The political theory of the Irish Constitution

Republicanism and the basic law

Eoin Daly, Tom Hickey

• Publisher: Manchester University Press
• Year: 2015
• Print ISBN: 9780719095283
• eBook ISBN: 9780719098864
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Communism, Post-Communism & Socialism
• Index: Politics & International Relations

The political theory of the Irish Constitution considers Irish constitutional law and the Irish constitutional tradition from the perspective of Republican theory. It analyses the central devices and doctrines of the Irish Constitution - popular sovereignty, constitutional rights and judicial review - in light of Republican concepts of citizenship and civic virtue. The Constitution, it will argue, can be understood as a framework for promoting popular participation in government as much as a mechanism for protecting individual liberties. It will be of interest to students and researchers in Irish politics, political theory and constitutional law, and to all those interested in political reform and public philosophy in Ireland.

Part I

Republican freedom

1

Popular sovereignty, political freedom and democratic control

Introduction

The ‘sovereignty of the people’ has been identified as the foundational and definitive principle of the Irish Constitution. As an abstract democratic principle, it is generally understood as meaning that the people are the legitimate source of legitimate political and legal authority in the State and that all governmental powers are derived from their consent and exercised on their behalf. More concretely it can be understood as a claim by the people to exercise political authority, whether indirectly by electing representatives, or directly through plebiscites. In theoretical terms, the ‘constituted’ authority of the State thus derives its moral authority from the people as the ‘constituent’ power. Of course, as a formal principle, popular sovereignty can often seem a hollow piety: in positing the abstract, unitary ‘people’ as the source of all legitimate power, it obscures how political power is, in real terms, unequally distributed among different social groups. The doctrine can tend to confer legitimacy on unjust and unequal forms of political and social organisation with reference to formal democratic procedures – with the people being kept ‘at arm’s length’ in the constituted governance of the State.¹ It also tends to reduce the value of citizenship to formal membership of a corporate ‘sovereign’ group, ignoring the more concrete forms of participation – and recognition – that citizenship might involve.

In Ireland, the constitutional principle of popular sovereignty has been discussed and theorised almost exclusively in relation to the rights of the people in the context of the constitutional amendment process. The Irish Constitution requires referendums to be held as a mandatory component of the amendment process, and in turn the people’s right to vote on constitutional amendments has been understood as the main institutional safeguard and expression of popular sovereignty, understood as a foundational constitutional principle.

Popular sovereignty has been interpreted as meaning that the people’s right of constitutional amendment is substantively unfettered – meaning, in effect, that no constitutional provision is immutable. This has resulted in a number of theoretical tensions, particularly since the idea of an unchecked popular sovereignty seems to contradict the Constitution’s recognition of immutable, ‘antecedent’ natural rights.

Thus, the popular sovereignty principle has typically been located within a familiar theoretical tension between democratic majority rule and individual rights. In this chapter, we challenge this conceptual dichotomy from a republican perspective. First, we argue that since freedom is bound up with citizenship, participatory democratic rule and individual freedom cannot be seen as binary, antagonistic values. Second, we argue that while Irish constitutional thought has tended to narrowly equate popular sovereignty with formal procedures for majoritarian rule, the concept of the ‘popular will’ – frequently alluded to in constitutional discourse – is problematic analytically and of little value within a coherent normative theory of the Constitution. Third, we argue that the referendum, specifically, should not be understood as a privileged exercise nor as an expression of popular sovereignty given the very limited degree of popular empowerment it allows in reality. The referendum process cannot coherently be understood as giving the people an authorial role in respect of constitutional content. Fourthly and finally, we nonetheless argue that, contrary to most analyses, the mandatory constitutional referendum is defensible and valuable from a republican perspective. It is valuable not because it crystallises the ‘will of the people’ in the Constitution’s content, but for two narrower, yet important (and interconnected) reasons. Firstly, it facilitates the checking and contestation of executive power (especially, but not exclusively, in the area of constitutional change), and secondly, it has the potential to promote a greater degree of civic participation than could occur under a purely representative democracy.

