The political theory of the Irish Constitution: Republicanism and the basic law 9780719098871

Table of contents :
Front matter
Contents
Acknowledgements
Foreword
Introduction: Republican theory and republican constitutionalism
Part I Republican freedom
Popular sovereignty, political freedom and democratic control
Constitutional rights and freedom as non-domination
Part II Republican institutions
Political constitutionalism and executive power
Judicial power and popular control
Republican perspectives on constitutional interpretation
Part III Republican society
Education and civic virtue
State and religion in the pluralist republic
References
Index

Citation preview

Blank page

The political theory of the Irish Constitution

Blank page

The political theory of the Irish Constitution Republicanism and the basic law

E O I N   D A L Y and T O M H I C K E Y

Manchester University Press

Copyright © Eoin Daly and Tom Hickey 2015 The rights of Eoin Daly and Tom Hickey to be identified as the authors of this work have been asserted by them in accordance with the Copyright, Designs and Patents Act 1988. Published by Manchester University Press Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co.uk British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data applied for ISBN 978 0 7190 9528 3 hardback First published 2015 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Typeset by Out of House Publishing

Contents Acknowledgements Foreword By Philip Pettit Introduction: Republican theory and republican constitutionalism

vi viii 1

Part I Republican freedom

19

1 Popular sovereignty, political freedom and democratic control 2 Constitutional rights and freedom as non-domination

21 54

Part II Republican institutions

89

3 Political constitutionalism and executive power 4 Judicial power and popular control 5 Republican perspectives on constitutional interpretation

91 115 145

Part III Republican society

167

6 Education and civic virtue 7 State and religion in the pluralist republic

169 197

References Index

221 232

Acknowledgements We both thank Tony Mason and Manchester University Press for their support throughout the production and writing process. We also thank Philip Pettit for his foreword.

Eoin Daly While working on this book I have been fortunate to share the company and insights of colleagues in three very different university departments. I thank my friends at the National University of Ireland, Galway, University College Dublin, Dublin City University and elsewhere: especially (and in no particular order), John O’Dowd, Donncha O’Connell, Mairead Enright, Sinéad Ring, Niamh Howlin, Noel McGrath, Conor O’Mahony, Joe McGrath, Diarmuid Griffin, Colm O’Cinnéide, Desmond Clarke, Siobhán Mullally, Liam Thornton, Colin Scott, Gavin Barrett, Iseult Honohan, Rory O’Connell, Imelda Maher, Olivia Smith and Kevin Costello. As Heads of Law at UCD and NUI Galway, Colin Scott and Donncha O’Connell were particularly encouraging and supportive in facilitating my work on the manuscript. Further back, I will always remember the friendships I enjoyed with my fellow Ph.D. students in Cork. My friend and co-author, Tom, is a great exemplar of passion and sincerity. Above all I thank my wife and colleague, Eilionóir Flynn – for the example she sets for me in her nononsense enthusiasm and drive – and my parents, Tom Daly and Ann Sheehan, for all their support.

Tom Hickey I begin with a word for my friends in the School of Law at NUI Galway. Having spent three years there as an undergraduate, more than three as a Ph.D. candidate and almost three years as an academic, I like to think I’ve been influenced by its great public law tradition. I also thank my new friends in the School of

Acknowledgements

vii

Law and Government at Dublin City University, in particular Head of School, Professor Gary Murphy. The blend of ‘law’ and ‘government’ makes for a wonderful scholarly dynamic in which I feel very much at home. (A word for the students at Dublin City University, too, especially the many who so vigorously grapple with the deeper questions). I thank Philip Pettit for his friendship and support at a critical juncture in my academic life. I’ll always remember where I was when I first read the pages of Republicanism: the excitement I felt at finding a semblance of the intellectual direction that I had been seeking for many years. And I thank my co-author and friend Eoin, who has led this project along with many a conversation with me on the ideas in these chapters. I thank my wonderful mother, Maria, and Emer’s parents, Terry and Mary. I remember my father, Paddy. I dedicate this book to him, and also to his granddaughter Sadhbh, born just the day after the final pre-review draft was submitted. Most of all, and as always, I thank Emer.

Foreword The core idea in the long republican tradition is that the affairs of law and government are res publica: public business. They are not the property of an hereditary dynasty, a wealthy elite, a political party, a professional bureaucracy or a majority church. Whether legislative, executive or judicial in character, they often have to be put in the hands of particular officials, committees and assemblies. But the idea is that in discharging their offices, those individuals and bodies have to be constrained, in full transparency, to operate on the people’s terms. They have to be forced to satisfy the standards and expectations of the community – endorsed in election or appointment to office – on pain of exposure and challenge, sanction and dismissal. At the core of this core idea is the commitment to organising law and government around a popularly accepted constitution that satisfies two broad constraints. First, it recognises the sovereignty of the collective people: their right to control what happens in public life under provisions for which the constitution itself makes room. And second, it establishes a framework of law and policy that protects people in their individual identity, giving each a domain in which they can enjoy a personal form of sovereignty. This framework has to define the liberties that are fundamental to human life; to provide those who lack them with the resources required for enjoying those basic liberties; and to shield each member of the community from private interference or intimidation in their exercise. Eoin Daly and Tom Hickey argue that, scoring well on these two fronts, the Irish Constitution has a fundamentally republican character. It emphasises popular sovereignty and democratic control in insisting that all powers of government derive from the people. And at the same time it highlights the rights that have to be secured for individuals if they are to enjoy personal sovereignty in the exercise of their basic liberties. The Constitution was drafted and adopted in a force field of special interest, partisan pressure and ecclesiastical influence. But the authors show that despite this, it emerged from that process, and from later processes of interpretation and amendment, with a republican identity intact. This in itself is an achievement worth noting and celebrating, but it is merely a first step in the argument that the writers pursue in this book. For their main

Foreword

ix

aim is to show that if we read the Constitution in light of its republican character, then we can find a basis within the document for a wide-ranging, indigenous philosophy of law and government. This philosophy makes sense of our institutions in general, they argue, while calling for the reinterpretation or reform of some in particular. It offers an account of the sort of country and people we are, providing guidance on where we must go in order to remain faithful to that identity. Thus this book provides sure and stirring guidance on the ways in which we can use the republican understanding to determine the role of legislature and executive envisaged in the Constitution, to construe the relationship between courts and people that is encoded there, and to provide a basis for the interpretation of the document as a whole. More than that, it goes beyond the written Constitution to the republican system of norms that it encodes, exploring the implications of these norms in two crucial, troubled areas. One relates to the education that we should be providing for our children and the other to the relationship that we should establish between Church and State. The republican theory in light of which Daly and Hickey interpret the Irish Constitution is a European, not an exclusively Irish, heritage. But their book faithfully echoes the themes of  Theobald Wolfe Tone, the founder of Irish ­republicanism. In their image of the constitutionally empowered citizen, able to look others in the eye without reason for fear or deference, they show themselves to be republicans who, as Wolfe Tone puts it, ‘detest ever the name of master’.1 And in elucidating the implications of popular sovereignty they roundly support a claim that he formulates in appealing understatement: ‘It is not a bad pledge for the good conduct of rulers, that they should have a wholesome fear of the spirit of a people united in interest and sentiment.’2

Notes 1 Theodore Moody, Robert McDowell and Christopher Woods (eds), The Writings of TheobaldWolfe Tone 1763–98:Volume 2 (Oxford: Oxford University Press, 2001), p. 30. 2 Theodore Moody, Robert McDowell and Christopher Woods (eds), The Writings of TheobaldWolfe Tone 1763–98:Volume 1 (Oxford: Oxford University Press, 1998), p. 101.

Blank page

Introduction: Republican theory and republican constitutionalism No constitution neatly encapsulates a given political philosophy. Virtually all constitutional texts will proffer some philosophical ideas – most often popular sovereignty or human rights – to support their legitimacy and define their purpose. Indeed it is widely accepted that constitutions are more than narrow legal instruments concerned with technical institutional functions: they will typically claim to define the political and moral identity of a State, and perhaps that of the people or nation as well. Yet in reality, constitutional content is shaped by the ebb and flow of ordinary politics – by the exigencies of compromise and stability – as much as by any definite political theory. In some analyses, a ‘constitution’ is, therefore, no more than a descriptive account of the framework of power in a given State – a system for mediating competing social interests.1 To some extent, it can be argued that constitutions reflect and reinforce social and economic power structures, and appeal to high-sounding political principles simply to obscure this baser truth. In this view, constitutional philosophies do not determine constitutional content, but serve as strategies for securing consent or legitimacy in its narrow sense; indeed, they might just represent empty rhetoric. It seems almost trite to point out just how meaningless it can be for a constitution simply to describe a State as a ‘democracy’ or ‘republic’; a cynic might point out that States keen to officially designate themselves using such ideas seem more inclined to negate them in practice. At the very least, certainly, constitutions’ official philosophical identity may have little bearing on the political and social conditions they generate. Yet this view is perhaps too narrow. Political philosophies may not completely determine or explain constitutional content, but they certainly have an influence on constitutional practices and ideas. For instance, there are obvious connections between the thought of Rousseau and Montesquieu and the great constitutional experiments of the late eighteenth and nineteenth centuries.The American revolution and the Constitution that emerged appealed to John Locke’s natural law theory – and to some extent, Renaissance republicanism2 – and while of course

2

Introduction

the US Constitution reflected and maintained the social and economic interests of certain dominant classes, these philosophies influenced its subsequent interpretation and development in a manner that outgrew the particular social conditions in which the Constitution first emerged. Perhaps, then, the philosophical content of constitutions serves more as a sort of manifesto (‘We the People’, etc) than as a determinant of how the State will actually work.Yet by the same measure, this manifesto-type content – the polity’s official identity – can be invoked by political movements to critique the State’s shortcomings with reference to its own official ideals. Thus, constitutions often serve as a sort of reflexive conduit between real-world politics and abstract political thought – or a point of contact, at least, between these otherwise remote worlds. A constitution can provide a charter of public values that is subject to contestation and re-interpretation by various actors within and outside formal state structures.3 Naturally, democracy  – understood broadly as rule by the people or the popular will – features strongly in constitutional rhetoric. Some constitutions will appeal less to abstract political concepts and more to determinate identities – whether religious or ethno-national – as their normative foundation. In this book we focus on republicanism as a political theory with an obvious relevance to constitutional content, structure and design. We consider republican themes specifically in the context of the Irish Constitution. In Ireland, republicanism has historically occupied a central role in political discourse, and the Constitution of 1937 has a strongly rhetorical and political–philosophical flavour. Yet the Constitution, whether understood in the broad or narrow sense, has rarely been evaluated or understood from the standpoint of republicanism as a political philosophy, at least in a systematic way. We aim to bridge this gap by offering a republican analysis of the Irish Constitution.

The republican tradition in Ireland In everyday speech, the meaning of the word ‘republicanism’ varies dramatically according to national contexts – and in turn, these meanings are often quite removed from the republican philosophical tradition whether represented by Cicero, Machiavelli, Rousseau or Madison. In Australia and the United Kingdom, republicanism is generally conflated with opposition to hereditary monarchy (despite anti-monarchism being a relatively marginal concern in the republican history of thought).4 Today in the United States, being a ‘Republican’, at least in everyday speech, means holding right-wing political views. And in France, republicanism has such a wide rhetorical purchase that all but a handful of extremists will wish to identify as good ‘republicans’,5 in the

Introduction

3

same manner that every reasonable person elsewhere will wish to be acknowledged as a democrat. In Ireland too, the ‘republican’ idiom has a good deal of local specificity. In political discourse the term has been strongly associated with extra-constitutionalist and violent strands of the nationalist movement. Historically it has been associated less with any distinctive set of ideas concerning social and political organisation than with the various movements prepared to use physical force in the pursuit of national sovereignty and self-determination – from the United Irishmen in the eighteenth century to the Fenians and Irish Republican Brotherhood in the nineteenth, and the Irish Republican Army in the early twentieth century. Garvin has described the Irish republican tradition as ‘nationalist, separatist, vaguely socialist and sometimes Caesaro-papist’.6 Certainly, while historical Irish-republican thought was usually more concerned with freedom from external domination than with social and economic conditions, O’Callaghan has argued that its nationalist rhetoric was infused with and borrowed from the classical and the eighteenth-century republican traditions.7 Indeed freedom from external rule was explicitly linked with the aim of collective self-government; the 1919 Declaration of Independence affirmed: ‘the Irish people is resolved to secure and maintain its complete independence in order to promote the common weal’.8 De Valera’s romantic austerity might seem a departure from bona fide republican thought, yet in fact it echoes some of its historical strands: Rousseau, indeed, celebrated peasant autarky as a social framework for republican virtue.9 Yet with the campaign of the Provisional IRA in the context of the Northern Irish Troubles, republicanism increasingly became associated with an ethnoreligious nationalism, in contrast with the older anti-sectarian, Jacobin thought associated with Wolfe Tone and the United Irish movement.10 Seán O’Faoláin decried the socially conservative legislation of the 1930s –much of which gave effect to Catholic precepts – as a ‘betrayal of the republic’.11 And given the association of republicanism, in recent history, with political violence – or at least a quasi-spiritual and messianic nationalism – there has been considerable reluctance to discuss the ‘republican’ identity of the State other than in connection to the Northern Irish question.12 Nonetheless the republican ideal has arguably undergone some rehabilitation in the years since the end of the Northern Ireland conflict. There is increasing interest in the concept not just academically13 but also in political discourse generally.14 Today the phrase is commonly used not only in the narrow terms of sovereignty and national self-government, but also in relation to broader themes of citizenship across social and economic life. Perhaps it is no coincidence that awareness of republican thought – or at least the use of republican idioms – has increased in tandem with a general rejection of any understanding of the Irish

4

Introduction

State as having a specifically Catholic, Christian or religious identity. The republican leitmotif now seems to permeate everyday political discourse. For example, despite the absence of any strong anti-clericalist strain in the Irish republican tradition, in 2011 the Taoiseach, in a widely-discussed Dáil speech, appealed to republican themes in defending a clear separation of religious and civil authority. He contrasted the ideal of a ‘Republic of Laws’ with the ‘elitism’ and ‘narcissism’ of the Vatican City, following allegations it had obstructed a statutory inquiry on child abuse.15 Responding to an implicit threat of excommunication following draft abortion legislation in 2013, he said: ‘My book is the Constitution … That’s the people’s book and we live in a republic’.16 The rhetorical contrast with his historical predecessors – some of whom had declared unconditional legislative obeisance to the Church (as ‘Irishmen second, Catholics first’)17 – could hardly be starker. Whatever one makes of the sincerity or value of such discourse, in contemporary Ireland the word republicanism, at least, is increasingly understood in the ‘civic’ rather than the ethno-nationalist sense, and applied to themes such as citizenship, the separation of Church and State and the rule of law, which reverberate well beyond the historical quirks of the Irish tradition. Republican themes and rhetoric featured strongly in the campaign and presidency of Michael D. Higgins.18 It is increasingly common for progressive political arguments – for example, the Fianna Fáil party’s declaration in favour of same-sex marriage – to be phrased and labelled in ‘republican’ terms.19 (Legal recognition of traveller ethnicity was rejected on ‘republican’ grounds as well.)20 The republican themes of citizenship and civic virtue seemed to have a particular import following the onset of an unprecedented economic and social crisis in 2008; the corruption and deregulatory zeal of the pre-crisis ‘Celtic Tiger’ years were coloured by the decidedly un-republican combination of doctrinaire neo-liberalism and a more traditional clientelism.21 Of course it would be naive to interpret this post-crisis reflection as heralding something of a civic-republican ‘moment’. One public intellectual noted that, in the aftermath of the economic collapse, the prevailing public mood could be summarised as ‘ASAP’  – ‘anti-state, anti-politics’.22 Another commentator bemoaned the absence of a culture of or infrastructure for civic participation at the local level in particular. O’Toole opined that while ordinary citizens were expected to make rational and authoritative decisions as jury members in a criminal trial, they were not ‘trusted to make decisions even about their own immediate communities’ – their ‘only role is to elect professional politicians who in turn appoint technocratic experts answerable to no-one’.23 In any event, and for all it might be worth in real terms, the word and concept of republicanism – and therefore, some of its possibilities – have been reclaimed

Introduction

5

from the possession of paramilitaries and mystical, doctrinaire nationalists. And more pertinently, it has the potential, at least, to represent a nascent, if ill-defined public philosophy in a country that traditionally paid lip service to republican rhetoric but where civic morality was divested to the religious domain, or more recently, identified with the demands of the market. Despite this revived interest in civic republican thought, it has had little influence on the analysis and understanding of the Irish Constitution. Comparatively speaking, the Constitution of 1937 has a strongly ideological and philosophical flavour, especially when compared to its 1922 predecessor. Along with its assertive references to national self-determination and indeed, a Trinitarian Christian God in the preamble,24 the constitutional text frequently proffers philosophical justifications for fundamental rights and for other principles it espouses. Its strongest philosophical themes are natural rights and popular sovereignty – principles that, as we will explore in subsequent chapters, have sometimes clashed in practice. Many of the rights the Constitution protects are phrased as ‘natural’ rights, as ‘antecedent to positive law’,25 this being a product not only of religious influences but also of the social and intellectual thought that prevailed at the time of the constitutional drafting process. Article 43, for example, proclaims that man enjoys the ‘natural’ right to property in virtue of his ‘rational being’,26 while parents are said to enjoy ‘natural’ rights in respect of the education and care of their children.27 While natural-law thinking influenced the interpretation and development of the Constitution, the Supreme Court, in a landmark judgment discussed in Chapters 1 and 5, effectively identified popular sovereignty as the overarching principle or political philosophy of the Constitution.28 This is given expression to some extent in Articles 1 and 5, which describes Ireland as a ‘democratic’ State, but most clearly in Article 6, which affirms that ‘all powers of Government … derive, under God, from the people’. Thus, the ‘people’ is unambiguously identified as the sovereign and the source of all legitimate power. To an extent, the principle of popular sovereignty stemmed from the peculiar historical circumstances in which the Constitution came into being: the enactment of the Bunreacht broke the chain of legal continuity with the Irish Free State Constitution and the Anglo-Irish Treaty, which made no provision for the possibility of a new constitution being enacted. And so de Valera appealed directly to the ‘people’ as an ultimate and overriding source of legitimacy for the new Constitution.29 On the one hand, the understanding of the people as an unfettered sovereign seems to contradict the idea of certain fixed, immutable principles of natural law, which, in theory, cannot be altered by any constituted legal or political authority. On the other hand, this principle of popular sovereignty has been understood in a very narrow, procedural and formalistic way, as we will discuss in Chapter 1.

6

Introduction

More pertinently, there has been little sustained effort to relate this foundational political principle of the Constitution to more substantive themes of citizenship and civic participation. In fact it has been commonplace for constitutional theory and jurisprudence to invoke ‘the people’ as the formal source of constitutional authority almost as an empty formula – as a purely abstract proposition that fails to consider what concrete frameworks are needed for the exercise of citizenship understood as participation in self-government and in public life generally. Thus the ultimate justification or meaning of the Constitution’s central principle (whatever it might entail) – whether in its relation to individual freedom or collective self-determination – has not yet been systematically examined. Moreover, these democratic principles that are said to ground the Constitution have not generally been understood or examined in a republican light. This, essentially, is what we aim to do in this book. In attempting this, we make two important assumptions: first, that the Constitution  – understood in its broad sense  – can be read and interpreted, at least to some extent, from the standpoint of normative political theory, and second, that republicanism offers a fruitful theoretical perspective in the Irish context. We make no strong claim that the Constitution is essentially a ‘republican’ one or otherwise. We aim to use republican ideas as a basis for understanding certain shortcomings in the existing constitutional framework in respect of civic participation, citizenship and the problems of domination and arbitrary power in social and political life. However, we will also argue that existing themes and provisions of the Constitution can be re-read in a distinctively republican light. In doing so, we will understand ‘the Constitution’ not simply as the codified legal document, but as the broader system of public norms, legal and non-legal, framing the exercise of state power. This reappraisal is all the more apt given that other ‘western’ constitutions have been reframed in republican terms in recent decades. In the United States, the formative constitutional influence of James Madison, a noted republican thinker, is well known. However, in recent decades, some revisionist historians have argued that the main philosophical inspiration for the Constitution and the bill of rights was not John Locke’s natural-law theory as commonly believed, but rather Renaissance republican thought.30 And in wider political discourse, civic republicanism has been offered as an alternative amidst the debate between ‘liberals’ and ‘communitarians’ that dominated political theory in the 1980s and 1990s.31 In the United Kingdom, a number of scholars have offered ‘republican’ interpretations of the distinctive British constitutional system. In contrast with the United States, republicanism in the British constitutional context has been strongly associated with the supremacy of parliament and the rejection of judicial review of legislation. British republican scholars have defended a model of

Introduction

7

‘political constitutionalism’ traced to Roman republican thinking, in which government power is checked primarily through parliamentary politics rather than through judicial review, as legal constitutionalists advocate.32 Despite the rise of constitutional courts worldwide in recent decades, political constitutionalism in Britain has been defended specifically with reference to republican principles. Adam Tomkins has argued that the system of parliamentary control of government developed under the influence of the neo-Roman republican thought in seventeenth-century England.33 He also argues that the cornerstone principle of the British Constitution – what he terms the ‘beautiful’ principle of government responsibility to parliament – is virtually unique among western constitutions. However, a virtually identical principle is codified in Article 28 of the Irish Constitution,34 but has attracted no specifically republican interpretation or analysis. Similarly, Richard Bellamy’s Political Constitutionalism argues that a democratic parliamentary model unhindered by constitutional courts is best suited to upholding republican ideals of non-arbitrary government and freedom as non-domination. Outside the English-speaking world, France in particular has long been identified as having a distinctly and self-consciously ‘republican’ identity. This tradition also has a distinctive constitutional translation. However, republicanism in the French constitutional context is understood neither in terms of the political constitutionalism that predominates in the United Kingdom, nor the liberal concept of ‘checks and balances’ that prevails in the United States, but is identified instead with a distinctive set of principles and doctrines including the indivisibility of the republic, a strict and formalistic principle of equality before the law, and the separation of Churches and State.35 Most distinctively, perhaps, it is characterised by a rather abstract, universalist conception of citizenship in which civic and national identity prevails over those non-political identities  – religious, cultural and ethnic  – that, it is assumed, are to be confined to the ‘private’ realm.36 Republicans eschew group rights and communalist politics. Thus French republican thought embraces themes of fraternity and cohesion that seem alien to the American and British traditions.37 Again, the overarching point is that the content and emphasis of republican constitutionalism varies remarkably in different national contexts. Republican themes have most often been invoked in debates concerning the legitimacy of judicial review, in light of the remarkable rise in the number and power of constitutional courts in the late twentieth century. This steady accretion of judicial power  – and its extension into areas traditionally reserved to legislative politics – is often defended as a means of protecting individual human rights, but some republicans, including Bellamy and Tomkins, have identified it as a threat to participative self-government, or even as a source of political and

8

Introduction

technocratic domination. Yet the republican perspective on questions of judicial power has been relatively marginalised. One of the most prevalent themes of constitutional scholarship generally has been the conflict between democratic majority rule and individual human rights. The democratic case against rights-based judicial review usually appeals to the moral weight of majoritarian decision making or equal voting rights.38 Conversely, human rights – which are understood as being threatened by unbridled majoritarianism  – are normally understood as individual rights that safeguard personal autonomy against state interference, or, perhaps, as protecting religious, ethnic or cultural identities. In Ireland, the tension between the constitutional principles of popular sovereignty and natural rights can be interpreted simply as another version of this familiar theoretical dichotomy. Alternatively, the Constitution can be understood as embodying a tension between, on the one hand, individual liberty and democratic rule taken together as partner, abstract ideas, and on the other, a commitment to sustaining a fixed, non-political identity – the Gaelic-Christian ethnos alluded to in the Constitution’s preamble.39 In summary, then, constitutions are often interpreted as mediating a tension between the affirmation of non-political or ‘pre-political’ identities (whether majoritarian or minority; national, religious, ethnic and cultural), and individual rights (‘liberal’ rights or rights of non-interference). And in turn, these individual rights are understood as protecting private or non-political interests – interests, that is, which are usually considered apart from the individual considered specifically as a citizen. But we argue that republican thought offers a means of bypassing these narrow dichotomies in constitutional and political thought. Along with most republicans, we reject the idea of a fundamental tension or opposition between individual rights and democratic self-government. Individual freedom, we assume, is not a negative or pre-political right secured by minimal or limited government, but rather an essentially political relation that is realised only through and in the context of citizenship, understood in terms of civic and social participation. Conversely, majoritarian democratic rule cannot be valued independently of its relation to citizenship. Like most republicans, we argue that the concept of majority will is too problematic and ill-defined to be of any inherent value normatively or analytically. Democratic government can be defended and conceptualised on other, republican grounds – specifically in light of the concepts of contestation and freedom as non-domination, considered below. Thus in the republican lens, democracy is valuable only in relation to a particular concept of individual rights, and rights cannot be properly understood except in terms of citizenship as a political status. Individual rights, then, have no coherent meaning other than in the context of political community – and we assume that this republican insight ought to have greater import in constitutional debates.

Introduction

9

In the United States, republicans have ‘challenge[d] a prevailing understanding of the constitution as primarily a set of rules to limit power … and protect individual rights’, re-interpreting it instead ‘as a framework for collective selfgovernment based … on deliberation on common goods’.40 We argue that the Irish Constitution has, similarly, been understood in narrow liberal terms – and alternatively, indeed, in communitarian terms – and by the same measure, our goal is to consider how its central devices and concepts might be reinterpreted in a manner than places a stronger emphasis on common goods and participative self-government.

