Time for a Constitutional review that takes the Irish public into its confidence

Compare a print copy of the US Constitution and that of Ireland’s Republic and the first thing that strikes you is the difference in length. It is almost possible to have the US by rote, and many more passionate citizens do.

The Irish Constitution may critical to the good function of the state, but it is largely unknown (never mind unloved) by the vast majority of citizens of the State.

So it’s hard to disagree with Donncha O’Connell’s assertion that the constitutional review must seek first and foremost engage the people:

…the proposed constitutional convention, involving the active participation of citizens, should be seized as an opportunity to deal with the real problem of popular disengagement from constitutional affairs. It will, predictably, be dismissed as a talking shop by people who have ready-made solutions for all constitutional problems but who lack the patience required to influence public opinion by means of a transparent deliberative process.

There is, however, a more essential argument for a constitutional convention. You cannot change a word of the Constitution without the consent of more than half the people voting in any referendum. Thus, a small number of people can effectively veto a constitutional amendment, for example the Nice 1 referendum of 2001.

It is vital, therefore, to engage the public not just when you need them to rubber-stamp a proposed constitutional amendment but also with the processes of constitutional reform and, indeed, with the Constitution itself. Knowledge is power but ignorance is not necessarily bliss for a government that cannot convince the “don’t knows” to vote Yes.

It is somewhat paradoxical that we vote so frequently in referendums (by comparison to some other countries) on a document that is hardly understood by the people voting. Popular ignorance about the Constitution is no accident. Like so many facets of the inchoate Republic that dare not speak its name, even in the Constitution itself, we carried on after 1937 as if the new Constitution was, like its British counterpart, unwritten. Consequently, it remained largely unread.

There is now an opportunity to correct this if the proposed constitutional convention is designed and operated as a genuine and open exercise in deliberative democracy. It should not proceed on the basis of any non-negotiables, such as abolition of Seanad Éireann. The framework for debate on vital issues of political reform – about which there was considerable talk prior to the last election – must be open to the possibilities of radical democratic renewal.

The redrafting of any parts of the constitution must avoid the sheer technocratic idiocy of say the Lisbon Treaty. The aim should be to make more accessible, by which it needs to become great deal more laconic and open textured.

In this interactive age, people want agency with their political life (which is one reason they are no longer joining hierarchically organised political parties in the numbers they once did.

Some form of open source public engagement would be a great start. The greater the public engagement, the greater chance of improving its wider currency. But key to a successful outcome is the quality of the design, both of the review process and any renewed Constitutional document which arises from that process.

That, at te very least, requires a much greater degree of humility from the Irish political establishment than we have become accustomed to seeing…

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  • Bet the first thing to drop off the bottom will be the requirement to have a referenum for any Treaty change!

  • Neville Bagnall

    Referendums are not required for treaty adoption. The Oireachtas can adopt treaties. Referendums are required for constitutional change.

    The Constitution grants certain powers from the people to institutions of the state. It does not grant the power to change the constitution.

    Some treaties involve constitutional change as they grant powers from the people to institutions other than those delineated in the Constitution. Those treaties when adopted become part of our Constitutional law.

    Unless an institution such as the Oireachtas is granted the power to change the constitution, the referendum requirement will remain.

  • Mick Fealty

    Ah, I was sort of ignoring that story Nev, until we have something concrete to say no to…

  • Neville Bagnall

    The UK constitution has no special protection, it can be changed by any Parliament, without reference to the people.

    The Irish Constitution can only be changed by the people or re-interpreted by the Courts, but any other law can be changed by any Parliament, without reference to the people.

    The USA constitution can only be changed by the States, but the states do not have to consult the people.

    Most European states allow their Parliaments to modify their constitutions, but typically have a super-majority requirement and/or a special general election requirement.

    I’m in favour of referendums to change the constitution. I’d also support a minimum turnout requirement.

    If the aim was a simpler more principle based constitution then perhaps that could be achieved, if supplemented with a Basic Law. The core principles would require referendum change, but the Basic Law could have a simpler protection, such as a super-majority or SGE.

