Ireland’s Constitutional Crisis

For nearly six years I have been involved in what has seemed a continuous political battle, loosely related to issues concerning family and children and converging on the Irish Constitution. This battle is now on to its third referendum. The first, in 2012, related to what was presented as “children’s rights,” but was really a burglary of the authority of parents. The second, in 2015, delivered the Irish version of same-sex marriage. Both amendments were passed roughly 60:40. The third referendum—to take place some time in the early summer—relates to the rights of the unborn child, which have been under attack by pro-abortionists for thirty-five years.

My resistance to these initiatives has a constant basis that is less a matter of Catholic doctrine than a determination to preserve particular understandings of law, now under terminal sentence in my country and elsewhere. Of course, these understandings are part of Christian teaching, but I make the distinction because I find that, nowadays, people have become oblivious to the fact that they would be necessary and true even if Christ had never come.

The Preamble of the 1937 Irish Constitution begins: “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 …”

It is nowadays not immediately obvious that this opening passage has also a secular interpretation, perhaps best demonstrated by reference to C. S. Lewis’s observation that when God is abolished by man, He is not replaced by all men but by a few men imposing their will on the rest. It is essential, therefore, that laws fundamental to human functioning and happiness be referred elsewhere—upwards, sideways, outside—though preferably not downwards. Certain rights are so fundamental and non-negotiable that they cannot be left to the mercies of human caprice or consensus. These include certain personal rights, on which depend the security and freedoms of the individual; family rights, protecting the unity and cohesion of the most fundamental grouping in society; and collective rights, regulating the health and stability of the nation. Such rights were at one time universally understood to emanate from natural law, which could be characterized as deriving from divine authority or as an extrapolation from the nature of earthly and human reality.

This is the real terrain of these recent battles. In the referenda of 2012 and 2015, a few of us divined a plundering of the fundamental rights of families in a manner that was actually illegal, unconstitutional, and profoundly dangerous. In effect, the Irish government performed two sleights-of-hand, both times convincing the public that it had a right to vote on matters that were actually beyond the remit of government and People. Both of the targeted articles had made clear that the rights set out within them were not extended or generated by the state, but were “antecedent” and simply “recognized.” Thus, Article 41 begins, “The State recognizes the Family as the natural primary and fundamental unit group of Society…”; Article 42 begins, “The State acknowledges that the primary and natural educator of the child is the Family . . . ” (my emphases).

The 2012 amendment dismantled the edifice of rights in Article 42 that guaranteed the inviolability of the family and its independence from the state. In 2015, the attack mounted in the name of “marriage equality” ensured that the very definition of a family in Article 41 was torn apart and replaced with an absurdity beyond satire. The amended Article 41 declares inter alia that two men or two women who are “married” to each other are to be regarded as a “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.”

Under attack this year is Article 40.3.3, otherwise known as the Eighth Amendment, which “acknowledges” the right to life of the unborn child. This article, added in 1983 when pro-life interests became concerned about the encroaching threat of abortion, also represents merely a recognition of an antecedent right. Because this right it is not raised up by Article 40.3.3, it cannot be demolished by the removal of that article from the Constitution. Yet the procedural logic of the referendum implies that, by deleting or amending the article, the People will, as though magically, have acquired a right to void or curtail the right it refers to. This is not merely illegal but manifestly wicked. That it can be considered at all is owing to the attrition effected by decades of propaganda, in which the child in the womb has been rendered abstract and pre-human. Yet the Irish language version of the wording of Article 40.3.3—which ought to take precedence in moments of ambiguity or doubt—refers not to “the unborn” but to “the living without birth,” (“na mbeo gan breith”) a concept that cuts through the abortionists’ dissembling.

It is a moment unprecedented in human history. In every other instance, abortion arrived in Western societies not by a vote of the people but by edict of a court (as in the US) or a statutory instrument (as in the UK). The Irish government is to ask the Irish People whether or not they will permit a category of innocent human person to be subject to lethal force, and have this power franchised to private interests and funded from the public purse. If it is possible for the Irish People to adjudicate by ballot on this question, why might we not in the future deliberate similarly on the right to life of the elderly, the homeless, the Travellers, or the mentally ill? Or what might ensure that such possibilities continue to seem absurd? The enlightenment of the electorate? Adequate counter-propaganda? The courts?

Ah, the courts. In recent months with some like-minded friends I have been seeking lawyers to represent a petitioner in a challenge to what the government is proposing. Of course, we have been speaking exclusively to lawyers sympathetic to causes that might broadly be identified with our perspective—“pro-life,” “conservative,” even “Catholic,” although all such categorizations unhelpfully reduce the issue. All the lawyers we have spoken to agree with us—“100 percent,” “110 percent,” “150 percent,” and more. But most of them explain that, although we are entirely correct in our analysis, such concepts as “absolute rights” and “natural law” have no purchase in modern judicial thinking. Even if we get a hearing, the judges will find some way of declaring that these are matters for the government and the People—a nonsense, but apparently highly probable. The lawyers we have spoken to have been unable to identify the moment at which the unmooring from natural law took place, but all observed that it has been happening for some time. All law is nowadays to be regarded as positive, i.e. man-made. Nothing is given, antecedent, or deriving from Anyone—even anything—higher.

Of course, such “logic” renders nonsensical the language of our Constitution, which is the only basis for the authority of our courts. It seems that by a process of avoidance, dissembling, and nod-and-wink, the foundations of Irish constitutional law have stealthily been removed and carted away, without a murmur of protest from lawyers or intellectuals. We have moved from a place in which human rights have been guaranteed by virtue of some understanding of transcendent derivation, to a dispensation in which even the most fundamental rights are to be regarded as existing at the whim of the electorate. The lawyers we spoke to—all good people—referred to the process whereby natural law was abandoned as though it were a foreign language that they could follow but had not learned to speak. Only one of them offered to join our endeavor. The starkness of the situation we have arrived at, the others implied, matters much less than that judges not be placed in the uncomfortable position of having to state in clear terms why words like “imprescriptible” and “antecedent” no longer have the meanings given in the most commonplace dictionary.

John Waters is an Irish writer and commentator, the author of nine books, and a playwright.