Constitutional Change and Popular Sovereignty

Populism, Politics and the Law in Ireland

Maria Cahill, Colm Ó Cinnéide, Seán Ó Conaill, Conor O'Mahony

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000395631
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This collection focuses on the particular nexus of popular sovereignty and constitutional change, and the implications of the recent surge in populism for systems where constitutional change is directly decided upon by the people via referendum.

It examines different conceptions of sovereignty as expressed in constitutional theory and case law, including an in-depth exploration of the manner in which the concept of popular sovereignty finds expression both in constitutional provisions on referendums and in court decisions concerning referendum processes. While comparative references are made to a number of jurisdictions, the primary focus of the collection is on the experience in Ireland, which has had a lengthy experience of referendums on constitutional change and of legal, political and cultural practices that have emerged in association with these referendums. At a time when populist pressures on constitutional change are to the fore in many countries, this detailed examination of where the Irish experience sits in a comparative context has an important contribution to make to debates in law and political science.

Part 1

Sovereignty

1 The reign of popular sovereignty in Ireland

An antidote to populism?

Maria Cahill

Popular sovereignty as the constitutional cornerstone

Since the founding of the state, the distinguishing feature of Irish constitutionalism is its commitment to a particularly strong form of popular sovereignty, recognised in the aspirational principle in Article 6 of the Constitution that ‘[a]ll powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is … in final appeal, to decide all questions of national policy, according to the requirements of the common good’. Referendums are held on every single amendment of the Constitution, and therefore – and very unusually in comparative constitutional terms – important questions of principle and policy in this jurisdiction are ultimately determined by direct, rather than representative, democracy. The particulars of the amendment process are laid out in Article 46 of the Constitution of Ireland, which states that ‘[a]ny provision of this Constitution may be amended, whether by way of variation, addition or repeal’, and goes on to require that

[e]very proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people.¹

1 Dáil Éireann is the lower house of Parliament, from which the government is formed. Oireachtas is the Irish word for Parliament.

Although the Constitution is less than 90 years old, there have already been 103 legislative proposals to amend the Constitution, 41 referendums on proposed constitutional amendments and 30 successful amendments by referendum (the first two amendments were carried without referendums because they took place under transitory provisions). The rate at which referendums have taken place is increasing significantly: during the first 40 years of the Constitution’s existence, between the years 1937 and 1977, there were only six referendums of which only three were carried; during the last 43 years of its existence, between the years 1978 and 2020, the number of referendums has increased almost six-fold and the number of amendments has increased nine-fold: there have been 35 referendums and 27 amendments. In the ten years between 2009 and 2019, there were 12 referendums and nine amendments.²

2 As I have argued elsewhere, there may well be a metaconstitutional cost to this, in that the constitution may be understood as a temporary contract that can be renegotiated at any time and which is entirely in thrall to majoritarian decision-making, rather than a metapolitical commitment that captures the imagination of a nation and stands the test of time. Maria Cahill, ‘The Danger of Frequent Constitutional Amendment’ ConstitutionProject blog, 11th April 2019. Available at: http://constitutionproject.ie/?p=684.

The commitment to popular sovereignty is a point of pride in the Irish constitutional order. Several times, judges have referred to this part of the constitutional architecture in venerable terms: Chief Justice Hamilton stated in 1995 that ‘[t]he role of the People in amending the Constitution cannot be over-emphasised,’³ and a few months later that ‘[t]he will of the people as expressed in a referendum providing for the amendment of the Constitution is sacrosanct and if freely given, cannot be interfered with. The decision is theirs and theirs alone’, a dictum which has been cited with approval since.⁴ More recently, in a memorable passage, Mr Justice Hogan elaborated on the importance of the commitment to popular sovereignty as direct democracy within Irish constitutional architecture:

3 McKenna v An Taoiseach (No. 2) [1995] 2 IR 10, at 41.

4 Hanafin v Minister for Environment [1996] 2 IR 321, at 425. Reaffirmed in McCrystal v Minister for Children [2012] IESC 53 and Jordan v Minister for Children [2015] IESC 33.

