Theoretical framework of a Supreme Court
The initial presumption behind a Supreme Court is that its judges would merely be mouthpieces for what is written down in the Constitution. The French philosopher Montesquieu described this as judges merely being ‘the mouth that pronounces the words of the law, inanimate beings, who can moderate neither its force nor its rigour.’ All judgements made by the court would be void of any personal opinion or prejudices. This role would mainly be suited to an experienced judge that was coming up to retirement, as it would provide comfortable job security and ample time for leisure.
No big thinking or public critique of their court decisions would occur as they are merely mouthpieces for the Constitution. It would be similar to the Irish presidency as you would just be a figurehead of an institution with no publicly expressed political opinion of your own. They would not be seen as mere men, but a symbol of Ireland. Both the presidency and the Supreme Court judge would be the final cherry on the cake for any Irish figurehead that wanted to make a final stamp of their success in life. This is the theory behind the Supreme Court anyway, but this isn’t what happened as many of us know.
What ended up happening was that the Supreme Court turned into a hidden parliament, far more insidious and destructive than the actual parliament. The Irish parliament, known more commonly as the Dáil, is elected and could be voted out if they were unpopular with the public or if they overstepped their boundaries. But the Supreme Court judges, once assigned, cannot be unassigned. Although there is a process whereby the government could sack a Supreme Court judge, this would only be seen as an attempt by the government to breach the separation of powers between the two institutions, and would make the government very unpopular with the public. Therefore, it has never been attempted.
The Supreme Court judges have manipulated the meaning of the words used in the Constitution to fit their own personal opinions, totally disregarded passages they didn’t like, and have even made up rights in the Constitution, because apparently according to them, they were implied. The Supreme Court decided itself that it didn’t even have to be consistent with its interpretation of the Constitution so their rulings can never be trusted. Supreme Court judge, John Kenny, being self-aware enough to notice remarked that ‘Judges have become legislators and have the advantage that they do not have to face an opposition.’
Based on the whims of the judges alone, the constitution has gone from a Christian Constitution to a liberal one, and now to its final form as a constitution that supposedly affirms the values of our current Western Maoist regime. Not to mention the fact that our Constitution and Supreme Court aren’t even supreme anymore, and can be overridden if our unelected leaders in the EU disagree with their decision.
The exaggerated self-importance of many of the judges and encouragement they have given each other to act in this way can be seen as the reasoning behind many of their actions. An example of this bravado can be seen in the story often retold in the law library. Shortly after Niall McCarthy was appointed to the Supreme Court in 1982, an old colleague passed him in the corridor and asked how he was getting on with his new surroundings. Very well McCarthy replied ‘Last week they were my opinions. Now they’re the law.’
Hugh Kennedy and the Irish Free State Constitution
The Constitution of the Irish Free State was enacted in 1922 when Ireland was given partial independence from Britain in the form of what was essentially Home Rule. This Constitution merely laid out how the government and legal system would run in Ireland under Home Rule. The new zeitgeist of this era in Ireland was revolutionary nationalism with an anti-British but not anti-protestant sentiment. This evolved into the desire to change many systems and codes in Ireland based solely on the fact that they were of British origin.
This can be seen in the influential Hugh Kennedy, the first Chief Justice of the Supreme Court. He wanted to have a clean break from the British legal code. Even though the new ruling class in Ireland were Catholics, they didn’t look to the Church for inspiration. They instead looked across the pond to America, and their organisation of society. This is quite noteworthy as Americanism was expressly condemned as a heresy by Pope Leo XIII 20 years earlier in 1899 in his encyclical Testem Benevolentiae Nostrae. This also shows Irish peoples internalised inferiority complex, that can still be seen today. They are always looking for approval from other nations as a form of validation, they never want to go against the grain.
Kennedy succeeded in implementing an American style Supreme Court with notable ideas including; the separation of powers between the Dáil and the courts, and more importantly, the ability of the courts to strike down any law the court deemed unconstitutional, also known as judicial review. Judicial review would be the cornerstone on which the Supreme Court would abuse its power in the future. What Kennedy didn’t succeed at changing was the wig and gown the judge had to wear or to cease addressing judges as ‘My Lord’.
