A written constitution

[THR]

It has often been falsely said that the UK has no writen constitution. Of course their laws concerning the mechanics of government are written down but they are in the form of ordinary laws. Theirs is a system whereby those laws are not codified under the same paragraphs and each of those laws could be changed with the simple majority of Parliament.

Yet, the constitutionla practices of the UK have outlived many of those on the continent which have declared their "unchangeable" constitutions. What is your opinion? Ireland has a so-called written constitution. Does it harnes excessive power on part of the government?

[toxic avenger]

It's a partly-written constitution, involving not just case law, but also authorities such as Bagehot, and other bits and pieces. The constitution is uncodified rather than unwritten. It's flexibility is an advantage in not straight-jacketing the Government, Parliament, and the Judiciary, but its vagueness leaves it open to abuse or all manner of contradictory interpretations. The campaign for a Bill of Rights reflects this. There are advantages and disadvantages to a codified, fully-written constitution also, as I'm sure many of the yes and no Lisbon campaigners can readily see. The British system has served the British quite well overall, and there's no major clamour to change it, so it should be left be. It probably is only possible to have such a constitution in an ancient monarchy. We, alternatively, are by and large quite happy with Dev's document, which probably is necessary for a new Republic.

[socialdemocrate]

one disadvantage of a written constitution ( apart from having to have a referendum for every bloody issue) is that you get constitutional lawyers going over every word and coma in it looking for a loophole. In the Uk they have an expression called " the spirit of the law " which means that it doesn't matter how badly written a law might be, if it reflects the spirit in which it was made it cant be chalenged . I so wish we had a similar system over here.

[NotDevsSon]

It has often been falsely said that the UK has no writen constitution. Of course their laws concerning the mechanics of government are written down but they are in the form of an ordinary laws. Theirs is a system whereby those laws are not codified under the same paragraphs and each of those laws could be changed with the simple majority of Parliament.

Yet, the constitutionla practices of the UK have outlived many of those on the continent which have declared their "unchangeable" constitutions. What is your opinion? Ireland has a so-called written constitution. Does it harnes excessive power on part of the government?

Britain's constitution is a fascinating example of an organic body of laws that evolves over time. Its danger is the lack of absolute guarantees that cannot be overwritten. But its benefit is that it is living entity that can change over time. For example, it does not have a referendum procedure, but creates individual referendum systems on an ad-hoc basis as needed. One of the most striking thing is its flexibility in a given circumstances. An example was under Thatcher when the most thorough scrutiny of her legislative proposals came from of all places the House of Lords, where she was regularly defeated, and where her government was forced constantly to defend proposals and analyse them to an extent that we never see in the Irish Oireachtas.

The fact that parliament in most areas (it is not long the case in all areas) is sovereign, makes concern with 'constitutional issues' a live matter in politics, but where a 'constitutional issue' is not limited to a legal discussion on an article but to often to broad principles of civil society. In so-called 'written constitutions' constitutions are all too often staid documents where 'constitutional issues', except on rare occasions, are only of interest to lawyers, judges, academics, politicians, etc. The rigidity of the system, ironically, can make it an almost fossiled document trapped in the era it was drafted in, and in which it then finds itself struggling to catch up with contemporary needs. France's 1958 constitution is in many ways stuck in a Gaullist time-warp and needs radical overhaul. De Valera's constitution, universally regarded internationally as one of the best ever constitutions drafted, and a credit to de Valera and the lawyer who drafted it, John Hearne, needs major overhaul but the failure to create two methods of amendment, leaving the only amendment process the use of plebiscites, means that even the most minor technical change - for example the Irish and English language versions disagree on the minimum age of a president. One says someone should have reached 35, ie be in their 36th year, and the other say someone have reached their 35th year, ie be 34. Simply getting them to match would require a referendum, involving closing schools, and over €5 million to be spent. Oireachtas committees over the decades have recommended nearly 50 changes, many of the small, technical, uncontroversial and likely to get 90%+ behind them. But the sheer number of them would require years of voting or the mother of all referenda, with a vast number of issues bunged in together. A far more suitable system would be to allow small technical updates in language to be done by a 2/3 majority in the Dail and Seanad, with the safeguard of the President having the right to a proposed amendment if s/he believed it required public approval, to the people in a referendum, with all major changes, reforms, institutional changes requiring an automatic referendum. But there is little chance of getting such a system adopted.

The bottom line is simple:

- so-called 'written constitutions' can positively provide stability and protections. Negatively though they can make constitutions and constitutional systems sound legalistic and technical, and produce a constitution that is so hard to change that it becomes more and more out of touch with the society it presides over.
- so-called 'unwritten constitutions' can provide flexibility and produce constant debates about what are the fundamental rules of society. But they can slip into the 'dictatorship of the majority' where fundamental principles can be lost because they lack absolute protections.

[Stíofán]

one disadvantage of a written constitution ( apart from having to have a referendum for every bloody issue) is that you get constitutional lawyers going over every word and coma in it looking for a loophole. In the Uk they have an expression called " the spirit of the law " which means that it doesn't matter how badly written a law might be, if it reflects the spirit in which it was made it cant be chalenged . I so wish we had a similar system over here.

I think we should have a mechanism of ratifying things without referenda, like we had for an initial period after Bunreacht na hEireann was drafted (1st and 2nd amendments were via the Oireachtas). The US allows amendments with a 75% majority of both Houses and State consent I think. We should have something similar. Obviously political consensus is easier in this country, so the threshold should be higher, 85% or 90% of the Oireachtas and maybe a majority of the local authorities.

We, alternatively, are by and large quite happy with Dev's document, which probably is necessary for a new Republic.

Probably, though it's been ammeded 27 times so clearly we weren't too happy with it
But yea, I wouldn't want a new Constitution.

[NotDevsSon]

[quote=Stíofán]

one disadvantage of a written constitution ( apart from having to have a referendum for every bloody issue) is that you get constitutional lawyers going over every word and coma in it looking for a loophole. In the Uk they have an expression called " the spirit of the law " which means that it doesn't matter how badly written a law might be, if it reflects the spirit in which it was made it cant be chalenged . I so wish we had a similar system over here.

I think we should have a mechanism of ratifying things without referenda. The US allows amendments with a 75% majority of both Houses and State consent I think. We should have something similar. Obviously political consensus is easier in this country, so the threshold should be higher, 85% or 90% of the Oireachtas and maybe a majority of the local authorities.

We, alternatively, are by and large quite happy with Dev's document, which probably is necessary for a new Republic.

Probably, though it's been ammeded 27 times so clearly we weren't too happy with it
But yea, I wouldn't want a new Constitution.[/quote:3lpd6fzr]

Overall, it is a very very well written constitution, and is very highly regarded. (Mandela's South Africa studied it as a model when drafting the current South African constitution. Numerous other states have used it as a model. De Valera's constitution is generally seen as superb and a model constitution, with de Gaulle's constitution in contrast seen as one of the worst drafted examples.)