One of the myths by which we live and organise our life in society is that there is a collective deity called “the People” which speaks to us through the ballot box, whose scripture is the Constitution and whose utterances are infallibly interpreted for us by the hierarchy of the courts.
Politicians are the priesthood of this deity and they worship daily at its altar, offering in sacrifice their personal beliefs and the needs of anyone not currently in favour with the People. They owe their political lives to this deity and they serve it in abject fear, always willing to sacrifice whatever it may demand.
It was not always so. In 1937, a previous generation enacted the present Constitution “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”. According to article 6.1, the People hold authority “under God” to designate the rulers of the State and in final appeal “to decide all questions of national policy, according to the requirements of the common good”. In five instances in the Constitution, two of them enacted in 2012, the personal and family rights that it guarantees are described as “natural” rights. They are said to be recognised, acknowledged and affirmed – but never “conferred”– by the Constitution. They are also variously described as inalienable and imprescriptible rights, antecedent and superior to all positive law.
The courts for many years acknowledged this worldview and derived from it a catalogue of important fundamental rights, based on natural law, whether or not they were explicitly mentioned in the text of the Constitution.
In recent years, however, the Supreme Court has unilaterally disqualified this source of law. Citing a supposed incompatibility between an inherent natural law and the sovereignty of a democratic state, the court has effectively nullified or ignored the preamble and each instance in the constitutional text in which the natural law doctrine is affirmed or implied.
Absolute power
The Supreme Court decided in effect that the People have an absolute power to make any laws they may please, even radically unjust and discriminatory laws. In reality, however, the ultimate power remains in the hands of the Supreme Court, which interprets or ignores the constitutional text as it sees fit.
The People have now decided, in their new-found omnipotence, that the last remaining natural right of the unborn child is to be denied and replaced with an unrestricted licence to regulate the termination of its life. The People have thus confirmed the rejection of the supervisory authority of natural law and of the implicit authority of God on which it is grounded.
The People have decided, in new-found omnipotence, that the last remaining natural right of the unborn child is to be denied and replaced with an unrestricted licence to regulate the termination of its life
They have succumbed to the original “fake news” uttered to the woman in the Garden of Eden – “You will be like God, knowing good and evil.” The 36th Amendment has endorsed the fiction that the People are the one and only authority, the One Who Must Be Obeyed. Our new schema: “Hear, O Ireland, the People is our God, the People is One.”
What follows now? The political priesthood of the People will be confronted with loud cries that the People has spoken and must be obeyed. Yes, but what exactly has it said? “Well,” the mob will reply, “we must have new legislation and have it quickly!” “And it must allow for abortion without restriction up to 12 weeks!” “And . . .”
No constitutional obligation
But wait a moment. How do we know what exactly the People has said? Let us look at the Word of the People in its Scripture, the new article 40.3.3. What the People has actually said is that “Provision may be made by law for the regulation of termination of pregnancy.” Notice the word “may”. The People did not say (as it did, for example in article 42A, enacted in 2012) that “Provision shall be made by law . . .” It clearly said “may”, not “shall”.
There is therefore no constitutional obligation on the Oireachtas to enact new legislation to regulate the termination of pregnancy. It has in fact already enacted the Protection of Life During Pregnancy Act, 2013, which explicitly regulates the termination of pregnancy. The People has not spoken or set rules about the content of any such legislation.
Shrieks and howls from the mob – “but we all know what was meant!” If that were the case, the People should have said what it meant. But it would be a gross lack of respect to the deity to presume that it could not say exactly what it meant, and it clearly said “may”.
In this Brave New World of the People, we cannot make assumptions about anything which goes beyond the literal meaning of the constitutional text, the Word of the People. Otherwise, we might fall back into accepting implicit natural rights in the constitutional text. We must be very careful to obey the People, after all.
Bruce Arnold is a writer and journalist