Kennedy, like many others in the Irish ruling class at the time, believed in religious indifferentism. He told the New York World in 1928 that ‘nobody cares what the religion of the judge is.’ He even went as far as to pursue the cause for Protestants being allowed to attain a divorce in Ireland but never succeeded. He also had secret ties with Freemasonry. The Taoiseach at the time W. T. Cosgrave, managed to suppress publication of any reference to him attending a Masonic Garden Party in Clonskeagh.
The main court drama that was going on in the Irish Free State era was the government’s hard crackdown on IRA terrorism. Kennedy was appalled by this and related his disaffection with the belief that all law comes from God and if it’s repugnant with the natural law then it is therefore invalid and unconstitutional. This is very reminiscent of the American belief in unalienable rights coming from the creator. His other Supreme Court judges had the traditional British belief of the government being supreme. Kennedy lost in a 2 – 1 vote.
As the Constitution was in its infancy, the government thought it would be beneficial to be able to change the Constitution for a short period of time after its enactment without a national vote, so that the government would be able to smooth out any rough edges. Once the time frame was up the government just renewed its ability to alter the Constitution which essentially rendered it similar to any other law. A new Constitution therefore needed to be drafted but Kennedy would never see the day as he died in 1936. Kennedy’s legacy set the tone of an Americanist belief in religious indifferentism, expansionist emphasis on the rights of criminals, and unenumerated rights being points of contention in the future Supreme Court.
De Valera and Bunreacht na hÉireann
With the death of Kennedy, a new era in Irish history started. The new Irish Constitution, more commonly known as Bunreacht na hÉireann, would be the document that the Supreme Court judges of the future would have to work with. Some historians like J. H. Whyte were bemused that contraception could be declared a constitutional right from ‘a Constitution so specifically Catholic as the 1937 document had been.’ But perhaps Whyte held too much faith in the integrity of the judges who interpreted the constitution and in his judgement of it being a truly Catholic Constitution.
That the Constitution was influenced by Catholic social teaching was unremarkable given the historical context of 1937, writes Gerard Hogan in De Valera, the Constitution and the historians.‘ What is more remarkable, however, is the extent to which that document also reflected secular – one might almost say “Protestant” – values of liberal democracy, respect for individual rights and the separation of the Church and State and the extent to which it does not reflect Catholic teaching.’
Hogan argues that while the preamble and other parts of the document were written in a recognisably Catholic tone, in its underlying functioning parts, its deep structure, the document was closer to a secular Constitution in the republican democratic mould. Hogan and another historian F.S.L. Lyons both agree the personal rights provisions in Article 40 are ‘very much in the liberal, almost one might say, the egalitarian tradition.’
The main drafter of Bunreacht na hÉireann, Éamon de Valera, was one of the main revolutionary leaders of the era. He was undoubtedly a liberal Catholic, he didn’t take inspiration from the Church and its beliefs, but mainly from the liberal republicanism of the 19th century (I must point out here that I use the word liberal in its true definition of the word, when people use liberal nowadays they really mean western/cultural Marxism, but that’s an article for another day). Being involved in the Rising, it was no surprise then that de Valera held Fenian beliefs in republicanism, liberalism and revolutionary agitation.
Fenianism has its ideological roots in protestants like Wolfe Tone and in the anti-clericalism of the French Revolution.
To a historian this statement is uncontroversial, as the Irish hierarchy in 1875 had condemned Fenianism as a heresy at the synod of Maynooth and later condemned the 1916 Rising.
De Valera generally carried on the Americanist tone set down by Hugh Kennedy but phrased the constitution in such a way that it would be approved by Pope Pius XII. The trick used to get Pius’s approval was to preface the constitution with ‘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’ and to mention the ‘special position’ of the Catholic Church. These two provisions clearly signify that all laws and amendments must be interpreted from a Catholic standpoint. But as stated earlier by Hogan, the main core of the constitution was of the liberal tradition.
The Supreme Court judges, as we will see, started to ignore the Christian nature of the Constitution as the decades went by, especially in the ‘90s, when the Chief Justice Liam Hamilton explicitly rejected the claim of the natural law being used to decide on the constitutionality of a law. What was left were the revolutionary ideals written in by de Valera.
The Ó Dálaigh-Walsh Axis
During the early years of the new Constitution, the Supreme Court generally didn’t interfere with the Dáil proceedings. It was only until the appointments of Cearbhall Ó Dálaigh to Chief Justice and Brian Walsh to the Supreme Court in 1961 that things started to change. In Walsh’s later years he was interviewed by the Australian lawyer, Gary Sturgess, preparing for a radio documentary. Walsh admitted that on the day the Taoiseach Seán Lemass offered him a job in the Supreme Court, the Taoiseach said to Walsh that he would like to mention one thing and would never again refer to it. ‘He said he would like the Supreme Court to become more like the United States Supreme Court.’
