Recently a video circulated on YouTube featuring an earnest young man, besuited and bearing flowers, knocking on every door in Ireland requesting permission to marry his beloved. It neatly illustrated the absurdity of holding a referendum to decide whether same-sex couples may be allowed marry: “how would you feel”, it asks “if you had to ask 4 million people permission to get married?”
There has been an extraordinary momentum in Ireland as well as in neighbouring states towards recognising equal marriage rights for gay couples. This was reflected in the Constitutional Convention’s overwhelming endorsement (79%) of the proposal. In France and the UK, bills have passed or are passing through parliament giving effect to similar (although less pronounced) shifts in public opinion. In Ireland, public support for reform is apparently even higher than in both of the neighbouring jurisdictions. However, it has been assumed no similar legislation can be passed here, because, it is thought, it would be inconsistent with the implicitly heterosexual conception of marriage supposedly contained in our Constitution.
As a constitutional argument this has already been debunked. Marriage is not defined in the Constitution, and the courts have emphasised that the meaning of constitutional terms can evolve over time along with social change. We are not, thankfully, stuck in the permafrost of 1937 in interpreting our basic law.
What I am concerned with here, however, is not so much the intricacies of this particular constitutional debate, but rather, the implications of a broader tendency to understand greater areas of political argument as being governed by constitutional principle. Our politics, I argue, is over-constitutionalised – and this is harmful for our democracy and our citizenship.
Constitutional and political argument
Constitutional provisions are often drafted in vague, abstract and open-textured language – for example, in the high-minded phraseologies of equality and human dignity. Everybody can endorse these pious generalities in the abstract, as they are flexible enough to be interpreted consistently enough with one’s own politics. Yet every alert first year student realises that when applied to real-life problems, such principles can be manipulated to support a plethora of contradictory arguments. Consequently, in systems where constitutions can be used to strike down parliamentary legislation, a broad swathe of policy and political arguments can, and tend to be presented in “constitutional” terms. This is a notable and longstanding phenomenon of American politics, but itextended to most of Europe following the Second World War. Thus despite the historical aversion to judicial power in republican France, for example, the Constitutional Council is now effectively seen as an important political agent. In Ireland much of our legislation will implicate constitutional rights, say of equality or property, in some way, and what would otherwise be plainly political or moral questions are easily “constitutionalised”. In turn, insofar as public norms are constitutionally codified, the question of what these norms mean in practice will increasingly be treated as discrete legal question – divested to trained experts.
There is a surprisingly tenacious belief in our culture that constitutional interpretation is somehow an exercise in abstract legal logic – a specialist skill separable from political, moral and ideological considerations external to the law. Of course, this is the product of wishful thinking combined with a robust lawyerly conceit. Any perceptive citizen who reads the Constitution will appreciate that open-textured constitutional principles cannot be interpreted and applied, like maths or physics, in a purely rational spirit of scientific disinterestedness. Yet there persists in our public sphere precisely such a false and harmful understanding of constitutional interpretation.
To summarise then, in Ireland there is a worrying degree of public “buy-in” to three insidious ideas: first, that “the constitution”, if interpreted properly, provides a set of determinate and legally true propositions about how political and social life should be organised, second, that these propositions can be derived through a specifically legal method of reasoning, and third, that a system in which these meanings are divested to legal experts can operate in a positive way as a progressive non-political check on the excesses and abuses of the political domain.
One of the innovations of the 1937 Constitution was that it could be used to strike down laws which judges interpreted as undermining constitutional rights – an idea which was then a novelty in European terms. Obviously this has the advantage of giving individual citizens some security against abuses of political power. However, it also has a generally unacknowledged cost for our democracy and its sense of citizenship. It means that political argument – the domain of the citizen – is increasingly divested to the legal sphere, and thus the domain of the expert. Intuitively we are all familiar with the ways in which constitutional ideas tend to be used as a trump in political argument. Correspondingly constitutional argument tends to de-politicise our public life. Now we even tend to argue for a humane abortion regime not because it is humane, but because the constitution requires it. Indeed t is commonplace to argue that that a whole swathe of proposed policies or reforms – for example, gender quotas in politics, or even abolishing the subsidy for fee-charging schools –– are unconstitutional.[i] Certainly, it is quite rare for legislation to be struck down on constitutional grounds, but this rarely-exercised power does not fully reflect the constitutionalisation of our politics; it does not capture the reforms or ideas that are quietly buried on foot of legal advice about constitutional barriers – or those, such as equal marriage rights, which are consigned to the promise of a future referendum.
