Light winds of change are unsettling Ireland's constitutional landscape. Before the last general election, Fine Gael and Labour, the two parties who eventually formed the governing coalition, both proposed significant constitutional reform based on popular input. It is unsurprising, then, that change is the major theme of this collection of essays based on a conference held in 2012 to celebrate the seventy-fifth anniversary of Bunreacht na hÉireann. The collection also reminds us, however, that future prospects for the Irish Constitution are dependent on current perspectives which themselves are influenced by the past.
In their contributions, Jane Suiter and John O'Dowd pithily and ably describe the current impetus for reform and the agenda of the Constitutional Convention, which was formally established in 2012. One-third of the members of this body are parliamentarians; the other two-thirds are ordinary citizens. Their remit is to ruminate over a year-long period on a menu of reforms provided to them by the government.
Significant nourishment for the process of reflection is provided by two contributions on republicanism. Philip Pettit identifies the deep roots that small ‘r’ republican thought has in Irish history. Eoin Daly, conscious of the decline of natural law as an interpretive tool in Irish constitutional law, tentatively suggests that republicanism may take up some of the resulting slack. With its emphasis on broad, overarching ideals of consent and legitimacy, the common good and freedom from non-domination, republican thought could certainly nourish Irish constitutional discourse.
Moreover, recent historical work has shed light on the importance of secular influences on the drafting of the Irish Constitution, providing an important counterweight to its overtly religious language and symbolism, not to mention its reference to supervening principles “antecedent and superior to all positive law” (Article 41.1.1°). Intriguingly, as Amihai Radzyner describes, in debates over a proposed constitution for Israel in the 1940s, the Irish Constitution was a source of secular ideals for one side, of religious ideals for the other.
A similar bipolarity is evident in the Irish Constitution's past: history's hand can sometimes have a clammy feel, but it is possible to writhe free of its grasp; change is always within reach. Fergal Davis and Christopher Thornhill discuss the emergency powers provision of Article 28.3.3°, noting that Ireland has existed in a state of emergency for most of its history. While the declarations of emergency were motivated by threats by capital ‘R’ Republicans against the integrity of the State, emergency powers have also been used, as Davis and Thornhill remind us, against criminal gangs. The courts have been reluctant to question such resort to emergency powers, but Alan Greene suggests in his contribution that they might wriggle out of the restraints of history by reaching for a more nuanced doctrine of justiciability.
Fergus Ryan's contribution on the Irish Constitution's understanding of the family is in a similar vein. Ryan describes the understanding of an institution based on marriage as heteronormative, an understanding which sits uneasily with developing modern mores. As Ryan outlines, modern practices of parentage and parenting pose challenges with which the courts have thus far struggled to deal. Accordingly, one of the items on the agenda of the Convention is whether to amend the Irish Constitution to allow for same-sex marriage. But as Ryan convincingly argues, while the document seems to be heteronormative, it does not bar recognition of same-sex unions. Legislation to this end would not be unconstitutional, so modern Ireland could slip relatively easily out of the clammy grasp of a heteronormative 1937 understanding of the family.
It is unlikely, however, that Ireland's legislators will make such a move forward on their own. In recent years, the strong tendency has been to effect constitutional change by mobilising the people in a referendum rather than by carefully preparing statutory proposals that could facilitate judicial consumption. As Séamus Ó Tuama recognises in an interesting overview of shifting institutional centres of power, the referendum process in Ireland is in effect controlled by the executive. The final verdict may be a popular one, but it is hardly a popular initiative process, as Marie-Luce Paris and Gaetano Marzulli demonstrate by reference to constitutional practice elsewhere. The Convention is yet another example of executive dominance. As O'Dowd notes, its timetable is constrained, as is its power to propose amendments on its own initiative. Prospects for change, then, are heavily influenced by past constitutional practice. What is within reach depends in part on what has gone before.
Whatever proposals do make it from the Convention to the ballot box and into the text of the Irish Constitution, judges will surely accept and give effect to them. Aileen Kavanagh notes that the Irish courts have always yielded to the combined will of the executive and the people: there are no such things as unconstitutional constitutional amendments in Ireland. Neither internal contradiction nor higher law has been invoked to discard constitutional change approved in a referendum (although it bears noting that a recent amendment imposing fiscal austerity measures on members of the judiciary has yet to come before the courts). In this limited sense, the Convention will have a free hand.
British readers of this collection will be interested to note that the gales of change battering the constitutional coastline of Great Britain have not maintained their force across the Irish Sea. The European Convention on Human Rights is hardly mentioned, an indication of its subordinate place in the Irish constitutional superstructure. The European Union does not loom especially large either: David Fennelly's excellent contribution calls into question the 1987 Crotty decision of the Supreme Court, which has required referendums on significant European treaties, but otherwise the constitutional framework within which European Union law operates in Ireland is settled and accepted by the leading political players. Change in the near future seems quite likely to be nourished mostly from within.