    For example – a Constitutional core principle might be PR elections, but the Basic Law might specify STV.

    It would be a recipe for even more constitutional fiddling perhaps, but might be less divisive. It might also make the division between the electorate and the “political class” worse.

    I think the Constitutional Convention has the best chance of success if has a professional secretariat that reflects the broad range of political and legal opinion. The Convention itself though should have a membership primarily selected in a Jury style random manner.
    For us political nerds, live broadcasts will be essential, for the broader electorate we will be reliant on fair and balanced media coverage of the proceedings.

    I don’t think thats the convention we will get though.

  • Mick Fealty

    I think it should go further. Not out of some doctrinaire commitment To digital democracy, but because the process needs embedding in public discourse from the beginning. A latter day version of the Putney debates, or discourse around the federal papers.

    Having the lawyers in first is a recipe for disaster.

  • Mick Fealty

    By which I mean how do they know what to write if there no clear consensus on what problems we are trying to solve?

  • Neville Bagnall

    One thing that has become more obvious in recent referenda, if the people feel that the Government isn’t explaining its case well, or has been lazy in its preparation, it punishes them.

    Don’t know – Vote No.

    I think that is a good thing in one way – constitutional change should be hard. But it does allow scaremongering to have an exaggerated effect, and it tends to promote coalitions of the unwilling, often with widely divergent agendas. To defeat a referendum, very often the simplest strategy is Fear, Uncertainty and Doubt.

    Modern media campaigns, with their concentration on sound-bites and celebrity endorsement also seem to be going away from the informing process that is required.

    If you are explaining you are losing, they say.
    It takes seconds to create doubt, much longer to alleviate it.

    It seems to me that any campaign for change starts with a built in disadvantage that has only been exacerbated in modern times by the lack of political trust.

    Maybe thats as it should be. But I’m afraid its an unhealthy cynicism rather than a healthy skepticism.

  • Mick Fealty

    I agree with that Neville. My colleague John Pollock last week argued in Washington that actually the trick you need to pull off is to speak past the media, and directly to the people (or at least that growing section of it that is online)… Even Twitter with its occasional emotional blow-outs usually allows people to explore wider possibilities in the long run.

    That’s partly to do with the problem broadcast perennially has: you have a time limited period in which to say stuff. Get it wrong, be too boring (a big sin in the terms of the TV age) and you lose ratings.

  • Neville Bagnall

    I’m not sure that that is how democracy works.

    I don’t think most people have the interest, need or commitment to become part of the public discourse. But they do need to give informed consent. To be the Jury.

    Remember, the Federalist Papers came after the Constitution, in defense of, and support of its ratification. The Constitution itself was drafted by delegates largely without a public debate. In many ways the Convention exceeded its mandate, creating a Federation, rather than tweaking a Confederation.

    The political class is self selecting, always has been and always will be. It is the grouping of the interested. It does not require election, merely influence and involvement. In a free society it should be open to all. But it will always be a small percentage of the population. It has no consensus.

    Representative democracy is about constraining that class and preventing it becoming an oligarchy.

    We need political technocrats, we need legal experts. But they must be able to convince the non-expert that they are making the right decisions.

    Constitutions are drafted by the political class; a Convention at best will allow it to be refined piecemeal and ensure the draft reflects more than the agenda of those in power.

  • Neville Bagnall

    My last directed at 12:20/8 comments

  • Alias

    There are two changes that are needed to the Constitution.

    The first one is an amendment that prohibits government from holding a referendum on the same question (or expedient variation of it) for a period of 5 years. This will prevent government from seeking to overturn a referendum result when directed to do so by the EU.

    The second change is an amendment that prohibits government from dedicating more than 1% of GDP in any fiscal year for the purpose of providing liquidity to private or publically owned businesses. This will prevent government from bailing-out French and German bondholders when directed to do so by Merkozy cartel.

    Beyond that the Constitution needs to be respected by government rather than regarded as an obstacle to “ever-closer union.”

    Ireland’s Constitution makes it the only true republic on the continent of Europe. It gives ownership of sovereignty to the people and not to the state. Only the people, not the state, can alter it. That is in stark contrast to all other constitutions.