Republican themes Republican thought is remarkably diverse and the parameters of the tradition are highly contested. Indeed, while republicanism is widely associated with the themes of civic virtue and participative self-government, it is sometimes argued that the tradition has no unity, and that the term is applied to a plethora of different movements and ideas with little relation to each other. A cynic might point out, not always unreasonably, that in real-world discourse the word tends to be used simply as a synonym for all that is wholesome in politics: the ‘republic’ is an idiom rather than a definable theoretical construct. In the French context, for example, Béatrice Durand argues that republicanism has become a sort of national totem pole, a catch-all incantation that is sufficiently elastic and indeterminate to command rhetorical obeisance across the political spectrum.41 In contemporary Ireland, a similar phenomenon might be observed, with politicians of various hues vying for the virtuous-sounding republican mantle. And in professional academia, Goodin, for example, has argued that republicanism makes little distinctive contribution to political philosophy – that its main themes of citizenship, civic virtue and non-domination are already catered to in the more dominant liberal tradition.42 Indeed, philosophically and historically, ‘republicanism’ has embraced a plethora of startlingly contradictory positions. The term is associated with the unitary and indivisible State advocated by Jean-Jacques Rousseau, but also the federalism and ‘checks and balances’ promoted by James Madison.43 Some ‘republican’ thinkers have advocated radical, participative citizenship, while others have warned against unchecked popular power, preferring a highly mediated representative democracy to guard against majority tyranny, divesting the burdens of civic virtue to an elective elite. Republican philosophers have included teleological perfectionists and civic humanists who value politics and citizenship as intrinsic to human flourishing, and those who have understood political participation simply

10

Introduction

as being instrumentally valuable for its role in protecting individual freedom, without exalting citizenship as a privileged vision of the good life.44 Some republicans have assumed that civic virtue can be realised only in a cohesive, austere and disciplined society, whereas more liberal-minded thinkers have argued that republican citizenship can occupy a more minimal domain and accommodate a range of co-existing private identities. And while some republicans have argued that widespread civic participation is essential for individual self-realisation and thus political freedom; those who value civic participation instrumentally – simply as a means of safeguarding individual liberties and interests over the long run – may ascribe it a more modest role.45 It can be argued that contemporary republican theorists are naively optimistic about the real-world politics of citizenship and self-government, and specifically, that they pay insufficient heed to the burdens and costs of fostering civic participation. Historically, republican culture has sometimes proven martial, exclusivist and hierarchical.46 It is sometimes associated with a rugged virility connected to the virtues of contestation and civic vigilance. Arguably, historical experience shows that republican citizenship – with its demands of civic virtue – carries a price in terms of personal autonomy, cultural pluralism and even toleration.47 In this vein, Goodin charges that republican theorists have ignored how civic goals are invariably pursued at the price of ‘communitarian excess’.48 In Honohan’s terms, the classical version of republicanism has been decried as ‘inherently oppressive, moralistic, exclusive, militarist and masculinist’.49 Indeed historically, republican ideas have co-existed with and reinforced various forms of social hierarchy and inequality while in practice, the republican ideal of a self-governing political community has demanded robust forms of social cohesion and solidarity, sometimes at the cost of personal independence and autonomy. Therefore Goodin claims that republicanism, despite claiming to free individuals from domination and dependency, thereby ends up being self-defeating.50 At the very least, certainly, it can be said that the republican history of thought constitutes a loosely related and sometimes contradictory set of doctrines and ideas. Yet certain distinctive ideas emerge that distinguish republican thought from liberal and communitarian philosophies, despite a great deal of overlap with both traditions. And in turn, these ideas have distinctive implications for constitutional thought. In this book, we consider the constitutional translation of two central elements of republican thought: civic participation and freedom as non-domination. We argue that these themes have thus far been neglected in Irish constitutional scholarship and that they may shed new light on important constitutional controversies.

Introduction

11

Civic republican thought is often traced to Aristotle’s civic humanism.Aristotle identified political participation as a central aspect of the good life. Human flourishing and human freedom, he suggested, are realised through virtuous actions in the political realm.51 Thus, citizenship is not valued simply because it contributes to preserving the negative liberties necessary for pursuing one’s private ends. Rather, it is valuable because human freedom can be realised only through membership of a self-governing community – by ‘ruling and being ruled in turn’.52 This republican understanding of politics as a means of realising human freedom has reverberated in various guises throughout the history of thought. It is represented by contemporary scholars such as Michael Sandel and Charles Taylor, and is generally, although not exclusively, associated with a ‘communitarian’ social philosophy.53 Such thinkers have articulated a vision of freedom understood not in negative terms, as an absence of external constraint, but rather one that is realised through the exercise of some degree of positive control over the conditions of collective existence. For Pitkin, ‘I am not fully taking charge of my life and of what I am doing until I join with my fellow citizens in political action’.54 Many twentieth-century republican thinkers such as Hannah Arendt and Charles Taylor emphasise the expressive dimensions of republican politics: only through political action in the public sphere can recognition be achieved, individual identity realised, and thus, political freedom secured.55 Much of contemporary republican scholarship focuses on the question of how institutions can foster a politics based on common goods (however this might be defined) as distinct from the more dominant conception of the State as an instrument for mediating disaggregated private interests.56 This raises related questions not only about how common goods might be identified and realised, but also how a politics of the common good can be distinguished from any communitarian commitment which emphasises the non-political aims and identities of political community – which understands politics as the basis for defining and practising a shared way of life. The theme of citizenship is approached quite differently in an alternative thread of the republican tradition that we will call ‘neo-Roman’. This tradition rejects the civic republicanism associated with Aristotle’s civic humanism. Civic participation is not exalted as the realisation of a higher human good, or as an intrinsically valuable form of human flourishing. Instead, it is valued instrumentally as a means of protecting freedom understood in a particular way. Freedom is not understood positively – as the exercise of collective self-determination in political community – but negatively, as non-domination. And while this is a negative and indeed a more conservative understanding of freedom, equally it cannot consist simply of the absence of external constraint. The departure point is an understanding of unfreedom or servitude as the condition of being subject

12

Introduction

to or dependent upon an alien will – that is, a will that is beyond the subject’s control. In turn, freedom from domination or arbitrary power can be secured through citizenship in a contestatory republic in which private as well as public power is appropriately checked. While it is associated with the institutions and politics of the ancient Roman republic,57 this conception influenced the republican politics of the Renaissance city-states and the English revolution and has been revived in contemporary theory by Philip Pettit and Quentin Skinner in particular.58 In Pettit’s interpretation of the Roman tradition, ‘the antonym of freedom [is] not interference but rather domination – exposure to the arbitrary, uncheckable power of a dominus or a master in one’s life’.59 This, Pettit claims, sets republicanism apart from liberal understandings of freedom, the origins of which he identifies chiefly with Hobbes and Bentham. In the neo-Roman republican account, agents are dominated (and therefore unfree) to the extent that others possess an unchecked capacity to arbitrarily interfere in their choices – whether or not any such interference is actually suffered. Non-arbitrary interference, ‘properly constituted’, is grounded in law and is subject to contestation by the interferee.60 Thus, we are free not through our status as participants in collective self-government, but through the resilient security offered by the rule of law against ‘alien control’ of our choices. In this neo-Roman account, wide political participation is still seen as necessary to ensure the rigorous contestation and checking of political power and thus to combat domination. However, this is simply instrumental to freedom understood negatively, as an absence of domination.61 Thus, unlike Aristotle, Cicero, for example, understood freedom as being guaranteed through citizenship under the rule of law – and specifically the security against arbitrary power this provided – rather than through participation in politics as such.62 In turn, for contemporary neo-republicans it is more important that citizens have the opportunity to contest political power than to necessarily participate in its exercise.63 Pettit’s most recent work argues that the classical republican theme of nonarbitrary government based on common goods is best served through a democratic politics in which citizens exercise a form of ‘jointly-shared’ control over state power – this being necessary to render it as something other than a dominating force in citizens’ lives.64 Thus, democratic institutions and procedures serve to provide ‘control’ rather than ‘consent’, and it is through this popular control that coercive state power can be said to represent something other than the imposition of an alien will on its subjects. Equally, neo-Roman republicans tend to be acutely conscious of private sources of domination, in the communitarian and familial realms, and so will typically defend a relatively robust role for the State in checking those forms of domination that stem from inequalities

Introduction

13

and disparities of bargaining power in the ‘private sphere’. Republican freedom, understood in this way, will embrace a strong socio-economic dimension. Republicanism, in summary, embraces a form of ‘status freedom’ – one which is acutely conscious of the psychological effects of social inequality and indeed the strategies of self-censorship, the ‘fawning and toadying’ that dominated individuals may be forced to engage in. In contrast with the social relations that define the laissez-faire liberal State, republican citizens will be able to ‘look one another in the eye’ in the private as well as public realms.65 We have roughly categorised republican thought based on whether civic participation is understood as intrinsically or instrumentally valuable. While this is a familiar classification in the republican history of thought – captured in Benjamin Constant’s nineteenth-century essay On the Liberty of the Ancients compared to that of the Moderns – we also recognise that such classifications should not be drawn too sharply or definitively.66 Honohan, for example, argues that civic participation might be regarded neither as purely instrumental, nor, correspondingly, as ‘the privileged locus of the good life’: it can be ‘intrinsically worthwhile’ without representing ‘the highest realisation of human nature’.67 Irrespective of whether civic participation is valuable instrumentally or intrinsically  – or indeed, of whether non-domination can be secured under anything approximating a liberal–democratic institutional model – we argue that both themes have been neglected in Irish constitutional scholarship.

Structure of the book The book is divided in three parts. The first considers theories of republican freedom in public and private life, the second, questions of institutional design, while the third addresses republican perspectives on social policy. In Chapter 1, we consider the relationship between majoritarian democracy and political freedom in a republican light. We argue that the Irish Constitution’s central political principle – the sovereignty of the people – has been too narrowly conflated with the supremacy of majority will, elusively defined. In particular, we argue that the constitutional referendum should not be seen as a mechanism for effectuating popular will, but rather as a means of facilitating popular contestation and control of executive power in the domain of constitutional change. In Chapter 2, we consider how republican theory can inform the analytical theory of constitutional rights. In particular, we offer some suggestions as to how constitutional rights in Ireland might be understood in light of the republican idea of freedom as non-domination as distinct from the liberal idea of freedom as non-interference. We argue that republican theory suggests a greater sensitivity

14

Introduction

towards the effect of disparate power relationships in the exercise and enjoyment of constitutional rights. Chapter 3 evaluates institutional questions concerning the separation of powers and executive dominance in institutional design, considering how republican ideas might inform institutional structure. It outlines how the ‘Westminster model’ of parliamentary government can be understood in a republican light as a means of controlling arbitrary executive power. It also considers the contemporary phenomenon of executive dominance from this perspective. Chapter 4 applies a republican analysis to the ongoing debate concerning the political legitimacy of judicial review. While it considers contemporary republican arguments in favour of a model of legislative supremacy and against constitutional courts, it considers the republican potential for the intermediary ‘new commonwealth model of constitutionalism’, insofar as it entrusts deliberation on constitutional norms to legislatures as well as courts. Chapter 5 discusses how republican principles might inform and guide constitutional interpretation. It considers both how republican ideas might inform the methodology of constitutional interpretation and how republican principles and ideas might, in some circumstances, represent sources of constitutional authority. Chapter 6 addresses the question of how republican citizenship might be fostered specifically in the context of education. In particular, it considers republican arguments in favour of the ‘common school’ and problematises denominational control of public education in Ireland. Finally, Chapter  7 considers the constitutional dimensions of the State– religion relationship in light of republican themes of civic virtue, citizenship and non-domination.

Notes 1 See John Griffith, ‘The Political Constitution’, Modern Law Review, 42 (1979). 2 See generally John Pocock, The Machiavellian Moment (Princeton, NJ: Princeton University Press, 1975). 3 See T. John O’Dowd, ‘Remembering the Constitution: The Easter Proclamation and Constitutionalism in Independent Ireland’, UCDWorking Papers in Law, Criminology & SocioLegal Studies Research Paper No. 36/2010, 3 August 2010, available at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=1652843 (accessed 9 December 2014).. 4 On this theme see Adam Tomkins, ‘Crown Privileges’, in Maurice Sunkin and Sebastian Payne (eds) The Nature of the Crown: A Legal and Political Analysis (Oxford: Oxford University Press, 1999). 5 See Béatrice Durand, La Nouvelle Idéologie Française (Paris: Editions Stock, 2010).

Introduction

15

6 Tom Garvin, ‘An Irish Republican Tradition?’, in Iseult Honohan (ed.), Republicanism in Ireland: Confronting Theories and Traditions (Manchester: Manchester University Press, 2008), p. 24. 7 Margaret O’Callaghan, ‘Reconsidering the Republican Tradition in Nineteenth-century Ireland’, in Honohan (ed.), Republicanism in Ireland. 8 Dáil Éireann Debates, vol. 1, 21 January 1919 (emphasis added). 9 Honohan, Republicanism in Ireland, p. 12; Jean-Jacques Rousseau, Projet de Constitution pour la Corse (Paris: Nautilus, 2000). 10 Kevin Whelan, ‘Republicanism: The Legacy of the United Irishmen’, in Robert Savage (ed.), Ireland in the New Century (Dublin: Four Courts Press, 2003). 11 Honohan, Republicanism in Ireland, p. 13. 12 See generally Introduction, Iseult Honohan, Civic Republicanism (London: Routledge, 2007). 13 See e.g. Honohan, Republicanism in Ireland. 14 See e.g. Fintan O’Toole (ed.) Up the Republic! Towards a New Ireland (Dublin: Faber, 2012). 15 Paul Cullen, ‘Vatican Relationship at New Low’, Irish Times, 21 July 2011. He also said: ‘The law of the land should not be stopped by a collar or a crozier.’ 16 Vincent Browne, ‘In Kenny’s Book the Constitution is King … not the Church’, Irish Times, 15 May 2013 (emphasis added). 17 Brendan Corish, Dáil Éireann Debates, vol. 138, col. 839, 29 April 1953. 18 See in particular Michael D. Higgins, Renewing the Republic (Dublin: Liberties Press, 2012). 19 ‘FF delegates back equal marriage and adoption rights for same-sex couples’, Irish Examiner, 3 March 2012; see also ‘Speech of Niall Collins TD on the constitutional convention report on same-sex marriage’, www.fiannafail.ie/news/entry/speech-of-niallcollins-td-on-the-constitutional-convention-report-on-same-/ (accessed 10 May 2014). 20 Carl O’ Brien, ‘Government to consider formally recognising Travellers as ethnic group’, Irish Times, 18 April 2014. 21 See generally O’Toole, Up the Republic! 22 Ronan Lynch, ‘Inspiration, Intellectuals & Iconoclasts on the Internet: Interview with Colum McCaffery’, Village, 9 December 2013. 23 Fintan O’Toole, The people are smart. Why can’t they be trusted to make decisions?’, Irish Times, 22 April 2014. 24 The preamble describes the People as ‘humbly acknowledging all our obligations to our Divine Lord, Jesus Christ’. 25 See Articles 42–3. 26 Article 43.1.1°. 27 Article 42.1–42.5 28 Re Article 26 and the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR 1. 29 ‘The people … can effect this revolution’. See Dáil Éireann Debates, vol. 67, col. 74–6, 11 May 1937.

16

Introduction

30 Pocock, Machiavellian Moment; Mortimer Sellers, American Republicanism: Roman Ideology in the United States Constitution (New York: Macmillan and NYU Press, 1994). 31 See eg Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1998); Michael Walzer, Spheres of Justice (Oxford: Blackwell, 1985), 32 See especially Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007); Adam Tomkins, Our Republican Constitution (Oxford: Hart, 2005). 33 See Tomkins, Our Republican Constitution. 34 Article 28.4.1° provides: ‘the Government shall be responsible to Dáil Éireann’. 35 See generally Sudhir Hazareesingh, Political Traditions in Modern France (Oxford: Oxford University Press, 1994); Vincent Duclerc and Christophe. Prochasson, Dictionnaire Critique de la République (Paris: Flammarion, 2002). 36 See Durand, La Nouvelle Idéologie Française. 37 See, however, Jean-Fabien Spitz, ‘The défense républicaine: Some Remarks about the Specificity of French Republicanism’, in Samantha Besson and José-Luis Marti (eds), Legal Republicanism: National and International Perspectives (Oxford: Oxford University Press, 2009). 38 Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, Yale Law Journal, 115 (2006). 39 See generally Gary Jacobsohn, Constitutional Identity (Cambridge, MA: Harvard University Press, 2010). 40 Honohan, Civic Republicanism, p. 7. 41 See Durand, La Nouvelle Idéologie Française. 42 Robert Goodin, ‘Folie Républicaine’, Annual Review of Political Science, 6 (2003). 43 See Honohan, Civic Republicanism, Chapter II. 44 See Honohan, Civic Republicanism, Chapter I. 45 Ibid. 46 Goodin, ‘Folie Républicaine’. 47 Ibid. Kautz also argues that republicanism breeds intolerance. See Steven Kautz, ‘The Liberal Idea of Toleration’, American Journal of Political Science, 37 (1993). 48 Goodin, ‘Folie Républicaine’. 49 Honohan, Civic Republicanism, p. 6. 50 Goodin, ‘Folie Républicaine’, p. 64. 51 Ernest Barker, The Politics of Aristotle (Oxford: Oxford University Press, 2009). 52 Honohan, Civic Republicanism, p. 26. 53 Sandel, Liberalism; Charles Taylor, Sources of the Self (Cambridge, MA: Harvard University Press, 1989). 54 Hannah Pitkin, ‘Justice: On Relating Private and Public’, Political Theory, 9 (1981), p. 349. 55 See e.g. Hannah Arendt, The Promise of Politics (Berlin: Schocken, 2007). 56 Richard Dagger, ‘Neo-republicanism and the Civic Economy’, Politics, Philosophy, Economics, 5 (2006), p. 151.

Introduction

17

57 See generally Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998); Cicero, On Duties (Cambridge: Cambridge University Press, 1999). 58 Skinner, Liberty before Liberalism; Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997). 59 Philip Pettit, ‘The Tree of Liberty: Republicanism, American, French and Irish’, Field Day Review, 1 (2005) p. 30. 60 Philip Pettit, ‘Law and Liberty’, in Besson and Marti (eds), Legal Republicanism. 61 Pettit, Republicanism. 62 Cicero, On Duties. 63 Pettit, ‘Law and Liberty’. 64 Philip Pettit, On the People’s Terms: a Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2013). 65 Pettit, On the People’s Terms, p. 3. 66 Benjamin Constant, ‘De la Liberté des Anciens Comparée à celle des Modernes’, in Benjamin Constant, Ecrits Politiques (Paris: Gallimard/Folio, 1997), pp. 591–619. 67 Honohan, Civic Republicanism, p. 217 (emphasis in original).

Blank page

Part I Republican freedom

Blank page

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.

22

Republican freedom

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

Popular sovereignty, political freedom

23

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

24

Republican freedom

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 the other hand, the invocation of the ‘People’ served the more immediate practical purpose of overriding any concerns surrounding the legality of the Constitution’s enactment procedure. Given there was no provision in the existing legal order for an entirely new constitutional dispensation to be enacted, the plebiscite allowed the authority of the new Constitution to be grounded in a new, extra-legal source: the consent and affirmation of the voting ‘People’. Therefore, from the outset, popular sovereignty was associated with the referendum mechanism. Indeed de Valera explicitly depicted the plebiscite as a mechanism through which the people could assert its sovereignty and thereby override the legal constraints of the constituted order. During the Oireachtas debates on the draft Constitution he said: the people can effect [this] revolution … and I would like to see the lawyers who would stand in their way. This Draft Constitution, if passed at all, is going to be passed by the sovereign people who are above the lawyers and above the Government and all others. Their will is the final decision. … Therefore, in this case we are not bothering very much about what the lawyers think or say about this Constitution. I know, however, that the lawyers would have a lot to say about it if it were brought in as an amendment of the old Constitution. This is a new Constitution … When it is enacted it is the foundation law of the sovereign people of this country.9

Therefore, officially the legitimacy of the new dispensation was predicated on the popular will overriding the existing legal constraints. And to some extent at least, the doctrine of popular sovereignty stemmed simply from this political expedient rather than from any distinctive constitutional theory. Since the doctrine of popular sovereignty was grounded in the people’s role in the enactment process, naturally it also required that they would enjoy a continuing role in the amendment procedure. The 1922 Constitution – which also

Popular sovereignty, political freedom

25

deployed the rhetoric of popular sovereignty, albeit in a more ambiguous way – nominally required referendums as part of the amendment process.10 However, it allowed for amendments to be made through ordinary parliamentary legislation for a transitory eight-year period, a period which was itself extended using the amendment process, ensuring that for the entire lifetime of the Constitution it could be amended by the Oireachtas without recourse to the people.11 This effectively meant the Constitution was flexible and unstable, and that it could be amended by governments without much in the way of contestation. However, the 1937 Constitution specifically prohibited any extension to the (shorter) transitory period during which it allowed for amendments via ordinary legislation. This helped ensure that referendums remained a mandatory feature of the amendment process over the lifespan of the 1937 Constitution; indeed, this is one of the Constitution’s distinctive features. It is comparatively unusual, with most European constitutions allowing for amendment through some alternative mechanism (usually a parliamentary ‘super-majority’).12 Articles 46 and 47 allow ‘any provision’ of the Constitution to be amended by an Act of the Oireachtas, which must then be submitted to the people for approval in a referendum. This referendum requirement is commonly understood  – both in political discourse as well as constitutional jurisprudence  – as the primary, if not the exclusive mechanism through which the people’s sovereignty is exercised and guaranteed. The principle of popular sovereignty has had some significance beyond the specific context of the constitutional amendment process. It has been used a source of substantive constitutional principle; for example, the Supreme Court invoked the principle in finding that the royal prerogative (a range of extra-statutory powers held by the British monarch) had not carried over into the Irish constitutional order.13 These dimensions of the popular-sovereignty principle are addressed separately in Chapter 5 as part of a broader discussion on constitutional interpretation. For the remainder of this chapter we focus primarily on the use of the principle in relation to the referendum process, simply because it is in this context that the principle has been most commonly invoked and discussed.

Referendums, sovereignty and the Supreme Court In general terms, the Supreme Court has framed the constitutional text as an expression of popular will, and correspondingly, it has interpreted the constitutional referendum as an expression and guarantee of the overarching constitutional principle of popular sovereignty. More specifically, it has understood the popular sovereignty doctrine as meaning that the people’s right to amend the

26

Republican freedom

Constitution is substantively unfettered in terms of the subject matter, scope and content of the amendments that may be effectuated via the referendum process. It means that no constitutional provision, no matter how essential to the Constitution’s overall identity, is put beyond the reach of the amendment process. In turn, this has led to certain tensions and contradictions with respect to the substance of popular sovereignty. The prevailing view of the relationship between the referendum and the popular sovereignty principle was neatly summarised in Byrne v. Ireland, where the Supreme Court asserted: ‘the State is the creation of the people and is to be governed in accordance with the provisions of the Constitution which was enacted by the people and which can be amended by the people only [as] the sovereign authority’.14 In practice, popular sovereignty has most often been invoked to defend the substantively unfettered scope of the people’s amendment power. This has been rationalised on the basis that the referendum process, as well as the 1937 plebiscite, enshrines the popular will in the constitutional text. In turn, therefore, the people’s right to amend the Constitution in whatever manner must be unlimited. This principle has consistently been invoked to reject various challenges to constitutional amendments that were alleged to have violated supposedly immutable or essential constitutional principles, particularly the principles of natural law.15 Arguably the Supreme Court’s blanket rejection of such claims can be justified based simply on a literal reading of Article 46, which states clearly that ‘any’ provision of the Constitution may be amended; however, instead it has tended to justify this approach with reference to the foundational premise of popular sovereignty. In Finn v. Attorney General,16 the plaintiff had contended that the Eighth Amendment of the Constitution Bill 1983 (recognising the equal right to life of the unborn) was invalid because the right it claimed to recognise was already implicit in the Constitution. However, the Supreme Court held that ‘the people intended to give themselves full power to amend any provision of the Constitution’,17 and that it would not intervene in this process save in the case of procedural irregularities. Similarly, in 1993, the Supreme Court dismissed an attempt to halt the referendum on the Maastricht treaty, with Justice Hederman plainly affirming that ‘a proposal to amend the Constitution cannot per se be unconstitutional’.18 In Riordan v. An Taoiseach (No.1),19 the plaintiff argued that the 1995 amendment permitting divorce was invalid because the Constitution had immutably enshrined the status of the family as a matter of natural law. But again, the Supreme Court held that the people had given themselves a complete power of amendment, with Justice Barrington insisting: ‘there can be no question of a constitutional amendment properly before the people and approved by them

Popular sovereignty, political freedom

27

being itself unconstitutional’.20 This judgment seemed to bring into conflict two core philosophical precepts in the Irish Constitution; on the one hand, the idea that certain rights and principles it contains derive from natural law and therefore, are immutable, and on the other hand, the principle that the people, as ‘sovereign’, enjoy an unfettered right of constitutional amendment.21 This apparent contradiction was decisively addressed in the Abortion Information case in 1995. The Supreme Court invoked popular sovereignty in conclusively rejecting the contention that the people’s amendment power could be limited by any countervailing considerations based on natural law. Counsel appointed by the Court had argued that a bill providing for legalised abortion-information services was invalid because the Fourteenth Amendment of the Constitution – to which the bill gave effect  – was inconsistent with the natural right to life of unborn children. However, the Court affirmed that: ‘the Constitution … is the fundamental and supreme law of the State representing … the will of the People’.22 This meant, again, that no constitutional amendment could be invalid based solely on its content, as distinct from procedural irregularities. This is unusual in European terms, as most constitutions specify immutable or ‘eternity clauses’ that cannot be amended or removed.23 Notably this is true of the French Constitution of 1958 – notwithstanding its equally strong emphasis on popular and national sovereignty: it specifies that the ‘republican’ character of the State cannot be the subject of a constitutional amendment.24 Indeed it is commonplace for ‘constitutional identity’ to be associated with certain core principles of the constitutional text.25 In turn, such provisions tend to be placed beyond the remit of the amendment process.26 By way of contrast, however, the normative identity of the Irish Constitution has not been associated with any of its substantive principles, but rather its method of adoption and amendment. Popular sovereignty has not been identified with any specific rights or principles – for example, the rights individuals might need to meaningfully participate, as citizens, in the exercise of sovereignty. Rather, it has been understood in an almost purely procedural way, simply as precluding any substantive limits on the scope of the amendments the people may effectuate. Put simply, popular sovereignty translates to a procedure for determining constitutional content, not to any particular such content. In other contexts it has been argued that the centrality of popular sovereignty demands precisely the opposite: that the substantive provisions that give it life and meaning must be put beyond the constitutional amendment process, such that popular sovereignty is effectively self-limiting (at least in its procedural aspect). Philip Pettit, for example, argues that political freedom requires democratic ‘control’ of government power (as we consider in greater detail below and in Chapters 3 and 4), and in turn that this requires democratic rights of

28

Republican freedom

contestation to be placed beyond any constitutional amendment process.27 The Constitution, he says, must ‘put various issues off the popular agenda’.28 Thus, democracy does not equate solely to a procedure for determining the content of the constitution, as this would lead to internal contradiction; rather, it requires that certain rights are given immutable status. In this light, the Supreme Court’s seemingly absolutist position might lead to certain paradoxes; in particular, an unchecked amendment power might be used to remove or dilute certain substantive rights that the people need in order to exercise popular sovereignty – for example, the rights of expression, association and suffrage that are needed to participate in the political process. In short, the procedural aspect of popular sovereignty could be used to undermine its substance. Therefore, the procedural interpretation of popular sovereignty tends to ignore the pre-conditions necessary for meaningful participation in sovereign exercises.

