Image generated by Bing Image Creator by Designer.
Most countries have a codified constitution, a written document that contains a country’s essential values and the rules of how its government works. This month, constitutions have been in the news in Ireland, France, and the United States. A referendum was held on two constitutional amendments in Ireland, France introduced a constitutional right to terminate a pregnancy, and the US Supreme Court used the constitution to prevent US states from deciding who can run for President. Constitutions are living documents, constantly the subject of amendment and changing interpretations. This article will discuss the constitutional continuity, change, and debate that has taken place in only the first half of March this year.
Irish Family & Care Amendment Referendums
As discussed in a previous article, Ireland went to the polls this month to vote on two constitutional amendments. The proposed amendments were both comprehensively defeated, resulting in a ‘No’ vote of 67% for the Family Amendment and a ‘No’ vote of 74% for the Care Amendment.
The outcome of the Irish referendums should not be taken as evidence of a rejection of the spirit of the proposed amendments. At the broadest level, the two proposed constitutional amendments aimed to remove a blatantly sexist article of the constitution and to recognise that different families work in different ways. The final wording of the amendments introduced changes that have little, if anything, to do with these aims.
The result of these referendums should be seen as a rejection of political games being played with the country’s most important institution.
Part of the reason these proposed changes failed was the insertion of confusing additional provisions, the consequences of which were uncertain. The Family Amendment would have created a new legal concept, ‘durable relationships’, without providing a definition. The Care Amendment would have converted Article 42, previously outlining the role of women and mothers in Irish society, into a constitutional protection for carers. This was strongly opposed by the ‘Equality Not Care’ campaign founded by a group of disability campaigners, disabled people, and feminists.
Simplifying these referendums would have drastically increased the likelihood of the Irish people accepting them. Ireland in 2024 is as much of a promoter of women’s rights as any country. The result of these referendums should be seen as a rejection of political games being played with the country’s most important institution.
French Abortion Amendment
In France, a constitutional amendment was passed to create a constitutional protection for women’s right to terminate a pregnancy. This amendment makes France the first country to enshrine abortion in its constitution.
Constitutions more difficult to change and repeal than regular laws. They are entrenched, meaning that special requirements have to be met in order to change them that do not apply to regular laws. A government with a small majority is unlikely to be able to change the constitution or repeal its articles. The purpose of enshrining rights in the constitution is create difficulty for anyone who wishes to take away said rights.
The permanence of a constitutional amendment, if there is any such thing in politics, ensures that the right to terminate a pregnancy is a fundamental aspect of French law enshrined in its constitution.
Regular laws protect human beings from a variety of abuses and forms of harm. Only those that are either particularly important, such as the right to life, or under immediate threat are usually granted constitutional protection. Enshrining the right to end a pregnancy in the constitution is a result of the international debate, spanning decades, over the matter of abortion. Strong opinions can be found on both the pro-choice and the pro-life sides of the debate.
In its constitutional amendment this month, France has decided that there are enough people who want to take away women’s choice about whether to carry a pregnancy to term to warrant special protection. The constitutional amendment does not necessarily end the debate about abortion. It does, however, ensure that any future change to access to this medical procedure must pass through a thorough democratic process to be enacted. By introducing the right to terminate a pregnancy into constitutional law, France has highlighted the importance of settling the matter legitimately.
Changing the French constitution is not easy. Amendments require a majority of at least three fifths in parliament convened in Congress.[1] This means that there is significant support for constitutional protection of the right to terminate a pregnancy now. Le Monde reported that public support for the amendment was ‘overwhelming’.
Reversing this decision is not beyond the realms of possibility. If there is consensus backing a future change to this amendment it can be implemented. Part of the value of this constitutional amendment is that it highlights the respect that the abortion debate deserves. For the legal status of abortion to be changed again, the highest level of scrutiny will have to be applied to the best possible arguments in favour of doing so.
That being said, this amendment implies a degree of finality to the abortion debate in France. The fact that the amendment passed through parliament with a standing ovation and a victorious margin of 780-72 proves that there is political consensus behind the right to terminate a pregnancy. The permanence of a constitutional amendment, if there is any such thing in politics, ensures that the right to terminate a pregnancy is a fundamental aspect of French law enshrined in its constitution.
Trump v Anderson 610 U.S. (2024)
Legal representatives of voters in the US state of Colorado have been arguing over the last few months that Donald Trump should not be allowed on the ballot paper in this year’s election. This is because of the Trump’s alleged role in the January 6th riots three years ago, where attackers broke into the US Capitol building. The highest court in Colorado ruled that Trump should be removed from the ballot paper, therefore being disqualified from running for President.[2]
Last month this case went to the Supreme Court. It released its judgement this month, which overturned the ruling of the Colorado court on the grounds that states do not have the right to disqualify candidates from federal positions. The Justices held that ‘nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.’[3] Those holding federal office in the United States ‘owe their existence and functions to the united voice of the whole, not of a portion, of the people’.[4] This means that states do not have the power to decide qualifications for federal positions and the manner of their election unless it is specifically delegated to them by the federal government.[5]
The Supreme Court has refused to set a precedent that would have allowed states to interfere with federal elections.
