Any view that the President can intervene in the Nice referendum is not supported by the provisions of the Constitution, maintains Jim Duffy.
As the Nice two campaign hots up, one weapon that will be used by both sides is the Constitution. Each side in the debate will claim their interpretation of the Constitution - and what impact Nice will have on issues in the Constitution from sovereignty to abortion - is the correct one.
In one interpretation, the Peace and Neutrality Alliance (PANA) argued last week that since the people already voted against Nice, to put the issue to them again would be unconstitutional.
So PANA wants to have the very holding of the Nice two referendum reviewed by the courts.
One method it wants to see invoked is for the President to use her powers to refer the referendum to the Supreme Court to test its constitutionality.
In suggesting this PANA has not read the Constitution, or its press statement was merely a publicity stunt relying on the hope that the media would not know that the President is actually constitutionally barred from doing what the alliance suggests.
There are in fact two unambiguous bars on the President referring the Nice referendum to the courts.
Normal legislation goes through three stages before it becomes law. It goes from the Dáil to the Seanad,or vice versa, and then to the President, who at that point has the option of referring the Bill to the Supreme Court to test its constitutionality.
However, constitutional amendments go through four stages: Dáil, Seanad, people and President.
The President only becomes involved after the amendment has been voted upon by the people.
This simply means the President cannot send the Nice Treaty Bill to the courts before a referendum, contrary to the hope of the Peace and Neutrality Alliance.
But even then the President is explicitly barred from sending the Bill to the courts. For Article 26 of the Constitution excludes three types of Bill, including "a Bill containing a proposal to amend the Constitution," from being sent to the courts by the President.
And under a different section, Article 46, the President would have no option but to sign the Bill "upon being satisfied that the provisions of this Article have been complied with. . . and that such proposal has been duly approved by the people . . ."
So one line of attack proposed by PANA, the President sending the Nice Bill to the courts, is dead in the water - which PANA should have realised by reading the Constitution. Their other big idea is that it may initiate a court review itself if the President won't.
While this at least is legally possible, it has little chance of success.
The alliance may be technically right in saying that the people have spoken on Nice, but nothing in the Constitution prevents the people changing their mind.
All the Constitution does is outline the procedures for holding a constitutional referendum.
It doesn't limit the power of the Oireachtas in terms of what subject to hold a constitutional referendum on. Nor does the Constitution impose a time limit on how soon an issue already voted on can be revisited. Of course the courts could theoretically interpret something in the Constitution as imposing some limits, but it is hard to see how or from where.
Some issues have been revisited numerous times in referendums. We voted twice on whether to abolish proportional representation, twice on divorce and numerous times on aspects of abortion.
But those referendums highlighted one fundamental issue often overlooked in constitutional referenda.
We weren't voting, for example, on divorce; we were voting on a specific legal wording to allow divorce.
This was a lesson learned when the pro-life amendment wording turned out to be far more complex than the simple ban on abortion people thought they were voting on.
It might be argued that holding a second referendum on an identical Constitutional amendment would be wrong, but it could hardly be described as undemocratic and there is nothing in the Constitution to say it is. Article 6 of the Constitution unambiguously states that "all powers of government, legislative, executive and judicial, derive, under God, from the people whose right it is . . . to decide all questions of national policy . . ."
A referendum is simply the methodology for allowing the people to decide the issue. And no court is likely to step in and say it will not allow the people to vote on an issue once the correct procedures are followed in calling the referendum.
The Peace and Neutrality Alliance spin on the constitutionality of the Nice two referendum does not add up.
Once the correct constitutional procedures are followed, the President cannot intervene and the courts are extremely unlikely to do so.
Jim Duffy is an academic researcher on the constitutional powers of the President.