Referendums and the popular will We suggest that the constitutional jurisprudence discussed above has vastly overstated the extent to which the constitutional referendum can be said to discern and express popular will, even in the limited context of the constitutionalamendment process. We question, on the one hand, whether popular sovereignty can be understood simply in terms of the people’s rights, individually and collectively, in the referendum (as well as election) contexts. Conversely, we question whether the referendum itself can be valued solely as an expression or guarantee of the popular-sovereignty principle. It has been argued that popular sovereignty occupies a quasi-religious position in constitutional jurisprudence29  – that it is ‘venerated in constitutional theology’.30 And in turn, it has been understood mainly in relation to the concept of popular will, expressed in majoritarian voting.While popular sovereignty has been understood as protecting the unmediated supremacy of popular will in relation to constitutional content, this presumes both that the referendum is capable of crystallising a collective will, and that the constitutional text can effectuate this will. In this section, we question both of these presuppositions. Since the referendum process has been understood as capturing the popular will and enshrining it in the constitutional text, constitutional interpretation itself has been depicted as an exercise in retrieving or discerning the will of the people as crystallised in the constitutional provisions. As O’Cinneide puts it, the Supreme Court ‘has been at pains to emphasise how all power exercised under the Bunreacht is derived from the will of the people, and makes regular reference

Popular sovereignty, political freedom

29

to this principle in interpreting the constitutional text’.31 In Sullivan v. Robinson,32 Justice O’Byrne suggested ‘a Constitution is to be liberally construed so as to carry into effect the intentions of the people embodied therein’.33 Similarly, in Norris v. Attorney General, the Supreme Court rejected a claim that the Constitution implicitly protected consensual adult same-sex relations, given that in 1937, the people, given their Christian commitments, could not have ‘intended’ it to apply this way.34 In turn, this understanding of the constitutional provisions as capturing the will of the people may serve to lend a sense of democratic legitimacy to the courts’ exercise of constitutional review over parliamentary legislation (see further Chapter 4). This conflation of popular sovereignty with majority rule is not especially unusual. In the United States, for example, Amar notes that the principle is realised ‘in part through the practice of elections for officers, but even more fundamentally, through the act of popular ordainment and establishment of the Constitution itself’.35 However, what is distinctive, and indeed comparatively unusual about Ireland, is that this is given very direct expression in the constitutional-amendment procedure – which in turn places the concept of the popular will at the centre of constitutional interpretation itself. In summary, constitutional jurisprudence has formulated two distinctive and interconnected normative assumptions: first, that the collective majoritarian voting process confers democratic legitimacy on the content of the constitution irrespective of its substance, and second, that by virtue of this same process, the meaning of the relevant provisions is determined by and corresponds to the popular will. Whereas the referendum is depicted as a mechanism for giving expression to popular will, this popular will is in turn depicted as endowing the constitution, and correspondingly, state power generally, with an ultimate source of democratic legitimacy. For Tierney, a key theoretical question is whether, through the constitutional referendum, ‘“the people” [can] be envisaged as intervening directly to “produce” sovereign decisions in a way which affirms that legitimate democratic authority emanates from popular consent rather than the institutions of state’.36 In this understanding, the constitution embodies ‘the settled will of a democratic people’.37 A similar understanding has dominated Irish constitutional discourse: since the people directly sanction the fundamental principles based on which government operates, the powers of government are said to be derived from the people’s authority. While the prevailing doctrine assumes that governmental actions embody popular authority or consent by virtue of being performed under a popularly sanctioned constitution, an alternative theoretical understanding portrays the referendum as a mechanism for rectifying the tendency of governmental power to stray beyond popular control. In this vision of popular sovereignty, the referendum responds precisely to the fact that governmental actions and policies do

30

Republican freedom

not, by default, bear the imprimatur of popular consent: it offers a mechanism through which popular will asserts itself over a wayward representative government. Accordingly, ‘direct democracy’ is sometimes portrayed as a disruptive intervention by the ‘sovereign’ people in the workings of constituted governance. Thus, through the referendum, the popular constituent power reasserts its supremacy in relation to constituted political authority, ‘returning direct power to the people’ or reversing ‘the original act of transference’.38 This might be seen as a welcome assertion of democratic power or, alternatively, as a potentially dangerous, unchecked populism. In this light, Tierney argues that ‘constitutional’ as distinct from ‘ordinary-legislative’ referendums (which are not used in Ireland)39 have a unique normative significance precisely because of their potential to represent an exercise in popular sovereignty (in whichever of the above senses it might be understood). He argues that most analysis has centred on the question of whether referendums generally represent ‘an appropriate mechanism of law-making’,40 overlooking the theoretically distinctive character of constitutional referendums specifically. Constitutional referendums, he argues, have unique significance because of their peculiar subject: because they give the sovereign ‘people’ ‘direct control’ over both ‘constitutional identity’ and the ‘second-order rules’ for the legal system.41 He argues that through constitutional referendums, ‘the very identity of the demos can be implicated … encapsulating the very identity of the people, while also embodying emblematically its collective settled will’.42 But the claim that the referendum mechanism serves to constitutionally enshrine the popular will treats it in an unfeasibly abstract way, divorced from political and social reality  – and in particular, it ignores the various factors which circumscribe and check the people’s power in the referendum process. Correspondingly, if the referendum mechanism in fact fails to meaningfully capture the popular will, this undermines the idea that the constitution’s democratic legitimacy stems from its correspondence with the popular will. Indeed it hardly needs to be pointed out that the mere fact of a popular sanction for the constitutional text can in no sense ensure that governmental policies generally will remain responsive to popular influence or control, or that the citizens will be called on to participate in government other than through periodic electoral exercises. In short, the requirement of a popularly sanctioned basic law might do little to remedy the ‘sharp disconnect in Ireland between the people and the systems of governance by which they are ruled’.43 More generally, the idea that constitutional referendums can capture a determinate popular will is simply unrealistic. The ‘will’ referred to in constitutional discourse is not usually framed as the ‘will of the majority’, but rather as the corporate will of the people as a unitary entity, where this will is assumed to

Popular sovereignty, political freedom

31

emerge through a majoritarian voting procedure. However, this has not been supported by any coherent theory of corporate will or group intention.44 On the one hand, a majority will is (arguably) distinct from a corporate will. On the other, individual votes in favour of particular amendments are differently motivated. This makes it difficult to see how the resulting amendment can be seen as the expression of a collective intention of any sort – other than the intention that the relevant text be enacted in preference to the pre-amendment status quo. The only intention that majority voters share is that a particular version of the constitutional text should replace a prior version, but they can have no shared intention as to what this text means or how it is to be interpreted.Yet it is often this thicker sense of constitutional meaning to which democratic legitimacy is ascribed: it is the meaning of amendments, rather than the bare text, that is cast as the product of popular will. Collectively, voters may not form a coherent or rational intention concerning the issue a referendum addresses, which makes it difficult to ascribe them a collective intention that can inform the meaning of the amendment.45 It has been observed: ‘elections or referendums do not generate a “people’s will”, simply an aggregate derived from adding and subtracting the responses to the choices offered … [therefore] the idea of popular sovereignty cannot be applied coherently to interpret electoral results as expressing a single sovereign will’.46 Moreover, any ‘will’ formed cannot have the self-originating or authoritative character that popular-sovereignty doctrine suggests because it is formulated in response to an amendment that is proposed by intermediary representative institutions rather than by the people acting spontaneously themselves. Indeed Justice Denham in an unusually modest appraisal of the referendum mechanism noted that since ‘there is initial control of the process by the legislature … the referendum machinery is not a threat to the system of representative democracy’.47 Additionally it has been pointed out that while single-issue plebiscites might capture popular preference on discrete issues, they cannot reflect voter priorities among different issues.48 Individual voters may not fully will a particular amendment to become part of the constitution: they may simply view an amendment as being necessary under peculiar political conditions – as a decent compromise under the circumstances presented to them  – or they may have preferred a differently worded amendment but thought the proposed wording preferable to the status quo. Some voters rejected the 2002 referendum that proposed to exclude suicidal ideation as grounds for abortion because they opposed any legal abortion, and others because they rejected the exclusion of suicidal ideation.49 Accordingly, the attempt to decipher some determinate popular will in relation to abortion, based on referendum outcomes, has an air of absurdity. For the same reasons, judicial depictions of the constitution itself as corresponding to the ‘will of the People’ are similarly incoherent.

32

Republican freedom

Even if it could be established that discrete constitutional provisions enacted by referendum reflect a determinate popular will, constitutions do not exist, in reality, as collections of discrete rules that can be interpreted in a self-contained way. Rather, constitutions assume life and meaning only when the different provisions are read harmoniously together and when they are applied (usually by courts) to specific social problems which were not always envisaged by those who drafted and enacted them. Thus, a constitution is normally read as the expression of a single moral vision50 or at least as a set of coherent, rational intentions and propositions, even though it is composed of provisions which were approved by different electorates at different times, and so which could in no sense speak with a singular authority or will. Yet the claim found in constitutional jurisprudence is normally that the constitution as a whole reflects and embodies the settled ‘will of the people’, although referendums address discrete provisions taken more or less independently of each other. Interpreting the constitution in particular cases will not usually involve single, discrete provisions in relation to which a determinate popular will might be thought to exist. More often, it will involve a range of different overlapping provisions that were enacted at different times and by different electorates, whether in 1937 or through subsequent referendums. Therefore, it is difficult to see how propositions of constitutional meaning could coherently be justified as expressions of a singular popular will. More obviously, perhaps, the referendum procedure only allows the people to decide constitutional issues in a reactive way – that is, by voting on amendment proposals that are formulated by intermediary political authorities. Effectively, constitutional amendment is a two-stage process, with the referendum contingent on a proposal being initiated through an act of the Oireachtas, the relevant bill being almost invariably initiated by the Government. Thus, effectively the role of the people is simply to acquiesce to or veto amendments the content of which they cannot determine, control, or – for the most part – even influence. In this light, the referendum cannot be understood as a mechanism for the people to affirm any self-originating ‘will’, its agency being highly constrained and marshalled by intermediary institutions. Thus the limited character of the popular empowerment the referendum offers stems partly from the tightly restricted mechanism for initiating amendments. It accords the popular vote a much more modest role than constitutional mythology suggests, as merely the final step of a process beginning with a government-initiated bill.51 Not unusually,52 there is no power of popular initiative for constitutional referendums. In jurisdictions where popular-initiative referendums are possible, they are usually used for ordinary legislative issues rather than for constitutional amendment (save for some exceptions such as Switzerland).53

Popular sovereignty, political freedom

33

Indeed although it was approved by plebiscite, the original Irish constitutional text was drafted by a small, relatively closed coterie, and the content of amendments has typically been dominated by the Government.54 It has been rare for constitutional amendments to emerge through a process of public deliberation, and the role of the public in the amendment process is best described as passive or reactive. In this light, the 2012 Constitutional Convention, which was composed primarily of lay members, was a relative novelty, but the Government controlled its agenda and insisted it would exercise discretion as to which of the convention’s recommendations, if any, would be put to referendum. In summary, then, the referendum device gives a relatively modest degree of influence to the voting ‘people’ in respect of constitutional content. In this light, De Valera’s claim that the Constitution made the people its ‘masters’55 has a somewhat hollow ring. And just as constitutional referendums cannot coherently be understood as an independent expression of popular will, for similar reasons they cannot properly be understood as the ultimate institutional expression of popular sovereignty. Insofar as the people’s action or expression through the referendum is managed and limited by an authority (the Government) which itself has an agency independent of the people’s will, it is difficult to understand how the referendum procedure can be seen as affirming the people’s ‘sovereign’ status. But this problem is more or less ignored in popular-sovereignty doctrine. This tendency to overstate the popular empowerment referendums offer is evident in much of the theoretical literature as well as case law. Tierney, for example, acknowledges ‘the people is too large and diverse a body to manifest itself without the intervention of representational forces’.56 However, he nonetheless argues that constitutional referendum is distinct in its significance from the ‘ordinary-legislative’ type precisely because it ‘serve[s] to unsettle the traditional balance between constituent power and constitutional form … substituting the people directly for the representational role traditionally played by the democratic constitution’.57 Tierney claims: the people’s direct democratic capacity to act as, or at least to influence the location and distribution of, the supreme source of constitutional law within a polity distinguishes constitutional referendums as, potentially at least, true conduits of popular determination.58

Thus while he acknowledges popular sovereignty is couched within representative procedures, Tierney nonetheless depicts the constitutional referendum as (potentially) an exercise of popular authorship over constitutional content and identity. Yet for the reasons outlined, this is impossible to square with the procedural checks and constraints that, in reality, are brought to bear in all constitutional-referendum mechanisms. These limitations stem partly from

34

Republican freedom

the intrinsically limiting form of the constitutional referendum: specifically, the fact that the people can never be seen as engaged in a freestanding act of creation or control, their vote always being responsive to an initiating agency. This limitation, we suggest, applies even where the initiative mechanism itself is popularised. ‘Constitution-framing’ referendums, such as secession or constitutional-enactment plebiscites,59 ostensibly involve the people stepping outside the existing order to create a new dispensation. Yet their role is always couched within some antecedent political manoeuvring that breaks any link of authorship between constituent power and constitutional content – and which means that plebiscites can never represent an exercise in unmediated, collective selfexpression. Uncompounded popular self-expression – at least of the sort that popular-sovereignty doctrine espouses  – is thus a practical impossibility. The ‘people’ as such are never responding to a question they have posed to themselves.60 Therefore, there is no conceivable plebiscitary mechanism in which the people could be understood as exercising meaningfully direct authorship over constitutional content. In turn, much the same considerations undermine any understanding of the referendum as supplanting parliamentary or representative democracy. We argue that the people, in the context of the constitutional referendum, should be viewed as a constituted, rather than a constituent authority, as part of an interaction of discrete assemblies with a limited and procedurally couched function. Accordingly, the referendum is not a mechanism for inscribing popular will in the basic law, but rather, we argue, an instrument for facilitating popular control and contestation of executive power in the constitutional-amendment process – an argument we will elaborate on below. In turn, this understanding may help to counter the prevalent republican apprehension of ‘populist’ legislative mechanisms as being potentially a source of unhinged majority domination.

The republican critique of ‘direct democracy’ We have argued that, contrary to the prevailing doctrine, the constitutional referendum cannot be understood as a mechanism for expressing popular will. In this section, we discuss how political theory has tended to conceptualise referendums generally as an exercise in direct or popular democracy that in some sense dilutes or undermines representative democracy. For most republican thinkers, direct democratic mechanisms undermine the virtues associated with parliamentary democracy, and so republicans have, for the most part, remained apprehensive of referendums whether in the constitutional-amendment context or otherwise. However, just as constitutional doctrine has overstated the extent

Popular sovereignty, political freedom

35

to which referendums can represent an exercise of popular will (or sovereignty), we will argue that the republican critique of the referendum overlooks the various ways in which popular power is mediated and checked in the context of the referendum process – and indeed, conversely, the ways in which referendums can themselves fulfil a mediating and checking function. For the most part, republican theory emphasises the necessity of popular power being mediated and checked through democratic and representative structures. Although sovereignty, in republican thought, may be formally located in the people, it is not exercised directly through majoritarian voting, but rather via a constitutional framework of interacting assemblies and authorities.61 This concept of ‘mixed government’ is absent (in some accounts) in the republicanism of ancient Athens62 – with its comparatively unmediated form of democracy  – and (arguably) in Rousseau’s theory.63 Rather, it is associated with the ‘neo-Roman’ strand inspired by the ancient Roman republic.64 In this tradition, freedom  – as discussed in the Introduction  – is not understood positively as the exercise of collective self-determination in political community. Rather it is understood in a negative sense as non-domination, or an absence of ‘alien control’ over individuals’ choices. Unfreedom, for individuals, consists of subjection to alien will, and in particular, to arbitrary or unchecked powers of interference wielded by public or private agents. State power is non-arbitrary, and compatible with freedom, to the extent that it is subject to appropriate forms of popular contestation and control.65 Thus for neo-Roman republicans, individuals are free not through their status as participants in collective self-government, but rather through the resilient security offered by the rule of law against any ‘alien will’. Indeed, Pettit contrasts the neo-Roman tradition with Rousseau’s ‘communitarian’ conception of political freedom, which, he argues, requires citizens to deliberate upon and directly legislate the ‘general will, the corporate will of the political community’.66 While Pettit rejects the understanding of civic participation as being intrinsic to freedom, he argues that widespread political participation is nonetheless necessary to ensure that political power is subject to contestation and popular control, and thus, non-dominating.67 It is more important, he argues, that citizens have the opportunity to contest political power than to necessarily participate in its exercise.68 Correspondingly, republican constitutionalism will provide mechanisms that facilitate and encourage the checking and contestation of public authority at various levels,69 rather than the nebulous aim of effectuating an uncompounded popular will. In particular, the interaction of different institutions and assemblies within a ‘mixed constitution’ will contain or at least minimise arbitrary power by providing such avenues of contestation. For example, neo-Roman republicans are likely to emphasise bicameralism, transparency and freedom of information.70

36

Republican freedom

While republican thinkers are divided on the question of using judicial power as a check on political institutions,71 they strongly associate the virtues of contestation and non-arbitrary rule with parliamentary and representative democracy, in preference to more unmediated or direct democratic forms. British-republican scholars, in particular, typically defend parliamentary supremacy as the cornerstone of the constitutional structure. This reflects a broader orientation of modern republicanism towards representative democracy: ‘when modern constitutionalism first began to take shape in the late-eighteenth century, considerable scepticism existed as to whether popular self-government on the Athenian model was practicable or desirable’.72 And crucially, while republicans disagree on whether and to what extent parliamentary power should be checked by a constitutional court, they almost universally reject direct democracy as lacking the deliberative and contestatory virtues associated with parliamentary democracy. Direct democracy is perceived as an unbridled, unmediated and potentially dominating system of self-rule. For Pettit, it risks engendering ‘the ultimate form of arbitrarinesss, the tyranny of a majority’.73 James Madison described it as ‘incompatible with personal security or the rights of property’.74 Whereas non-arbitrary power is subject to contestation, decisions bearing the imprimatur of popular will naturally attract an allure of incontestability.75 This is captured in a commonplace platitude: ‘the People have spoken’76 – the implication being that the people’s decision cannot be contested. The popular will, manifested in this way, seems ‘morally and legally unchallengeable’.77 Republicans usually laud parliament’s superior deliberative and contestatory virtues compared both to judicial review and ‘direct democracy’. Bellamy’s defence of the ‘political constitution’ affirms the value of majority rule against non-majoritarian versions of deliberative democracy.78 Yet he, too, associates parliamentary democracy with the virtues of compromise and moderation. He argues that ‘party competition in elections and parliament institutionalises a balance of power that encourages the various sides to hear and harken to each other, promoting mutual recognition through the construction of compromises’,79 a feature that, he assumes, is as lacking in plebiscites as in constitutional courts. Republicans also defend parliamentary supremacy with reference to the value of accountability. For Tomkins, the accountability exercised by parliament is the republican cornerstone of the British constitutional tradition.80 Indeed for reasons of practicality and form, referendums cannot effectively hold government to account – not least because they tend to be one-off, set-piece exercises. Therefore, whereas republicans ‘prioritis[e] political over judicial accountability’,81 ‘political accountability’ tends to be understood in almost exclusively parliamentary terms. Bellamy argues that the increasing resort to direct-democracy experiments simply masks a side-stepping of parliamentary accountability: ‘a

Popular sovereignty, political freedom

37

vain attempt to give a veneer of popular legitimacy to the growing deployment of delegated regulative agencies by governments’.82 Indeed voters, casting ballots in private, are in no sense publicly ‘accountable’ for their choices. On this view, referendums fail to force participants to deliberate on or at least publicly account for their actions as the parliamentary process does, at least in a limited way.83 This carries a strong risk of ‘ill-informed choices’.84 Whereas parliamentarians may not always meaningfully deliberate, their decision making is at least public – but referendums simply aggregate isolated, unaccountable votes. Participants are not forced or even prompted to confront alternative views.The referendum might in fact be quite consistent with a profoundly unrepublican society, marked by complacency, political cynicism and civic withdrawal. There is a risk participants will vote based on ‘brute preference’ rather than ‘commonly avowable interests’ or the ‘good of the group’.85 Pettit apprehensively describes ‘a plebiscitarian dispensation in which each participant privately forms his or her judgment about common avowable interests, rather than doing so in dialogue with others’.86 Despite the ostensible egalitarianism of voting itself, public deliberation in referendum campaigns may nonetheless be monopolised by elites, excluding marginalised voices.87 More mundanely, plebiscitary legislation also raises problems of competence and expertise, especially where the initiative power is popularised.88 And finally, direct democracy is critiqued – in not especially ‘republican’ terms – as being potentially dangerous for individual and minority rights.89 However, while we have argued that referendums cannot capture or express an uncompounded popular will, for the same reasons it can hardly be seen as a source of unchecked populist power. The republican critique of direct democracy overstates the popular empowerment the referendum offers. In particular, it overlooks the various ways in which popular power, in the context of the referendum, is checked by various institutional mechanisms, particularly executive and legislative control over the initiative power, as described in the previous section.

Republican justifications for the constitutional referendum We have argued that republican apprehensions concerning referendums are somewhat misplaced given the degree to which the constitutional referendum, particularly, is checked and mediated by intermediary institutions. In this section, we suggest that the constitutional referendum, may, subject to certain provisos, be considered positively conducive to republican goals. We have already argued that the referendum could not be understood as an exercise or expression of popular will. In this section, we argue, first, that it can instead be valued

38

Republican freedom

from a republican perspective as a mechanism for facilitating popular contestation and control of executive power (at least in a certain domain). Secondly and more indirectly, the constitutional referendum serves a further republican goal in promoting broader civic participation. Referendums and popular control

We have argued that the referendum cannot coherently be understood as a mechanism for ascertaining popular will. However, for most republican theorists, the legitimacy of state power is not based on its correspondence with an elusive popular will, which, in any event, seems impossible to discern in any pure, uncompounded form. Rather, state power is legitimate insofar as it is subject to a system of jointly shared control by the people collectively, as well as contestation by individuals. This system of control must be ‘appropriately individualised, unconditioned and efficacious’.90 Pettit juxtaposes the concept of control with that of consent.91 In order for democratic ‘control’ to render governmental power non-dominating, it must satisfy two particular conditions, first, that of influence (that the people actually attain influence over government), and second, that this influence in fact imposes a suitable direction on government.92 In turn, he argues that this model of democratic control is best secured through what he terms a ‘responsively representative’ assembly, in preference to a ‘plenary’ or ‘indicatively representative’ assembly.93 The republican critique of direct democracy stems largely from the fear that plebiscites dispense with the mediating institutions and procedures that check popular power and prevent it from becoming a form of domination. However, we have detailed the various ways in which popular power is, in fact, checked and couched in the context of constitutional referendums in particular, such that the referendum mechanism cannot be depicted as a ‘supplanting [of] representative constitutionalism’.94 This is particularly true of constitutional referendums that are preceded by an exclusive parliamentary initiative power  – although even popularly initiated plebiscites are mediated in other ways, procedurally, politically and socially. Pettit rejects the idea of a ‘plenary’ assembly as a mechanism for democratic control because apart from issues of feasibility, he argues that since it is by its nature unelected and therefore unaccountable to any authority, it operates under too few constraints (additionally, it is too large and unwieldy to engage in the ‘reflexive’, ‘back and forth’ form of deliberation that representative assemblies may achieve).95 The referendum constitutes the people as a sort of ad hoc plenary legislature and so might be rejected for these reasons; indeed it is not accountable to any authority for its deliberations and decisions.

