Bosco – Irish Sentinel Contributor – 22nd September 2021 –
A legitimate question posed by any well respecting Irishman or Irishwoman today is ‘ how are the people expected to respect the law when those who enforce it are themselves acting unlawfully?’. To decipher this conundrum, we must first determine what is lawful.
The Irish people, we are told, are the ultimate source of authority under the Irish constitution. The Irish constitution (or Bunreacht na hÉireann) was ratified by the Irish people in 1937 and it is the fundamental law of the State.
The preamble, the purpose of which is considered directorial and aspirational in terms of policy, states the following;
“ The preamble to the 1937 Constitution outlines the 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, • God or other deities We, the people of Éire, • Source of constitutional authority Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, • God or other deities Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, • Motives for writing constitution And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, • Human dignity • Motives for writing constitution Do hereby adopt, enact, and give to ourselves this Constitution”
Writing in the far left Magill magazine, the habitually cantankerous boomer Vincent Browne, in supporting a revision to the substance of the preamble, ranted with the usual admonishments seething;
“Not everyone in Ireland believes in the doctrine of the Holy Trinity or in God. Even those who do believe in God many of them would not accept that “authority” comes from God, rather they might believe authority comes for the people, especially in a sovereign republic. Some of us might believe that the idea of authority coming from God is potentially menacing, for those who claim to know the mind of God might be prompted to use this as a means of advancing their own claims to authority, irrespective of what the people might think”.
The irony here is that Browne considers menacing those who claim to the mind of God, when he and his progressive confrere, acted in persona dei, in deciding who has the right to live and who doesn’t. The biased media machine in Ireland, to which Browne is a central figure, helped establish a brutal regime of child butchery according to their own arbitrary imposition of personhood and the rights which, they tell us, necessarily attach to such a whimsical appellation.
The arrogation to a select few ideologues in the media and then packaged to a deferential public, imposed on the land a new secular papacy where the charism of infallibility wasn’t restricted to ex cathedra pronouncements either. This new priesthood to which the likes of Browne was self-ordained were and remain zealous in their inquisition routing out heretics that dissent against the nouveau religion of wokism.
Browne is part of the boomer hubris that dominate, what Noam Chomsky might consider the, “limited spectrum” of acceptable discourse. Chomsky, the doyen of the left, does get it right when he asserts
“The smart way to keep people passive and obedient is to strictly limit the spectrum of acceptable opinion but allow very lively debate within that spectrum.”
Browne and his uber progressive ilk in the Irish legacy media inhabit this space with gay abandon and self-righteousness. Why, they may ask, do we need a transcendental God when they themselves have usurped divine authority for themselves. The media priesthood act as immanent gods of indoctrination imposing their envisioned utopian fantasy for the benefit of all, or rather those who allow to be included as “all”.
In response to the political upheaval in early 20th century Europe, Pope Pius XI promulgated a number of encyclicals climaxing, aptly, in Passiontide just before Easter in 1937 with Mit Brennender Sorge and Divini Redemptoris. Having celebrated the 40th anniversary of Pope Leo XIII’s Rerum Novarum with Quadregesimo Anno in 1931, Pope Pius discussed the dignity of the human person, a declaration which clearly influenced the drafters of the Constitution of Ireland.
The media priesthood as far back as 1996 have been engineering the removal of any reference to the Christian God. The anti-Irish Times for example had reported that most of the law reform review group favoured the deletion altogether of the Preamble from the Constitution. The suggestion put forward sought a replacement of the preamble with a basic formula of enactment of the Constitution by the people of Ireland. Media personalities such as Browne later insisted on a mere excision of Christian references.
It is stated with frequency by the well intentioned who seek a lawful escape from the present tyranny, that our safe passage to freedom lies in the substance of the constitution. Given the apparent over-reach, if not blatant lawlessness, of the lawmakers and their agent enforcers; the gardai and defence forces, it is understandable that law abiding citizens would seek recourse to a document that was considered, in theory at least, to be protective of the inalienable, imprescriptible, and indefeasible rights of citizens. The constitution almost assumed a Marvel Comic superhero stature to many, flying in to save the day from the dastardly villains in power. This, I believe, is a gross miscalculation.
The people are the custodians of the nation, and it is the duty of every generation to pass on our traditions, culture and values in as pristine a state as when first received. As we gained independence from a foreign yoke, it fell upon the nation, with the guidance of those selected as representatives, to ratify the constitution through a plebiscite. Once ratified, the document purported to protect the nation, as was initially intended. The constitution serves the nation only, not the other way round, and this is important.
Let us remind ourselves of the contents of Article 1 of the Constitution of Ireland.
