A constitution has two primary purposes. The first is to establish the institutions of the state – to circumscribe the powers of the President, the Oireachtas, and the Courts, and the ways in which those bodies interact.
The second, and much more important purpose, is to put limits on the power of the state. That is why, more than any other legal instrument, the Constitution is the people’s document. It is the piece of paper that stands between you as a citizen, and the worst instincts of politicians. Ministers who wished to seize your property, or detain you without trial, would find the constitution standing between them, and their intended target. It is, and shall ever be, the last line of defence for the ordinary citizen facing the power of the Government.
It is because of this vital role that the constitution plays that when politicians seek to change the text of the constitution, their desire to do so should in all circumstances be viewed with skepticism as a starting point. This is our document, not theirs, and altering the fundamental relationship between the citizen and the state is not something that should be done lightly, or without overwhelming evidence of the need for change.
In the case of the referenda to be held on Friday, it is our considered view that no overwhelming – or even passable – evidence of a need for change has been presented to the public.
In the case of the first referendum, which proposes to remove the reference to “women’s duties in the home”, it should be remembered that those who now seek to remove that article are not so many years removed from having defended it. In 2017, for example, Eamon Ryan described the article he now wishes to delete as “quite progressive”, saying that “it was originally enshrined to protect us from what were then the excessive powers of business”.
It simply cannot be argued that the reference to women in the home has negatively impacted Irish women, or their prospects. In its lifetime as part of our constitution, that article has borne witness to two female Presidents, a female Chief Justice, the transformation of women’s role in Irish society, and laws enshrining political gender quotas into our national statute books. The constitution has stood in the way of none of that change. All that it has done, throughout that time, has been to recognise the contribution to Irish society made by hundreds of thousands of women who chose to devote a greater portion of their lives to the well-being of their family and children. A society that truly wishes to respect women would not be embarrassed, or ashamed, of that recognition.
In the case of the second referendum, which proposes to alter the legal definition of the family to include those in “durable relationships” outside of marriage, it is also true that no passable evidence of a need for change has been presented to the public. It remains the case that anybody in this country who wishes to have state recognition of their relationship may get married, and in so doing receive the protections the constitution offers.
It is important to remember that marriage is not only a one-way street, when it comes to a couple’s relationship with the state. At present, to get the state involved in your relationship, you must invite it into that relationship as the third party – the guarantor – of your marriage. Nobody can get married without intending to do so, and signing a public declaration of their intent.
This is not the case with durable relationships. The state is offering us an undefined term and promising us that it will protect relationships of an undefined nature. This opens the prospect of people ending up in a legally recognised relationship, with legal responsibilities and duties, without ever having intended to enter one or being aware that they were entering one. It risks conferring on the state, via politicians or the courts, the power to decide things that at present, only a couple can decide by themselves. In the case of the already fractious area of inheritance law, for example, it risks people dying without realising that the courts may later define a relationship they had as akin to marriage and altering the terms of their will. These are not only our concerns as an editorial board, but the concerns of some of the most eminent lawyers in the country.
Those lawyers, of course, may well be wrong, as might we. The public have to take the risk, however, that they are correct, with all the consequences that would entail. As Senator Michael McDowell convincingly argues, “This is a recipe for an entirely foreseeable mess”.
Taking all these factors into consideration, voting No/No is not only, we believe, the best option, but the solemn duty of an engaged and active citizen.
Our role in this democracy, as voters, is to hold our politicians to account for the decisions they make, and act as the last line of defence against incompetence and capriciousness on behalf of those who govern us. In this instance, we have been presented with incoherent and poorly thought out changes, with no compelling rationale for making those changes. The constitution was given to us, the electorate, to guard. It cannot be changed without our consent.
The price that we place upon that consent should be high. In this case, the politicians have not met it, and do not deserve our trust. We urge the rejection of both referendums on Friday.