Popular sovereignty, political freedom

39

However, the absence of accountability post-decision is counterbalanced somewhat by the fact that the referendum does not offer the open-ended subjectmatter discretion that conventional assemblies enjoy. And while the referendum is itself highly checked, it plays a valuable role in checking other sites of power in turn. Rather than superseding parliamentary power, the referendum simply checks it, at least in the procedural form it assumes in the Irish context. More importantly, constitutional referendums of this sort check executive power in the field of constitutional change. In Westminster-style parliamentary systems – and especially so in Ireland – the executive will typically dominate the legislative agenda generally (as discussed in Chapter 3). In turn, where constitutional amendments are initiated via parliament, this executive dominance will typically extend to the constitutional-reform agenda. Therefore, the referendum offers a check on the ability of the Government to effectuate constitutional change via the legislature. In fused executive-legislature systems characterised by strong executive dominance, the veto or checking power offered by the constitutional referendum assumes critical importance. Thus it makes an important contribution to the overall system of democratic contestation and control that republicans cherish. Given the Government’s typical dominance of legislative process in fused executive-legislature systems, the degree of parliamentary contestation and control exercised over much legislation may sometimes be quite minimal (see further Chapter  3), and this may extend to constitutional amendments where enacted by parliament. However, the requirement that a certain category of legislation (acts to amend the constitution) be submitted to referendum, in addition to parliamentary scrutiny, provides a heightened degree of scrutiny and democratic control. Indeed while Pettit argues that a representative, rather than a plenary, assembly is best positioned to effectuate the aim of democratic control due to its ‘responsive’ nature, arguably this under-accounts for the inevitable tendency of executives to dominate the parliamentary and legislative agenda, at least in Westminster-type models. Indeed while Pettit notes various other factors, such as self-interest and private financial influence, which may counteract and negate democratic control of government,96 these factors, we argue, must surely also include executive dominance over parliament. In the constitutional-amendment context, there is a risk government will be subject to a range of sectional and external pressures. In this light, the constitutional referendum can serve as a partial corrective for the tendency of governmental power to break free of directive popular influence (a concept discussed in greater detail in Chapter 3). Counterintuitively, perhaps, it is by limiting parliamentary power via the constitutionalreferendum requirement that the executive’s otherwise far-reaching power can be sufficiently checked.

40

Republican freedom

In Westminster-style systems, the availability of constitutional amendment through ordinary legislation risks giving the Government a relatively unchecked power of constitutional revision. Indeed under the Irish Free State Constitution (1922–37), the transitory power of amendment vested in the Oireachtas – initially limited to eight years – was used to extend the transitory period itself, to remove the provision for popular-initiative referendum, and to allow extensive powers for military tribunals.97 The UK Constitution can be amended by ordinary parliamentary legislation, but it is stabilised by longstanding historical conventions of the kind that are naturally weaker in a newer constitutional dispensation. Thus, whereas direct democracy is often associated with an unhinged, destabilising populism, the constitutional-amendment referendum, specifically, may – far from representing a freestanding mechanism for popular self-expression – play an essentially conservative role in entrenching and stabilising constitutional content. The referendum’s conservative effect with respect to constitutional change stems partly from the fact that referendums will naturally entail some political risk for any sitting government. Again, this undermines the commonplace perception of the referendum as a populist device that disrupts the overall system of checks and balances. This analysis is arguably supported by specific historical examples. Irish voters twice rejected attempts to remove the constitutional requirement of proportional representation for Dáil elections, where this would have benefited the governing Fianna Fáil party.98 More recently, voters rejected an amendment that appeared to curtail rights of procedural fairness in the context of parliamentary inquiries (inquiries which would have been initiated by the Government).99 Arguably, then, the referendum requirement has counteracted a general historical tendency for political power to accrue to the executive branch; indeed Kissane claims that far from representing a crude majoritarian or populist instrument, the referendum has assisted ‘the diffusion of power across institutions’ in a manner similar to bicameralism.100 However, the controlling force of the constitutional referendum cannot be fully accounted for with reference to the minority of amendments that have been defeated. Popular influence can be of a ‘reserve’ as well as ‘active’ nature; it is not present solely where the people are ‘pulling on the reins’.101 The referendum requirement has certainly deterred various reforms that governments would otherwise have pursued through the parliamentary route.102 The referendum’s conservative effect does not apply solely to constitutional issues in the narrow sense, but also to various legislative proposals the constitutionality of which is uncertain. Indeed many referendums are proposed on an essentially precautionary basis rather than based on a desire for institutional change or constitutional reform in the narrow sense. For example, the

Popular sovereignty, political freedom

41

Constitution has been amended to clarify the legal status of the Adoption Board’s rulings and to allow for legalised abortion information services, neither of which are constitutional issues in the conventional sense.103 In this light, the referendum requirement ensures a certain category of government policies beyond the narrow constitutional sphere are subject to wider public contestation and debate (although the category of social issues drawn within this sphere is admittedly somewhat arbitrary). Much of this contestatory value of the referendum depends on how it is couched procedurally and institutionally, particularly with respect to the initiative power. The model used in Ireland – a mandatory constitutional-amendment referendum subject to an exclusive parliamentary initiative power – is defensible as an instrument of republican contestability by virtue of three specific features. First, the power of initiative is confined exclusively to the legislature, thus ensuring at least a certain degree of contestation and moderation of the referendum proposal itself. Second, the referendum subject matter is confined to issues requiring constitutional amendment, minimising governmental discretion as to its use. And third, the mandatory use of referendums for constitutional amendment – in contrast say, to the French system104 – yields much the same advantage, as governmental discretion is minimised. Under these conditions, the referendum, far from lending an unassailable moral authority to the relevant decisions, enables the contestation of governmental power in the constitutional sphere – yet while, contra Pettit, being itself subject to contestation at various levels, not least because it must first be approved by both parliament and government. A potential objection is that executive power over constitutional reform can be checked by alternative mechanisms  – for example, the parliamentary ‘super-majority’ provided for under Article 89 of the French Constitution. These might equally check executive power while avoiding the dangers associated with plebiscites. However, the purpose of special-amendment procedures is not only to make constitutional revision more difficult but to secure constitutional entrenchment in this crude conservative sense. Referendums – even those requiring a simple majority – guarantee a wider, deeper and more public process of contestation and deliberation than any alternative amendment mechanisms. A parliamentary super-majority might often be achieved through agreement between the government and a single opposition party. Contestation or ‘checking’ must be understood not merely as a blocking procedure, but as entailing a process of public justification. Public justifications for constitutional change will be more widely exchanged in a referendum campaign than through the political bargaining and manoeuvring that might secure a parliamentary super-majority. The vast majority of constitutional amendments in Ireland have been proposed on the basis of a cross-party consensus.105 But correspondingly, each of these

42

Republican freedom

amendments would have mustered a parliamentary super-majority with little by way of public debate. In the understanding we have outlined, constitutional referendums are in fact the very antithesis of unmediated majoritarian power. Tierney depicts two alternative conceptions of the people’s role in this context: either as ‘an exercise of collective will-formation’ or alternatively as the performance of ‘direct control over second-order law-making’.106 In both roles, the voting people are depicted as a ‘sovereign’, authoring constitutional identity and content. Yet while this understanding overstates the degree of collective agency referendums can ever facilitate, it may in fact lend referendum outcomes the sort of unassailable moral authority that, as outlined, Pettit fears may render direct democracy a form of incontestable, dominating power. Our alternative understanding of the constitutional referendum as according the people a contestatory rather than an originative role with respect to constitutional content makes it compatible with the republican concern for mixed government. Thus we reject Tierney’s claim that ‘constitutional referendums implicate what is perhaps the central relationship within constitutional democracy  – that between constituent power and constitutional form’.107 However, this does not reject the principle of popular sovereignty as such. Rather, it contests the idea that popular sovereignty could be exclusively or purely exercised through any particular voting procedure. The referendum and civic participation

In addition to its role as a contestatory mechanism, the referendum can be valued as a means of promoting wider participation in public affairs. Indeed the theme of civic participation features prominently in the republican history of thought (see further Chapter 6). Republican thinkers have greatly diverged as to whether civic participation is valuable intrinsically as an integral form of human flourishing, or more instrumentally as a mechanism for checking arbitrary power. They also offer different views concerning its appropriate form and extent – for example, as to how widely civic virtue is exercised, and as to whether it requires citizens to exercise authorship or merely contestation over the laws. However, both the neo-Aristotelian and neo-Roman strands of republican thought assume the necessity of an active, engaged or even vigilant citizenry, and thus of wide participation in public life. For both, the key function of constitutionalism is not simply to limit the reach of state power over private freedoms, but also to provide mechanisms through which citizens may engage in public affairs. The participation that the republican constitution facilitates must extend beyond the opportunity of voting in periodic elections; it must avoid any scenario whereby

Popular sovereignty, political freedom

43

the people ‘become pure objects of liberal governance’.108 In turn, the referendum is one of very few constitutional devices that prompt citizens outside professional politics to deliberate and participate beyond the framework of periodic elections. Liberal constitutionalism tends to keep the people ‘firmly at arm’s length’109 in governance, making democratic legitimacy an empty formalism. Attempts to redress this tend to focus on how constituted governance might be more firmly subordinated to popular will. For Louglin and Walker, ‘modern constitutionalism is underpinned by two fundamental though antagonistic imperatives: that governmental power ultimately is generated from the “consent of the people” and that, to be sustained and effective, such power must be divided, constrained and exercised through distinctive institutional forms’.110 The theory of the constitutional referendum tends, in turn, to be located along this fault line: it is seen as a corrective to liberal-constitutionalist mediated governance only insofar as it provides a mechanism for popular will to impose itself on constituted power. This understanding, in turn, underlies republican concerns about ‘direct’ democracy’s potentially oppressive effects. However, the political theory of the constitutional referendum should be extricated from this binary opposition between liberal constitutionalism and popular will. The concern to enhance lay involvement in ‘constituted’ governance need not be framed in terms of popular will, not least because this will is always institutionally and politically mediated and thus impossible to discern in an uncompounded form. Our central point, then, is that civic participation can be valued without reference to ‘ghostly entities’ such as popular sovereigns and wills, to borrow Ronald Dworkin’s phrase.111 The value of the constitutional referendum is not that it enables the people, as constituent power, to periodically re-enter the political fray and reaffirm its supremacy, giving ‘direct and unmediated expression … to the popular will’.112 Rather, it can be valued simply as a mechanism for facilitating wider popular participation in government. Republicans generally maintain that a non-dominating State must be governed on the basis of ‘commonly avowed interests’;113 in turn, participative mechanisms allow for a procedure in which common interests can be defined, avowed and affirmed. It might be valued either as a mechanism for preventing social and political domination, or alternatively as being intrinsically valuable in its own right, as offering citizens a forum for selfrealisation through political action. Republican thinkers as diverse as Madison and Rousseau have emphasised the role of participatory politics (albeit of very different sorts) in combating factional tyranny, while Pettit, as the main contemporary exemplar of neo-Roman republican thought, suggests that government based on common goods, via a system of democratic control, is valuable simply because it will stem political and social domination.114

44

Republican freedom

This conception of constitutionalism as facilitating deliberation on common interests can be distinguished from Habermas’s understanding of democracy as an exercise in collective ‘will-formation’.115 Correspondingly, what is important is not that the content of a referendum can be said to capture and enshrine a collective will, but rather that the referendum requirement – along with a host of other measures – helps to ensure that state power is subject to an overall system of suitably rigorous democratic contestation and control. It is often pointed out that liberal constitutionalism aims to ‘domesticate’ popular power through representative and expert institutions that check its reach over private freedoms.116 But the republican alternative that we have discussed identifies no intrinsic value in majority opinion as such; it does not take the popular will as given, but rather aims to check and even ‘domesticate’ it by encouraging deliberation on the common good. This distinguishes it from any understanding of politics as a mechanism for mediating competing private interests that are formed independently of any political relationship. Rousseau, for example, distinguished the ‘general will’ from the ‘will of all’, or any aggregation of private wills. The general will is usually interpreted as a form of deliberative public reason, accessible to those capable of reasoning in accordance with certain constraints.117 But the broader point is that the general will could only be discerned under certain institutional and social conditions. Indeed troublingly, Rousseau himself assumed it could only every be legislated in societies that were not only cohesive and egalitarian, but starkly austere, insular and illiberal.118 And while relatedly, much classical-republican theory presupposed a ‘face to face’ society that could sustain the solidarity and virtue necessary for meaningful deliberation, this carried a high exclusionary cost.119 In any event, for republicans the challenge of politics is not to reconcile majority rule with individual interest but rather to orient politics towards common goods. Dagger, for example, stresses that republican politics must find ways of transcending any model of politics understood as a bargaining or negotiation of pre-fixed, unreflective interests – an ‘economic model of politics’ amounting to a ‘form of corruption that reduces the citizen to a consumer’ – one in which ‘individuals and groups bring their preferences, already fixed, to the political marketplace, where they use their political capital and bargaining power to strike the best deals for themselves’.120 In turn, the republican aim of orientating state power towards common goods is effectuated using constitutional devices. The Irish Constitution has typically been understood as a framework for somewhat antagonistic goals – the protection of individual rights and the expression of a collective democratic will. However, it has rarely been understood as a framework for facilitating participatory and

Popular sovereignty, political freedom

45

deliberative citizenship – as providing mechanisms through which citizens can participate in the definition of common interests. It might seem counter-intuitive to view the referendum as a device for promoting a civically virtuous politics based on the common good. Compared with alternative strategies for fostering citizenship – such as compulsory civic service – it is certainly non-coercive and non-intrusive. However, by the same measure it might be thought relatively inefficacious, demanding little by way of reflection or participation by the citizen. Of course, referendums alone will not foster a participatory society and active citizenry. Other mechanisms and institutions – such as local democracy, civic education, or even citizen juries – might play an as important, or even more important a role, along with the socioeconomic pre-conditions for meaningful participation.121 Yet a republican emphasis on participatory mechanisms at the constitutional level might serve as a corrective to an excessive focus on parliamentary democracy in republican theory. Bellamy and Tomkins rightly question how the dominant legal constitutionalism can be reconciled with republican self-government. However, their uncompromising focus on parliament as the main locus of accountability and contestation overlooks the problem of popular alienation from parliamentary politics. Parliaments may well be better positioned than courts to hold government power to account. However, they are unlikely to perform this function in the manner republicans envisage in the absence of a broader culture of civic participation. The republican role of parliament may ultimately depend, at least indirectly, on mechanisms facilitating more direct forms of participation by ‘lay’ citizens, outside periodic electoral voting. In this light, the constitutional referendum need not be seen as a rival institution to parliament, but rather as one of a suite of constitutional devices which, by encouraging greater civic participation, can support a primarily representative constitutional system. While a range of influential political and legal scholars have railed against the corrosive effect of legal constitutionalism on republican self-government,122 some, at least, have overlooked the limitations of parliaments, in mass liberal societies, as instruments of contestation and control. As O’Cinneide argues, ‘giving more authority to legislatures may not necessarily enhance the substantive dimension of democracy, i.e. the background conditions that must be in place to enable the public at large to genuinely engage with the democratic process’.123 Bellamy, for example, argues that republican aims are best served through a strongly procedural conception of democracy, unfettered by constitutional courts and premised on parliamentary supremacy (thus effectively, an approximation of the British Constitution). He argues that a majoritarian representative democracy along these lines is necessary to accord citizens ‘equal concern and respect’. This is best served, he says, through ‘citizens having an equal vote in common

46

Republican freedom

elections where political parties compete for the people’s vote and electoral and legislative decisions are made by majority rule’ – that is, within ‘actual existing democracies’.124 Yet his assumption – that equal voting rights coupled with unfettered majoritarianism translates to ‘equal say’125  – pays insufficient heed to the various background forces that result in a real inequality of influence on legislation and policy. In short, it ignores how politics actually works in contemporary states. Simply freeing politics of constitutional constraints does little in itself to address complex problems of civic motivation. As Bellamy himself notes, ‘no constitution will itself survive long unless citizens identify with it’.126 Of course, republican constitutionalism must aim to sustain the quality of political participation as well as its frequency and extent.127 Arguably, voting in referendums is modestly more demanding than voting in elections as it requires reflection on specific political and moral issues; however, since no process of public justification or actual deliberation is demanded of its participants, it is comparatively undemanding compared to other forms of civic engagement, doing little to prompt sustained reflection or deliberation by participants. In a sense, the quality associated with face-to-face deliberation is sacrificed for scale. And given the modest checking function we have argued it fulfils in the political landscape, it can hardly be seen as an instrument through which citizens ‘gain a sense of political empowerment [and] achieve social recognition of their values’.128 However, notwithstanding the practical limits on deliberation in mass democracies, referendums are, by their nature, more likely than elections to provoke deliberation on discrete political issues. Unlike parliamentary elections, constitutional referendums will often invite voters to consider issues that do not directly affect their own narrow economic interests. Citizens voting in constitutional referendums are less likely to conceive of themselves simply as consumers, to borrow Dagger’s phrase. Indeed there is some evidence that referendums and initiatives promote wider participation and even ‘faith’ in politics.129 Thus the referendum might represent one possible device with which to combat civic apathy in liberal-democratic societies.130 Independently of its checking and contestatory function, it might promote republican practices and dispositions more generally, encouraging citizens to ‘transcend their narrow interests and fixed preferences’.131 Even if it is difficult to conclusively establish that referendums encourage deliberation on the common good, it may have other indirect benefits for democratic culture. It has been argued that ‘participation educates citizens and makes them more aware of the conditions under which the polity functions … it thus makes decisions more legitimate … giv[ing] the sense of ownership needed to generate civic virtue’.132 Civil-society groups formed specifically for referendum campaigns may serve as incubators of wider civic activism. In the US

Popular sovereignty, political freedom

47

context, Smith and Tolbert argue that the popular initiatives have had an instrumental value as they have influenced voters themselves as well as policy.133 In particular they have ‘stimulate[d] an array of positive educational externalities’, which are as important, ‘if not more important’, than any substantive reforms they brought about.134 In order for the civic-republican potential of the constitutional referendum to be fully realised, certain procedural safeguards may be necessary, particularly in the area of voter information and campaign spending.135 In this light, the Referendum Act 1998 facilitated the creation of an independent Referendum Commission. Yet much of the initiative in this respect has come from case law. In McKenna v. An Taoiseach (no 2)136 the Supreme Court held that the Constitution prohibits the use of public funds in support of a ‘Yes’ vote, and this requirement has been interpreted strictly in subsequent case law.137 More controversially, the court later extended this principle to require that ‘Yes’ and ‘No’ sides receive equal coverage in public broadcasting.138

Conclusion The concept of popular sovereignty highlights a tension within republican thought. While its concern for preventing arbitrary rule suggests that popular power must be domesticated through representative channels, its rejection of aristocratic and hereditary privilege inevitably means not only that sovereignty resides in the people at large, but also that this sovereignty must be exercised on the basis of majority rule. A commonplace historical solution is to confine expressions of popular will only to the ‘ordainment and establishment of the Constitution itself’,139 while keeping the people at arm’s length in all other forms of governance. Indeed this solution finds an unusually clear expression in the Irish constitutional architecture, with its strong focus on popular participation in the constitutional domain but a relative dearth of participatory mechanisms in other domains. This same tension is manifested in debates concerning the constitutional referendum, which has been understood as the main expression of popular sovereignty in the Irish constitutional system. We have argued that the commonplace tendency to locate constitutional referendums within a supposed tension between democracy and individual rights is fundamentally ill-conceived. It ignores the actual modalities and functioning of constitutional referendums and the modest – yet important – role they accord to the ‘people’. Conversely, the ultimate horizon of republican politics should not be any purist vision of democratic agency: for republicans no more than liberals, rule by the people should

48

Republican freedom

not be ‘untrammelled’140 or unmediated. While referendums might seem to give an illusory imprimatur of popular approval to elite-led decision making, they have the capacity to check representative institutions, but more importantly, to attenuate executive dominance at least in a certain domain. Conversely, the value of the referendum as a crude ‘blocking’ mechanism needs to be distinguished from a meaningfully deliberative exercise in which reasons are publicly advanced and exchanged. And while we have argued that the constitutional referendum should be understood as a manifestation of a mixed government principle rather than of unbridled popular sovereignty, conversely popular sovereignty cannot be understood solely in terms of plebiscitary voting. The themes discussed in this chapter – democratic legitimacy, contestation and control, and the relationship between political freedom and participation – run through the remaining chapters.

Notes 1 Colm O’Cinneide, ‘The People are the Masters: the Paradox of Constitutionalism and the Uncertain Status of Popular Sovereignty within the Irish Constitutional Order’, Irish Jurist, 48 (2012), p. 256. 2 David Gwynn Morgan, Constitutional Law of Ireland (Dublin: Gill and Macmillan, 1990), p. 22. 3 O’Cinneide, ‘The People are the Masters’, p. 251. 4 Article 45 provided for ‘Functional or Vocational Councils representing branches of the social and economic life of the Nation’. 5 O’Cinneide, ‘The People are the Masters’, p. 273. 6 Ibid., p. 274. 7 Ibid. 8 For a general overview see James Casey, Constitutional Law in Ireland (Dublin: Round Hall Sweet & Maxwell, 2000), Chapter 1. 9 Dáil Éireann Debates, vol. 67, col. 74–6, 11 May 1937. 10 Article 2 provided ‘All powers of government and all authority, legislative, executive, and judicial, in Ireland are derived from the people of Ireland.’ 11 The extension of the transitory period was upheld in State (Ryan) v. Lennon [1935] IR 170. This case is given more comprehensive attention in Chapter 4. 12 Article 89, Constitution of France, 1958. 13 Byrne v. Ireland [1972] IR 241. 14 [1972] IR 241, 262 (emphasis added). 15 Finn v. Att. Gen [1983] IR 154; Riordan v. An Taoiseach (No 2) [1998] IEHC. 16 [1983] IR 154. 17 [1983] IR 154, 163 (emphasis added). 18 Slattery v. An Taoiseach [1993] 1 IR 286.

Popular sovereignty, political freedom

49

19 [1999] 4 IR 321. 20 [1999] 4 IR 321, 330. 21 See generally Gary Jacobsohn, Constitutional Identity (Cambridge, MA: Harvard University Press, 2010). 22 Re Article 26 and the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR 1. 23 As Casey notes, ‘other western European constitutions characteristically declare one or more matters immutable’. Casey, Constitutional Law, p. 709. 24 Constitution of the Fifth French Republic, 1958, Article 89. 25 See generally Jacobsohn, Constitutional Identity. 26 Gábor Halmai, ‘Unconstitutional Constitutional Amendments: Constitutional Courts as Guardians of the Constitution?’, Constellations, 19 (2012). 27 See Philip Pettit, On the People’s Terms: a Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2013), Chapter 4. Pettit suggests: ‘This is not to put a brake on democracy but to ensure people have truly equal access to democratic influence’; p. 207. 28 Ibid. 29 Jacobsohn, Constitutional Identity. 30 O’Cinneide, ‘The People are the Masters’, p. 256. 31 Ibid., p. 251. 32 [1954] IR 161. 33 [1954] IR 161, 174 (emphasis added). 34 See e.g. Norris v. Att. Gen. [1984] IR 36. 35 Akhil Amar, ‘The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem’, Colorado Law Review, 65 (1994), p. 768. 36 Stephen Tierney, ‘Constitutional Referendums: A Theoretical Inquiry’, Modern Law Review, 72 (2009), p. 363. 37 Tierney, ‘Constitutional Referendums’, p. 366. 38 Ibid., p. 367. 39 Article 27 of the Constitution allows for a majority of Senators, supported by one fifth of Dáil deputies, to petition the President to refer an ordinary legislative bill to referendum. However, this provision has never been invoked. 40 Tierney, ‘Constitutional Referendums’, pp. 361, 362. 41 StephenTierney, Constitutional Referendums:TheTheory and Practice of Republican Deliberation (Oxford: Oxford University Press, 2012), pp. 13, 15. 42 Ibid., p. 14 (emphasis added). 43 O’Cinneide, ‘The People are the Masters’, p. 252. 44 See generally Jane Schachter, ‘The Pursuit of “Popular Intent”: Interpretive Dilemmas in Direct Democracy’, Yale Law Journal, 95 (1995). 45 See generally Joseph Schumpter, Socialism, Capitalism and Democracy (New York: Harper and Row, 1956). 46 Iseult Honohan, Civic Republicanism (London: Routledge, 2002), p.  220 (emphasis added).

50

Republican freedom

47 Coughlan v. Broadcasting Complaints Commission [2000] 3 IR 1, 30. 48 See Sherman Clark, ‘A Populist Critique of Direct Democracy’, Harvard Law Review, 112 (1998). 49 See 12th Amendment of the Constitution Bill 1992; 25th Amendment of the Constitution Bill, 2002. 50 Ronald Dworkin, Law’s Empire (Harvard: Harvard University Press, 1986). 51 See Richard Sinnott, ‘Cleavages, Parties and Referendums: Relationships Between Representative and Direct Democracy in the Republic of Ireland’, European Journal of Political Research, 41 (2003). 52 The Australian procedure is similar (with the additional requirement of a positive vote in four out of six states) (see Chapter VIII, s 128 of the Australian Constitution). Article 89 of France’s 1958 Constitution provides for a two-stage amendment procedure initiated by parliament and approved by referendum (however, a parliamentary ‘supermajority’ can alternatively be used). 53 Articles 138–9 of the Swiss Constitution provide that it can be amended by a referendum initiated by a petition of 100,000 electors. For the Swiss example see Daniel Moeckli, ‘Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights’, Human Rights Law Review 11 (2011), p. 781. 54 For a historical account of the drafting, see Gerard Hogan, The Origins of the Irish Constitution, 1928–1941 (Dublin: Royal Irish Academy, 2013). 55 Dáil Éireann Debates, vol. 67, col. 40, 11 May 1937. 56 Tierney, Constitutional Referendums:Theory and Practice, p. 128. 57 Tierney, ‘Constitutional Referendums’, p. 361 (emphasis added). 58 Ibid., p. 364 (emphasis added). 59 Tierney, Constitutional Referendums:Theory and Practice, p. 13. 60 See Joel Colón-Ríos, ‘De-Constitutionalizing Democracy’, CaliforniaWestern Law Review, 47 (2010), p. 90. 61 See Charles-Louis Montesquieu, Spirit of the Laws (Cambridge: Cambridge University Press, 1748/1989). 62 Honohan, Civic Republicanism:Theory and Practice, Chapter 1. 63 Jean-Jacques Rousseau, Du Contrat Social (Paris: ENAG, 1988). 64 See generally Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998); Cicero, On Duties (Cambridge: Cambridge University Press, 1999); John Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, NJ: Princeton University Press, 2003). 65 Pettit, On the People’s Terms. 66 Ibid. 67 Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997), p. 18. 68 Philip Pettit, ‘Law and Liberty’, in Samantha Besson and José-Luis Marti (eds), Legal Republicanism: National and International Perspectives (Oxford: Oxford University Press, 2009). 69 Adam Tomkins, Our Republican Constitution (Oxford: Hart, 2005), Chapter 4. 70 Pettit, Republicanism, p. 193.