    The key point of a constitution is that it protects the rights of the people from abuse by the state as well as establishing the democratic structures of the state.

    A constituition that can be altered by the government is a constitution that is not fit for purpose. The EU constitution itself is an utterly worthless document as a guarantor of rights. The EU can alter the constitution without the consent of the people and it can also set it aside in specific circumstances.

    It is not neccessary to re-write the Constitution in order to get people to read it. All that is neccessary for that purpose is to print it and distribute copies. It is a very plainly written and easy to understand document.

    It is not the PR that is the purpose but removal of Europe’s only true republican constitution, specifically the provisions that require the consent of the people to derogation of their sovereignty. Until this can be done, the Irish army cannot be merged into an emergent EU army and Irish neutrality cannot be abandoned. There is more left for the EU to steal on the journey to ever-closer union than just fiscal sovereignty.

  • Neville Bagnall

    @Mick 1:27pm

    I agree about the need to speak past the media and reach those interested enough to find out more.

    But to some extent I think that has always been the case.

    You speak to and convince the interested. They convince the circle that trusts them, but can’t be bothered to find out for themselves.

    Party politics used to be a big part of that. Not any longer.

    The online world may be part of the solution, but risks being even more balkanised than party politics.

    At the end of the day, once information overload is reached, trust will be used as a filter.

    That goes both ways. Those in power/in a convention will not be able to process all the commentary/proposals. They will have to rely on those they trust to ensure the good and important ideas reach them.

  • Mick Fealty

    Here’s my beef. It’s never been done that way. Because until the big channels began to be bypassed by digital networks, it wasn’t possible.

    I don’t want lawyers/draftsmen anywhere this process until there’s been a thorough going debate about what’s wanted as been rigorously canvassed and tested.

    Donncha’s point, and I think its one the government and opposition ignore at their peril is that the people need to find some way to buy into the process.

    The normal analogue terms are “we smart people build it and if we are really clever, you consumer citizens buy it at the end”. I’m not saying we don’t need smart draftsmen or those with experience of politics as it is really done, but if any of these proposed changes will make the light of day, it needs solid foundations.

    That requires a genuine opening to the people. And not just the politically obsessives, whose cognitive biases will be strained towards their own self serving and polarising instincts that will not necessarily serve the longer term needs of the state.

  • Mick Fealty

    If its not interesting to the people then maybe we are trying to solve the wrong problem. The burden of maintaining mass media organisations is that you could never underestimate the intelligence of the people.

    Now we have so many instruments of reaching people digitally as individuals, we have no excuse for dumbing down or making the content so bland or incoherent that they switch off in similar numbers.

    It will take a degree of engineering the environment in which these things can happen, but that depends on the committment and the design quality of the process. There’s no bespoke model waiting on a shelf somewhere.

  • Alias

    “If its not interesting to the people then maybe we are trying to solve the wrong problem.”

    It’s trying to solve a problem that doesn’t exist for Irish people. More accuratedly, it’s trying to solve a problem that only exists for a teasonous minority who find the Constitution problematical, i.e. those who object to the sovereign Irish nation, be they Europhiles or Anglophiles.

    As Donncha O’Connell ended his article, “This must be framed with a strong consciousness of all-island considerations as well as developments in European constitutionalism.”

    The EU and the NSMC are both surpanational authorities that violate the principle of sovereign nations, and that only exist because the Constitution in its previous form was violated to remove the applicable sovereignty from the nation.

  • ayeYerMa

    As a follow-on to the post on water boundaries, any such review should also include the Republic stopping this obnoxious insistence on calling itself “Ireland”.

  • IrelandNorth

    I would be circumspect about the true motivation of the political establishment in what is euphemistically referred to as “the south”. Something disturbs me about the Irish. I fear there is a recessive colonial or imperial gene in their historio-biological makeup which causes them to sleep-walk into another union, after waking-up from the nightmare of another. There is credible argument that both Nice’s and Lisbon’s were an Act of Union par deux. How many Irishmen does it take to adopt a dodgy euro-treaty? Very few!