As Liam mentioned here, I published an opinion piece in yesterday’s Irish Times in which I argued that commonly made calls for the wholesale replacement of the Irish Constitution (such as those made by, for example, the Labour Party, Justine McCarthy on Monday’s evening’s Aftershock on RTÉ and Leviathan) are misdirected. Instead of ushering in a ‘new republic’ or ‘renewed republic’ by means of a new Constitution, we ought, I said, to try to re-imagine our relationship with the State and to become more deeply engaged with the Constitution that we have. I want to say first of all that this was not an argument that the current Constitution is perfect or not in need of any amendment; it was argument against ‘scrapping’ Bunreacht na hÉireann and ‘starting over’ completely (the headline and by-line, as anyone who was written for a newspaper will know, were not written by me!). There are certainly some areas in which amendment would be helpful, but representing that the current state of our country would be rectified by scrapping Bunreacht na hÉireann and replacing it with a new Constitution strikes me as an unhelpful deflection from the real state of constitutional discourse in this country.
This discourse, I argued, is infected first of all by the manipulation of the Constitution by politicians who use the Constitution as a reason to do (or fail to do) certain things that are controversial, expensive or difficult and who, through failing to provide appropriate public education in the Constitution and the politics of this country, do not empower or equip us to challenge these assertions. Secondly, I argued that the discourse is infected by our own mythologizing of the Constitution and cultivation of an employee-client political system in which the ‘bigger’ picture can easily be lost.
In this post, I just want to address a few of the very interesting arguments that people have made in response to the piece and, I hope, to keep this conversation going. These are arguments have been made over at the Irish Times website and in this blog post by Prof. Ferdinand von Prondzysky at his excellent University Blog. I see five different themes in the various comments that have been made about the article, and I try to address each in turn here although they are all intertwined.
1. Constitutions must evolve; the Bunreacht is of another age
This argument proceeds along relatively convincing lines at first glance, claiming that because the Constitution was written and enacted in the 1930s and was heavily influenced by the then contemporary political theories of Europe and the social justice theology of the Roman Catholic Church it is outdated. Therefore it ought to be replaced for this is how it can evolve. It is certainly true that the Constitution as it was written was influenced by the prevailing views, theories and approaches of the 1930s; if we were to rewrite the Constitution over the next few years it would be influenced by our current viewed, theories and approaches. However, to say this is not to convince me that the Constitution has not evolved from that point. In Ireland, unlike in the United States, there is no enormous, ideological movement of originalism (i.e.—in very simplified terms—the view that the Constitution ought to mean the same today as it did when it was enacted). Rather, we have a very strong jurisprudence from our Supreme Court suggesting that the Constitution is a living, breathing and dynamic document that must evolve with us as a State. To be sure, there are some cases in which this dynamic approach to constitutional interpretation has not been adopted, but the approach exists as a judicial mindset in this jurisdiction and it has resulted in constitutional evolution. So, for example, the right to privacy as understood in 1937 could hardly have been expected to include within it a right to marital privacy, encompassing a right to decide on family planning and use contraception within a marriage, and developing ultimately into a right to use contraception and control reproduction in this way. But that is what has happened, flowing from McGee v Attorney General (1973) in which the Supreme Court famously applied this dynamic approach. The Bunreacht comes from another age, this is true, but I do not believe this means that it is of another age or incapable of evolution in any way other than by complete replacement with a new document.
2. Rewriting the Constitution will awaken the constitutional imagination
Some have argued that a process of rewriting the Constitution would bring us, as a people, closer to the Constitution. As far as I understand it, this is based on two premises in particular. Firstly, that we as a People can not feel close to the current Constitution and, secondly that as a People we would be somehow involved in the process of drafting a new Constitution. the first was expressed thus by Ferdinand in this post (responding both to the article and to my previous post here):
I cannot help feeling that if we are to create a ‘constitutional imagination’, it needs to relate to a document that more easily expresses the principles and values that guide society today and for which we would want constitutional protection. A constitution should not express a kind of opaque mystique that only a special judicial class can elucidate as they currently happen to see fit; it should be a document that speaks to the people directly rather than through intermediaries.