Popular sovereignty, political freedom

71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87

88 89

90 91 92 93 94 95 96 97 98 99

51

See further Chapter 4. O’Cinneide, ‘The People are Masters’, p. 256. Pettit, Republicanism, p. 8. James Madison, The Federalist No. 10 (New York: Clinton Rossiter, 1961), p. 81. Philip Pettit, ‘Deliberative Democracy, the Discursive Dilemma and Republican Theory’, in James Fishkin and Peter Laslett (eds), Philosophy, Politics and Society, vol. 7 (New York: Cambridge University Press, 2003), pp. 152–5. Clark, ‘A Populist Critique of Direct Democracy’, p. 435. Pettit, ‘Deliberative Democracy’, p. 155. Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007), Chapter 5. Bellamy, Political Constitutionalism, p. 5. Tomkins, Our Republican Constitution, p. 3. Ibid. Bellamy, Political Constitutionalism, p. 262. Honohan, Civic Republicanism, p. 222. Tierney, ‘Constitutional referendums’, p. 368. Pettit, ‘Deliberative Democracy’, p. 140. Ibid. See Honohan, Civic Republicanism, pp. 220–30. Serdült argued before the House of Lords Select Committee on the Constitution: ‘direct democracy is an institutional weapon for organized interests (political parties, interest groups, employer’s and employee’s associations)’. ‘12th Report of Session 2009–2010: Referendums in the United Kingdom’, p. 137. Honohan, Civic Republicanism, p. 218. Donald Haider-Markel, Alana Querze and Kara Lindaman, ‘Lose, Win, or Draw?: A Reexamination of Direct Democracy and Minority Rights’, Political Research Quarterly, 60 (2007); Bruno Frey and Lorenz Goette, ‘Does the Popular Vote Destroy Civil Rights?’, American Journal of Political Science, 42 (1998); Moeckli, ‘Swiss Minarets’. Moeckli asserts (p. 778) ‘Empirical work testing that assumption is surprisingly sparse.’ Pettit, On the People’s Terms, p. 188.We elaborate on this account of democracy as equally shared control in Chapters 3 and 4. Ibid. Ibid., Chapter 3. Ibid., Chapter 4. Tierney, ‘Constitutional referendums’, p. 361. Pettit, On the People’s Terms, Chapters 3–4. Ibid., pp. 220–5. See Donal Coffey, ‘Judicial Review in the Irish Free State’, Dublin University Law Journal, 33 (2011). Third Amendment of the Constitution Bill 1958;Third Amendment of the Constitution Bill 1968. See also Bill Kissane, ‘Is the Irish Referendum Majoritarian?’, in Wilfried Marxer (ed.), Direct Democracy and Minorities (London: Springer, 2012), p. 152. Thirtieth Amendment of the Constitution Bill 2011.

52

Republican freedom

100 Kissane, ‘Is the Irish Referendum Majoritarian?’, p. 153. 101 Pettit, On the People’s Terms, p. 157. 102 In the Irish Free State, ordinary Acts inconsistent with the Constitution were simply accepted by the Courts as amendments to it. State (Ryan) v. Lennon [1935] IR 170. 103 Sixth Amendment of the Constitution Act, 1979; Fourteenth Amendment of the Constitution Act, 1992. 104 Constitution of the Fifth French Republic, Article 89. 105 Sinnott, ‘Cleavages, Parties and Referendums’, p. 811. ‘Only four of the 27 referendums held in the Republic of Ireland have involved major inter-party conflict’; p. 815. 106 Tierney, ‘Constitutional referendums’, p. 364. 107 Ibid. 108 O’Cinneide, ‘The People are the Masters’, p. 269. 109 Ibid., p. 256. 110 Martin Loughlin and Neil Walker, ‘Introduction’, in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism (Oxford: Oxford University Press, 2007), p. 1. 111 Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), xi. 112 O’Cinneide, ‘The People are the Masters’, p. 260. 113 Pettit, The People’s Terms, p. 201. 114 Ibid. 115 See Joshua Cohen, ‘Reflections on Habermas on Democracy’, Ratio Juris, 4 (1999). 116 O’Cinneide, ‘The People are the Masters’. 117 John Rawls, Lectures on the History of Political Philosophy (Cambridge, MA: Harvard University Press, 2007), p. 224. 118 Jean-Jacques Rousseau, ‘Considerations on the Government of Poland’, in Frederick Watkins, Jean-Jacques Rousseau: PoliticalWritings (New York: Thomas Yelsen, 1953). 119 Robert Goodin,‘Folie Républicaine’, (2003) Annual Review of Political Science, 6 (2003), p. 63. 120 Richard Dagger, ‘Neo-republicanism and the Civic Economy’, Politics, Philosophy, Economics, 5 (2006), p. 155. 121 Eamon Callan, Creating Citizens: Political Education and Liberal Democracy (Oxford: Oxford University Press, 2004). 122 Bellamy, Political Constitutionalism; Tomkins. Our Republican Constitution; Jeremy Waldron, ‘The Core of the Case Against Judicial Review’, Yale Law Journal, 115 (2006). 123 O’Cinneide, ‘The People are the Masters’, p. 268. 124 Bellamy, Political Constitutionalism, p. 219. 125 Ibid., p. 165. 126 Ibid., p. 6. 127 Honohan, Civic Republicanism, p. 216. 128 Ibid., p. 217. 129 Smith argued before the House of Lords Select Committee: ‘by offering the opportunity to participate directly in policy-making, [referendums] made the public more likely

Popular sovereignty, political freedom

130 131 132 133 134 135 136 137 138 139 140

53

to participate in political activity, as they understand that their participation in the electoral process has real policy implications’; ‘12th Report’, p. 141. See Daniel Smith and Caroline Tolbert, Educated by Initiative:The Effects of Direct Democracy on Citizens and Political Organizations in the American States (Ann Arbor, MI: University of Michigan Press, 2004). Callan, Creating Citizens. Honohan, Civic Republicanism, p. 223. Honohan, Civic Republicanism, p. 217. Smith and Tolbert, Educated by Initiative, xiv. Ibid. Honohan, Civic Republicanism, p. 242. McKenna v. An Taoiseach (no 2) [1995] 2 IR 10. McCrystal v. The Minister for Children andYouth Affairs [2012] IESC 53. Coughlan v. Broadcasting Complaints Commission [2000] 3 IR 1. Amar, The Central Meaning of Republican Government’, p. 768. O’Cinneide, ‘The People are Masters’, p. 258.

2 Constitutional rights and freedom as non-domination

Introduction Republicanism has made a distinctive contribution to the philosophy of individual freedom. Republicans generally understand freedom not as the absence of interference as such, but rather as a broader security for individuals against domination, understood as subjection or vulnerability to arbitrary power. Consequently, many republican thinkers have identified domination as a central concern of political thought and of constitutional design. A considerable volume of contemporary scholarship addresses the contrast between the republican conception of freedom as non-domination and the alternative liberal understanding of freedom as non-interference.1 In this chapter, we consider how the republican theory of freedom as non-domination can inform the interpretation and understanding of constitutional rights generally, as well as in the Irish context specifically. Thus, whereas Chapter 1 addressed political freedom in the sense of democratic self-government at the collective level, here we consider the republican perspective on what might be roughly labelled individual freedoms beyond the political domain. These dimensions of freedom are of course inter-related2 and can both be analysed in light of the overarching republican themes of domination, dependency and arbitrary power – yet we give them a separate treatment as they tend to be given expression in quite different legal concepts and devices. In short, then, we consider what it might mean to interpret and apply constitutional rights in a manner that makes good on the republican understanding of freedom as a resilient security against domination. In offering a republican analysis of constitutional rights, we make a number of important assumptions. First, we assume that the republican concept of freedom as non-domination is analytically

Constitutional rights, freedom as non-domination

55

distinctive from the understanding of freedom that prevails in the liberal tradition, although this has been contested.3 More broadly, we assume that political philosophy or normative theory can meaningfully inform the interpretation of constitutional rights as legal rights. The argument is not necessarily that political philosophy can be relied on directly as a source of legal authority, but rather that it is somewhat unsatisfactory to interpret and analyse constitutional rights without reference to the philosophical ideas that inform them. Our claim is not necessarily that in Ireland, constitutional rights were historically designed or intended in a distinctively ‘republican’ sense and that they should be interpreted in a republican lens for this reason. Rather, the argument is that, compared to alternative accounts of freedom, republicanism offers a more sophisticated and morally plausible account of the various subtle, often insidious forms of servitude that exist in various social contexts and human relationships. Accordingly, it provides a basis for interrogating the traditional strictures of constitutionalrights theory. Republicanism might ground an ‘external’ critique of existing constitutional law – simply, an argument that constitutional rights should be defined differently or perhaps that a different set of rights should be constitutionally codified. Alternatively, however, the republican focus on domination can yield a specific set of propositions concerning how existing (and vaguely defined) constitutional rights ought to be interpreted and understood. Indeed, that is the primary task of this chapter. It is a truism that constitutional rights are both inspired by political philosophy and interpreted in light of philosophical ideas. In the United States, for example, there has been considerable debate concerning the philosophical origins of the Constitution and its Bill of Rights. Historically, it was considered a product of John Locke’s liberalism and natural-law philosophy, while a more recent body of revisionist scholarship argues it was primarily inspired by Renaissance and earlymodern civic-republican thought.4 However, in Ireland there has been little discussion concerning the relationship between constitutional rights and political philosophy. Constitutional debate has, in general, overwhelmingly focused on natural law, ostensibly the Constitution’s main philosophical inspiration. In recent decades, there has been a good deal of debate as to whether the Constitution’s strong focus on ‘negative’, classical-liberal rights is appropriate to contemporary social conditions, given the scale of social and economic inequalities that exist. There has also been some discussion concerning how individual constitutional rights should be balanced against public interests. But there has been little discussion of how political philosophy – say, different variants of liberal, republican or communitarian thought – can inform and support our analytical understanding of constitutional rights; that is, their scope and extent, the specific safeguards they require and their limits.

56

Republican freedom

For republicans, domination – rather than interference as such – is the antithesis of freedom. Domination consists, roughly speaking, of subjection to arbitrary power or alien will.5 Individuals are unfree where others enjoy an unchecked capacity to arbitrarily interfere in the choices they are positioned to make. They are free to the extent that they enjoy resilient guarantees against arbitrary interference in those choices. Republicans have claimed that this understanding of freedom as non-domination is analytically distinct from liberal theory in two key respects. First, they argue that while domination negates freedom, coercive interference as such carries no necessary ‘cost’ for freedom: non-dominating forms of interference are constitutive of freedom rather than abrogative of it. Secondly, people can be dominated without ever suffering any actual interference. Merely being subject to the apprehension or possibility of arbitrary interference is enough to suffer unfreedom. In this chapter, we consider how these republican insights can inform our understanding and interpretation of constitutional rights in the Irish context. In particular, we consider how the republican perspective informs the extent, range and limitations of the rights the Constitution protects. However, we also consider the limits of legally codified constitutional rights as a means of enhancing freedom understood as non-domination. While constitutional rights can be interpreted and understood in a republican light, ultimately they may occupy a relatively modest role as instruments of republican freedom.

The philosophy of Irish constitutional rights As discussed in Chapter 1, popular sovereignty has been identified as the overarching principle or political philosophy of the Irish Constitution. This translates as a collective right of democratic control over government, and it is given effect through a range of individual rights of democratic contestation, including voting rights as well as the freedoms of association, assembly and expression. We can distinguish between those rights that are connected to democratic control on the one hand, exercised in political activity and citizenship, and those, on the other, which protect individual dignity and autonomy in various non-public realms – for example, freedom of conscience and religion, or the rights to privacy and bodily integrity. Certain constitutional freedoms – for example, freedom of expression – may be connected both to the exercise of democratic rights (through political speech) and also to ‘private’ autonomy (for example, through artistic expression). While the principle of popular sovereignty underlies the first category of rights, it does not readily provide a basis for understanding various traditional ‘negative’ freedoms that are exercised primarily in non-public or non-political domains.

Constitutional rights, freedom as non-domination

57

Natural law has traditionally been identified as the philosophical basis for constitutional rights in the Irish context. This is unsurprising given both the intellectual climate in which the Constitution was drafted6 and the wording of the constitutional text itself. Many constitutional rights are described as ‘antecedent’ to positive law – that is, they are recognised as valid independently of any legal recognition, as part of an objective moral order. This natural-law influence is particularly marked in the provisions concerning the rights of the family, marriage and property. Rights are variously described in the Constitution as ‘natural’, ‘inalienable’, ‘imprescriptible’ or ‘antecedent to positive law’.7 In the landmark case McGee v. Attorney General, Justice Walsh succinctly described the Constitution’s natural-law ethos in the following terms: Articles 41, 42, and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge that natural rights or human rights are not created by law but that the Constitution confirms their existence and gives them protection. The individual has natural and human rights over which the State has no authority.8

Broadly speaking, the medieval theologian Thomas Aquinas understood the natural law as that part of God’s eternal law that is accessible to humans through reason.9 Clarke describes the version of natural law that has influenced Irish jurisprudence as a ‘hybrid scholastic theory, partly derived from Aquinas and partly inherited from later scholastics through the intermediary of early twentieth-century Roman Catholic theology’.10 However, the constitutional terminology is also reminiscent of the secular natural-law theories that informed the revolutions and rights declarations of the late eighteenth century. This is particularly evident in the affirmation in Article 43.1 that man enjoys the right to property ‘in virtue of his rational being’. In this tradition, influenced by the seventeenth-century philosopher John Locke, government derives its moral authority from a social contract through which the people consent to civil authority in order to preserve their natural rights  – rights which exist before the coming into being of political society. Whereas Locke’s contemporary, Hobbes, theorised that people rationally submit to an absolutist sovereign to escape the anarchic brutality of the ‘state of nature’, the Lockean view holds that the moral authority of government is contingent on its respect of antecedent individual rights. And of course, since natural rights are claimed to exist independently of legal protection, their source and scope have been the subject of a great deal of philosophical debate.11 However, natural-law philosophy, with all its ambiguities, does

58

Republican freedom

little to clarify the content or scope of constitutional rights. Kavanagh argues that in Ireland, ‘natural law’ simply became a by-word for the idea that judges should strike down those elements of the ‘positive law’ (usually equated with legislation) that contradict an ethical idea of justice. In judgments where it has been invoked, natural law has not generally been used to elaborate on the substance of constitutional rights: ‘judges did not consult the great philosophical texts on natural law, apart from making occasional passing reference to their authors’.12 Indeed, the recognition of natural law in its bare sense does not readily translate to an analytical theory of constitutional rights. To assert that a right or freedom exists independently of or antecedent to ‘positive law’ does little to clarify issues such as how that right may be defined in practice and what specific protections, immunities or guarantees it implies, and what state actions or inactions count as violations of that right. It does little to clarify the criteria based on which the exercise of such rights can be limited or qualified by competing public interests or indeed by competing rights. In the McGee case, Justice Walsh suggested that natural rights were not merely ‘an acknowledgment of the ethical content of law in its ideal of justice’,13 but rather, in essence, an integral component of the Constitution and an actionable source of constitutional law. In a bold assertion of judicial power, he went as far as to suggest that it fell to judges, in light of their experience, to determine what such ‘natural rights’ consist of, to ‘determine, where necessary, the rights which are superior or antecedent to positive law’.14 However, judgments affirming particular natural rights are, of course, as much positive law as legislation is, and their interpretations of such rights are obviously open to contestation. In Ireland, natural law has not typically been used as a means of interpreting the rights affirmed in the constitutional text, but rather as a basis for identifying ‘unenumerated’ (implied) constitutional rights – rights such as privacy and bodily integrity – that are not specifically mentioned in the text of the Constitution as such but that stem from its overall spirit, history and ethos. Other, equally vague philosophical concepts such as the ‘human personality’ and the ‘Christian and democratic nature of the state’ have also been invoked.15 In Ryan v. Attorney General,16 Justice Kenny cited the papal encyclical Pacem in Terris in identifying an unenumerated constitutional right to bodily integrity, in the course of a constitutional challenge to the fluoridation of public water supplies. However, since the 1960s there has been increasing reluctance to use explicitly religious sources for identifying unenumerated rights; in McGee, barely a decade after Ryan, the recognition of a right to use contraception within marriage plainly contradicted Catholic teaching. Justice Walsh affirmed that the preamble’s values of ‘prudence, justice and charity’ – which were to inform the constitutional concept of natural

Constitutional rights, freedom as non-domination

59

rights – were capable of being ‘conditioned by the passage of time’.17 Indeed, Barrett argues that the significance of the judicial reference to Pacem in Terris has been overstated, that it was ‘no more than an endorsement of the logic of human rights theory of the natural law school, and not a kind of simpering nod of fealty to the jurisdictional authority of a foreign sacerdotium’.18 But McGee seemed to reduce the concept of natural law to little more than recognition of a vague ethical concept of justice that was to inform constitutional adjudication and which correspondingly served as a licence for relatively far-reaching judicial activism rather than a distinctive constitutional-rights philosophy as such. On the other hand, however, the Constitution’s natural-law ethos has on occasion been used to delimit the scope and extent of constitutional rights, and partly with reference to the Christian origins of the idea. In Norris v. Attorney General,19 a Supreme Court majority invoked the Constitution’s Christian and natural-law ethos to reject Norris’ claim to an implied constitutional right of sexual privacy as the basis for his challenge to the statutory prohibition on same-sex intercourse. Chief Justice O’Higgins suggested that in enacting the Constitution, the people ‘were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with [these]’.20 Recent decades have witnessed a growing reluctance to invoke natural-law ideas as an interpretive basis for constitutional rights, and a trend towards using a narrower set of conventionally ‘legal’ sources. In Roche v. Roche, for example, a case concerning the constitutional status of embryos in vitro, Justice Denham emphatically stated that the Supreme Court was not a forum for considering ‘imponderables relating to the concept of life … [or] for deciding principles of science, theology or ethics’.21 Clearly, this trend is inseparable from the broader secularisation of Irish politics and society.Yet while natural law, in the Irish context, is often associated with religious belief – and therefore thought of as an unsuitable basis for interpreting the Constitution in contemporary social conditions – there has been little sense of what alternative philosophical understanding, if any, might replace it. As already mentioned, the Constitution uses a good deal of secular natural-rights language  – for example, the ‘freedom and dignity’ of the individual invoked in the preamble. In Norris, Justice Henchy identified an alternative interpretive basis for unenumerated rights: ‘the essential characteristics of the individual personality of the citizen in his or her capacity as a vital human component in a social, political and moral order posited by the Constitution’.22 Indeed there is a great deal of scholarly discussion concerning the relationship between human rights and the secular concepts of human dignity and human personality.23 Again, however, it is difficult to see how such high-sounding concepts can inform the content or substance of constitutional rights. And while popular sovereignty has

60

Republican freedom

been used as a basis for interpreting certain constitutional rights, such as voting rights or expressive freedoms, it cannot be used to delineate various rights that are exercised outside the civic contexts. On this basis, we will argue that contemporary republican theory offers a comprehensive and morally attractive framework for an analytical theory of constitutional rights.

Domination and freedom in republican thought First we will discuss the concept of freedom in republican thought before considering its application to constitutional rights. Republicans generally reject any understanding of freedom as an absence of external restraint on individual choices or actions. In classical liberal philosophy, individuals consent to coercive government on condition that they maintain a guaranteed sphere of private autonomy or non-interference. In this ‘contractarian’ way of thinking, we partially and conditionally abrogate our private sovereignty from the ‘state of nature’: political legitimacy derives from the principles of government that individuals would rationally consent to in this hypothetical pre-political situation. Most contractarians held that men would rationally insist on being guaranteed freedom, but disagreed on what freedom meant. Hobbes’s contractarianism, for example, was used to justify political absolutism. Freedom for Hobbes consisted simply of the absence of external restraints on individual actions: ‘a free man is he that in those things which by his strength and wit he is able to do is not hindered to do what he hath the will to do’.24 This ‘negative’ concept of freedom does not translate to a conventional list of basic liberties that protect activities and choices deemed central to human dignity or autonomy (conscience, expression, association, etc.); rather, it values non-interference in human activities generally, and tolerates governmental interference on the basis and only to the extent that it is necessary to avoid some greater form of interference that individuals would otherwise suffer. Some argue that the utilitarian philosophy that dominated nineteenth-century thought adopted a similar view of freedom. Utilitarians such as Bentham – who dismissed natural rights as ‘nonsense on stilts’ – did not identity freedom as such as the central political value. Rather, they suggested the State should maximise overall net utility: the greatest happiness of the greatest number. Most utilitarians assumed this would be best achieved under a regime in which freedom as non-interference was widely observed.25 Again, under this schema freedom does not necessarily correspond to the traditional list of basic liberties, but appeals to the value of being ‘left alone’ generally to pursue one’s own happiness or pleasures (subject to this not being outweighed by the overall balance of utility in society). And like

Constitutional rights, freedom as non-domination

61

Hobbes, Bentham dismissed the idea that freedom was intrinsically connected to any particular system of government; in principle, freedom as non-interference, or indeed overall net utility, might be as well observed under a benign dictatorship as under a democratic system of government. Moreover, all coercive laws, irrespective of their source or their democratic nature, carried an ‘initial cost’ for freedom (albeit one that could be justified by the requirements of overall utility).26 This broad conception of freedom – which we will label ‘freedom as noninterference’ – has two distinctive implications. First, it implies that freedom requires no more than the absence of interference. Thus it can be contrasted with theories of ‘positive freedom’, which require that individuals are endowed with the various aptitudes and resources they might need in order to exercise some measure of directive control over their lives.27 In Hobbes’s view, freedom consisted only of an absence of impediments on the actions that we have the ‘strength and wit’ to undertake. Freedom, then, is not limited by our native inabilities or incapacities.28 Indeed, many liberals have seen the State’s commitment to promoting individual self-mastery as a potential source of oppression.29 Secondly, if freedom consists only of non-interference, it does not necessarily require that individuals are given the opportunity to participate in government. Thus in the Benthamite and Hobbesian understandings, there is no necessary conceptual connection between democracy and freedom: freedom as non-interference might in principle be secured under authoritarian as well as democratic government. Indeed Hobbes famously advocated an absolutist sovereign to safeguard individuals from depravity and suffering, anarchy being a greater threat to freedom than government.30 While other proponents of freedom as noninterference advocated democratic government, the link between democracy and freedom was contingent, not conceptual.31 They only thought democratic government was more likely to respect freedom. Republican thought – both historical and contemporary – can be understood as a response to the shortcomings of this way of thinking about freedom. In particular, it responds to a sense that the classical-liberal, contractarian and utilitarian understandings of freedom fail to account for the various and often subtle forms of servitude that exist in human societies – and which are irreducible to coercive interference. To summarise, freedom, in the republican sense, does not consist of an absence of interference as such, but rather an absence of domination, where domination is the condition of being subject to alien will. We can be dominated without ever suffering interference, and conversely, we can suffer interference that is not the manifestation of alien will – and that therefore is not abrogative of freedom at all.32

62

Republican freedom

This way of thinking about freedom has ancient origins, particularly in Roman republican thought and thus predates modern liberalism.33 However, the dominant liberal understanding of freedom was also challenged by early-modern republicans. In particular, Jean-Jacques Rousseau offered an influential republican riposte to the Hobbesian concept of freedom. Like other republicans, he disputed Hobbes’s account of the individual subject as being essentially atomistic and self-interested, and thus, the moral psychology on which contractarian thought (whether liberal or absolutist) had rested. In his Discourse on Inequality, Rousseau rejected Hobbes’s understanding of human motivation, and thus his violent and brutal understanding of the ‘state of nature’.34 Our seemingly rapacious instincts, he insisted, were not the product of nature but rather of social influence; thus, attempts by Hobbes and Locke to define individual rights based on a hypothetical pre-social condition were fundamentally misplaced. He thought their attempt to derive principles of government based on consent relied on an illusory concept of human nature: Hobbes in particular had attempted to construct his political theory by naturalising motivations and dispositions that were in fact the product of highly contingent institutional and social influences. Rousseau conjectured that humans in the pre-social state had developed only amour de soi (a primal self-love oriented towards self-preservation) and pitié, a natural aversion to seeing others suffer. Amour-propre – an egotistic form of selflove that is consummated through recognition by others – was the product of social conditioning, but Hobbes had naturalised it and made it the centrepiece of human motivation. Correspondingly, Rousseau’s starting point was a very different understanding of unfreedom or servitude, which he defined, roughly speaking, as the condition of being dependent on an alien will; that is, the will of particular others. Freedom in this sense was likely to have been obtained in the pre-social state of nature, as man was relatively free of external constraint and indeed of social interaction, and thus free of alien will. Unfreedom developed in tandem with our growing dependency on others, especially with the development of property and the division of labour. And as our moral psychology was transformed, we became dependent on others not only for our bodily security and material well-being, but also for our status and recognition as human agents. Through our need for recognition and esteem, we became dependent on others for our very sense of self – for our ‘sentiment of existence’.35 Thus servitude resides partly in affective, ritual and symbolic forms. For Rousseau, unfreedom does not exist simply where our actions are subject to coercive impediment by an external agent; rather, it is ubiquitous in propertied civilisation – it is the default rather than the exception. With freedom understood as non-dependency lost with the development of propertied civilisation, how could it be recovered? Rousseau

