I’m just back from a day-jaunt home, and on the bus this morning I was eavesdropping the driver’s radio tuned to Radio 1 where Playback was gathering pace, and featuring Finian McGrath’s interview on Wednesday’s Drivetime.

To summarise it briefly, McGrath, an independent TD who supports the coalition government, believes that Irish accession to the Treaty might be repugnant to Article 9 of the Irish Constitution. McGrath wants President McAleese to refer the Treaty to the Council of State, a body of judges and former Presidents and Taoisigh, who would decide on whether the proposed Treaty is unconstitutional – and if so, allow the President to stop its passage through the ratification process which ends in the June 12th referendum.

This, naturally enough, has caused a mild political uproar, with many wondering whether the President has the power to refer such a bill once it comes to her for a signature, once it has been ratified by the people through plebiscite. McGrath, for his part, has defended himself against arguments that his motivations are political (McGrath is advocating a No vote) by saying that the Yes side are just as bad, dodging his own questions on the legitimacy of the Treaty while in the Dail and diminishing his dissent to that of a crank who’ll take any action to stop Ireland’s accession to Lisbon.

Sometimes the attitude of some of our parliamentarians and public figures really astounds me. McGrath defends his calls for a consultation with the Council of State based on the fears that it threatens the foundations of the state itself. I, for one, can only assume that his intentions are fair and that his fears are genuine, and not just concocted for the sake of a desperate anti-Lisbon blockade.

What I’m particularly galled about, though, is McGrath’s seeming oblivion to what’s actually being voted on, and indeed his apparent cluelessness about what a referendum such as the Lisbon one actually entails.

McGrath is a firm believer, as am I, of the supremacy of our national Constitution above any other laws or policies of the State. He’s proven this before, when seeking a Supreme Court injunction against the upcoming 2007 General Election on the basis that new census figures showed some constituencies to have insufficient numbers of TDs in comparison to the constitutionally defined upper and lower limits. While the action failed due to the fact that the census figures were privisional and hence non-binding, this could be fairly seen to have been a worthwhile challenge mounted a sound argumentative footing. So to say the guy cares about the Constitution, without saying he’s an expert on it, is sound.

But European Treaties don’t work that way. What most people on the No side can’t seem to get – and what most people on the Yes side should spend more time saying – is that in Ireland, you’re not just voting on the Treaty itself, but rather an amendment to the Constitution allowing the State to acceed to the treaty itself. This time round is no different, and aside from the Treaty there’ll be a few miscellanous paragraphs, including one guaranteeing that in spite of acceeding to Lisbon, the State will have no part in any common defence projects (thereby destroying any neutrality-based anti-Lisbon arguments).

What annoys me, then, is that McGrath doesn’t seem to grasp the inherent difference between refering a Bill to the Council of State for Constitutionality, and referring a Constitutional amendment for the same reason.

The President, under Article 26, can only refer to the Council once a Bill has been presented for signature. For most Bills this just means passage through both houses of the Oireachtas, and in the case of amendments to the Constitution, obviously a public plebiscite is required too.

The problem with McGrath’s argument is that once an amendment Bill is passed by the people, even if it somewhat contradicts the existing document, can’t be overturned by the Council of State because the Bill before the Council carries exactly the same moral weight as the document it might be in contravention of. Laws can’t be repugnant to the Constitution; but Amendments to the Constitution… well, if McGrath thinks the Council of State can stop the people from approving a Constitution just because it’s somewhat contradictory, then he’ll be undoubtedly disappointed.

So, in one sentence – I can’t believe Finian McGrath wants to challenge an amendment just because, if passed, it might make the Constitution sloppily worded. Each part of the Constitution, until the Supreme Court says otherwise, carries equal weight, and so the Constitution can’t overrule… itself…

Striking down the Constitution, because it’s unconstitutional. Amazing what some people will try and argue just to stop a Treaty, isn’t it?