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I’m afraid I find it hard to agree (surprise surprise…). The failure to react sensibly to decisions on constitutional interpretation such as Crotty, for example, (by either (a) proposing a constitutional amendment to modify the principle, or (b) imterpreting and applying Crotty so that its potentially limited scope is realised (rather than, as is the case at present, taking an unnecessarily expansive approach to what Crotty requires the People to consider)) is a result of political inertia. It has nothing to do with the referendum process per se.
If one looks at the history of referenda in Ireland since 1937, one finds that in fact it has tended to work very well. As David Gwynn Morgan and I put it in a forthcoming book chapter, the courts, Oireachtas and the People have tended to act in an almost orchestral way, playing different but important roles in both formal and informal constitutional change in Ireland with no small degree of success. I cannot see how one can justify taking away this extremely important opportunity for constitutional engagement and popular sovereignty on the basis that the political branches have tended to take the lazy way out. Surely the healthier approach is to demand better deliberation and (frankly) lawyering from the Government (together with far greater degrees of constitutional education for ‘the People’). How? By, for example, saying ‘no’ to ‘easy way out’ referenda. Popular initiatives might have some traction as an additional way to bring about constitutional change, but I suspect marginalities in other jurisdictions who have been on the receiving end of initiatives backed by unlimited PRIVATE spending (as would be the case in Ireland) might urge caution… Proposition (h)8, anyone?
I agree with the proposition that referendums are not necessarily more democratic than normal Dàil elections (although I think characterising them as ‘undemocratic’ goes too far – they are sometimes useful devices in Irish democracy), but not with the conclusion that referendums are problematic in the way you suggest.
I would argue that Irish parliamentarians don’t shy away from difficult problems because of the existence of the referendum provision but rather that they use the referendum provision because they want to shy away from difficult problems. If Article 46.1 didn’t exist they would find some other way to do so. By and large the problem lies in the structure of the Irish electoral system (multi-seat PR leading to clientelism and a very deep reluctance to stand out). And in the example of the judges’ pay referendum I would argue that the problem was something different again – a form of power play. A referendum on judicial pay gave the government a win-win option by allowing them to present themselves as tough on elite pay (the elite here being the judiciary) on the one hand and deferential to the people/constitution on the other. The senior judiciary, being essentially unable to speak to their own position, were placed in the converse lose-lose position and would, I suspect, have very much preferred if the government had simply legislated to solve the problem.
I also worry that a popular referendum procedure, unless it has a vastly higher threshold for initiation than 500,000 signatures, would condemn us to an American-style culture war in which we spend decades voting for/against abortion over and over again.
I’m afraid I find it hard to agree (surprise surprise…). The failure to react sensibly to decisions on constitutional interpretation such as Crotty, for example, (by either (a) proposing a constitutional amendment to modify the principle, or (b) imterpreting and applying Crotty so that its potentially limited scope is realised (rather than, as is the case at present, taking an unnecessarily expansive approach to what Crotty requires the People to consider)) is a result of political inertia. It has nothing to do with the referendum process per se.
If one looks at the history of referenda in Ireland since 1937, one finds that in fact it has tended to work very well. As David Gwynn Morgan and I put it in a forthcoming book chapter, the courts, Oireachtas and the People have tended to act in an almost orchestral way, playing different but important roles in both formal and informal constitutional change in Ireland with no small degree of success. I cannot see how one can justify taking away this extremely important opportunity for constitutional engagement and popular sovereignty on the basis that the political branches have tended to take the lazy way out. Surely the healthier approach is to demand better deliberation and (frankly) lawyering from the Government (together with far greater degrees of constitutional education for ‘the People’). How? By, for example, saying ‘no’ to ‘easy way out’ referenda. Popular initiatives might have some traction as an additional way to bring about constitutional change, but I suspect marginalities in other jurisdictions who have been on the receiving end of initiatives backed by unlimited PRIVATE spending (as would be the case in Ireland) might urge caution… Proposition (h)8, anyone?
I agree with the proposition that referendums are not necessarily more democratic than normal Dàil elections (although I think characterising them as ‘undemocratic’ goes too far – they are sometimes useful devices in Irish democracy), but not with the conclusion that referendums are problematic in the way you suggest.
I would argue that Irish parliamentarians don’t shy away from difficult problems because of the existence of the referendum provision but rather that they use the referendum provision because they want to shy away from difficult problems. If Article 46.1 didn’t exist they would find some other way to do so. By and large the problem lies in the structure of the Irish electoral system (multi-seat PR leading to clientelism and a very deep reluctance to stand out). And in the example of the judges’ pay referendum I would argue that the problem was something different again – a form of power play. A referendum on judicial pay gave the government a win-win option by allowing them to present themselves as tough on elite pay (the elite here being the judiciary) on the one hand and deferential to the people/constitution on the other. The senior judiciary, being essentially unable to speak to their own position, were placed in the converse lose-lose position and would, I suspect, have very much preferred if the government had simply legislated to solve the problem.
I also worry that a popular referendum procedure, unless it has a vastly higher threshold for initiation than 500,000 signatures, would condemn us to an American-style culture war in which we spend decades voting for/against abortion over and over again.