Citizenship, symbolic power and constitutional argument
Possibly the most common objection to judicial review and “legal constitutionalism” is that it undermines representative and majoritiarian democracy or that it vests arbitrary political power in an unaccountable judiciary (see especially Bellamy’s Political Constitutionalism). However, in arguing that our politics is over-constitutionalised, I am not concerned primarily by the threat posed by judicial review to the vitality and autonomy of representative institutions. Instead I am concerned with the implications for deliberative citizenship which are raised by the salience of constitutional argument in our public discourse. To the extent that the interpretation of our public norms is treated as a matter of legal knowledge, constitutional argument can be seen as one of the many forms of symbolic violence that are exercised via expertist discourses. I use “symbolic violence” specifically in the sense understood by Pierre Bourdieu. In Language and Symbolic Power, Bourdieu effectively argues that the main problem with “deliberative democracy” is not that deliberative competences are unequally distributed, but rather that these competences and techniques have an essentially arbitrary value. Deliberative techniques – rather than simply enabling rational communication – serve primarily to produce encoded forms of distinction or symbolic capital for a field of inducted, specialised practitioners. Symbolic domination occurs where these linguistic and bodily techniques become assimilated – by those both within and outside this field – to a sense of natural legitimacy and authority.
Thus deliberative and discursive competences tend to have a mystifying and befuddling effect, with authority and legitimacy insinuated in the apparently most innocuous bodily techniques (such as accent and intonation). Knowledge of authorised techniques bestows a form of deliberative capital. Effectively this is a more complex (and insidious) version of the intuitively familiar phenomenon whereby refined mannerisms are associated with legitimacy and social prestige. Bourdieu is sceptical about the possibilities of a deliberative republican citizenship, because in differentiated complex societies, debate on the common good will likely become enveloped within elaborate encoded terminologies which have a potent (but insidious) exclusionary force. Thus seemingly rational discourse will help to reproduce social hierarchies, gently and inconspicuously. While Arendt teaches us the value of recognition and self-expression achieved through political discourse, Bourdieu warns of the insidious and inconspicuous forms of violence encoded in political language itself.
A similar analysis can be applied to constitutional interpretation as well as legal discourse generally. In The Force of Law, Bourdieu applies his theory of language and symbolic power to the field of law. Like other critical theorists, he does not accept that legal (or constitutional) argument is directed at discerning determinate, true, legal propositions. Rather, he interprets legal argument as a highly encoded site of competition for symbolic capital, in which specialised practitioners vie for forms of distinction that are conferred through authorised languages and discourses. While we are often duped into believing that legal discourse is directed towards discerning propositions of law, it is in fact oriented around an arbitrary linguistic market which governs what is accepted as legitimate legal argument. Extrapolating from Bourdieu’s legal thought, it seems that in the same way that deliberation on the common good will effectively be monopolised by those possessing legitimate (but essentially arbitrary) deliberative competences, a similar phenomenon will occur in constitutional debate.
The symbolic power embedded in specialised language and terminologies is of course a feature of all complex societies. But my argument is that the symbolic power exercised in the context of our highly constitutionalised politics has peculiar implications for participative and deliberative citizenship. Although I do not have scope to fully develop the argument here, the salience of constitutional argument in political discourse cannot be viewed apart from a wider problem – the domination of the public sphere by expertist and technocratic discourses. This phenomenon is inimical to the possibility of a republican politics, and we must see the constitutionalisation of politics as part of this. In the US, the striking down of the discriminatory Defence of Marriage Act gives cause for celebration. Yet it is possible to celebrate this outcome while experiencing a sense of discomfort at the progressive fawning towards the institution of the Court itself – the tiresome, speculative court-watching which rarely pauses to examines the basis and wider political effects of the court’s power. The dominating, mystifying majesty of the Constitutional Court is insinuated and expressed in much of our constitutional scholarship.
Democracy and the marriage referendum
Returning to the marriage referendum, it is often argued that the fact of the “people” having the final say on important social questions, such as the meaning of marriage, is a sign of democratic vitality. Yet the reluctance of our parliament to independently appraise equal marriage rights – in marked contrast to our neighbours – is, at one level, simply a further sign of dysfunction in our parliamentary democracy, a negation of political choice and possibility. In one sense, the Constitution is used simply to deflect political responsibility. Consequently, instead of a legislative process of the sort witnessed in France and the UK we will probably be treated to the ludicrous spectre of a referendum on whether or not gay couples in fact deserve equal treatment under the law. We never had a referendum on whether women were entitled to equal pay, and it would be absurd to argue it would have been more “democratic” if we had. The prospective referendum will see right-wing pseudo-intellectuals clothe crass bigotry in the careful terminologies of science and reason. But we should not be so naive so imagine that the demands of democratic participation are vindicated simply because the people are given the opportunity to passively acquiesce or veto whatever constitutional amendment government deigns to submit. Too often, “popular sovereignty” in the Irish constitutional context is unreflectively conflated with the people’s nominal right to amend their constitution (at the Government’s prodding). Instead, we should be concerned about the implications for our citizenship of a broader tendency to constrain political possibilities using constitutional propositions that, almost by definition, are supposed to be unfathomable to the “lay” mind. There can be no objection to the requirement of referendum for constitutional change, but when combined with the sort of constitutional inflationism I have discussed, this ends up having a stultifying effect on an already sclerotic politics. We must reflect on the consequences of over-constitutionalisation both for parliamentary responsibility and our sense of citizenship generally.
[i] Michael McDowell, ‘Dáil Gender Law Unconstitutional’, Sunday Independent, 20 November 2011.