But they don’t, so I can’t.

What is a family to you personally? To me it can be anything really, in any shape, with any number of people and any types of people, you merely have to love, rely on and protect one another, that is a family. To you it may be different, which is perfectly fine. You are allowed your definition in so far as I am allowed mine. And if the constitution represents the view of all the people then it seems quite clear to me that any legal definition of a family is case specific and if the family is granted “imprescriptible rights” then an individual’s definition of family itself, is constitutional protected. Hell, even my opinion of what the definition should be is protected by under article 40, subsection 6 which allows me to express opinions freely.

I am a lay man, I have no constitutional law training, but I have read the Irish constitution, more than once. So as an Irish citizen, interpreting, the Irish constitution, something of which I shouldn’t require any training to interpret seeing as it was written for me, this is how I see it: not once does it declare that a family must consist of one mother, one father, and a child. It merely says the family. Also, not once, does it say that a marriage consists of a man and woman.

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.

Article 41, subsection 3.1

This is as far as the constitution goes to define marriage. Now, obviously it goes without saying what was meant to be implied by article 41, that is strict Christian definition, and this was clearly defined the case of Murray v. Ireland where high court judge Costello J. said:

The Constitution makes clear that the concept and nature of marriage, which it enshrines, are derived from the Christian notion of a partnership based on an irrevocable personal consent, given by both spouses which establish a unique and very special life.

Now, the extracts from the constitution I have noted above are the articles which he is referring to specifically.  Which you yourself have just read, yes you could choose to interpret it to agree Costello J. or you could agree with me. It is, however, redundant as it is his legal qualifications and experience which trumps me this time. But still; this is starting to look less and less like a constitutional matter and more like a legal one to me. Indeed if that is indeed what the definition of family is limited to then it isn’t just same sex families which suffer, it’s also the single parents, and unmarried couples.


My point is this; a motion has been passed by the constitutional convention to propose a bill into the Dáil  which allows a provision for same sex marriage into the constitution. This must be debated back and forth in the house before it goes to the Seanad and then back again, to be hopefully passed then brought to referendum where everyone in Ireland will decided whether two people who love each other can marry, as if our opinion has anything to do with it. It seems to me; the ordinary Irish person the constitution was written to protect and represent, that this is an argument over legal definition not constitutional change. The family is protected by the constitution, so let’s all stand up and actually protect it. This isn’t about same sex couples it’s about people, related or not, single or married, co-habituating or separated, even divorced parents with second families can be seen as part of one big one, if you would like that. The law has gone far enough to define our constitutional rights; it’s time that the people defined their constitutional rights. The real issue with article 41 is its subsection in relation to women in the home, where the state basically says that a woman’s place in the home and vows to keep them there, that of course is my interpretation, so here it is for yourself:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Article 41, subsection 2.1 & 2.2. Bhunreacht na hEireann

Another clear cut definition that needs to be removed, perhaps changed to say “parent’s” place within the home should be protected. Luckily this is one of the issues being put forward by the constitutional convention. However it is unlikely to see publication into a bill until late 2013 or even 2014. Which is I feel is kind of ridiculous seeing how blatantly sexist it appears.

Our government is slow, and prefer waiting and seeing to acting. For example, in the year of the constitutional convention abortion wasn’t anywhere near the agenda, it took a woman’s death to put it onto the table, and now the bill is being rushed forward for publication. The way our political system is run seems counterproductive and counter intuitive, and when I talk to people on a daily basis they say that it doesn’t matter, that nothing can be done we just have get on with it, and that may be true. But in a country which doesn’t even seem to know what a family is, how long can we afford to sit back and wait?

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