This point as expressed connects to an argument about the judiciary that I will address below, but it is also a commentary on the Constitution as it stands. I do not believe that we are incapable of creating a closeness and a fully awakened constitutional imagination as a people, but I do believe that we have been systematically stymied in doing so by the failure of the State to support a proper and empowering civic and constitutional education for every member of society. As I suggested in the opinion piece and previously here on HRinI there are a number of steps that could be taken to try to awaken our constitutional imagination more fully; I am not convinced that fully redrafting a new constitution is required to do this and, in my view, wholesale constitutional change should be an action of last resort in order to achieve this.
The second premise that underlines this argument is that the People would actually be fully involved in the drafting process. Numerous commentators over on the Irish Times site noted that while we would be asked to enact a new Constitution by plebiscite or referendum, in all likelihood drafting would remain the domain of a legal and political elite. The Labour Party at its convention suggested that there would be some representative popular participation in this process, although we have not yet seen any detail on this plan (see this post). There are certainly ways in which we could try to make this process a primarily ‘popular’ one, most particularly through the use of some kind of citizens’ assembly. I have been particularly struck by this proposal by Brian Flanagan which was submitted to the Your Country, Your Call competition. I want to summarise the proposal in Brian’s own words from this blog post:
The process would be started by creating a Citizens’ Assembly (up to 200 people selected at random from the electoral roll) which would serve as the non-political supervisory body. Its working groups would be supported by Irish and international experts in constitutional law, electoral reform etc. selected by the Assembly.
The Assembly would also tap into all key components of the establishment including the Dail, Seanad, political parties, legal system, big/small business, voluntary and community sectors etc. It would also use market research and new technologies to reach out to individuals and gather their views and determine priorities. All its work and deliberations would be published and it would operate in a very transparent manner.
Once a new Constitution has been drafted, moral pressure would be invoked to ensure that elected representatives present it to the electorate for consideration in a referendum. This should be (relatively) straightforward given the electorate’s experience of the infinitely more complex Lisbon Treaties.
I think this is a very smart idea, but I worry about the inclusiveness and representativeness of this assembly. I also worry about popular reform easily slipping into populist reform (indeed, many of the proposals from Fine Gael for New Politics amendments to the Constitution seem populist to me—a trend that I find very worrying and increasingly prevalent in constitutional discourse (previous post)). So I am not sure that a redrafting exercise can in fact create a popular closeness to the Constitution in the way that seems desired; neither am I convinced that the Constitution we have can not be the basis for an active and informed constitutional imagination.
3. The Constitution marries Church and State and therefore needs to be replaced
The Constitution does create a close relationship between the State and religiosity and certainly in its original conception created a close relationship between the State and the Roman Catholic Church. All references to God ought to be removed and a clear commitment to secular pluralism and the full and effective separation of church and state included. This does not, however, require a whole new Constitution.
4. We have amended the Constitution multiple times, therefore proving that it fails to serve us well
With respect, I think that this argument is in fact self-defeating. We have amended the Constitution by referendum several times because the Constitution gives us, the people, a sovereign right to ado so. The decision as to whether to hold a referendum or not and as to how to word proposed amendments is a political one and, as I argued in the article, that decision centralises a great deal of constitutional power in a sitting government and can be cynically deployed. Certainly as a people we must be able and willing to resist and challenge these decisions in constitutional terms and this, I argued, requires us to be fully empowered and equipped in relation to the Constitution. The argument I was making, then, was that the source of corrupting and exclusionary power is not the Constitution itself and is more likely to be “political choices disguised as constitutional imperatives”.