This was interpreted by Walsh that the court should be more active in its interpretative role, which invariably meant for them to disregard the Christian nature of the Constitution. Walsh subsequently learned that Lemass said something similar to Ó Dálaigh around the same time. Lemass may not have understood what monster he had let out when he pursued the judges in the Supreme Court to become activists, but this event was essentially the beginning of the ‘hidden parliament.’
Although Ó Dálaigh and Walsh were only two-fifths of the court, they generally set the tone and were influential to the other judges. These two characters were both revolutionaries in their own right. Ó Dálaigh, for example, was spotted by the Garda Special Branch to have attended a meeting of the Irish Soviet friendship Association during the 1960s. These revolutionary ideas were actually commonplace with the Irish ruling class at the time with one survey in the ‘60s showing that only 10% of the ruling class at the time saw the Church as an institution for good compared to 90% of the general public thinking so.
Just like in many other areas of society, the 1960s was a decade that the ideals of the theorists in the Frankfurt School began to blossom among our elite . RTÉ was established, emigration declined, the IRA formally abandoned the border campaign, and Ireland started looking outwards towards the European Project that was about to get underway. JFK visited Ireland in 1963, but more importantly that year in shaping the Irish Supreme Court, Irish-American William Brennan of the United States Supreme Court also visited. There, Brennan met Walsh and the two men hit it off straight away. In his thirty-four years tenure, Brennan would become one of the most influential judges on the US Supreme Court in the 20th century.
Brennan’s major decisions throughout his activist years of the ‘60s and ‘70s include his opposition to the death penalty and his declaration of the unconstitutionality of making contraception or abortion illegal. The two judges were so close that Brennan had arranged that he would send Walsh a draft of the Supreme Court’s decision way before it appeared on official reports. That flow of information and the lifelong friendship the two men were to form, were to have a deep impact on the Irish court. Brennan’s moulding of the United States Constitution into something it wasn’t had a profound influence on Walsh. Walsh now thought it was progressive and forward-looking for a judge to manipulate the words of the Constitution to his own personal opinions.
Declaration that the Constitution has unwritten rights
It didn’t take long for this constitutional activism to occur. The following year in 1964, the Supreme Court judges did something that no one imagined could ever happen. Gladys Ryan, a housewife in Drumcondra, went to the High Court complaining that the government’s introduction of fluoride into the water supply took away her families rights of bodily integrity. The amazing thing about this claim is that the right to bodily integrity isn’t ever mentioned in the Constitution.
In Article 40.3, it states that ‘The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.’ Ryan focused in on the word ‘in particular’ to mean that there are other rights not mentioned in the list that follows this word. The phrase ‘in particular’ was really just implying that there are other rights, but they are mentioned in the Constitution in another place. It was never intended to be an opening for future Supreme Court judges to consign their personal beliefs into the constitution.
Ryan lost the case, but the judge agreed on her belief that there were other rights not mentioned in the Constitution. She then proceeded to take her case to the Supreme Court who agreed with the result of the High Court.
Even though Ryan lost, this case was an excellent opportunity for the Supreme Court to give themselves free rein to imply any rights that they wished. Ó Dálaigh even stated that the court doesn’t actually need to list these extra rights in the Constitution at the present moment. His statement of rights not included in the Constitution and not even explained gave an excuse for the Supreme Court judges to legislate any opinion they had in the future if they so desire. This immense power they gave themselves was a massive watershed moment.
The Court no longer bound by previous decisions
Another stance the Ó Dálaigh-Walsh Axis took was to heavily overemphasise the supposed rights of criminals in the justice system. All these justifications were all centred around the buzzwords of liberty and other American concepts based on individualism. The old system of English Common law was torn down and replaced with what the Ó Dálaigh-Walsh Axis desired. One could nearly argue that this belief in seeing criminals as victims for the justice system punishing them is not only a liberal but a Marxian belief to some extent. If we look at anarchist Catalonia during the Spanish civil war, it was announced that prisoners would be let out of prisons in the strive to create an ‘equal’ society free of ‘oppression’.
