Since Saturday we have been bombarded with post-mortem analyses of the children referendum which, although comfortably passed over the weekend, had an extremely low turn-out among the electorate. Already Stephen Collins in the Irish Times, for example, has argued that the referendum is a lesson to the government not to engage in ‘unnecessary’ or ‘symbolic’ constitutional change. While I would agree in principle that tinkering with constitutional texts unnecessarily ought to be avoided (they are, after all, rather important documents), it strikes me that we would be better advised to take the weekend’s low turnout as a starting point for thinking more deeply about our social engagement with the Constitution. We are, as we all know, in a relatively unusual position in Ireland inasmuch as our Constitution can be amended only by formal referendum of the people. This is a continuation in form of the commitment to popular sovereignty reflected by the fact that the Constitution itself came into force only as a result of a plebiscite of the people. However, in spite of this commitment in formal terms to Bunreacht na hÉireann being a document built on popular sovereignty, what strikes me as the key underlying requirement for this—constitutional literacy—has never been a real priority in this country. It is this glaring omission in our civic education that we ought to be focusing on if we want to understand why stand-alone referenda have a tendency to attract low turnout.

Constitutional Literacy

By constitutional literacy I mean, very simply, an awareness of the history, content and impact of the Constitution both as a reflection of national values and as the basis for a constitutionalist limitation on what the state can and cannot do. I am constantly amazed by how many people have never held a copy of the Constitution in their hands, or even read a copy of it on the internet. People seem to have built up a notion in their minds that the Constitution is very complicated, or inaccessible, or incredibly technical. It is not. It is a Constitution. It expresses in relatively broad terms the constitutional values limiting state action and underlying the organisation of the Irish state. It is not a technical piece of legislation. It is, in fact, quite readable. But people do not by and large read it. I find it difficult to resist my gut feeling that this is at least in part because it seems more intimidating than it is merely because people spend their lives being told what it says, or that it does not permit the government to do things it might otherwise very much like to do (or vice versa), without ever being educated about its content in the first place. If constitutional literacy is a democratic imperative in a constitutional democracy–as I think it is–I am not sure how this can be justified. It certainly does not reflect our general approach to fundamental knowledge in other areas.

How many of us, for example, would have voluntarily picked up a Shakespeare play at 16 and read, analysed and understood it on our own? Very few, I would think. However, it was considered important as part of our education in English language and literature that we learn about the classics and, to at least some extent, about Shakespearean plays, concepts, structures and approaches to play writing. It was thought to be core to our capacity to engage with the world of contemporary literature. And so, if you did English for your leaving certificate, you had to do at least some Shakespeare because you simply could not be considered to have received an education in English without it. I would make an analogous argument about the Constitution; picking it up, reading it, analysing it, placing it in its historical context, learning how its meaning is interpreted by courts, learning about why we have the sovereign and exclusive right to amend it, and learning about its influence on contemporary state structures and politics (i.e. learning to be constitutionally literate) should be considered so fundamental to our capacity to engage as a member of the polity that we are simply not prepared for engagement as democratic citizens (broadly construed) without it.

The Benefits of Constitutional Literacy

Committing to a policy of ensuring a minimal level of constitutional literacy would bring immense benefits for Ireland as a constitutional democracy. The first, and most obvious, is the simple increase in knowledge about the content and nature of our Constitution. The others all, in my view, flow from this. So, if we were all more aware of the Constitution and of the controversies within and about it, we would be more empowered to question representations of absolute constitutional truth that are made even in situations where constitutional truth is not clear. What do I mean by this? Well, I mean simply that whether or not something is permitted or prohibited by the constitution is not always a cut and dried question; there are areas of genuine disagreement, most particularly in relation to matters upon which the Supreme Court has not made any on point pronouncement in the past. In such situations it ought simply to not be good enough for a government to argue that the Constitution requires something; controversies, disagreements, uncertainties and so on ought to be debated. People ought to know about them in order to be able to challenge them. It amazes me that politicians routinely get away in concrete situations with assertions that freshman law students would be punished for making in hypothetical situations in exams. However, they get away with it because people do not know that these assertions are contestable. Neither, it should be noted, do parliamentarians contest these assertions; I am astounded at the level of constitutional illiteracy I encounter among members of the Oireachtas when I discuss constitutional matters with them. Certainly, before taking one’s seat in the Dáil or the Seanad, it strikes me that one should be required to sit through a (fairly rudimentary) ‘constitutions 101’ course so that one actually knows something about the basic text that lays out the limits of permissible parliamentary action.