Constitutional rights, freedom as non-domination

63

concluded that the ‘natural’ freedom pre-social man might hypothetically have enjoyed – essentially the freedom of being left alone to one’s own devices – was permanently lost and could never be recovered. This stemmed from his sense of the intractable and pervasive nature of dependency. Even if we were to be safeguarded against the most egregious forms of oppression, dependency pervades the whole of our social relationships. Therefore, for Rousseau, the social contract  – his solution to the problem of servitude  – would not preserve or re-establish natural freedom, but rather establish a new type of freedom: ‘civil’ freedom. While natural freedom consists of freedom from the will of external agents, ‘moral’ and ‘civil’ freedom consists in subjection to a will that individuals, as citizens, can identify as their own – that is, obedience to a law ‘one has prescribed to oneself’36 (this was later reflected in Kant’s thought).37 Accordingly, this freedom can only be experienced in the framework of a polity.38 Rousseau’s quintessentially republican argument, then, is effectively that freedom is abrogated not by subjection to an external will as such, but rather by subjection to an arbitrary or alien will. Therefore, he suggested that the social contract was not an agreement by individuals to partially abrogate natural freedom for the sake of governmental protection, but rather to place themselves under the ‘supreme direction’ of what he termed the ‘general will’  – that is, the corporate will of the political community directed towards the common good of its members.39 Whereas dependency as such is intractable, we replace dependency on arbitrary power with mutual inter-dependency in the form of a political community.40 We enter into political society not to guarantee ourselves a sphere of non-interference for unhindered actions, but rather to free ­ourselves of dependency on any alien will. In turn, dependency can exist in many ­subtle and insidious forms that may not entail any ­coercive ­interference as such. The republic must protect citizens not only against coercive invasions of their person or property, but from dependency in all of its ­dimensions. Rousseau’s ­understanding, then, was that dependency on the abstract, ­impersonal rule of the general will could prevent dependency on the arbitrary power of i­ndividual human agents. Thus like other republicans, Rousseau argued that freedom consisted not of any guarantee against coercive interference, but simply government based on the common good – whereas unfreedom, correspondingly, was obtained in the rule of factional interest or personal will. Of course, the question of how the general will might be effectuated in institutional processes – and in particular, how common goods can be identified – has been the subject of considerable debate. In Pettit’s terms, republican freedom is a ‘freedom of the city’ rather than a ‘freedom of the heath’ – by its nature, it can only be enjoyed in a participatory political community.41 Freedom in this sense cannot exist outside of a polity:

64

Republican freedom

politics does not preserve freedom, but constitutes it. Crucially, then, rights are not ‘natural’ or pre-political. They stem from the conventional nature of the political compact; we do not enter into political society to preserve natural liberties that pre-existed it, but rather to create an entirely new dispensation of political freedom that has no value or meaning outside the context of political community. This idea of freedom as a property specific to political community pervades republican thought; equally, it offers an obvious counterfoil to naturallaw thinking. Notwithstanding its radicalism, Rousseau’s theory shares two important characteristics with its early-modern liberal counterpart. Likes Hobbes, Rousseau assumed it necessary that there should be a singular, undivided sovereign – in his account, the people – as the source of all legitimate governmental power. A government divided over different sites of power could not, he assumed, effectuate the general will, and so he foresaw a vertical distribution of power stemming from the sovereign people via a plenary legislative assembly.42 Moreover, for Rousseau, as for Hobbes (and later Bentham), freedom is irreducible to a list of determinate basic liberties (expression, association, religion, etc.). Freedom requires government based on common goods across all areas and interests, rather than individual immunities from interference in specific areas of activity; it extends to all the processes and institutions that guarantee government by the common good. Therefore, freedom cannot be captured by a codified set of constitutional rights that are formulated and interpreted independently of the legislative process. Rousseau provided an influential riposte to the liberal ideology of individual freedom. However, he is often identified as something of an outlier in the republican history of thought, given his commitment to a bracingly austere social policy, his distrust of science and arts, his generally romantic view of political order, and above all, his rejection of mixed government in favour of an undivided, unitary sovereign.43 Yet the basic republican idea of freedom as non-domination has a much older pedigree. Skinner in particular has documented its origins in the politics and institutions of the ancient Roman republic. He outlines how in Roman thought, unfreedom, contra Hobbes, does not consist of interference in action or choice, but rather of subjection to the power of a dominus or master: thus slavery epitomised domination.44 This holds true even where the slave might be indulged or given licence by his master; his freedom is negated by the master’s power of interference, rather than its actual exercise. A life lived peaceably, but at the grace of a ‘kindly master’, is not lived freely. Similarly, the licence or toleration we might enjoy at the hands of our rulers cannot offer freedom if it is enjoyed only at their discretion or good grace. Therefore, only citizens could be considered meaningfully free, irrespective of any tranquility or security they

Constitutional rights, freedom as non-domination

65

might otherwise happen to enjoy. Even those living comfortably under a benign despot could not be free, as they lived at the mercy and pleasure of a master. Thus we are unfree, in the Roman sense, when we are dependent on the goodwill of others, whether at the political and collective, or individual and interpersonal levels. This Roman concept of freedom, what Skinner coined ‘liberty before liberalism’, influenced medieval and Renaissance political thought, the parliamentary cause in the English revolution, and thinkers such as Harrington and Machiavelli. Pettit argues that it infused the rhetoric of the United Irish movement.45 And it is often contrasted with a conception of ‘positive liberty’, or freedom as selfmastery, associated with ‘continental romantics’.46 Influenced by Skinner’s work, contemporary republican philosophers such as Philip Pettit have formulated a sophisticated analytical theory of freedom as nondomination. Pettit – who we will take as the main exemplar of the neo-Roman republican view – argues that republican freedom understood as non-domination is analytically distinctive from the liberal concept in a number of ways. First, Pettit argues that coercive interference as such carries no intrinsic ‘cost’ for individual freedom. He contrasts this with the Hobbesian and Benthamite view that all coercive laws, no matter how necessary or wise, are intrinsically abrogative of individual freedom in an initial sense, even if justified in net terms.47 Moreover, coercion through law in fact constitutes freedom (rather than causing it) because it protects citizens from being subjected to domination or alien will: indeed it is impossible to enjoy freedom as non-domination in the absence of law, because non-dominating interference – that is, the legal interference that is exercised under a system of democratic control – is necessary to prevent domination by private agents.48 Thus, Pettit claims that republicanism offers a distinctive perspective on the relationship between law and freedom. Secondly, it follows that there is a necessary connection between individual freedom and the democratic form of government. People who enjoy non-interference to a seemingly adequate degree under non-democratic government are still subject to a form of ‘alien power’ – a power over which they have no influence or control – and thus, to a form of domination. Coercive interference through law is legitimate, Pettit suggests, only if it is subject to the ultimate control of those who live under it, if it is contestable by individual citizens and if it tracks interests its subjects share, as distinct from factional or sectoral concerns.49 Thus a non-dominating government is necessarily a democratic one.50 In turn, democratic participation is not intrinsically valuable as a privileged form of human flourishing, but simply a means of rendering state power non-dominating. Thirdly, and most importantly for current purposes, freedom can be undermined without citizens ever suffering any actual coercion or interference. For

66

Republican freedom

domination to occur, it is sufficient simply that others enjoy the capacity or power to arbitrarily interfere in our choices, even if that power is never exercised.Thus we are dominated by others where they enjoy the unchecked capacity or power to interfere in choices we are in a position to make, and where that power is arbitrary in the sense that it is exercised at the pleasure or discretion of the interfering agent.51 The republican concern for this particular dimension of unfreedom stems partly from the apprehension or fear of alien interference that individuals will experience even where such interference never occurs  – that is, where they live at the whim or discretion of others. Pettit notes that this kind of subjection to others’ unchecked discretion forces us to engage in strategies of self-censorship and self-ingratiation, of ‘fawning and toadying’ aimed at ‘keep[ing] our master sweet’.52 This often takes the form of a republican metaphor – the citizen who can ‘look others in the eye’.53 Thus freedom does not depend on the level or extent of non-interference we happen to enjoy; rather it is a ‘function of our relative powers’.54 This stems from a sense that in various social and personal relationships clothed by formal consent – say, in the employment or familial contexts – power disparities will permit some agents to intimidate and ‘invigilate’ others, and therefore, to dominate them, without ever exercising interference as such. Republicans generally argue that a classical–liberal society with a minimal state and a rigid divide between public and private spheres will likely be marked by these insidious forms of domination, legitimated by apparent consent.55 Therefore, perhaps the most salient republican insight, in respect of constitutional rights, is that various basic freedoms can be undermined simply by virtue of a relative absence of power and resources that force some to remain dependent on the goodwill of others.

Constitutional rights in the republican lens In this section, we consider how the conception of freedom as non-domination that we have described can inform a jurisprudence of constitutional rights. In particular, we consider how it can inform an understanding of what activities and choices should be subject to constitutional protection, what protections and resources these freedoms require, and what actions (or omissions) by the State should be regarded as violating constitutional rights. At the outset it is important not to overemphasise the relative importance of constitutional rights in promoting freedom as non-domination. Freedom, in this sense, cannot be protected exclusively through a constitutional bill of rights that is enforced by courts against legislative and executive action. In fact, it is irreducible to any enumerated list of specific rights, of the sort found in the major

Constitutional rights, freedom as non-domination

67

historical and international rights declarations. On a strict republican view associated with the Rousseauan strand in particular, freedom consists simply in nonarbitrary rule – that is, rule by the common good – and so it cannot be expressed as a set of legal rights that transcend the legislative process or that are defined and adjudicated independently of it. Scholars such as Sellers have insisted that in the classical canon, republican freedom is nothing more or less than rule by the common good, which arguably obviates the very idea of justiciable constitutional rights.56 Similarly, Ivison notes that ‘rights talk’ generally, and especially human-rights discourse, tends to ‘depoliticise’ rights, suggesting that rights offer a ‘boundary around the individual … defined against the state’. Republicans, however, have always insisted that rights are realised through politics, not against or despite it. And if freedom consists of security from arbitrary power, it is constituted – not merely caused or preserved – by a coercive political order.57 Of course this line of thought can very easily translate to a dogma of legislative supremacy, which potentially leaves individuals and minorities vulnerable to societal animus; in its extreme form, it suggests that rights are ‘nothing but determinations of the prevailing political will’.58 Indeed this is one reason why some neo-republicans accept at least a limited form of legal constitutionalism.Yet even if we accept that codified constitutional rights have a role in protecting freedom in the republican sense, they cannot capture it in its entirety. Since non-domination depends on people’s ‘relative powers’ – and in particular, the opportunities and resources they enjoy relative to others – it requires a strong commitment to social and distributive justice that probably cannot be captured or realised as a set of individual rights.59 And in turn, republican social justice cannot be effectuated solely at constitutional level, even if constitutional justice might have some role in that respect. Republicans typically recognise that domination can be suffered by virtue of private as well as public powers. Thus, while constitutional rights may be quite effective, if not completely sufficient in protecting citizens from arbitrary public power, they are not likely to be very effective in protecting them from private domination. Republican social justice – and thus republican freedom – will be effectuated through, for example, the social-welfare system and the redistribution of wealth and resources, domestic-violence legislation, educational provision and so on. It will require policies and measures that, for various reasons, are not appropriately pursued through constitutional law. Much will by necessity be left to the parliamentary and legislative process, given the relative rigidity and the narrow focus of codified constitutions. Thus, irrespective of the degree to which republican freedom is constitutionalised, it is irreducible to any determinate set of legal rights, of whatever form, that are pre-defined independently of the political process. In fact, republican scholars such as Bellamy have argued that so-called ‘legal constitutionalism’,

68

Republican freedom

the entrenchment of constitutional principles in legal form, can itself lead to a form of domination by enshrining unaccountable judicial power. Again, this reflects a broader republican scepticism towards the idea that individual freedom is best secured through legal rights that purport to transcend the political process. Bellamy argues that by according equal weight to each vote, the institutional framework of parliamentary democracy is more conducive to freedom as non-domination.60 From this perspective, the main concern is not so much the content of constitutional rights as such, but rather that they are interpreted and applied through a process that is largely immune from the usual channels of accountability and contestation that apply in the political sphere. The salient issue, from this standpoint, is not so much the theoretical question as to which specific rights should be constitutionally entrenched and thus put beyond the remit of ordinary legislative politics, but rather the processes through which rights are interpreted. It is unlikely, in this view, that judicial review will place ‘rights’ beyond ‘politics’; it is more likely that the exercise of judicial review will in itself constitute an alternative site of unaccountable political power.Vast swathes of policy and legislative choices can be framed as an exercise in defining rights, limiting rights or ‘balancing’ rights, but they cannot be hived off to the depoliticised institutions of constitutional justice. If republican freedom embraces the whole order of social relationships, there may be good reasons for maintaining that competing claims on ‘rights’ are better adjudicated by accountable legislatures than non-accountable courts. Thus an important strand of republican thought suggests there is no reason to believe individual freedoms will be better served through a system of judicially enforced constitutional rights. Many republicans have simply insisted that republican freedom, understood as non-arbitrary rule, lies simply in the process through which rights-claims are reconciled – and that this process is necessarily a political one. And any attempt to hive off a certain section of these rightsclaims from the political and legislative process is not only ad hoc and historically specific, but also risks itself constituting a form of arbitrary rule. This debate – which is essentially about the constitutional forms most suitable to the republican concept of freedom – is dealt with separately in Chapter 4. But notwithstanding these doubts concerning the efficacy and legitimacy of judicially-enforced constitutional rights, the republican conception of freedom as non-domination can nonetheless inform our understanding of how the familiar constitutional rights – typically, freedoms of expression, association, religion and so forth – might be interpreted and protected, whether by constitutional courts or other authorities. Thus questions concerning the legitimacy of the institutional mechanisms through which these are enforced are provisionally bracketed. Certainly, some republicans might reject as pointless any attempt

Constitutional rights, freedom as non-domination

69

to make out a republican theory of rights-based adjudication if they reject the entire institution of constitutional justice as being fundamentally unrepublican in the first instance. They might dismiss as pointless those arguments concerning the content of constitutional rights in the abstract, preferring instead to focus on questions of process and form. However, republicans who reject the entire institutional edifice of rights-based constitutional justice might nonetheless accept that constitutional rights can be interpreted in ways that are more or less amenable to the republican way of thinking about rights. Republicans might be sceptical as to whether judicial review is an appropriate mechanism for combating domination, while acknowledging that certain adjudicative approaches might be more or less sensitive to the problem of domination in political and social life. With these institutional issues provisionally bracketed, we now argue that the republican understanding of freedom as non-domination translates to a number of propositions concerning the interpretation of constitutionally enshrined rights. First, republicanism emphasises the importance of contestation and control of government as a necessary criterion of freedom as non-domination. As discussed, state power is non-dominating only to the extent that it is subject to a system of democratic control that ensures it tracks interests its subjects share as well as allowing individual contestation of governmental decisions. Therefore, constitutional rights must enable citizens to individually contest, and collectively, to democratically control governmental power if the State is to be considered a non-dominating one. Of course, democratic control will not be secured solely through constitutional rights; institutional mechanisms and forms will also play an important role. For example, freedom of information – typically (although not universally) protected in statutory rather than constitutional form – will be necessary to enable informed citizens to challenge and contest abuses of state power.61 Nevertheless, the idea of democratic control as a component of freedom as non-domination can inform our understanding of the necessary content and scope at least of those constitutional rights that are connected to civic activity. In particular, it suggests that rights of freedom of expression and association cannot be understood simply as rights of private autonomy guaranteeing a sphere of non-interference for individuals in respect of particular activities. They are not simply protections for individual flourishing or self-expression as such, considered independently of the political domain. Rather, they must be understood as instruments of democratic control, and thus as playing an essential role in subjecting state power both to individual contestation as well as the directive popular influence on government that is necessary to render it non-dominating.62

70

Republican freedom

For example, in some jurisdictions it has been recognised that political expression must receive a higher degree of protection, given its role in the exercise of democratic citizenship.63 This stems from a recognition that freedom of expression has a dual purpose, both in protecting individuals’ private autonomy and their exercise of moral personality vis-à-vis state interference on the one hand, and in facilitating the exercise of citizenship – and the collective and individual contestation of government – on the other. Similarly, freedom of association can be interpreted, borrowing Rawls’s terminology, as enabling citizens to exercise their ‘powers of moral personality’ and in particular to exercise and develop their comprehensive doctrines or ‘conceptions of the good’ through collective activity in various social contexts.64 However, it can also be understood as facilitating the exercise of democratic contestation by protecting the associational infrastructure in which various civic activities typically occur.65 Thus, again, associations and associational activities connected to political and civic activity might receive a higher degree of constitutional protection.66 Secondly, notwithstanding the importance of certain constitutional rights in effectuating democratic control, we also argue that the analytical theory of freedom as non-domination can inform the scope and interpretation of constitutional rights that are not directly connected to civic and political activities – for example, personal liberty, freedom of religion or freedom of expression where exercised in non-political contexts. In particular, it can inform our understanding of what state actions or inactions count as violations of such rights, and the specific types of safeguards and resourcing they require. Based on the principles discussed above, republican theory provides two important insights in this respect. The most familiar doctrinal approach to interpreting fundamental rights involves a two-stage analysis whereby a court first establishes whether ‘interference’ in the relevant right has occurred, and secondly to establish whether that interference is nonetheless justified and proportionate in view of certain policy goals or public interests. This approach is particularly evident in the methodology of the European Court of Human Rights.67 Using this template, republican theory can inform our understanding not only of what counts as a legitimate limitation on the exercise of a right, but also of what constitutes ‘interference’ in a right in the first instance, analytically speaking. On the one hand, since republicans insist that interference as such carries no necessary ‘cost’ for freedom, it follows that state actions representing coercive impediments to the relevant choices or actions will not necessarily count as prima facie infringements of the relevant constitutional rights, of the sort that requires some special justification at the second stage of analysis. For example, on a republican analysis, the fact that an action or practice motivated by religious

Constitutional rights, freedom as non-domination

71

belief is legally prohibited arguably does not entail ‘interference’ in religious freedom at the first level of analysis. Nor, then, does it have to be subject to any special justification or proportionality test at the second stage of analysis – provided that the prohibition meets certain criteria that qualify it as a non-dominating form of interference. Such interference will count as non-arbitrary and therefore non-dominating if it is exercised in accordance with law rather than on a discretionary basis, if it is formulated via democratic procedures that are subject to appropriate channels of contestation, and if it tracks interests shared by those affected by it. Arguably these considerations apply irrespective of the character or importance of the activity that is regulated or impeded by law.68 Yet taking the example of religious freedom, again, this would seem a somewhat absolutist position. Taken to its logical conclusion, it would reject any right, however limited, for religious believers to be exempted from neutral and generally applicable legislation.69 Ostensibly neutral laws that impede religious practices will count as arbitrary interference if they are motivated by sectional or sectarian interest; it is less clear, however, that such a law could be considered dominating simply because it is indifferent to or overlooks minority religious needs. Additionally, the republican concept of arbitrariness might help to clarify the legitimate limits that can be placed on the exercise of basic liberties – that is, in republican terms, in determining what count as non-dominating forms of interference. For example, Articles 8–11 of the European Convention on Human Rights, which protect the rights of privacy, freedom of thought, conscience and religion, and of expression and assembly, define the criteria based on which the exercise of rights may legitimately be limited. These arguably echo the republican concept of arbitrariness in many respects – for example, the requirements that interferences are ‘prescribed by law’ (rather than based on administrative discretion), and that they must be ‘necessary in a democratic society … or for the protection of the rights and freedoms of others’. The Irish Constitution is less detailed and consistent in defining the criteria for limiting rights (different formulae such as ‘public order and morality’ (Article 44) or ‘the exigencies of the common good’ (Article 43) are used). The proportionality doctrine, which the Strasbourg court uses to appraise limitations on the exercise of convention rights, has been somewhat influential in Irish constitutional law70 – and arguably it too can be interpreted in light of the republican concept of arbitrariness, especially given its emphasis on rights being limited only on the basis of legitimate public-policy goals that are enshrined in legislative form. Conversely, and more importantly, the republican analysis suggests that basic liberties can be infringed without any ‘interference’ actually occurring. This dimension of republican freedom is not well accounted for in the conventional

72

Republican freedom

theories of constitutional jurisprudence. As explained previously, domination without interference may occur where citizens are exposed to the arbitrary power of others and therefore have to live in fear or anticipation of suffering interference in their choices – where in effect, they are subject to the discretion or goodwill of others. This stems partly from an awareness of the psychological effects of interpersonal power disparities on individuals’ orientations and life plans – in particular, the ‘toadying and fawning’ they may be forced to engage in to apprehend potential interference.71 Although constitutional rights as such are certainly insufficient to protect people from being dominated in this manner, this republican insight concerning the nature of individual freedom lends itself to a broader understanding of the circumstances in which basic liberties might be violated. On the one hand, this concern for domination without interference underlines the need for protections and guarantees against unchecked administrative discretion in various contexts. Without such guarantees, citizens might suffer no interference as such, but nonetheless find themselves forced to engage in evasive strategies to ward off apprehended interference – to ensure that those who hold power over them are ‘kept sweet’.72 As discussed below, it is likely that this dimension of non-domination will be protected as much through the general principles of judicial review in administrative law as through the definition and interpretation of constitutional rights in the narrower sense. On the other hand, domination without interference might equally occur by virtue of the disparities of bargaining power that exist in various ‘private’ contexts. For example, the freedoms of religion, association and expression might be undermined by the powers of invigilation or intimidation that private individuals wield over others as much as by the power of interference held by the State, whether in legislative or administrative form. If we accept that domination effectuated by private agents is as pressing a concern as that imposed by the State, it follows that constitutional freedoms should be enforceable against private as well as public actors (at least in some contexts) and that the State must have a positive obligation in preventing freedom from being undermined in this way. Again, of course, the overall quality or extent of our freedom as nondomination – the resources and guarantees we need to resist arbitrary power in whatever form – will be irreducible to the domain of constitutional rights specifically. It will be protected by the broader distribution of power and resources, inevitably effectuated at various sub-constitutional levels – for example, in the paths of exit or the security that the welfare state might provide. Nonetheless, an appreciation for the subtle and pervasive forms in which domination can exist can still arguably ground a more critical and contextual approach to the interpretation and protection of constitutional rights in that domain of freedom they

Constitutional rights, freedom as non-domination

73

do protect. In particular, it arguably means courts must pay greater heed to the ‘relative powers’ on the basis of which constitutionally protected actions and choices are exercised. We provide specific suggestions in the following section as to how constitutional analysis might account for this particular dimension of freedom as non-domination.