The beginning of this was in 1963 when the Supreme Court ruled that an arrest warrant from Britain had to go through the Irish Court system first. This ruling was a landmark decision in another sense as the Supreme Court had previously stated the original laws in place were constitutional. Under a long-standing legal principle, reaffirmed by the Supreme Court as recently as 1953, the court was bound by its own previous decisions.
Walsh took this opportunity to exclaim that precedent doesn’t matter when it comes to the Supreme Court making up its mind. From this era onwards the Constitution wasn’t a rock for which society could depend on, but a living document that could be changed according to the whims of its interpreters.
The Supreme Court kindly enough gave itself more power than it was originally proposed in the Constitution. Ironically enough, this precedent is the only precedent that is unquestionably valid and cannot be refuted, as doing so, a barrister would have to challenge the ego and power the judges now have, which of course would never succeed. This case also made it perfectly clear to the barristers that the old system of sticking to precedent and English common law is no longer applicable. The reasoning Walsh and Ó Dálaigh would put forward for dropping the importance of precedent and the English common law would be that it wasn’t implied in the 1937 Constitution.
The new system would encompass relativism, an overly powerful Supreme Court and more importantly the Irish Constitution would be based on the principles of the American Constitution. This was equivalent to a dictatorial decree that no citizenry or government could ever overturn. The barristers took note of this warning, and from then on, barristers in the future argued their case by bringing up precedent in the American courts, as they knew that would have a receptive ear on the bench. Both Ó Dálaigh and Walsh consumed heavy amounts of American newspapers and books about the US Supreme Court.
Construction of a ‘Thieves Charter’
Within a period of a couple of years, the Court was to overhaul a largely informal system in which illegally obtained evidence was regularly used to convict criminals, suspects were detained for several days for questioning and bail was practically unavailable for serious crimes. The government was appalled at this over-reaching influence the Supreme Court now held. Officials were irritated by the court’s open-door policy for prisoners, which – because of the busy flow of prisoners who had to be brought to the Four Courts – was seen in the department as a costly and pointless imposition.
‘The prison officers reported that the court had become something of a joke among the prisoners: the judges would listen to anything they said and it was a great day out.’ The government and people eventually fixed one of these issues in 1996 by approving a constitutional amendment that explicitly authorised the courts to deny bail on the ground that an individual might commit another crime. The result of this ‘thieves charter’ can be seen clearly in the crime statistics.
The 1950s had unprecedented low crime especially since the civil war terrorism was over, but from 1963 to 1983, adjusted by population growth, there was a five-fold increase in crime. Although the Supreme Court activists aren’t entirely to blame for this, it did weaken the deterrent a strong justice system has on potential criminals, which is generally the main reason for a justice system.
As an arrest order from a foreign country had to go through the Irish courts first, the government swiftly passed the Extradition Act of 1965. This Act would prove to be very tumultuous in the years to come with the Troubles in the North being a big issue for the next 30 years. The Act ruled that any extradition order could not be made where the alleged offence was political or connected to a political offence. Before this Act, all extradition orders would occur swiftly and without much hassle. It only took one year for this Act to be tested.
In 1966, Dutch-born former MI6 agent, George Blake, executed what would become one of Britain’s most famous jailbreaks. Blake had been serving a 42-year sentence for passing intelligence on to the Soviets. Seán Bourke, an Irishman, helped Blake with his getaway. When Bourke was back in Ireland, the Gardaí arrested him under a British arrest warrant. Bourke appealed to the Supreme Court claiming that it was a political act and he had a right not to be extradited under the Extradition Act of 1965. The Supreme Court agreed which embarrassed the Irish government and enraged the British government.
In other cases involving IRA terrorism, a man charged with housebreaking, assaulting a police officer, and malicious damage in the North and a priest possessing bombs in Scotland had the support of the Supreme Court for them not to be extradited. The judges sent a clear message to the Irish and British authorities that so long as the Extradition Act remained as it was, nobody connected to IRA violence would be handed over to the British authorities.
A pattern took hold. Fugitives wanted by Northern authorities for their involvement in IRA activities would flee across the border. It was only until the Criminal Law Bill of 1975 that extra-territorial jurisdiction was enforced. Later in the 1980s, with Ó Dálaigh and Walsh gone, the Supreme Court finally distinguished between political activism and terrorism.