In its judgement, the Supreme Court largely steered clear of potentially deciding the outcome of a presidential election. This is because the argument brought forward by the Coloradan lawyers overestimated the power of states to decide who can run for federal positions, especially the Presidency.
Under other circumstances, the Supreme Court may well have ruled that Trump’s disqualification was possible under Section 3 of the 14th Amendment. If it had been asked if the Presidency counts as an ‘office […] under the United States’, or if Donald Trump participated in an insurrection on January 6th 2021, then the outcome could have been very different. The Supreme Court has not answered either of these questions because the logic of the Colorado lawyers’ argument depended on states being able to disqualify federal candidates.
The lawfulness of Donald Trump’s actions on January 6th 2021 were not at issue in Trump v Anderson. Disqualifying him from the federal election in the manner Colorado attempted to do would have required bending the Constitution. The Supreme Court has refused to set a precedent that would have allowed states to interfere with federal elections. A system where individual states can disqualify federal candidates, especially presidential candidates, would create confusion. In Trump v Anderson, the Supreme Court, composed of unelected lawyers, avoided limiting the choice of electors in a democratic election. It also upheld constitutional principles that are fundamental to the American form of federal government.
Constitutions: Documents that Live
It is interesting to compare and contrast the different ways these tools are used in different countries. In the same month France made an unprecedented move to make the right to abortion a constitutional right, Ireland voted to retain the parts of its constitution that imply women belong in the home. While both of these countries are among the countries championing women’s rights in the twenty-first century, they approach the issue very differently in their constitutions.
Continuity in Ireland, change in France, and legal debate in America proves the relevance and importance of constitutions.
What this shows is the cultural specificity of constitutions. There is not a one-size-fits-all constitution that can be implemented in any society. Although the prevailing opinion in Ireland is likely that women should be free to live their life as they please, some voters were uncomfortable with removing the word ‘mother’ from the constitution, showing both the value the Irish people place on motherhood and the importance of ensuring constitutional change is particular and precise. What constitutions say is important. Rash change leads to political problems.
Ultimately, the recent news shows that constitutions are living entities, constantly changing and evolving with the world around them. Continuity in Ireland, change in France, and legal debate in America proves the relevance and importance of constitutions.
[1] ‘France’s Constitution’, Constitute, Title XVI, Art. 89.
[2] Anderson v Griswold, (2023) CO 63.
[3] Trump v Anderson, 601 U.S. (2024), p.7.
[4] U.S. Term Limits, Inc. v Thornton, 514 U.S. (1995).
[5] Ibid.; Trump v Anderson 601 U.S. (2024), p.6.
Sources:
Cases:
- Anderson v Griswold, (2023) CO 63.
- Trump v Anderson, 601 U.S. (2024).
- U.S. Term Limits, Inc. v Thornton, 514 U.S. (1995).
Legislation:
- Constitution of the United States, <https://constitution.congress.gov/constitution/> [accessed: 17/03/2024].
- ‘France’s Constitution of 1958 with Amendments through 2008’, Constitute, <https://www.constituteproject.org/constitution/France_2008.pdf> [accessed: 17/03/2024].
Publications:
- Comyn, Alison, ‘Equality Note Care founder Michael O’Dowd ‘delighted’ with referendum defeat’, Irish Independent, (13 March 2024), <https://www.independent.ie/regionals/louth/drogheda-news/equality-not-care-founder-michael-odowd-delighted-with-referendum-defeat/a937413526.html> [accessed: 17/03/2024].
- Gallagher, Fiachra; Jennifer Cosgrove; and Laura Coates, ‘As it happened: Ireland votes No on family and care referendums’, The Irish Times, (9 March 2024), <https://www.irishtimes.com/politics/2024/03/09/family-care-referendum-counts-live-updates-tallies-no-votes/> [accessed: 17/03/2024].
- Imbach, Romain, ‘France set to anchor abortion freedom in Constitution’, Le Monde, (4 March 2024), <https://www.lemonde.fr/en/les-decodeurs/article/2024/03/04/france-set-to-anchor-abortion-freedom-in-the-constitution_6583055_9.html> [accessed: 17/03/2024].
- Wright, George, ‘France makes abortion a constitutional right’, BBC News, (4 March 2024), <https://www.bbc.co.uk/news/world-europe-68471568> [accessed: 17/03/2024].