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ordinary Act, no legislation passed by the Oir
eachtas could subsequently be declared invalid.
If it was contrary to the Constitution as it pre
viously stood, the Act would have to be treated
as having amended the Constitution. (It could be
arranged
that the Constitution could only be
amended by an Act saying that it did so, but this
would provide no safeguard; any Act likely to be
incompatible with the Constitution would simply
be declared to be an amendment of it, and that
would be that).
The Constitution would no longer be a frame
work within which the political party for the time
being in power in the Dail would have to work.
It would become a set of rules which the winning
political party would be free to change at will
(subject only to the present right of the Senate
to delay Bills). This would substantially defeat the
purpose of having a Constitution, which is to take
the basic rules of the State out of the hands of a
perhaps temporary (or perhaps temporarily en
raged) majority political party. It would enable
a majority of the Dail to alter the principles on
which the State is based. It would enable personal
rights that we now rightly regard as fundamental
to be whittled gradually away. It would encourage
sterile and academic political debate in the Dail
about the basic laws of the State, to the neglect of
practical problems. And it would be an imitation
of the worst feature of the British unwritten Con
stitution.
There are similar objections to the idea of
making it possible to amend the Constitution by
a two-thirds or three-quarters majority of the two
Houses of the Oireachtas. Only Bills passed by a
majority of the Dail, but not by the required
majority of both Houses, could be declared un
constitutional by the courts. Other Bills would or
could easily be declared to amend the Constitu
tion. The preservation of personal rights and of
the fundamental principles on which the State is
based would depend on fifty or sixty individuals,
all of them subject to public and private pressure
and perhaps to public vilification if they stood
up for the interests of an unpopular minority or
an unpopular point of view.
The Oireachtas could authorise the Minister
for Justice, or any member of the Garda Siochana
(or anyone else, for that matter) to imprison any
person
indefinitely without trial.
Proportional
representation, which the Irish people have twice
voted to retain, and the principle of "one man
one vote", now both part of our Constitution,
could be abolished at any time by a majority of
the Dail. The Dail could be abolished, and the
Government given absolute powers to make laws,
perfectly legally. There would no longer be any
legal protection against a take-over of the country
by Fascists or Communists, once they had secured
a majority, even a temporary one, in the Dail.
If politicians are really considering amending
the Constitution to speed the end of Partition,
to make the Constitution changeable by ordinary
legislation or even by a three-quarters majority
of both Houses. This would be a mistake. Indeed
it would probably be a fatal mistake. Whatever
fundamental rights former Unionists would want
to have in a United Ireland, those rights would
have to be guaranteed to them, and guarantees
mean embodiment in a Constitution not alterable
by a majority of the legislature. Unionists, since
they would consititute less than 25 per cent, of the
population of a United Ireland, might even wish
to make certain changes, for example, on religious
freedom, alterable only by a majority of, say,
80 per cent, of the people voting in a referendum.
We
rightly criticise Northern Ireland for not
abiding by the fundamental democratic principle
of one man one vote; we could not continue to
do so if a Fianna Fail majority in the Dail two
years ago had abolished that principle here. Yet
this is just what would have happened if the last
referendum had not been necessary in order to
amend our present Constitution.
The second bad idea now being discussed is for
a change in the present clause in the Irish Con
stitution prohibiting divorce. It is suggested that
this should be altered so as to allow divorce (and
later
re-marriage)—but only
for
those whose
religion permits it.
There are a number of serious practical ob
jections to 'this idea. It would compel the Protes
tant Churches to take official positions on divorce
which they would almost certainly be unwilling
to take. It would not solve in a way compatible
with any religion the case of a person who alters
his or her beliefs. For example, a person who is
divorced would be presumably free to remarry
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