5. The Constitution has enabled wide-scale corruption and abuse in Ireland
Commentators on the Irish Times website as well as social commentators elsewhere have represented the Constitution as the course of corruption, abuse and political elitism in this country and used this as a basis for the argument for wholesale reform. Here, again, I think that unless we apply a healthy dose of cynicism to the way that the Constitution is deployed it is difficult to see beyond the smoke screen of the Constitution and to really analyse whether this is the case. Did the Constitution enable decades of clerical abuse of children, or was it the political decision to abdicate responsibility to the Church that did this? Did the Constitution enable enormous financial mismanagement, greed, inadequate regulation and corruption or was it a political culture of instant gratification of the people and ‘talking up’ the economy that did this? Does the Constitution enable decades of generational and dynastic monopolisation of Irish politics, or is it the way in which parties choose candidates the way in which we decide to vote that did this? Does the Constitution hold the blame for enormous financial inequality in our State, or is a political distaste for redistributive taxation and fiscal policy that does this?
It is easy to blame the Constitution; my point is that the Constitution is not to blame for this. Our politics is and by this I mean the party political system in Ireland, the dysfunctional operation of our legislature where the party whip dominates over conviction, and the clientist approach that we take as a people to our selection and election of public representatives. There are some areas in which the Constitution plays an important role in inequality and unfairness, such as in relation to gender inequality or the failure to recognise children as full constitutional citizens. However, report after report has been written and shelved on how these constitutional deficiencies might best be resolved, proposing the wording of referenda and engaging in deep and important constitutional and social thought. These proposals have neither been enacted nor put to the people. Is this a result of the Constitution? No! It is because of a political decision not to hold referenda on the issues. We must separate the two and we must ask ourselves this: would a new Constitution make any difference to this political vice-grip on constitutional discourse?
6. The Constitution gives too much interpretive power to the Judiciary
Here, perhaps, we come to what I think is the strongest argument in favour of constitutional redrafting. Again, I will quote from Ferdinand’s post. He wrote:
It is entirely true that the courts have, over the years, thrown a more liberal veil over the original wording and allowed it to be used in jurisprudence to reform outdated laws. But even that is, it seems to me, of doubtful value, as it sets up the judiciary as a non-elected legislative body, using a document which on the face of it lends very little support to what they are doing.
At this point I must make an ideological admission: I am very much a fan of judicial activism and I believe in placing constitutional interpretation and evolution in the hands of the judiciary subject to reform by means of popular referendum should the people disagree with the courts’ decision and the government come up with a convincing and compelling wording. I recognise that there are plenty of objections to this position: the judiciary is an elite, homogenous, exclusionary and unaccountable body that does not always get it right. Correct on all fronts, and problematic on all fronts. I, as much as anyone, believe that we need true judicial diversity and an open, transparent and effective judicial appointments process.
However, I also believe that while courts sometimes get it wrong, they frequently get it right. I believe that courts and judges have a true and impressive commitment to the rule of law expressed as the principles of limited government, equal application of the law to all, protection of fundamental rights, and preservation of constitutional supremacy. There are numerous examples of cases that you could cite to tell me that I am wrong and I could retort with others to prove my point.
At bottom, however, I must hold my hand up and admit that this a political and ideological position that I hold and that not everyone agrees with. However, it is a position I hold in relation to constitutional interpretation that is subject to the important proviso I made above, namely that it is “subject to reform by means of popular referendum should the people disagree with the courts’ decision and the government come up with a convincing and compelling wording”. And here again we come full circle: holding referenda and deciding on wording are political decisions. These decisions are not constitutionally prescribed but challenging them does require constitutional fluency and the capacity to engage in a constitutional discourse. This doesn’t require us all to be constitutional experts, but it does require us to be empowered by some familiarity with our Constitution and to demand that the State in its political guises desist from monopolising and politicising that discourse.
So, my response to some of the great responses to my Irish Times article on constitutional renewal yesterday: http://bit.ly/c0CCqb
Constitutional Renewal http://su.pr/1vdbUT
RT @humanrightsblog: Constitutional Renewal http://su.pr/1vdbUT <== powerful stuff
Great post. Many of those who support a new constitution appear to view it as fossilised in the 1930s, rather than the living document you describe. Aside from the legal aspects, there are two glaring practical points to be made about the idea of a new constitution and/or republic:
(1) Adopting a new constitution will open divisions of various depths on a range of issues (the family, children, marriage, the North, the Oireachtas, the President, etc.). No matter how broad the convention that drafts a new constitution, these divisions would likely only be resolved by producing a bland document or one which fails to tackle many of the issues. 56.5% of the electorate voted in favour of the 1937 Constitution – could a similar result be expected of a new document? This is not an argument for ignoring the divisions and issues; rather, some issues will need to be addressed in isolation and with a proper debate.