Contraception and the pronouncement of the anti-Christian constitution
A turning point in Supreme Court came in 1973 with the McGee v. The Attorney General case. This was the beginning of the court’s attack on the institution of marriage and the whole Christian way of life in general. In this case, Mary McGee argued that she had a right to contraception because of the life-threatening situation she would be in if she had another child. Ironically enough there was actually no ban on owning or using contraception, it was just illegal to sell or import them. This vital point was just ignored as we will see. The advice given at the time for a situation like this would be for her to practice abstinence with her husband. McGee didn’t want this burden so she basically argued from the standpoint that she has a right to have sex, not open to procreation, with her husband.
McGee’s argument in court was based on privacy and family rights. A right to privacy is not mentioned once in the Constitution, but according to her, it was implied. She was also using the precedent of the unwritten rights in the Constitution from the Gladys Ryan’s fluoridation case in 1964 to bodily integrity to argue for an unwritten right to privacy. She used this relativism to pervert the original Christian meaning of family rights to something else entirely.
Her barrister, Donal Barrington, also argued that it violated her freedom of conscience, which basically means that she has a right to make up any reality or moral system she liked. And again, freedom of conscience isn’t mentioned in the Constitution. Their case didn’t fool the High Court judge who held strong on the Christian meaning of the Constitution.
McGee appealed to the Supreme Court who, as we know, are eager to legislate from the bench. At this stage in 1973, Ó Dálaigh had been appointed to the European Court of Justice and his replacement, William Fitzgerald, was meant to reign in the activism of the Ó Dálaigh-Walsh Axis. One man alone couldn’t change the relativistic outlook of the court though. McGee went on to win astonishingly by a margin of 4-1 with Fitzgerald being the only dissenting judge.
The court ruled that it violated her constitutional right to marital privacy. This was one of the most important cases in the Irish Supreme Court as it was the first time the Court used the constitution to attack the Christian nature of Ireland. The court turned its back on the first line of the Irish 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.’
The Christian nature of the Constitution was flat out ignored. The right to marital privacy was an opinion of the judges, not the Constitution. A new reality was forged by the judges that weren’t even shackled by the Constitution they professed to defend under oath. The Taoiseach at the time, Jack Lynch, jokingly remarked that ‘It would be a brave man who would predict, these days, what was or was not contrary to the Constitution.’
Obligation for women to be on the jury
During a protest in the 1970s, two women were arrested for obstructing two gardaí in the execution of their duties. As these two women were part of the Irish Women’s Liberation Movement, they thought this was a good time to put into question the constitutionality of the Juries Act of 1927. This act stated – among other things – that women were eligible as jurors but they were not compellable. This law was actually constitutionally enforced as Article 41.2.2 states that ‘The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.’
Very few women even applied to be on the jury. Even the ones that did apply were usually turned away because they were invariably women of strong opinions. The two women’s legal team consisted of Barrington, who won the McGee case, and future president of Ireland and then barrister Mary Robinson. The High Court judge pointed out their case was based on their erroneous assumption that an all-male jury would be prejudiced towards women and argued that there was ‘exact equality’ in that everyone charged with criminal offences was entitled to the same treatment whether they were male or female.
They appealed this decision to the Supreme Court who they knew would be more eager to declare laws unconstitutional. The verdict was unanimous towards the two women and the Act was declared unconstitutional. Their reasoning partially centred off the property requirements for the Jury. Walsh stated that discriminating based on property requirements was absurd as every class is of equal intelligence, honesty and impartiality. The judges brushed off the reasoning of the High Court judge and mainly evoked their own personal opinion for the reasoning behind their decision.
In the McGee case, the Supreme Court declared that the ‘rights of families’ included the right to live a sinful life, the old Catholic belief that ‘error had no rights’ but at most should be tolerated was thrown aside. Now the court decreed that women who wanted to live a Christian life in the home now were obliged by the state to leave their family duties if the state wanted them to sit on the jury. Ironically enough, the so-called feminists were successful at getting the state to force women to do something they may not have wanted to do, but it was all worth it according to them as it was a stepping-stone in abolishing the distinction between the two genders.
If the Irish courts didn’t want to be activists, the European courts would
The Irish courts weren’t always trying to push the boat out when it comes to legislating from the bench. In the 1980s, David Norris, a future senator, pushed for anti-sodomy laws to be declared unconstitutional. He was one of the founding members of the organisation Campaign for Homosexual Law Reform that had many high-profile supporters including senators Noël Browne and Gemma Hussey, future leader of the labour party Ruairí Quinn, and future president Mary McAleese.
