There are different ways of involving the public in higher law making. Constitutions can be drafted by constituent assemblies or constitutional conventions directly elected for that purpose. Constitutional change can result from extraordinary public debates outside the formal representative arena, when a majority of the people back radical change. Alternatively, the people may simply approve a constitution through the referendum. A fourth option is a citizen assembly elected for the purpose of recommending constitutional change to the people. Whatever the outcome in Ireland constitutional change will involve some combination of these processes.
All assume a dualism between ordinary and constitutional politics. Constitutional changes require special procedures to generate legitimacy, and will only occur episodically, because the public’s capacity for engagement is limited. Bruce Ackerman’s We the People sees U.S. constitutional history punctuated by three ‘constitutional moments’ (1776, the post-Civil War Reconstruction Amendments, and the New Deal), when public involvement in constitutional debate gave direction to radical change. Yet our ‘constitutional moments’ have always been shaped by party politics. 1919, 1922, 1937, and 1998, were all milestones our history. The period between 1969 and 1974, when the whole constitutional order came under discussion, was potentially another. Yet a distinction between constitutional and ordinary politics was hard to observe because the balance between change and continuity always reflected party strengths. The 1919 constitution followed Sinn Féin’s 1918 electoral landslide. The constituent assembly elected in 1922, had a pro-treaty majority, and with the anti-treatyites absent because of the civil war, Labour were powerless to force progressive amendments. The plebiscite on the 1937 constitution was held on the same day as a general election, and only Fianna Fáil backed the constitution. The debate after 1969 revived civil war politics for a generation. The inclusive nature of the Belfast Agreement reflected the balance of power between the Northern parties as it stood in 1998.
The dualism between ordinary and constitutional politics also collapsed because parties responded to the pressure of the moment by putting change on the long finger. Paradise was deferred. In 1919 Sinn Féin did not include the Democratic Programme as part of its constitution, and wanted to achieve independence before writing a constitution. Experimental features of the 1922 constitution, such as the provision for functional representation, were put in abeyance, until the country became more developed. Between 1969 and 1974 the pressure for change was deflected by Jack Lynch onto two party committees, deeply split between Fianna Fáil and the rest. The long series of amendments which followed was less a moment, than a drawn-out war between Fianna Fáil and the rest. In 1998 key issues were either avoided (integrated education) or deferred (Irish unity). 1937 produced a constitutional moment, in a very Irish way. A constitution, with the support of a small majority of voters, was presented as a fait accompli. In the 1930s plebiscites were means of resolving international and territorial disputes and the civil war background ensured little principled public deliberation of the system of government. Backed for a long time by the Catholic Church, the smaller parties were powerless to oppose the constitution. Its values remained hegemonic until 1970 if not the 1990s.
The question is whether we can break the cycle and turn the crisis into a constitutional moment that is a genuine example of the people’s involvement in higher law-making. This requires understanding on what sort of crisis we face: one of values, of governance, or of economics. Appeals to ‘a Second Republic’ suggest we need new values, but when similar debates took place in the 1970s, they actually diverted attention away from socio-economic problems for a generation. This is the danger of constitutional populism. Fine Gael’s New Politics document suggests changes to core features of the Westminster legacy, but such plans go back to the Just Society programme of the 1960s. The preference has been one for deep institutional continuity. The economic dimension raises the question of what arrangements would better provide accountability, deliberation, and responsible government under global capitalism. Without a consideration of this context we may end up trying to answer the wrong question with political reform. Yet we have no track record of debating such larger issues, and consensus may be elusive. Irish society has not responded as one to the current crisis, and the Republic means different things to the five parties of an Oireachtas which includes Sinn Féin. The case for addressing the Westminster legacy is strong. I do not believe reform requires a new constitution, but we are the only small multi-party European democracy with our core legislative machinery based on the British model. There is nothing in our record suggesting that principled public deliberation, rather than party competition, will determine the outcome of this constitutional moment. Yet if the current constitutional order followed the entrenchment of a party in power, the reverse scenario presents the opposition with an opportunity. Let’s see if they act on it, or respond to the pressure of the moment by putting reforms on the long finger.
Bill Kissane is a Senior Lecturer in the Government Department at the London School of Economics. He has published Explaining Irish Democracy (UCD Press, 2002) and The Politics of the Irish Civil War (OUP, 2005). His forthcoming book New Beginnings: Constitutionalism and Democracy in Modern Ireland (UCD Press, 2011), explores patterns of continuity and change in Irish constitutionalism since the 19th century.