(2) Some of the arguments in favour of a new constitution are admirable and are expressed in emotive terms. But they are predicated on a fantasy that changing the words in the pages of our constitution will usher in a new era of rights and good governance. As you say in your Times piece: “Rewriting the Constitution will not solve everything.” If one looks at the record of the current and last administrations in the area of criminal justice legislation, to take one example, one can see how significant changes to the law have had very little impact in real life.
Finally, it is an unrealistic expectation to call for a short, simple document (Fintan O’Toole’s “ID card”) which is comprehensible and accessible to all yet also sets down the ground rules for the entire governance of the country and system of rights for individuals. The same call was made in relation to the failed European Constitution, and while that document certainly could have been shortened considerably, such a debate seems to point to different objectives for a constitution.
A constitution should, of course, be comprehensible but that can be achieved in a large part by introduction in education (as you suggest).
Despite your agreement that “the judiciary is an elite, homogenous, exclusionary and unaccountable body,” you feel that they are more likely to “frequently get it right.” However, what is right?
I would argue that – for those who believe in democracy as government by the people, for the people and of the people – your assertion that the judiciary be granted a licence to constitutional interpretation betrays a a lack of faith in the sovereignty of the people. Elected legislators and the the political process offer at least formal accountability. How we move toward real accountability and “getting it right” is not a legal question or even a moral question, it is a political question. For instance, as a veteran campaigner for reproductive rights and against racism I believe “getting it right” means winning the arguments on the door step for abortion and immigration reform. A classic example of how “getting it right” is used to belittle the democratic mandate is the abolition of capital punishment. Whilst I am totally opposed to permitting the state to impose a death penalty on any convicted criminal, the majority of the electorate would likely vote in favour if a referendum was held tomorrow. “Getting it right” ought to mean that the will of the people be paramount and those of us who oppose should be forced to win over the majority. However, our constitutional protectors and judicial guardians do not worry about the popular legitimacy of rights. What they care about is bending the law to accommodate their preferred result. Unfortunately, the anti-democratic character of these constitutional commandments is not diminished by reaching the right conclusion.
The reality is that constitutions only have meaning when they formalise rights as demanded by living political movements. These rights are codified political demands that limit the powers of the state and define the laws that all of us are prepared to tolerate as equal citizens. Constitutions which limit the powers of ordinary citizens to debate and create their own laws is always “getting it wrong”; no matter the outcome. Let’s get away from legalistic ways of understanding the constitution and rights. We need to reinvigorate a leading role for the public to debate the laws of the land and reign in the privileges of the unelected to interpret what’s best for us.
Constitutions are mere words which should not be held over the people. The people should not be beholden to a piece of paper. For this reason, the constitution should be scrapped and our politicians should be forced to inspire and challenge us to remake the relationship between the state and the people. If they can’t do either, then they should be exiled to the past along with the constitution. The Irish people do not need to protected from ourselves.
@vonprond That was an interesting post–I've responded to comments generally (yours and some on IT site) here: http://bit.ly/c0CCqb
Hello,
One of my goals is to redefine what we mean by national success in Ireland. Currently, we define and measure national 'success' mainly in economic terms – GDP and GNP.
In my opinion, this is far too narrow and is part of the reason for our current economic and social crisis in other countries as well as in Ireland. I believe wqe need to redefine national success to include factors that enable citizens to achieve health, happiness and a reasonable standard of living.