Donal Barrington, their superstar advisor who had already won 2 landmark cases, correctly predicted that they would lose in the High Court, a possible win in the Supreme Court, but would certainly win in the European Courts. This foresight gives us a great insight into the system in place. The further up in power you go, the more godless its members are.
Norris based his case on Article 40.1 which states that ‘all citizens shall … be held equal before law’ and Article 40.3 which sets out the personal rights of the citizens. Norris explained that legalisation doesn’t increase the prevalence of homosexuality in society and also increases mental illness in homosexuals as they are prosecuted. The High Court ruled that it wasn’t in breach of his rights as the laws don’t prosecute someone for their sexual orientation or even associating with other homosexuals. Only the sexual act in and of itself was illegal.
The judge also argued that it was the states right to uphold public morality and the Constitution was of Christian and democratic nature. He also eluded to what the public thought about the matter which goes to show how the courts have turned into a popularity contest instead of an unemotional view of the constitutionality of a law.
In 1983, the Supreme Court reaffirmed the High Courts position. Chief Justice O’Higgins in this case personally disagreed with Norris, so he evoked the Christian nature of the Constitution. He also ruled that the right to privacy wasn’t absolute and it didn’t apply in this case. Although you may hold differing personal opinions on this matter, O’Higgins was correct in his decision as nowhere in the constitution does it allude to anyone having a right to commit this act. It also goes to show that the verdicts the judges give are heavily dependent on their own personal opinion instead of the text in the constitution.
One case a judge brings up privacy and personal rights without mention to Christianity, another case he does the exact opposite. The dissenting Henchy on the bench would be a judge of the future who proclaimed his devotion to pluralism and anyone constructing their own moral code. McCarthy the other dissenting judge went even further, proclaiming that the Constitution wasn’t Christian at all and that the Constitution was like a human personality that could be changed with the times.
Norris defeated, went on to Strasbourg courts where he won decisively. The unconstitutionality of the law was already declared unlawful in Northern Ireland in 1981. At this stage in the 1980s, if the Irish Supreme Court wasn’t pushing the boundaries far enough, it would be appealed to the European Court of Justice who are very unapologetic in pushing different states to enforce measures they disagree with.
The Abortion Amendment
In McGee v. The Attorney General, two judges referenced the similar American ruling in Griswold v. Connecticut which ruled that citizens had an unwritten right to privacy. The importance of this is that the American ruling of Roe v. Wade used the reasoning of a right to privacy to argue for a citizen’s right to an abortion. Irish people, including Walsh himself, were worried that an Irish Roe v. Wade could happen in the future. It was precisely this fear that the Supreme Court would follow the example of its American counterpart and apply the right to privacy to abortion that drove a grassroots movement to push for a referendum on inserting the right to life into the constitution.
Reflecting on the issue in the mid-1980s, Walsh, who himself was pro-life, was of the view that an amendment had not been necessary because the constitutional protection for the right to life encompassed that of the unborn. All the judges and media figures at the time tried to brush off the issue as silly. Although many did remark as well that it would be theoretically possible for a future Supreme Court to change its mind. Australian lawyer, Gary Sturgess, insightfully remarked at the time that big changes don’t happen overnight, a certain inch-by-inch process could occur where eventually one can rationalise the situation into its final conclusion.
Ireland was in a unique debate compared to the rest of the world. In the rest of the world, the pro-choice side was making advancements while in Ireland the pro-life side was making inroads. The anti-amendment side had many prominent advocates: future presidents of Ireland Michael D. Higgins and Mary Robinson, future Labour leader Ruairí Quinn, and senators Shane Ross, Noël Browne, and David Norris.
Not only that, when the campaign was at its height, 98 barristers – almost a quarter of all the barristers practising in the country at the time – made a statement from the Four Courts in which they denounced the proposed amendment. In this group of barristers, five would become future Supreme Court judges. The stage was set, it generally amounted to the rich and powerful ridiculing the average pro-life Irishman for creating the grassroots opposition.