Furthermore, improved constitutional literacy would lead to far more robust and engaged referendum campaigns. At present, people seem to be able to say anything they want in the context of a constitutional referendum and, because they are given a platform to put forward their views without—usually—the media challenging what are sometimes blatant lies and misrepresentations, at least some of the electorate are convinced by them. Or, at the very least, they are made uncertain in their previous understanding of the proposed changes and their impact to the extent that they may either stay at home or vote no (‘if in doubt, vote no’ remains a (not unsound) basic position of many people in constitutional referenda). Certainly, the onus is on those proposing a constitutional change to convince the electorate of the need to abandon the status quo in favour of the proposed change. In doing this, as we know, the state may not give more money to one side than to another; neither can public broadcasters give more time to one side than to the other. Under these (quite fair, in my view) rules of the game explaining the basics takes up time, usually from the yes side, and makes it more difficult to argue for what are often quite sensible changes and, correspondingly, easier for the no side to do what it needs to do to get people to vote no or at least not to vote yes: place a seed of doubt in people’s minds. This is not a rigorous environment in which to debate serious constitutional change, and it could so easily be made more robust by simple initiatives and improvements in constitutional literacy.

It should be clear, then, that there are excellent reasons for us to commit to constitutional literacy initiatives: because it respects the nature of sovereign power holding in constitutional change in Ireland, because it empowers the polity to keep politicians honest when they use the Constitution to explain their actions or inactions, and because it would improve the quality of (and, I suspect, turnout in) constitutional referendum campaigns.

Some Concrete Steps

Improving constitutional literacy is not beyond the bounds of possibility. In fact, a few basic steps could be taken right from the start:

  • Introduce a core constitutional literacy ‘node’ in CSPE, which must be maintained as a compulsory junior certificate subject, should be expanded to leaving certificate, and must be properly resources (including with effective teacher training)
  • Send a copy of the Constitution to every home in Ireland
  • Fund a basic constitutional literacy project, where videos and podcasts as well as booklets explaining the Constitution could be made publicly available to everyone
  • Fund a ‘Constitution in your town’ project, organising talks and lectures and Q&A sessions in towns and cities around the country (I would wager there would be no shortage of constitutional lawyers ready to do this for free)
  • Encourage the use of the public broadcaster for the preparation and dissemination of programmes on the history and content of the Constitution, perhaps in collaboration with a university (the Andrew Marr History of the World/Open University collaboration comes to mind)
  • Make constitutional literacy training a requirement of taking up a seat as a TD or Senator
  • Fund constitutional literacy training for broadcasters to empower them to challenge assertions made by all parties in relation to the Constitution
  • Re-empower the Referendum Commission to provide fuller information, including analysis of yes and no arguments, in referendum campaigns
  • Consider the establishment of a Constitution Commission to oversee initiatives in constitutional literacy

None of these proposals is particularly expensive or difficult to give effect to. I would wager that 12-20 well qualified people could readily be identified who would volunteer their constitutional expertise for free to help to improve constitutional literacy across the nation, but is there any political will to give up the great potential for democratic manipulation through constitutional illiteracy?

 

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Written by Fiona de Londras

Fiona de Londras is a Professor of Law in Durham University. Her third book, Detention in the War on Terrorism: Can Human Rights Fight Back?, was published by Cambridge University Press in 2011. She specialises in terrorism and counter-terrorism, human rights protection in Ireland and more generally, and international criminal law. You can contact Fiona at fiona.de-londras[@]durham.ac.uk