Constitutional Renewal

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.

Constitutional Renewal

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