The Constitution envisaged a plebiscitary as well as a parliamentary democracy and, in doing so, it has created a State which can demonstrate – in both word and deed – that it is a true democracy worthy of the name.⁵

5 Doherty v Referendum Commission [2012] IEHC 211, at para 21. Emphasis added.

The principle of popular sovereignty, concretised in the power of amendment, he notes, gives power to the people of Ireland, which is what those who fought for Irish independence were fighting for:

It may thus be said, adapting freely the words of Holmes, that the theory of popular sovereignty for which Griffith argued and Pearse fought and Collins died and de Valera spoke and Hearne drafted and Henchy wrote and Walsh decided has become our own constitutional cornerstone. It is that very cornerstone on which the entire referendum edifice is constructed.⁶

6 Doherty v Referendum Commission [2012] IEHC 211, at para 23. Emphasis added.

The fact that popular sovereignty is a constitutional cornerstone in Ireland means that, unlike in other countries, the content of the fundamental rights provisions, for example, is not finally determined by international treaties, or international courts, or even national courts, but by the Irish people in referendums. In general, the types of amendment proposals that have been made in Ireland fall into three large categories – fundamental rights, international (mostly European) treaties, and electoral reform⁷ – with some miscellaneous strays.⁸ The fundamental rights category is the most expansive: there have been 14 referendums and 11 successful amendments. In 2002, for example, following a popular referendum, a constitutional ban on the use of the death penalty was enshrined. In 2012, the electorate voted in favour of a provision enumerating certain rights of children. In 2015, a popular referendum resulted in the alteration of the constitutional definition of marriage to include same-sex marriage. In 2018, the electorate voted to remove the right to life of the unborn (a right previously enshrined by popular referendum in 1983) and allow parliament to legislate for abortion without restriction. In 2019, the electorate voted to remove constitutional restrictions on the availability of divorce (restrictions previously enshrined by popular referendum in 1995 when the Constitution was amended to allow for divorce). Whereas, in other countries, these kinds of changes would have come about through the activity of courts or parliaments or as a result of having ratified international agreements, in Ireland, each of these decisions was ultimately made by the Irish electorate. In key instances, the courts have both refused to infuse new meaning into existing constitutional provisions themselves⁹ and refused to allow international human rights treaties to alter the content of those provisions,¹⁰ recognising their own limitations and the respect due for the role of the people in the amendment process. The making of decisions on controversial questions of constitutional rights by means of popular referendum is not only the manifestation of the exalted principle of popular sovereignty, but also, as Conor O’Mahony describes it, ‘a deeply embedded practice’ within Irish constitutional law, and this very embeddedness is also a source of legitimacy.¹¹

7 The fundamental rights category and the international treaties category will be discussed in more detail below, but it is worth noting that there have been eight referendums and four amendments on electoral reform.

8 Gavin Barrett chapter, this collection.

9 Zappone v Revenue Commissioners [2006] IEHC 404.

10 McD v L [2010] 2 IR 199.

11 Conor O’Mahony, ‘Marriage Equality in the United States and Ireland: How History Shaped the Future’ (2017) 2017(2) Illinois Law Review 681, at 707.

While referendums on fundamental rights are the most numerous, the category of referendums on international treaties comes in second place, with a total of 11 referendums and nine successful amendments. Most of these referendums have been concerned with the ratification of the long series of treaties agreed by Member States of the European Union (EU) in the effort to bring about ever closer union.¹² In 1973, Ireland joined the European Economic Community (as it then was called) by means of a popular referendum. The next treaty agreed by the European Member States, ambiguously titled the Single European Act, was the subject of a failed legislative ratification when the Supreme Court stepped in to require that the people be respected as the only proper authority to decide whether that treaty – which was inconsistent with the Constitution and ratification of which entailed amendments to the Constitution – should be ratified.¹³ Since then, the government has put almost all European treaties to the Irish people for ratification, foreclosing the possibility of litigation, even though some of those treaties, notably the Treaty of Nice and the Treaty of Amsterdam, arguably did not entail incidental amendments to the Constitution. As a matter of constitutional law, we vote not on the treaty itself but on whether or not to accept the changes to the Constitution that the treaty entails; in relation to the Single European Act, for example, the question for the Irish people was whether to accept that the power to engage in external relations which the Constitution vested solely in the executive branch of government would henceforth be shared with the other European Member States.¹⁴ Again, this use of referendums in the ratification of international treaties is unusual in comparative constitutional law – within the EU, it has become a characteristically Irish phenomenon, at times to the chagrin of those driving European integration – and its result is that Ireland’s experience of transnational governance is markedly different from that of our counterparts in the European Union. There were two occasions on which Ireland voted ‘no’ to a treaty and were presented with the same treaty in a second referendum in order to recast their votes – and this is not insignificant as will be noted later – but nevertheless, at every stage of integration, the Irish people themselves have made a democratic decision to divest competences to the Eu...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• Contributor and editor biographies
• Introduction
• PART 1 Sovereignty
• PART 2 Referendums and constitutional change
• Index