I would like to see the Irish Constitution changed to reflect this re-definition of national success.
many thanks,
Con Hurley, Union Hall, West Cork
I agree with Rossa’s comments above about the potential for divisiveness were we to engage in a process of drafting a whole new Constitution and my particular worry here is about who would get left behind/out in this process. It would hardly be the average, middle-class, ‘Irish’ person and would be more likely to be the person or people who have the quietest voice. What about immigrants and non-citizens who would almost certainly be completely excluded from the consultation process and the vote? What about children—how would we include their perspectives? Would we bother to do so at all? What about gay people? People of colour? Transgender and intersex people? Travellers? People with disabilities? Older people? People from Northern Ireland? Poor people? Divisiveness and debate are not the same thing and I think that most referenda when they happen are divisive to some extent, as people generally take different positions on the proposition that is put. But that kind of debate is somehow containable or manageable, by which I simply mean it can take place within the parameters of the particular issue that is being considered. I am not convinced that can happen with a wholesale process of drafting a new Constitution from scratch.
Steve, I am somewhat confused by your comment so if I get your argument wrong then I apoligise in advance. In short, however, I think I right in saying that you think there should be no constitution at all? That if the people want something (you use the example of a death penalty) and convince politicians/are convinced by politicians then that ought to be that? If that is your proposition then I must absolutely disagree with you. A state without a constitution is a state without any limits on governmental action. The constitution is supposed to protect us from the state overreaching. It is also supposed to provide a counter-weight to populism, panic etc… Your argument suggests that what matters is legitimacy but you seem to measure legitimacy by reference to majoritarianism. I fundamentally disagree with that view. I think that we have to accept that there are some things that are beyond the pale: torture, slavery, capital punishment etc… should be absolutely prohibited, even if 99% of the people want them. That is my position. There are some people who support your position, but I am not among them. I suppose, then, that this partially explains my faith in courts as constitutional interpreters: if the state and 90% of the people want to hang drug dealers then I think it is right that we have a neutral and unelected body, like the Supreme Court, to say ‘hold on here everyone, we have a Constitution; we are a democratic nation in a sense that goes beyond simple majoriatianism; we have values; we have limits; we can’t go beyond them’. I don’t think it’s a question of the people being subordinate to a constitution; it’s a question of the state (and all of its power) being obliged to act constitutionally and there being a neutral arbiter to adjudicate on claims that this obligation has been breached. I suspect our positions here derive from fundamentally different philosophies about democratic legitimacy?
Con, I think that including enforceable socio-economic entitlements in the Constitution would be absolutely helpful in achieving the goal you have set out. Your proposed change requires a shift in political mindset as well, I think, that is equally important but again I ask whether a whole new Constitution is required for this to happen? Or just a constitutional amendment? Or even just a shift in judicial approach to the Constitution we have at the moment?
I’m not living in Ireland so I have missed, for instance, the Aftershock programme and amn’t as familiar with the framing of the debate at home as I might otherwise be. I will ask for your patience as I move through each of my criticisms of Fiona’s position towards my conclusion.
I accept, to a degree, Fiona’s point about the constitution becoming a resting point for all of our political ills. But I think we have different reasons for coming to this point. I am suspicious of the juridification of politics because in its current incarnations it tends to permit the use of law to constrain our options for social transformation and to produce politically unsatisfying outcomes which match the interests of those in power. But I do not believe that this situation is natural or inevitable. I agree with Fiona that many of us are too quick to reach for law when there is still much work to be done in the non-legal arenas of the public sphere. I agree that too quick a resort to the idea of the constitution often lets politicians off the hook. But I am less quick to give up on struggling over law’s relation to politics. Law, and constitutional law especially, can be more than a pure and blameless space untouched by politics. All lawyers value law’s capacity – through form and tradition, and by the devices which it has developed for appearing to remove the political element from controversial questions – to pour oil on troubled waters – hence Rossa’s point earlier in the comments. But I wonder whether some lawyers expect law to function as a political traffic-calming device and completely deny the value of political conflict and law’s engagement with it.
Fiona argues against the mythologizing of the constitution. I see her point about how the myth can be deployed to disempower the people. But isn’t this a moment when people are trying to re-orient that myth, to rekindle the sense of transformative potential entailed by this talk of the new Republic? Why fail to recognize that shift?