The Labour party was against the idea of an amendment and Fine Gael leader Garret FitzGerald was apprehensive about it. Fitzgerald originally wanted to quell the pro-life uprising by changing the amendment to state that the Constitution could not be interpreted in a way that would give a woman the right to have an abortion. Although that amendment wouldn’t make it unconstitutional for the Dáil to legislate on it. Pressure from the pro-life campaigners, Fianna Fáil and internal division caused Fitzgerald to drop his recommendations, instead, he put out a compromise amendment. In this new amendment, the unborn wouldn’t have an absolute right to life and the mothers right to life would also be mentioned. The referendum won by a 2-1 margin.
With the compromise amendment, the Supreme Court ended up declaring that a woman had a right to an abortion in very limited circumstances. These circumstances eventually broadened out to include the right to have an abortion when the mother was considered suicidal or when the baby was predicted to die within a month after its birth. Even if a mother didn’t fit these restrictions, she could take an hour-long flight to England to get an abortion. In 1981, the Irish Times reported that between 3 to 10 thousand babies were aborted in England each year by Irish mothers. The High Court in one instance even went as far as to arranged for a minor to go to England to get an abortion, even against the parents’ wishes.
The right to life amendment was eventually repealed 25 years later with a 2-1 margin, the opposite of what it was last time. The Supreme Court in the ‘80s thought it was silly to have an amendment in the first place as the unborn already had a right to life enshrined in the constitution. The Supreme Court 25 years later made a massive U-turn and declared unanimously that the unborn had no rights.
Time proved the Australian lawyer, Gary Sturges, right. An inch-by-inch rationality happened. Article 40.3.2 of the Irish constitution – ‘the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen’ – was just ignored.
Looking back on the history of the Irish Supreme Court it is clear that a great injustice has occurred, that to the best of my knowledge, hasn’t been highlighted in any serious way by any publication. But this isn’t surprising as our media is tightly controlled by a few operators who delight in the Brave New World that they’ve created with the help of our Supreme Court. The rest of our ruling class, who can only be described as ‘useful idiots’, are too close minded and trapped in their Boomer view of the world to ever change it.
The history of the Supreme Court, more importantly, highlights the fact that a highly influential core of our society single handedly made the cultural revolution happen in Ireland. The high profile supporters mentioned in this piece all held opinions out of step with the average man at that time period, but would inevitably be the opinion held by the general public in the decades to come. It debunks this concept that our ruling class keeps repeating about how the changes in Ireland were just organic and weren’t part of some concerted effort by an extremely powerful minority.
The masked slipped a bit when RTE posted a clip titled ‘Gay Byrne – Taboo Breaker’ on YouTube last year. Hold on a minute, I thought RTE was supposed to be nonpartisan and has no agenda to propagandise our nation? How could Gay Byrne be a ‘taboo breaker’ and nonpartisan at the same time? To anyone with any shred of intellectual honesty, it is clear what happened.Going forward it is clear we must acknowledge the fact that for better or worse society is always pushed in some direction by a highly influential and powerful minority. Any movement that doesn’t hold favour with the upper class are always doomed for failure in the long run. From this, we must understand that converting the eager minds of Ireland’s future ruling class, which generally means focusing on the university-educated, especially those involved in the youth wings of political parties and other quasi-political societies, must be paramount. If there is any hope in reforming our Court system it lies in the Zoomers and Gen Alpha.
Another superb piece and timely given the ongoing events in Ireland. Sadly, the people are sadly overwhelmed by the ‘elitists’ and outnumbered by the majority who have decided long ago to just ‘get along’. No surprise then that many Irish men and Women trying hard to change minds and shame the proletariat are seen as an irritant and ignored.
The only chance for any of us have the tried and tested. Revolt en masse by 3 to 5% marching on the Dail.
Or, simply Gandhi style, non-compliance.
Not going to happen and in any event Ireland, more than any other country will experience the greatest economic collapse of all taking decades to recover from. Accept it and stock up or leave.
The real modern Irish history. Very good piece.
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here in the early hours in the break of day, as i like to
find out more and more.
Absolutely fascinating. Can you live a citation for the study about public opinion on the church being a force for good?
In ‘John Charles McQuaid: Ruler of Catholic Ireland’ by John Cooney on page 272 it’s quoted saying: “a staggering statistic showed the gulf between the educated group and the masses: 83 per cent of the educated disagreed with the proposition that the Catholic Church was the greatest force for good in Ireland, while 87 per cent of the less well educated supported the proposition”. I rounded off these numbers a bit, but the general idea is still there. The study was conducted by McQuaid himself and produced by Fr Biever