ARTICLE 1 of the constitution reads;
The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.
One can be forgiven for assuming that the substance of the document lends itself to the best interests of our nation having established that its very existence is to serve that very function. However, like most legal documents, including a constitution, the proper functioning of the substance of the instrument depends on those who interpret and enforce the rights found within it.
The Constitution grants the power to interpret law, including the constitution, to the judiciary. A constitution is considered by many jurists to be an organic instrument in so far as it tends to develop in accordance with the changing needs of a society. The living idea of the instrument serves to deal with novel issues unforeseen at the time of drafting (or rather, that is the justification given by those who support the notion of an animate constitution).
How do the courts interpret constitutions? There tends to be five basic sources that guide the interpretation of constitutions; (1) the text and structure of the Constitution, (2) intentions of those who drafted, voted to propose, or voted to ratify the provision in question, (3) prior precedents (usually judicial), (4) the social, political, and economic consequences of alternative interpretations, and (5) natural law.
There is general agreement that the first three of these sources are appropriate guides to interpretation, but there is considerable disagreement as to the relative weight that should be given to the three sources when they point in different directions. Natural law (higher law, God’s law) was a predominant interpretative guide for the judiciary across the west, and Ireland was no different. The Irish Constitution is littered with references to both the primacy of natural law and the subservient nature of its antithesis, positive law. For example, Art. 43 recognizes that “man, in virtue of his rational being, has the natural right, antecedent to positive law, to private ownership of external goods.
In the 1965 case of Ryan v. the Attorney General the High Court accepted the petitioners claim of an unspecified right ( to bodily integrity).The judge in Ryan ruled that since Art. 40.3.2 specified its explicit protections of the “life, person, good name, and property rights” of citizens by the phrase “in particular,” those rights must be seen as included in the more general protection guaranteed by Art. 40.3.1 and thus that that article protected other rights not stated, in particular in the Constitution. More importantly, the court held that such a notion of unenumerated right followed from what Justice Kenny called “the Christian and democratic nature of the state.” In order to show that the Christian and democratic character of Ireland protected such “unspecified” rights, Kenny appealed to Pacem in Terris, an encyclical letter of Pope John XXIII which stated that bodily integrity was a natural human right°. The judgment was upheld by the Supreme Court as was Kenny’s argument about unspecified rights protected by Art. 40.3.1. However, in the opinion of Chief Justice O’ Dalaigh’s,, the unspecified rights were said to be due to one’s status as a human person obviating the need to refer to Christianity.
doctrine of unspecified rights has since been invoked to protect many other rights discovered in the Constitution (e.g, the 1997 case of O’T v’s B where the majority of the Supreme Court
identified a new unenumerated right whereby an adopted person has the right to
know the identity of their mother)
In the 1974 case of McGee v. the Attorney General the Supreme Court reversed the High Court decision. Supreme Court justice Brian Walsh in his determination explicitly referred to the unspecified rights under Art. 40 as discoverable from natural law. Furthermore, Walsh J argued that Art. 40 protected rights that were not created by law but anterior to it. The Constitution, therefore recognized rights that were discoverable under natural law, but not created by them ( ie, under the doctrine of natural law, rights are inherent in the dignity of our nature as rational human beings meaning they are neither created or granted, but pre-existing).
While it was stated in the case of The Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 that natural law is ‘antecedent and superior to all positive law’ the case was followed by repeated calls to exercise ‘some degree of judicial restraint’ when employing the doctrine to recognise rights. A Report of the Constitution Review Group accelerated the disuse when it advised that the doctrine should cease to be utilised by the Courts. Although the recent case of NHV v Minister for Justice has shown signs that the doctrine has not waned altogether, it has undoubtedly retreated to an almost irrelevant stature in comparison to its halcyon days of the 1970s and 80s.
With the steady movement away from the natural law instincts of the constitution the courts drifted towards a positivist vision, i.e., any expressed act mandated by government with limited deference to moral principles. How can this happen you might ask?
The answer lies in how the constitution is interpreted. We saw recently how hostile supreme court nominations can be in the USA. If the law were certain, then, it shouldn’t really matter who presides as a justice should it? But it does, because the higher one travels up the judicial hierarchy the more justices have flexibility to interpret the law depending on the school of interpretation to whom they intellectually yield and claim philosophical fidelity.
Persons who favour heavy reliance on originalist sources (text and intentions) are commonly called “originalists.” Persons who favour giving a more substantial weighting to precedent, consequences, or natural law are called “non-originalists.” In practice, disagreement between originalists and non-originalists often concerns whether to apply heightened judicial scrutiny to certain “fundamental rights” that are not explicitly protected in the text of a constitution.