When Fiona talks about the constitution as a restraint on state power, she accepts that the constitution is available to the citizenry when we want to make a statement about government action: she gives the examples of especially serious abuses of state power – torture, unlawful killing etc. We can attribute similar origins – in the sense of a search for the limits of state power -to the popular renewal of interest in the Irish constitution. We lawyers may despair of the language in which this interest is expressed, of the wide range of topics brought within its ambit, f the lack of nuance in some of the arguments doing the rounds, and of the way in which this interest is already being manipulated by deplorable political actors. But this renewal of interest is legitimate, it is important, it is political, it is evidence of citizens’ engagement with their constitution. It is evidence of an Irish sense that there ought to be a limit to what the government can do to us, that constitutional rights ought to have new reach, that government ought to keep to its obligations. It is evidence of a longing for some power, some place to stand against government. Fiona may feel that this political energy is being directed to the wrong place, she argues for caution and reason and reading. And she is right to that extent. But let’s not throw the baby out with the bath water. Let’s not dismiss this moment. There is real potential here.
Fiona is not against the citizenry having thoughts about the constitution. But she does under-estimate the citizenry and how they have tried to resist the manipulation of our constitution in recent years. She argues for education about the constitution which will empower the citizenry to take it back. This raises two points. First of all it exposes the fact that Fiona has marginalised citizens’ ongoing, empowered, critical and engaged attempts to use the constitution to limit and reorient state power – in political movements where the constitution is cited, in the work of NGOs, in litigation, in calls for referenda. Time and time again they are stalled, rebuffed, dismissed. Even if every citizen in the country were educated about the constitution – and this is the second point – the risk is that successive governments are so lacking in respect for the citizens, that little would change. There is more – there must be more – to our political renewal than freighting citizens with yet more responsibility. Fiona is right to highlight the government’s interest in an apathetic, uninformed and apolitical citizenry. But she fails to think through government’s other responses to our efforts to engage with the constitution. They shut it off, and keep it for their own use. What answer can Fiona’s empowered citizen give to this? S/he can spot a cynically-devised referendum and vote ‘no’, certainly. There is scope for resistance. But shouldn’t we capitalise on this moment of renewed interest in the constitution and aim for something more?
Which brings us to the next point. Fiona is right to say that the constitution is only as good as its judges and only as good as the politicians bound by it. Any re-imagining of the constitutional order would necessarily be accompanied by a re-evaluation of the political and judicial roles that it defines. As Fiona argues, the constitution need not be frozen in time. The Irish constitution has borne witness to several periods of liberal judicial activism which have time and time again reinvigorated and expanded the provisions of Dev’s document. But what happens when you have – as we do now – a Supreme Court which, though it is not originalist, is committed to a conservative interpretation of the constitution – think of Sinnott for example where Hardiman J falls even onto the difference between the words child and paiste in the two versions of the constitution. People might not have sophisticated enough legal knowledge to express their sense that the constitution is lagging behind social change, but it is. And when government won’t pick up the slack year after year after year, even in the face of contrary public will, what can you call it except a failure of the constitutional order? The separation of powers has become moribund, a kind of auto-immune mechanism.
Fiona says that judges get it right most of the time. Fine. But we need a new sense of what ‘getting it right’ means. Does getting it right mean a judicial elite who turn in on themselves and find the right answer through their personal communion with the law. Or is there scope for a more responsive, even pluralistic conception of law which would pay more attention to the voice of the citizen and its manifestations within the judicial process? We need to start thinking of judges less as a priestly elite and more as what they are: servants of the people.
I wonder too why Fiona calls for the education of the masses, but does not pay so much attention to those of us who are privileged to have the closest working relationship to the constitution – the lawyers. Where is legal education in all of this?