Republican interpretations of Irish constitutional rights We have argued that the republican understanding of rights as both facilitating democratic contestation in politics and checking power disparities in ‘private’ contexts can make an important and distinctive contribution to constitutionalrights doctrine. Bearing in mind that freedom as non-domination is, as we have argued, irreducible to the protections provided by judicially enforced constitutional rights, it can provide an evaluative framework for appraising the dominant approaches to constitutional adjudication that have been developed in Irish law. Security, interference, discretion

As discussed in the previous section, domination can exist without interference as such ever occurring; in particular, it may result from disparities in ‘relative powers’. Therefore, whether or not a person is dominated depends not on the resources and powers they possess in absolute terms, but rather, the resources and powers they hold relative to others. Freedom as non-domination is in this sense a ‘status’ freedom: it requires that individuals possess sufficient powers and resources such that they are not beholden to the will of others – so that they can ‘look others in the eye’.73 While the distribution of relative powers clearly cannot be achieved solely through a jurisprudence of constitutional rights, the question we address is how constitutional-rights doctrine can account for these dimensions of status freedom within the range of choices and activities that it protects. Certainly, private-law doctrines may have an important role in preventing and checking the effects of disparate bargaining powers – for example, through the doctrine of unconscionability in contract. However, our narrower focus is the question of how freedom as non-domination can inform public-law doctrines – albeit without overemphasising the overall role that constitutional rights play in promoting non-domination. In concrete terms, what would it mean for a court to identify a breach of constitutional rights on the basis of a disparity in relative powers between individuals, or between private individuals and public agents? Usually, in order for

74

Republican freedom

a breach of a constitutional right to be recognised  – at least in the range of classical-liberal, ‘negative’ rights – it is necessary that some form of ‘interference’ has occurred, usually a prohibition or restriction upon certain actions or choices, perhaps upon say, speech, expression, association or a specific type of activity protected by that right. Generally speaking, the subjective insecurity or fear that citizens may experience as a result of disparate powers or resources is not a cause of action in constitutional rights. Yet perhaps the most salient practical example of domination without interference occurs where individuals live in the fear of a statute being used to penalise or sanction particular forms of conduct or behaviour, even where they have never suffered any such sanction and where it seems improbable, on balance, to ever occur. As we have discussed, the republican understanding of freedom emphasises that persons who never suffer interference may be dominated nonetheless, where they must live in apprehension of interferences that may occur – even improbably – with a change of circumstance or fortune that renders them vulnerable to the discretion or goodwill of others. To an extent, the idea that constitutional freedoms may be undermined solely by virtue of the apprehension of interference is reflected in existing procedural doctrines developed in Irish constitutional jurisprudence. For example, in Norris v. Attorney General,74 Norris challenged the constitutionality of a Victorian-era statute that criminalised sexual intercourse between men. No prosecutions had been taken under the law in the decades preceding the case, and Norris himself was facing no such prosecution. In short, interference as such had never occurred, and it seemed highly improbable that it would ever occur. Nonetheless, and although Norris’ substantive arguments were rejected by a narrow majority of the Supreme Court, it found that he enjoyed sufficient ‘standing’ (locus standi) to challenge the law. This is attributable in part to an implicit recognition that constitutional rights may be undermined by the state of uncertainty or fear as to the possibility of future interference in some protected conduct as much as by the actual experience of such interference. In his dissenting judgment, Justice Henchy observed: fear of prosecution or of social obloquy has restricted [Norris] in his social and other relations with male colleagues and friends; and in a number of subtle but insidiously intrusive and wounding ways he has been restricted in, or thwarted from, engaging in activities which heterosexuals take for granted as aspects of the necessary expression of their human personality and as ordinary incidents of their citizenship.75

Similar concerns were evident in the Supreme Court’s elucidation of the rule on locus standi in East Donegal Co-op Ltd v. Att. Gen.:

Constitutional rights, freedom as non-domination

75

To afford proper protection, the [constitutional] provisions must enable the person invoking them not merely to redress a wrong resulting from an infringement of the guarantees but also to prevent the threatened or impending infringement of the guarantees …76

Moreover, Irish jurisprudence on the right to personal liberty has recognised that violations of rights may occur where criminal offences are defined too vaguely or imprecisely (in particular see King v. Attorney General77). Again this reflects a familiar republican theme – that freedom may be violated simply by virtue of the content of the criminal law being too uncertain, even for those who never suffer any sanction or interference as a result: as in Norris’ case, the psychological effects may amount to domination nonetheless. Similarly, constitutional rights might be violated by virtue of the excessive discretion enjoyed by officials in respect of the exercise of a particular choice or activity rather than by the fact of interference in that choice as such. Under a republican analysis, whether or not domination is suffered will depend not solely on the importance or value of the choice or activity restricted – and the nature of the interests underlying the interference itself – but also on the manner or mode through which it is restricted. Most fundamentally, an activity that may permissibly be restricted through clear statutory language may not be restricted based on executive, administrative or judicial discretion. Of course, it is impossible to eliminate discretion in public administration. It may be argued that discretion is inherent in adjudication and administration alike given the intractable problem of linguistic ambiguity in legal rules.78 More fundamentally, a republican social politics concerned with non-domination will, by increasing the size and scope of the public administration, correspondingly increase the extent and range of discretionary powers enjoyed by public administrators. Conservative-liberal thinkers such as Albert Dicey were concerned that following the growth of the administrative State in the nineteenth and twentieth centuries, the corresponding accretion of discretionary administrative powers would ultimately undermine the historical concept of the ‘rule of law’  – a concept that required government actions to be based on legal rules rather than discretion.79 Indeed it seems that any progressive social politics – requiring say, the provision of social housing – will necessarily require giving potentially extensive discretionary powers to public agencies – for example, powers to compulsorily acquire land. In fact, for this reason it is arguable that the traditional republican understanding of arbitrariness as being intrinsically connected to discretion (‘rule by law not men’) is based on an archaic conception of the State. Certainly, it seems impossible to redistribute power and resources in society in such a manner that enhances freedom as

76

Republican freedom

non-domination in its social dimension without compromising, in some sense, the historical republican adage that government officials must exercise power based on legal rules alone rather than at their pleasure or discretion. Arguably, even the best-designed legal and administrative safeguards cannot prevent the exercise of arbitrary power within the discretionary powers that inhere in public administration: no matter how such powers are legally controlled, there is always a risk of abuse even within the range of discretion permitted by the relevant statute.80 Under a republican analysis, perhaps this is permitted as a matter of necessity given that more intense forms of domination would inevitably persist were the State to retreat to the more minimal functions it historically assumed.81 Perhaps, then, a degree of inadvertent bureaucratic arbitrariness inflicted is an acceptable price for stemming the relatively more intense forms of domination that historically have existed in various ‘private’ spheres such as the family and the workplace. While we do not aim to offer a conclusive analysis of this broader theoretical question, or propose an original theoretical perspective on the relationship between domination and administrative discretion, we suggest that the republican concern for controlling arbitrary power is reflected – at least obliquely – in a number of well-established doctrines of Irish public law. It is well established, for example, that limitations on the exercise of basic liberties must be imposed in legislative form rather than on the basis of official discretion.82 Thus, where administrative discretion exists – as it inevitably must – it must be located within and limited by a parliamentary statute.While this might be described as a general constitutional principle, it is explicitly recognised in several provisions of the European Convention of Human Rights, which provide that restrictions on the liberties of expression and of thought, conscience and belief must be exercised ‘in accordance with law’.83 Similarly, through the doctrine of proportionality, the Irish courts have acknowledged the central role of parliamentary legislation in reconciling the exercise of constitutional rights with public interests.84 A key requirement is that state interferences aiming to balance constitutional rights against common goods must be effectuated in statutory form in the first instance, notwithstanding an inevitable degree of discretion that is subsequently exercised in the execution of such laws. Of course, even where constitutional rights such as property or reputation are limited by legislation, the relevant statutes must necessarily establish some administrative machinery that will nonetheless introduce some element of discretion in the procedure through which rights are to be limited. A good example is the statutory power typically given to local authorities and other public bodies to compulsorily purchase land – a power that, by its nature, infringes upon private property rights.85 In such contexts, the power ultimately exercised by an

Constitutional rights, freedom as non-domination

77

official cannot be understood as being pre-ordained by a legislative command or rule, even though it is authorised by legislation: essentially it is a power exercised on the basis of non-legal standards, whether intuition or personal preference. Again this seems to pose a serious challenge for the traditional republican analysis. Using the republican idiom, discretionary power subjects individuals to an alien will that is unguided by law, and subjection to alien will is the antithesis of liberty in the republican sense. However, administrative theorists will argue that a certain degree of discretionary power is inevitable in the modern administrative State, especially one that assumes progressive social goals.86 Arguably, this problem is attenuated, to a limited degree at least, through the rights of procedural fairness that control the exercise of discretionary powers in common-law legal systems. The principles of ‘natural justice’ impose significant duties on public agents in their exercise of discretionary powers as well as adjudicative responsibilities. In particular, decision makers are obliged to give those affected by their decisions an opportunity to be heard and to put their case (audi alteram partem), to refrain from taking irrelevant considerations into account, to provide reasons for their decisions and to avoid any perception of bias or partiality.87 Administrative decision making cannot be determined or justified solely on legal considerations; by its nature it requires a degree of personal appraisal that is irreducible to legal control.Yet the constraints imposed on its exercise – in particular, the requirement that the decision makers must hear those affected – will, in practice, at least substantially reduce the arbitrariness of such powers in the republican sense. In Ireland, the procedural rights associated with natural justice have been elevated to constitutional status, which means in particular that they cannot be removed by legislation.88 Horizontal effect of constitutional rights?

Thus far, we have focused on arbitrary or discretionary power exercised by public agents whose decision making is ultimately sanctioned by state coercion. Yet since republican theory suggests domination can exist without interference as such having even been suffered, equally it holds that freedom, understood as non-domination, can be undermined by private agents who possess no coercive legal powers. As discussed, agents can be dominated simply by virtue of a disparity of bargaining power of the sort that enables others to control their choices, whether by way of ‘intimidation’ or ‘invigilation’.89 This particular feature of domination means that republican thinkers will tend to reject the stricter delineation of public and private spheres associated with classical liberalism; in particular, they will be more receptive to state intervention aimed at combating the various forms of domination that occur in private spheres.90

78

Republican freedom

However, while constitutional rights are among the most important safeguards of individual freedom, they are – as a general rule – enforceable exclusively against public bodies. In most legal systems, they cannot generally be invoked in a private-law context against private individuals or companies; they are applicable only to state or public actions, however defined.91 This raises the question of whether the republican understanding of unfreedom as pervading the so-called ‘private’ sphere can ground an argument for constitutional rights being applied directly to private entities, in situations traditionally thought of as being outside the domain of public law. On the one hand, it is far from selfevident that private domination cannot be adequately controlled by alternative mechanisms, particularly criminal-law and private-law doctrines. On the other, recognising the ‘horizontal effect’ of constitutional rights might enhance safeguards for individuals affected by various abuses of power in the private sphere that have not, for one reason or another, been regulated by statute or common-law doctrines. In the Irish context, a good example might be the right to privacy vis-à-vis non-state actors.92 While statute law and common law (judge-made legal principles) will, for good reason, provide individuals’ main protection against domination by private agents, ‘horizontal’ constitutional rights might provide a subsidiary safeguard in areas that remain unregulated by statutory or common-law principles. Indeed, the Irish courts have accepted that in some instances constitutional rights may be enforced horizontally against private bodies such as trade unions or in some cases, private employers.93 This doctrine has developed in a rather ad hoc and piecemeal way, and there is little clear authority concerning the circumstances in which constitutional rights can be applied to private bodies.94 Nonetheless, it has stemmed, implicitly at least, from a recognition that Article 40.3 of the Constitution obliges the State not only to ‘respect’ fundamental rights (through non-interference), but also to ‘defend and vindicate’ these rights by positively intervening in the private sphere where necessary. And arguably, this is consistent with the social interventionism of much republican thought. The dichotomy between freedom and equality in constitutional jurisprudence

For many republican thinkers – particularly neo-Roman scholars such as Pettit – the principle of equality can be seen as instrumental to the overarching goal of freedom as non-domination. In particular, Pettit argues that the republican conception of distributive justice should be understood as ‘sufficientarian’ (as distinct from egalitarian) in the sense that it aims to redistribute resources and wealth only to the extent necessary to prevent such domination that otherwise

Constitutional rights, freedom as non-domination

79

occurs by virtue of disparities of opportunity and power.95 Thus, equality in this socio-economic sense, at least, can be conceptualised simply as a corollary of the broader republican commitment to freedom understood as non-domination. But equally it can be argued that the narrower principle of equality in the sense of non-discrimination can itself be understood as a safeguard against domination, and not a separate, potentially competing principle. People who lack resilient legal protection against discrimination may be forced to engage in the strategies of fawning, self-ingratiation and self-censorship – which republicans understand as salient aspects of domination  – even if no such discrimination is ever suffered. Where others enjoy the capacity to discriminate against us, this is likely to represent an ‘alien will’ at work in our lives as we are forced to hide, remove or disavow the characteristic, identity or choice on the basis of which discrimination may occur, and to maintain favour and goodwill vis-à-vis those who have the capacity to inflict discrimination. And insofar as discrimination itself can be understood as a form of domination, the principle of non-discrimination can be understood as serving the value of freedom (as non-domination), rather than promoting equality as a separate or independent value. However, in Irish constitutional jurisprudence, freedom and equality have typically been understood not only as conceptually separate values, but also as competing goals. In particular, it has often been argued that an excessively strict interpretation of equality will undermine individual freedoms, particularly the freedoms of conscience, religion and association. In turn, freedom generally is said to trump equality in situations where these values conflict. We argue that a republican understanding of the interrelationship between equality and non-domination provides a compelling basis to challenge this dominant understanding. This might be invoked to support a broader application of the general principle of equality contained in Article 40.1 of the Irish Constitution, which provides: ‘All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.’ This guarantee has been interpreted as applying exclusively to public bodies, narrowly defined, and never to private bodies, even where publicly funded or where exercising functions of a public or quasi-public nature.96 Thus it does not positively oblige the State to protect citizens from discrimination wherever it might occur, but only prohibits the State itself from discriminating by way of arbitrary legislative classifications. Thus, until the 1990s Irish citizens enjoyed little by way of legal protection against discrimination carried out by private agents, partly because such discrimination was considered an exercise of private freedom. For example, in Schlegel

80

Republican freedom

v. Corcoran and Gross,97 Justice Gavan Duffy declined to rule as unreasonable the refusal of a landlord to permit the assignment of a tenant’s interest to a Jew, given the private nature of the transaction – thus illustrating the limited scope of constitutional equality law. Since the 1990s, however, statute law has extended prohibitions on discrimination to various private contexts, particularly employment and private services. Thus, citizens enjoy protection against discrimination by persons and bodies that fall outside the narrow range of state bodies that are subject to Article 40.1 of the Constitution. In turn, equality legislation can be valued as a safeguard against domination in various private contexts. However, the scope and extent of these provisions has been limited by virtue of a pervasive understanding of equality and individual freedom as antagonistic constitutional values. Some forms of discrimination, it is assumed, are an exercise of constitutionally protected freedoms – and since freedom must be understood as taking precedence over equality in the hierarchy of constitutional values, legislation prohibiting certain forms of discrimination is generally regarded as unconstitutional. For example, equality legislation contains extensive exemptions for denominational schools and hospitals. The Equal Status Act 2000, while prohibiting discrimination on religious grounds in the provision of goods and services, broadly exempts ‘educational establishments’, a category encompassing institutions ‘whether or not supported by public funds’, from this requirement.98 Under section 7, such institutions are exempted from the non-discrimination requirement where ‘the objective of the school is to provide education in an environment which promotes certain religious values’. Thus, denominational schools funded by the State are permitted to discriminate on religious grounds in enrolment policy where this is necessary to uphold their ethos. Similarly, section 37 of the Employment Equality Act 1998 exempts a range of employers associated with religious denominations or religious values from the prohibition on religious discrimination, and potentially other forms of discrimination, in their hiring and employment practices. These exemptions have been justified, in both political and legal discourse, based on an ideological understanding of freedom and equality as separate and conflicting goals. Moreover, this freedom–equality dichotomy has been given a specifically constitutional framing. Both legislators and courts have assumed that the constitutional principle of religious freedom precludes any statutory prohibitions on discrimination where this might interfere with or undermine the ethos of denominational institutions.99 Thus while equality and religious freedom are understood as conflicting goals, the latter is assumed to prevail in cases of conflict.100 In McGrath and Ó Ruairc v. Trustees of Maynooth College, the Supreme Court ruled that the constitutional prohibition on religious discrimination contained in Article 44.2.3° could not be applied to private bodies

Constitutional rights, freedom as non-domination

81

even where publicly funded, partly because this would ‘lead to a sapping and debilitation’ of religious freedom and autonomy.101 In Re Article 26 and the Employment Equality Bill 1996,102 the Supreme Court held that exemptions for denominational institutions from equality statutes were necessary to give ‘life and reality’103 to religious freedom. A similar constitutional rationalisation underlies the exemptions provided in relation to school enrolment.104 From a republican perspective, we argue both that this dichotomy of freedom and equality overstates the degree to which discrimination constitutes an exercise of freedom, and more importantly, that it overlooks how discrimination itself can represent a form of domination – and thus of unfreedom – for those who experience it.105 Thus from the standpoint of freedom as non-domination, equality and freedom cannot then be ordered (and ranked) as separate values. For example, those subject to religious discrimination in the school admissions context may experience it as a form of domination and thus of unfreedom. Far from promoting freedom in respect of religious choice, the statutory exemption for denominational schools means that non-coreligionist parents may have to engage in various strategies of discretion and self-censorship in order to guarantee school admission.106 Thus, statutory derogations from the non-discrimination principle in this context may ultimately undermine the religious freedom of parents who may have to feign religious belief – say, by providing a baptismal certificate – in order to avoid discrimination.107 Similar arguments can be made in relation to the position of non-coreligionist, and indeed, gay and lesbian teachers who – it has been argued – may be left in a vulnerable position as a result of the equivalent exemption provided in employment law.108 In this lens, any licence to discriminate on religious grounds entails a form of arbitrary interference in religious choice, or in intimidation and victimisation based on other features such as sexual orientation. As against this, the dominant doctrine has assumed that to subject publicly funded denominational schools to the prohibition on religious discrimination would undermine the right of parents to have their children educated in a genuinely religious environment. In the Employment Equality Bill case, the Supreme Court upheld the exemption for denominational schools based on religious freedom concerns. Similarly, in Greally v. Minister for Education (No. 2), the High Court said that to apply the nondiscrimination guarantee to the teacher employment context would have ‘the effect of destroying the denominational nature of schools’109 – and thus, implicitly, of undermining the freedom of parents to have their children educated in accordance with their beliefs. Yet from a republican standpoint, a stricter application of the non-discrimination principle in the enrolment context would not have the effect of subjecting such parents to domination in their religious beliefs and practices, at least of a sort comparable to that experienced by those discriminated against in the

82

Republican freedom

enrolment process. Even if it could be established that non-discrimination in enrolment would in fact undermine the ability of the ‘majority’ parents to have their children educated in accordance with their beliefs, it could not be said that such ‘interference’ was arbitrarily imposed, particularly since it is not exercised on a discretionary basis and since it tracks an interest  – equality in access to public services – which all the affected parents share. By way of contrast, the interference suffered by those who are discriminated against is imposed on a more or less discretionary basis by individual schools. Thus, in the event of a conflict between anti-discrimination law and a claim to discriminate understood as an exercise of private freedom, a republican analysis will consider not only the nature of the interests affected on each side of the equation, so to speak, but also the arbitrary nature of the decision-making process through which the claimed injuries or harms are inflicted. Thus, in Ireland, discriminatory practices have been given licence based on a dubious conception of the relationship between equality and individual freedom that overlooks the interrelated nature of non-discrimination and non-domination. The rigid conceptual dichotomy between equality and freedom only makes sense if freedom is defined in a rather narrow way – that is, as non-interference rather than non-domination. In particular, the conception of religious freedom as precluding legislative intervention to safeguard citizens from discrimination implicitly rests on a narrow conception of religious freedom as a freedom of non-interference, safeguarding religious bodies and activities against governmental constraints generally. Yet from the republican standpoint, ‘interference’ in the guise of equality legislation can be positively constitutive of freedoms, such as religious freedom, where it prevents or minimises the ‘arbitrary’ or ‘alien’ control of religious choice that would otherwise occur. We have argued that the republican conception of freedom as non-domination can inform the interpretation of freedom of religion as a constitutional right. Specifically, it suggests a broader conception of what ought to be regarded as a violation of freedom, beyond narrow instances of coercive interference. Conversely, it provides a means for explaining why certain forms of coercive interference, effectuated via statute, should not be understood as violating constitutional freedoms. In general terms, this analysis suggests that constitutional jurisprudence ought to take greater account of concrete power relationships and the various ways in which they may result in the ‘alien control’ of citizens’ choices and life-plans. While we have used the example of religious freedom, a similar analysis can be applied to constitutional rights such as freedom of association and freedom of expression. In each case, we argue that while judicial protection alone will not suffice to protect freedom as non-domination, constitutional jurisprudence can account for various powers of arbitrary interference

Constitutional rights, freedom as non-domination

83

that lead to constitutionally protected choices being subject to a form of alien control, if not always coercive interference. This approach finds some support in the constitutional text itself, in the positive obligation it imposes on the State to protect and ‘vindicate’ constitutional rights, implicitly in private as well as public contexts.110 In some areas, Irish constitutional doctrine has reflected this broader republican conception; in others, such as freedom of religion, it has tended to favour a narrower, formal conception of freedom as non-interference that ignores the salience of concrete power relations in citizens’ lived experience of freedom and unfreedom.

Conclusion In Chapter 1 we considered how republican theory might inform constitutional understandings of political freedom in the context of democratic self-government. In this chapter we have focused on individual constitutional rights, and specifically we considered how the republican conception of freedom as nondomination can inform the interpretation and definition of the individual rights and freedoms guaranteed in the Constitution beyond the domain of those liberties that are exercised in the political realm. We have emphasised, on the one hand, that while this involves the concepts of republican freedom being applied well beyond the public sphere of the State, non-domination is irreducible to constitutional rights specifically. However, we have argued that non-domination nonetheless provides an analytical framework for interpreting constitutional rights such as freedom of religion. These rights can be interpreted as protecting citizens not only from interference in the narrow sense, but from subjection to alien will in the broader sense, at least across a certain range of choices and activities. While we have argued that constitutional rights can be understood and interpreted in a specifically republican light, this does not resolve the separate institutional question of whether, and to what extent, rights-based judicial review of legislation is justifiable from a republican perspective. This will be addressed separately in Chapter 4.

Notes 1 See e.g. Matt Kramer, ‘Liberty and Domination’, in Cécile Laborde and John Maynor, Republicanism and Political Theory (London: Blackwell, 2008), pp.  37–51; Ian Shapiro, ‘On Non-domination’, University of Toronto Law Journal, 62 (2012); Guido Pincione, ‘The Constitution of Non-Domination’, Social Philosophy and Policy, 28 (2011).

84

Republican freedom

2 See e.g. Jurgen Habermas, ‘Remarks on Legitimation through Human Rights’, Philosophy and Social Criticism, 24 (1998); Joshua Cohen, ‘Reflections on Habermas on Democracy’, Ratio Juris, 12 (1999). 3 See Kramer, ‘Liberty and Domination’; Charles Larmore, ‘A Critique of Philip Pettit’s Republicanism’, Philosophical Issues, 11 (2001), p. 240. 4 John Pocock, The Machiavellian Moment (Princeton, NJ: Princeton University Press, 1975); Frank Michelman, ‘Law’s Republic’, Yale Law Journal, 97 (1998). 5 Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997), Chapters 1 and 2. 6 Dermot Keogh and Andrew McCarthy, The Making of the 1937 Constitution (Cork: Mercier, 2007). 7 See Articles 40.2, 41.2, 42.1–42.5, 43.1. 8 McGee v. Attorney General [1974] IR 284, 310. 9 See generally John Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 1990). 10 Desmond Clarke, ‘The Role of Natural Law in Irish Constitutional Law’, Irish Jurist, 17 (1982), p. 193. 11 Finnis, Natural Law and Natural Rights. 12 Aileen Kavanagh, ‘Natural Law, Christian Values and the Ideal of Justice’, Irish Jurist, 48 (2012), p. 80. 13 McGee v. Attorney General [1974] IR 284, 317. 14 [1974] IR 284, 318. 15 Ryan v. Attorney General [1965] IR 294; Norris v. Attorney General [1984] IR 36. 16 [1965] IR 294. 17 [1974] IR 284, 319. 18 Richard Barrett, ‘Church and State in Light of the Report of the Irish Constitution Review Group’, Dublin University Law Journal, 5 (1998), p. 55. 19 [1984] IR 36. 20 [1984] IR 36, 64–5. 21 [2009] IESC 82. 22 Norris v. Attorney General [1984] IR 36. 23 Patrick Lee and Robert George, ‘The Nature and Basis of Human Dignity’, Ratio Juris, 21 (2008). 24 Thomas Hobbes, Leviathan: Or the Matter, Forme, and Power of a Common-Wealth Ecclesiasticall and Civill, ed. by Ian Shapiro (New Haven, CT: Yale University Press, 2010), Chapter XXI. 25 John Stuart Mill, On Liberty (London: John Parker and Son, 1859); Henry R. West, An Introduction to Mill’s Utilitarian Ethics (Cambridge: Cambridge University Press, 2004). 26 Jeremy Bentham, ‘Anarchical Fallacies’, in The Works of Jeremy Bentham: Published under the Superintendence of His Executor, John Bowring, vol. 2 (Edinburgh: William Tait, 1843), p.  503, cited in Philip Pettit, ‘Law and Liberty’, in Samantha Besson and José-Luis Marti (eds), Legal Republicanism: National and International Perspectives (Oxford: Oxford University Press, 2009), p. 39.

Constitutional rights, freedom as non-domination

85

27 Isaiah Berlin, Two Concepts of Liberty (Oxford: Clarendon, 1958); Pettit, Republicanism, p. 18. 28 Hobbes, Leviathan. 29 Berlin, Two Concepts of Liberty; John Christman, ‘Liberalism and Individual Positive Freedom’, Ethics 101 (1991). 30 Hobbes, Leviathan. 31 Philip Pettit, On the People’s Terms: a Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2013), Chapter 4. 32 Pettit, ‘Law and Liberty’. 33 Quentin Skinner, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998). 34 Jean-Jacques Rousseau, Discours sur l’origine et les fondements de l’inégalité parmi les hommes (Paris: Flammarion, 1755/2008). 35 David Gauthier, Rousseau: the Sentiment of Existence (Cambridge: Cambridge Universiy Press, 2006). 36 Jean-Jacques Rousseau, Du Contrat Social (Paris: ENAG, 1988/1762), Book I, Chapter VIII. 37 Samuel Freeman, Justice and the Social Contract: Essays in Rawlsian Political Philosophy (Oxford: Oxford University Press, 2007), p. 31. 38 Thus Rousseau identifies three types of freedom: natural freedom, moral freedom (understood as obedience to a law one prescribes to oneself) and civil freedom (the freedom from dependency or domination that can only be enjoyed in political society under the rule of law). See Rousseau, Du Contrat Social, Book 1, Chapter VIII, p. 41: ‘What man loses by the social contract is his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietorship of all he possesses. If we are to avoid mistake in weighing one against the other, we must clearly distinguish natural liberty, which is bounded only by the strength of the individual, from civil liberty, which is limited by the general will; and possession, which is merely the effect of force or the right of the first occupier, from property, which can be founded only on a positive title. We might, over and above all this, add, to what man acquires in the civil state, moral liberty, which alone makes him truly master of himself; for the mere impulse of appetite is slavery, while obedience to a law which we prescribe to ourselves is liberty.’ 39 Ibid. 40 Frederick Neuhouser, ‘Freedom, Dependence and the General Will’ Philosophical Review, 102 (1993), p. 390. 41 Philip Pettit, Just Freedom: a Moral Compass for a Complex   World (London: Norton, 2014). 42 Rousseau, Du Contrat Social, Books II and III. 43 For a neo-republican critique of Rousseau see Pettit, On the People’s Terms, Chapters 3–4. 44 See generally Skinner, Liberty before Liberalism. 45 Philip Pettit, ‘The Tree of Liberty: Republicanism, American, French and Irish’, Field Day Review, 1 (2005), p. 41. 46 Pettit, Republicanism, p. 18.