Schools of interpretation include,
Originalist: An originalist is a person who believes that the meaning of the constitution does not change or evolve over time, but rather that the meaning of the text is both fixed and knowable. An originalist believes that the fixed meaning of the text should be the sole guide for a judge when applying or interpreting a constitutional provision.
Textualist: A textualist is an originalist who gives primary weight to the text and structure of the Constitution. The text means what it would have been understood to mean by an ordinary person at the time it was written. Textualists often are sceptical of the ability of judges to determine collective “intent.” The great late US Justice Antonin Scalia was a textualist.
Intentionalist: An intentionalist is an originalist who gives primary weight to the intentions of framers, members of proposing bodies, and ratifiers. Judge Robert Bork is an intentionalist.
Pragmatist: A non-originalist who gives substantial weight to judicial precedent or the consequences of alternative interpretations, so as to sometimes favor a decision “wrong” on originalist terms because it promotes stability or in some other way promotes the public good. Federal Judge Richard Posner is a legal pragmatist.
Natural Law Theorist: A person who believes that higher moral law ought to trump inconsistent positive law.
This might explain why, in a quorum of nine US Supreme Court justices, why five justices might vote one way, and four in the opposite direction, even though the same facts of the case and all its particulars are presented before the same bench. Justices, arguably, can and do reverse engineer a decision based on their world view even if most would baulk at the idea.
The law is entirely capable of being subjected to bias and prejudice despite the denials of those who decide it because the law can only be assessed through a fallible filter, a lens we might call our imperfect human intellect. A judge is as powerless to enter a court chamber absent his own biases as the rest of us. He might tell recuse himself on certain issues that he has a special interest in, but this presupposes an awareness of his own bias, or acknowledgment in the first place. While every attempt might be made to eliminate conscious bias, it is inherently human to submit to unconscious prejudices and preferences. A pro-choice justice will frame his understanding of a case concerning abortion through the prism of his pre-determined ideological allegiances. It is only human nature to attempt to be consistent.
The eminent scholar James Kelly recognised the phenomenon called legal realism, when he concluded,
“…what a judge or a legislator will recognise as good or as evil depends very largely on his personal disposition”.
Influential jurist Desmond Clarke also recognised a similar failing in constitutional interpretation when he broached the realities of Judicial activism, which can take over the process of legal discernment without clear boundaries to inhibit it. Judicial activism seems wholly unavoidable as soon as one deviates from the written Constitution and such a departure can, as Clarke suggests, be deleterious…
“…by conferring a superior constitutional status on some unwritten law, it leaves open the permanent possibility that the courts will use parts of that unwritten law to declare invalid what is explicitly written in the Constitution”
Again, this should explain why the appointment of justices to the US supreme court becomes a highly fractious exercise and a media circus to boot. In the US Supreme Court justices are nominated by a sitting president and confirmed by a partisan vote. The selection is approved knowing that the nominee will interpret the law in a manner consistent with the political ideology and future policy initiatives of the president and his faction.
Therefore, the deification of the constitution as a means of egress from our predicament should be treated with caution. John Waters and Gemma O’Doherty bravely ( but foreseeably in my opinion) experienced how anaemic an appeal to the constitution as saviour can be when their attempt to question the lawfulness of the lockdown was treated with utter contempt by the judiciary. While I admire the action taken by these two defiant patriots, and it has some merit even in its current inertia ( John and Gemma are currently exhausting domestic remedies before they embark to Strasbourg and the European Courts of Human Rights ), the case, even in its stalled hiatus, acts as a testament of resistance for those future generations who might inquire into the history in years to come concerning the great acts of betrayal against our nation currently underway. However, I am resigned to uncertainty if not fatalism as to whether any legal action will eventually prove successful given the climate of abject amorality in all quarters of governance, including the judiciary.
The judiciary we must remember is the third limb of the triumvirate government system that includes the executive and legislature. The appointees to the judicial benches emanate from the same schools, political parties, and social quangos as the political parties proper. The independence of the judiciary is as illusory claim as it is considered unbiased.
While a constitution of a nation, is used for the nation and it is safely surrendered to the custody of those who act in the best interest of the nation, then and only then does a constitution truly protect the nation. If the constitution however falls into the writhing hands of immoral, corrupt, and pliable ‘supermen’, who act only in their or their handlers’ best interest, then the constitution becomes a cage to imprison the very nation it was designed to liberate and protect.
To appeal for protection to a constitution and the hope it should offer a nation , whilst in the hands of despotic criminals, is like pleading to your psychopathic kidnapper to set you free.