Fiona worries about the representativeness of an assembly convened for the purposes of drafting the constitution. She seems to suggest that we must prove that such an assembly would be immeasurably better – cast-iron guaranteed to be better – in the sense of its representativeness than are our current institutional mechanisms for constitutional reform. That, to me, seems to be a poor case for the status quo. It places, as lawyers so often do, the burden of proof on the shoulders of those who desire change, requiring nothing of those in power.
Fiona and I share disappointment in Ireland’s politics, but react differently to it. Fiona wants us to reinvigorate what we have, shying away from wholesale reform, except as a last resort (Who will decide when we have reached the last resort?). I want a break from what we have – what Illan elsewhere on this blog has called a rupture. I want a constitutional convention. My claim is that constitutional politics lies at the point where emancipation and regulation connect. Law constructs us as subjects even as we construct it. To engage with the constitution is to engage in a constant play between agency and restriction. This is why, as Fiona concludes in her own post, there is a certain circularity to arguments about what is necessary to provoke constitutional change. And any efforts to break or push at the boundaries of legal regulation and to bring about an emancipatory constitution – even briefly, before we lapse into the next cycle of regulation – must be messy, and difficult and divisive. 1937 was, as was 1922. It must involve resistance to cynicial manipulation of public opinion and of institutional power by social elites. And it may fail. It may fail badly. And we may in time look back on such efforts with disdain and regret. That is the risk of the political. My sort of break cannot be a clean break.
It is a very Irish thing to look for change within the same tired structures. When are we going to be willing to take a risk for substantial social change?
Okay, I just wrote a long reply which has been lost into the ether due to dropped connection so I'm gonna be very brief in my response.
Fiona,
I am not concerned with legitimacy but democracy. You believe that a constitution should restrict the freedom of the electorate to shape their own laws. I do not.
The fundamental mistake you make is to conflate the reasonable function of a constitution to limit the powers of the state with the anti-democratic character of a constitution which "provide[s] a counter-weight to populism, panic etc."
Politics is certain to remain impotent as long as we tolerate the notion that a constitution should protect us from ourselves.
Surely the point of a constitution is to set the ground rules and put appropriate limits on the various emanations of the State, which you could suggest is a form of protecting us from politicians, not ourselves.
Hi Rossa,
Your clarification betrays the whole sorry essence of contemporary constitutional discourse.
Politicians and parliamentary democracy provide the formal means to supervise and constrain the powers of the state. Whilst there are clearly problems with the insipid character of politics today, a constitution which belittles the sovereignty of the people and its elected representatives is certain to guarantee that the judiciary will be the primary arbiters of our political freedoms.
We elect members of the Dail to challenge and oversee the function of Government and the State. Note this is important. Parliamentary representation is the best means to guarantee freedoms and rights. I do not say this as someone who has any loyalties to any politician in the Dail, I say this as someone who is disenchanted by the uninspiring politicians in office. This is a political problem and not a constitutional deficit.
A constitution which protects us from politicians is not a progressive alternative. It is a cowardly retreat from the urgency of real political debate and an obstacle to reinvigorating civil liberties and Enlightenment values. To dismiss elected TDs makes sense if one is dismissing their real commitment to political reform, it is pure vandalism if it undermines the the sovereignty of the people and the formal character of electoral accountability. Let’s put our energies into expanding public debate rather than constraining the political process.
Apologies to all for the delay in responding (exam corrections/conference got in the way).