Popular sovereignty and the referendum in Irish constitutional law

The rhetoric of popular sovereignty features prominently in the text of the 1937 Constitution. Effectively it overlaps with and blends into the partner idea of national sovereignty. This is captured in Article 1’s assertion that ‘The Irish nation … affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government.’ Just as it is asserted that the nation has the right to govern itself free of external rule, the people are acknowledged as the legitimate source of governmental power within the State. Thus, the external and internal aspects of sovereignty are to some extent interconnected; the people cannot meaningfully practise self-government if the State is subject to external tutelage. While Article 5 asserts that ‘Ireland is a sovereign, independent democratic state’, Article 6 is perhaps the clearest philosophical assertion of popular sovereignty, stating: ‘All power of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.’ These broad statements of the popular sovereignty doctrine are given effect in the specific constitutional provisions concerning voting rights, as considered further below, as well as the political liberties of expression, assembly and association, as explored in Chapter 2.

To an extent, the centrality of popular sovereignty in constitutional doctrine stemmed from the political contingencies of the 1930s. On the one hand, popular sovereignty was posited as a republican and nationalist alternative to the British constitutional doctrine of parliamentary sovereignty, in line with the broader constitutional experimentation of the post-independence era.² The emphasis on popular sovereignty ‘represented a decisive break with the British constitutional tradition, which viewed sovereign authority as vested in the political organs of the State rather than in the people as such’.³ This was reflected in certain provisions of the Irish Free State Constitution of 1922, which sought to differentiate the new institutional framework from the parliamentary Westminster model. This was given expression, for example, in the provisions envisaging the creation of vocational councils as well as popular-initiative referendums.⁴ O’Cinneide notes an early ‘desire to give substantive effect to the idea of popular sovereignty [which] led the drafters of both constitutions to experiment with different methods of ensuring greater popular participation’.⁵ However, this experiment was effectively jettisoned as the Irish Free State saw political power concentrated in a government-dominated Oireachtas (as we detail in Chapter 4). Under the pressures of political crisis, ‘Westminster-style orthodoxy reasserted itself at the expense of democratic innovation’.⁶ In particular, the popular-initiative provision was removed from the Constitution based on fears that it would be instrumentalised by anti-Treaty republicans. Thus, the early decades of the State established a marked contradiction between an emphatic official emphasis on popular sovereignty as a definitive constitutional doctrine, and the marginalisation of the abstract, sacralised ‘people’ in the actual business of government.⁷

More pertinently, perhaps, popular sovereignty was invoked as an overriding source of moral and political legitimacy in a context where considerable doubt existed concerning the legality of the enactment process for the 1937 Constitution. The Irish Free State Constitution of 1922 was (arguably) locked within the terms of the Anglo-Irish Treaty of 1921;⁸ correspondingly, there was no legal scope to enact a new constitution that discarded the Treaty provisions. Thus in some analyses at least, the 1937 enactment broke the chain of legal validity in what effectively amounted to a juristic revolution and in this light, de Valera resorted to a plebiscite to confer popular legitimacy on a legally dubious constitutional transition.

On the one hand, the 1922 Constitution itself was seen by republicans as offering a limited and compromised form of national sovereignty and accordingly, the enactment of a new constitution through a national plebiscite partly served a symbolic purpose: to assert that the authority of the State derived not from the legal authority of the Westminster Parliament via the 1921 Treaty, but rather directly from the consent of the people. Thus the mythical, corporate ‘People’ – a concept unknown in British constitutional doctrine – was to be unambiguously affirmed as the cornerstone of constitutional authority. On t...

Table of contents

• Cover
• Half-title
• Title page
• Copyright information
• Table of contents
• Acknowledgements
• Foreword
• Introduction: Republican theory and republican constitutionalism
• Part I Republican freedom
• Part II Republican institutions
• Part III Republican society
• References
• Index