Máiréad, I don’t believe this a moment in which people are trying to reorient the myths of the Constitution. In fact, in my view the opposite is the case. People are being diverted by the myths of the constitution and by the constitutional information they have been (often disingenuously) fed by the political classes and, as a result thereof, weighing in behind proposals for a whole new constitution (and I say again that I do not deny that there are many areas where reform, modernisation and improvement in the Constitution would be useful; this is different to writing a whole new document). This is also not the same as “dismiss[ing] the moment”, which I recognise as important but also as frustrating: there is so much energy and enthusiasm for accountability and action and political reform it just seems almost wasteful to not have it directed in a more effective manner. I also don’t think that I have “marginalised citizens’ ongoing, empowered, critical and engaged attempts to use the constitution to limit and reorient state power – in political movements where the constitution is cited, in the work of NGOs, in litigation, in calls for referenda”—this is not the kind of engagement I have been talking about in the IT column or in my response here. The kind of engagement or conversation I am concerned with is that which suggests we must start from scratch because the failures of the state are attributable to the Constitution. Neither of these contentions are sustainable in my view; they are a waste of a moment and a movement. They are not an attempt to use the constitution to limit the state and make legitimate claims, in my view; rather they are contentions based in frustration and in a discomfort with full responsibilisation within and outside the organs of state. Furthermore, a failure in the constitutional order—as you call it—is not the same thing as a failure of the Constitution but they are being represented as the same thing. I absolutely believe that lawyers (especially, perhaps, legal academics) have an important role in all of this including in making the Constitution more accessible and useful to people. I also think that where a proposal is as radical as replacement in total of the constitution it is not unreasonable to ask people to make out some kind of a case for doing so—it need not be a cast-iron case, as you suggest, but it must surely be more convincing a case than the one presented in the Aftershock programme and indeed by the Labour party (btw you can watch Aftershock on rteplayer international if you feel so inclined). I am not unwilling to take a chance for substantive social change, I just don’t believe that wholesale replacement of the Constitution will bring that—I would prefer a real reconsideration and reengagement with politics, demanding more and better from our political representatives and from ourselves.
Steve, your comment reinforces my view that we are fundamentally opposed on our understandings of democracy. I do not believe democracy = majority rule; I think it’s majority rule but with a real value-laden core that can counter-weigh that majoritarianism. I don’t think our Constitution belittles popular sovereignty; on the contrary I think it almost champions it but it leaves extremes of power to the political classes which are abjectly failing in deploying that power in an appropriate way. That is why I think our first port of call, at least, should be political reform.
My heart misgives me, ’tis best to keep the established laws, even to life’s end.
http://classics.mit.edu/Sophocles/antigone.html
Fiona:
I think the last time I replied to a post of yours was years ago over on irishelection.com … I miss your blogging and writing.
I had the pleasure of attending the Constitution at 70 in Trinity college in 2007. One of the benefits I derived from the session/s at Trinity, apart from a lot of critical academic and practical analysis, was an innate sense that what we have provides an (albeit dated) framework or tree by which a pretty decent enduring bicameral system operates.
The reforms mentioned above, by Fiona are indeed required, but an overall adoption of the ‘sledgehammer to crack a nut’ which appears to be the rhetorical proletariate rallying cry of some of the puerile opposition leaders (and one or two posters above) to garner support for their misguided and ill-conceived electioneering rants is just wrong.
…. It belongs on Joe Duffy’s radio show. Nowhere else.
I recently heard Michael McDowell SC, publicly discuss the concept and work required to amend or scrap the Seanad. The reality of matters is that there are in excess of 82 discrete amendments required to even start with. Not going to happen. He looked at this while working with the PDs if my recollection is correct.
My view is that on top of the list of reforms spelled out by Fiona, the main reforms required at actually in the Oireachtas and potentially the electoral system …. but will they go there … no. It doesn’t sell newspapers and creates work.
I’ll leave you with Plato first: “No law or ordinance is mightier than understanding” and then Acquinas: “Law is nothing other than a certain ordinance of reason for the common good, promulgated by the person who has the care of the community.” (Of course we do require a Constitution in order to frame, re-frame said laws whether by act of Oireachtas/Parliament or by a Judge)
Bye for now.
Ronan
Ronan–it certainly has been a long time (!).
I think it’s true to say we need at least some reform in electoral system and major reform in how the Oireachtas works, but we really need to change our mindsets as electors and political actors in so many ways.
constitution,
My name is Divyansh Dutta.I am stydying in class 8th.i am stydying in an english medium school.in my openion the constitution of ireland must be like the indian constitution because our constitution has been made by stydying all the constitution of many countries in the world and it the summary of all constitution.
so I will suggest you members to make the constitution like india.
thanking you,
yours faithfully,
divyansh dutta.