86

47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62

63 64 65 66 67 68

69

70

Republican freedom

Pettit, ‘Law and Liberty’. Ibid. Pettit, On the People’s Terms, Chapter 4. Ibid. Pettit, On the People’s Terms, Chapter 1. Pettit, Republicanism, p. 134. Pettit, On the People’s Terms, p. 3. Pettit, Republicanism, pp. 113–14. Pettit, On the People’s Terms, Chapters 1 and 2. Mortimer Sellers, The Sacred Fire of Liberty: Republicanism, Liberalism and the Law (New York: Macmillan and NYU Press, 1998). Duncan Ivison, ‘Republican Human Rights?’, European Journal of Political Theory, 9 (2010), p. 34. Frank Michelman, ‘Conceptions of Democracy in American Constitutional Argument: Voting Rights’, Florida Law Review, 41 (1989), fn 446. Pettit, On the People’s Terms, Chapter 2. Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007). In Ireland see Freedom of Information Acts 1997–2003. Tomkins discusses the importance of transparency and freedom of information in republican thought in Adam Tomkins, Our Republican Constitution (Oxford: Hart, 2005), Chapter 4. See Julia Guttman, ‘Primary Elections and the Collective Right of Freedom of Association’, Yale Law Journal, 94 (1984); Samuel Issacharoff, ‘Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition’, Columbia Law Review, 101 (2001). Issacharoff, ‘Private Parties with Public Purposes’. See Eoin Daly,‘Freedom of Association through the Prism of Gender Quotas in Politics’, Irish Jurist, 47 (2012). Ibid. Ibid. See generally Pieter Van Dijk, Fried Van Hoof and Arjen Van Rijn (eds), Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer, 1998). Pettit insists that a broad range of activities and choices, but not ‘any old choices’, must be protected by the basic liberties; they ‘need resources and protection in a range of choice where all can operate at once without getting in another’s way …. [this is] the domain of the fundamental liberties’. Pettit, On the People’s Terms, p. 83. On this issue, see Christopher Eisgruber and Lawrence Sager, Religious Freedom and the Constitution (Cambridge, MA: Harvard University Press, 2007); Ellis West, ‘The Case Against a Right to Religion-Based Exemptions’, Notre Dame Journal of Ethics and Public Policy 4 (1990); Dieter Grimm, ‘Conflicts Between General Laws and Religious Norms’, Cardozo Law Review 30 (2009); Employment Division v. Smith 494 US 872, 879 (1990). Heaney v. Ireland [1994] 3 IR 593; Cox v. Ireland 14 [1992] 2 IR 503.

Constitutional rights, freedom as non-domination

71 72 73 74 75 76 77 78 79 80 81 82

83 84 85 86 87 88 89 90 91 92 93 94

95 96 97

87

See note 52 and related text. Ibid. Ibid. Norris v. Attorney General [1984] IR 36. [1984] IR 36, 69 (emphasis added). [1970] IR 317, 338 (emphasis added). [1981] IR 233; see also Douglas v. Director of Public Prosecutions [2013] IEHC 3. Timothy O’Neill, ‘Liberal Constitutionalism and Bureaucratic Discretion’, Polity 20 (1988). Albert Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1897), Part 2, Chapter 4. Ibid; see also Patrick McAuslan, ‘Administrative Law, Collective Consumption and Judicial Policy’, Modern Law Review, 46 (1983). As a consequentialist, Pettit assumes non-domination is a value to be maximised. Philip Pettit, ‘The Consequentialist Can Recognise Rights’, Philosophical Quarterly, 35 (1988). See DPP v. Fagan [1994] 2 IR 265; Howard v. Commissioners of PublicWorks [1994] 1 IR 101. Articulating a more general principle of legality, Justice Kearns stated: ‘every executive or administrative act which affects legal rights, interests or legitimate expectations must be legally justified’. Browne v. Attorney General [2002] IEHC 47. See Articles 8–10, European Convention on Human Rights. Heaney v. Ireland [1994] 3 IR 593. O’Brien v. Bord na Móna [1983] ILRM 314. Ronald Pestritto, ‘The Progressive Origins of the Administrative State’, Social Philosophy & Policy, 24 (2007). See David Gwynn Morgan, Hogan and Morgan’s Administrative Law (Dublin: Round Hall, 2010), Chapters 12–15. McDonald v. Bord na gCon [1965] IR 217. Pettit, ‘ Law and Liberty’. Pettit, Republicanism, p. 148. Dawn Oliver and Jorg Fedtke (eds), Human Rights and the Private Sphere: A Comparative Study (Oxford: Routledge, 2007). See Aherne v. RTE [2005] IEHC 180; Kennedy v. Ireland [1987] IR 1. See e.g. Meskell v. CIE [1973] 1 IR 121; Educational Co. of Ireland v. Fitzpatrick (No 2) [1961] IR 345; SPUC v. Grogan [1989] IR 761. Sibo Banda, ‘Taking Indirect Horizontality Seriously in Ireland: A Time to Magnify the Nuance’, Dublin University Law Journal, 31 (2009); Colm O’Cinnéide, ‘Irish Constitutional Law and Direct Horizontal Effect’, in Oliver and Fedkte, Human Rights and the Private Sphere; Danwood Chirwa, ‘The Horizontal Application of Constitutional Rights in a Comparative Perspective’, Law, Democracy and Development, 10 (2006). Pettit, On the People’s Terms, p. 18. Murtagh Properties v. Cleary [1972] IR 330. [1942] IR 19.

88

Republican freedom

98 Equal Status Act 2000, section 7(1) and (2). 99 See Eoin Daly and Tom Hickey, ‘Religious freedom and the “right to discriminate” in the school admissions context: a neo-republican critique’, Legal Studies, 31 (2011). 100 Quinn’s Supermarket v. Attorney General [1971] IR 1. 101 [1979] ILRM 166. 102 [1997] 2 IR 321. 103 [1997] 2 IR 321, 360. 104 Seanad Éireann, vol. 150, 15 April 1997, 1488. 105 For a more extensive version of this argument see Daly and Hickey, ‘Religious freedom and the “right to discriminate”’. 106 Ibid. 107 In Mawhinney’s empirical study, 78 per cent of respondent schools cited religion as a criterion in their admission policies: Alison Mawhinney, Freedom of Religion and Schools: the Case of Ireland (Saarbrücken: VDM, 2009), 135; Kathy Sheridan, ‘Is your child Catholic enough to get a place at school?’, Irish Times, 1 May 2007; Kate Holmquist, ‘Allegations of religious bias in schools increase’, Irish Times, 6 May 2003; Ruairí Quinn, ‘Time to transfer control of primary education’, Irish Times, 26 January 2010. 108 See Employment Equality Amendment (no. 2) Bill 2013. 109 [1999] 1 IR 1. Equivalent provisions of the Equal Status Bill were defended in Oireachtas debates with reference to a constitutional right of schools to uphold their religious ethos. Minister Emmett Stagg stated: ‘the Minister is advised that the provision of Articles 42 and 44 of the Constitution, taken together with the decisions of the courts, means there is an entitlement under the Constitution to schools which are run in accordance with a religious ethos’. Seanad Éireann, vol. 151, 22 April 1997, 153. 110 Article 40.3 provides: ‘The State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.’

Part II Republican institutions

Blank page

3 Political constitutionalism and executive power

Introduction We have focused so far on the theory of republican freedom in rather abstract terms. In Part II, however, we consider how these ideas relate to specific questions of institutional design. In particular, we consider how republican theory might inform the inter-relationship between the legislative, executive and judicial organs of government. In this chapter, we assess the Westminster model of responsible government – both as it is posited in the text of the Irish Constitution and as it is practised in Ireland – through the lens of republican theory.1 We discuss executive power – and particularly the problem of executive dominance – in light of the republican idea of popular control over government.2 We suggest, albeit tentatively, certain practical reform proposals based on these theoretical concerns.We also hope to contribute to the under-explored question of the relationship between republican idealism and the Westminster, parliamentary model of government. That is, we hope to shed light on the question of whether this model is the ideal institutional form for promoting nonarbitrary government and thus in need of correctives rather than fundamental reappraisal. Alternatively, its weaknesses might be such that republican ideals would be better realised through alternatives such as ‘consociational’ or ‘consensus’-type models.3 And we further argue for a shift in the focus of public law and constitutional scholarship in Ireland towards political mechanisms for guarding against abuse of public power and for upholding individual rights. For the most part, the Constitution has been understood as controlling state power with reference to a set of textually defined rights standing independently of the political process. In turn there has been an almost absurdly disproportionate focus on judicial review in Irish constitutional thought. This intensely legal form of constitutionalism

92

Republican institutions

may be partly attributable to the relatively low prestige and confidence commanded by the Oireachtas compared to the comparatively ancient parliament at Westminster – which may in turn be partly attributable to particular shortcomings in the Irish version of the model. It may also stem in part from the historically close affinity of public-law academics with the legal profession and thus, the law itself – leading to an exaggerated confidence in law, and the legal system, as a constitutional mechanism for checking arbitrary power. But the underlying point is that political mechanisms for holding government to account and of safeguarding individual rights are in some senses both more legitimate and more effective than legal forms. In this light, we will argue that public law and constitutional scholarship ought to be re-oriented towards enhancing political constitutionalism in Ireland. With these themes in mind, the chapter takes the following structure. In the first section, we introduce the main features of the Westminster model of government, tracing important developments around the party system. We also look at how that model was integrated into the nascent Irish State in the period around independence and at efforts by the framers of the Free State Constitution to counteract the tendency of that model to concentrate power in the executive. Then we turn to consider republican theory, focusing in particular on ideas of democracy and popular control. Finally, we assess the model as instantiated in the Irish Constitution and practised in contemporary Ireland. We consider the well-established tension between constitutional theory (positing parliamentary control of government) and institutional reality (executive dominance of parliament) and its implications for the republican ideal of popular control over government.We will seek to apply republican insights with the aim of drawing some general reform conclusions.

The Westminster model in the nascent Irish State The defining feature of the Westminster model of government is that the constitutional authority of the sitting government is contingent on the support or confidence of parliament. As Adam Tomkins has put it, ‘at its core lies a simple  … and beautiful … rule … [that] the moment [the] support [of parliament] is withdrawn is the very moment that the government is required to resign’.4 The rule is ‘beautiful’ for what seems like a good republican reason: it means that government, in theory at least, is answerable in that most sudden and dramatic way. At any moment, the people’s representatives can ‘throw the scoundrels out’.5 This is the feature that most distinguishes it from the presidential model in which the executive power is directly elected by the people

Political constitutionalism and executive power

93

for a fixed term and remains institutionally separate from the legislative branch. It means, however, that there is what Walter Bagehot famously referred to as a ‘close union, the nearly complete fusion, of the executive and legislative powers’.6 Rather than being elected directly, the executive in the Westminster model is elected by, drawn from, and accountable to, the legislature. The other related and defining feature of the Westminster model – at least in the twentieth century – is a cohesive system of political parties, whereby individual candidates for election to parliament tend to stand as part of a disciplined group sharing a broad policy platform and set of commitments.Those elected vote for a government and for legislation as a unit, with discipline promoted through the whip system. The emergence of the modern political party in the nineteenth century is associated with the extension of the electorate through the Reform Acts (which meant that individual politicians could less easily deploy patronage to win and hold seats in parliament) as well as with an important constitutional shift from Crown to parliament that occurred between the mid-eighteenth and mid-nineteenth centuries.7 Whereas previously the power to appoint and dismiss prime ministers (and thus governments) lay with the Crown, irrespective of parliamentary confidence,8 by 1841 the convention of responsible government – that is, government responsibility to parliament rather than Crown – had been definitively established.9 This shift was, needless to say, an important democratic and republican advance, on any plausible interpretation of those ideals.10 But, as parliament gained constitutional authority in a formal sense, it was arguably weakened in a particular way, placing an apparent contradiction at the heart of the Westminster model of government. The contradiction is especially striking in light of the preeminent concerns of republican theory: the control and accountability of government relied upon the vigilance and scrutiny exercised by legislators, a majority of whom, almost by definition, regarded their primary parliamentary function as being to maintain the government of the day in power. Previously, where the authority of the Prime Minister rested on the goodwill of the Crown rather than the confidence of parliament, parliamentarians could harangue government ministers routinely through its period in office, and intensively hold them to account: they could freely execute their essential function. Subsequently, they were less inclined to do so: not only were a majority of them fundamentally supportive of the government’s policies, but all parliamentarians were sensitive to the concern that, should they apply the ultimate sanction, they might lose their seat in any resulting election. Thus a government elected with a clear majority of parliamentary votes became less likely to face meaningful checks in the assembly: its responsibility was limited to periodical elections rather than the continual, everyday accountability on which the Westminster model

94

Republican institutions

was originally premised. This everyday form of accountability may seem to be a more central republican concern than the more dramatic form of ‘throwing the scoundrels out’. If a government comes to be accountable only through periodic elections – as well as informally, through public opinion and civil society – it might well wield something that we can intuitively recognise as arbitrary power in the republican sense. By the time Irish nationalists came to reflect on the institutional design of their hoped-for new State in the early part of the twentieth century, the problems associated with government control over parliament were well known.11 Whereas constitutional idealism posited parliamentary control of government, the reality was the opposite – executive dominance over the parliament. Despite this – perhaps because it was the political system with which they were most familiar, or because their revolutionary fervour was otherwise engaged  – the Westminster model was integrated into the new Irish State, first through the Dáil Éireann Constitution of 1919, and later in the Irish Free State Constitution of 1922 and in the Constitution of 1937. There is evidence of some quibbling on the matter in the Dáil debates around the 1919 Constitution, but the debates around the Free State Constitution reveal a more considered assessment of the problems concerning the concentration of power, resulting in some relatively innovative efforts to counteract these problems by enhancing the role and power of the Dáil.12 One such innovation was the ‘extern minister’ concept provided for in Article 55.13 This involved an effective division of the responsibilities of government into two categories: the ‘political’ and the ‘technical’ or ‘non-political’. The political responsibilities were to be administered by members of the Executive Council (government or cabinet), who were subject to collective cabinet responsibility and thus stood or fell as a unit, depending on the support of the Dáil.  This left the supposedly non-political responsibilities, such as education, industry and local government, to external ministers who would be nominated by the Dáil on the recommendation of an ‘impartially representative’ committee of the Dáil and who would be individually responsible to that chamber. They would be chosen ‘with due regard to their suitability for office’.14 The idea was that these ministers would thus be ‘generally representative of the Irish Free State as a whole rather than of groups or of parties’ and would bring reform proposals on matters relevant to their departments before the elected parliamentarians for their approval or disapproval. The representatives could accept or reject them without being influenced by the matter of general government survival or collapse, thus facilitating a deliberative assessment that was more attuned to the commonweal than to factional or partisan concerns.

Political constitutionalism and executive power

95

The arguments made by Minister for Home Affairs Kevin O’Higgins, who led the debate in favour of the Constitution for the government, are revealing: It is well worth trying whether we could not devise a better system of Government than that system by which men constantly, as a matter of routine, vote against their own judgement, and almost against their own conscience, for fear of bringing down the particular Party Government to which they adhere. We should try that. There is nothing admirable in the Party system of Government. There is much that is evil and open to criticism. If we can find, or think we can find, a better system, we ought to try.15

In a similar vein: [The extern ministers] are to bring forward proposals from [their] Department in a way that will leave free thought and discussion here [in the Dáil], and that will eliminate the evils of the party system by which men vote for a particular Ministry under the crack of the party whip rather than bring down the Administration … These proposals will make the Irish Parliament what the British Parliament is not. It will make it a deliberative Assembly that will weigh carefully on their merits the measures brought before it … It will ensure that men will not vote for a particular measure that they think will have evil results for the country, simply to save that particular Administration.16

A further innovation contained in Article 53 provided that, in contrast to the Westminster system, a government that had lost the support of the Dáil could not seek a dissolution of parliament.17 Much like the concept of the fixed parliamentary term as per the UK Fixed Term Parliament Act 2011 (which removes executive discretion as to parliamentary dissolution) this empowered the Dáil vis-à-vis the government inasmuch as it diminished the threat of a dissolution from being used to enforce partisan discipline among the parliamentary majority: the Dáil could instead form a new government from among its members. And there was provision in Articles 47 and 48 for a popular-initiative procedure, whereby fifty thousand voters could petition the Oireachtas to enact a particular measure, which would thereafter be submitted to a referendum if rejected by the Parliament, and for a mechanism where three-fifths of the members of the Senate could refer a bill passed by the Oireachtas to a popular referendum. These novel devices of the Free State Constitution were at least in large part aimed at bolstering parliamentary control over the executive in the Irish constitutional setting – although the initiative device might be better characterised as an outright departure from the parliamentary-centred tradition of British constitutionalism and as an attempt to fashion a distinctive constitutional identity

96

Republican institutions

premised on a mythology of popular sovereignty. It was dropped in the late 1920s, partly, Ward has suggested, because of a growing belief in strong executive power within the Cumann na nGaedheal Government.18  The extern minister concept failed for a variety of reasons: in particular, the initial idea that such ministers were not to be members of the Dáil was dropped, while the ‘impartial committee’ was in reality controlled by the Government.19 Like the popularinitiative mechanism, it was effectively removed from the Constitution in 1927. Whether such mechanisms could potentially counter the apparent contradiction that had developed in the Westminster model of government, in a manner that promotes republican goals, is a question to which we return at the end of the chapter, after developing a clearer theoretical picture of the republican account of democratic popular control. What is clear is that some early idealists among the constitutional framers had such concerns very much in mind.Yet these concerns were distinctly lacking in de Valera’s rhetoric and design when it came to the 1937 Constitution. Although a democrat, the pre-eminent figure in Irish politics through the mid-twentieth century believed in strong government – partly, perhaps, because of various fragilities in the post-independent State and society, and partly because of a desire to fashion a State and a society around a particular vision of the good.20 In Chubb’s words, he ‘found the system which he inherited an adequate instrument for his purposes and, indeed, well suited to a strong prime minister leading a loyal majority party that looked to him for initiative and direction’.21 While the legal control of executive power was arguably enhanced by the consolidation of constitutional review – as we examine in Chapter 4 – political control of government was to remain ineffective and merely abstract in many respects. Below we describe how, in contrast even with the modest (and failed) innovations of the 1922 Constitution, the 1937 Constitution, seen in light of the political culture in which it operates, essentially failed to counteract or stem the problem of executive dominance. Before that we consider, in greater detail, the relationship between democratic freedom and popular control of government in republican thought.

‘Popular control’ and its institutional implications Questions around institutional design in any political community are premised, to an extent, on deeper questions concerning the legitimacy of the State. The political institutions represent the framework through which the State exercises its considerable powers of interference in the lives of citizens. Legitimacy is thus concerned with reconciling these powers of interference  – the monopolised coercive powers to levy taxes and impose laws – with the freedom of citizens.22

Political constitutionalism and executive power

97

If the State is legitimate, its citizens can at least recognise its authority to levy taxes and impose laws, even though they will often be frustrated by them or even profoundly disagree with them. They can also be said to continue to enjoy freedom despite experiencing the interference of state power. So the question is what form the State should take in order for its authority to be deemed legitimate in this way, and what implications this might have for the design of political institutions. Where early-modern monarchists understood legitimacy in terms of the notion of the divine right of kings, for social-contractarians such as Hobbes and Locke political legitimacy was conceived through the idea of the state of nature and with reference to the notion of consent.The legitimacy of the State is defined by those terms that rational and reasonable individuals can be thought to have consented to from this hypothetical pre-social standpoint, although the content and terms of that consent differed significantly between Locke and Hobbes.23 For classical liberals such as Locke, individuals consent to government to preserve their natural rights – rights that, although their content is uncertain, exist prior to and independently of any political relationship. For republicans, however, as we have discussed in previous chapters, there is no meaningful freedom other than in political society. Freedom is constituted through and by, and not despite, coercive laws. Republicans, then, generally avoid framing legitimacy in terms of hypothetical consent. (And, in any case, as republicans point out, an individual can consent to a dominating state of affairs, as in the example of the slave contract). Rather, they are concerned with the question of control. These represent quite different democratic concepts: while individuals may in theory consent to a form of power that they do not control, equally they may exercise control over an authority to which they never gave consent, or in relation to which consent may not prove a useful or workable concept.24 Unlike the rather abstract idea of consent, control refers to the real conditions of democratic participation. The idea of control can explain the experience of unfreedom at the individual and interpersonal as well as the political and collective levels. Just as the unfreedom of the slave is explained by his utter lack of control over his own personal fate, by virtue of his vulnerability to his master’s arbitrium, equally the subjects of an authoritarian regime exercise no control over their political fate: they remain vulnerable to unchecked and potentially capricious power-wielders. In republican terms, it is their inability to exercise control over political power that explains the lack of legitimacy of such a State. Thus the legitimacy of a republican State is premised on a notion of control – and specifically, a shared and popular form of control – and it is this notion that should inform the design of political institutions in a republican democracy.

98

Republican institutions

But the control exercised by a large and diverse group of citizens over its government is multi-layered and complex in comparison with that exercised by a would-be slave over its master, or in any other inter-personal relationship. It is far from self-evident that a disparate, heterogeneous group of citizens, pulled in different directions by competing interests, could achieve levels of coordination and cohesion that would make collective or shared control a meaningful political reality. Indeed in this light, popular control of government may seem a demanding criterion. For Pettit, the kind of popular control that republican idealism demands must be such that the people enjoy ‘directive influence’ over government: not only that they enjoy influence over government – influence as such might be quite piecemeal and haphazard – but that this influence directs government in accordance with their shared interests. This prompts three demanding conditions. First, since the powers of government are powers exercised over each individual, Pettit suggests this system of control must be ‘individualised’ appropriately.25 Each individual must enjoy equal access to a system of joint control of government. This is different, of course, from personal control on the part of each individual, which would be both unfeasible and impossible to reconcile with any plausible conception of coordinated government. But it also means that the direction that government actually takes is required to be one that each individual, or at least each individual who is disposed to living on equal terms in a shared political community, is ready to accept. Second, Pettit suggests, the popular control must be ‘unconditioned’ or independent, in the sense of not being conditional on the goodwill of the controlled government or, indeed, of any other agent, such as a foreign power or the police, for example.26 This requires that the people always hold the trump card over government in the form of a disposition to rise up in the face of government abuse of legitimacy, and a correlating disposition of government to back down in response. And finally it must be sufficiently ‘efficacious’.27 This means that the form of popular control is such that individual citizens may see government interference not as being the work of an alien will but rather as being based on shared interests which they have had an equal part in defining.28 That is, where a particular law frustrates a specific group in the community – such as a law to construct an incinerator in their area, for example – it must be of such a form that members of that group, despite their frustration, can see themselves as being simply unlucky in the particular instance, rather than as being victims of an alien or factional will.29 The general conclusion that Pettit draws from this account of popular control is that electoral mechanisms, while necessary, are not sufficient, in a republican democracy in which the demos (people) can truly be said to enjoy kratos (control) over government. But this points to certain implications that are relevant

Political constitutionalism and executive power

99

not only to general questions of institutional design, but to particular questions concerning the Westminster model of government. It clearly suggests, first of all, that electoral mechanisms will be a central pivot in a republican system: how else, or how better, to promote equal access to a system of joint influence, along with the other criteria. But it also points strongly to the limitations of electoral mechanisms and to the consequent need for contestatory mechanisms, centred, we argue, around the answerability of government to parliament in the ongoing or everyday sense. While some republicans have argued that individual freedom requires certain matters, such as the basic liberties, to be put beyond the political agenda – that certain matters should be depoliticised, so to speak – a common theme is that non-arbitrary government must be responsive to a directive popular influence, as constituted in Pettit’s three criteria. The argument is borne out, we suggest, by closer consideration of these criteria of popular control. Take the criterion of individualised control, for example. For reasons of feasibility, in particular, this cannot be said to require each citizen to have an equal impact on each exercise of governmental power. But it does seem to require each citizen to have an equal chance of having an equal impact, as Pettit suggest. That is, in a final policy decision to be made by government where some citizens will lose out and others will gain, that each citizen has an equal chance of being on the winning side.30 Under a purely electoral system, it cannot be that each citizen will have such an equal chance. There will be certain groups that, because of their religion or sexual orientation, for example, could not be said to have such an equal chance, if a government decision undermining their particular religion or sexual identity could be taken purely on the basis of electoral considerations.31 This is the familiar problem of majority tyranny, which we take up in the next chapter. But there are other reasons too. A government that is controlled through electoral mechanisms alone will tend to answer to the concerns of particular voters, perhaps in marginal constituencies or because of other traits that make them electorally pivotal, and to ignore others. Or perhaps there is a significant constituency of voters, a cultural minority or even just a group sharing an unpopular set of reasonable political commitments, who tend to lose out in the electoral contests for government. Such citizens might be protected to some extent by rightsbased judicial review. But in the less dramatic and thus more routine instances, it is primarily through parliamentary mechanisms of accountability that the voice of citizens can be heard such that the laws and policies will be more likely to account for their interests. Parliament might represent an institutional source of pressure through which government can be forced to publicly justify its laws and policies, showing them to serve the public interest rather than factional or sectional interests.

100

Republican institutions

Independently of collective democratic control over government, institutional arrangements must be such that individuals, or groups, can contest government decisions that affect their interests. This will typically be achieved through judicial rather than parliamentary channels. We use this argument in Chapter 4 in developing a particular republican theory of constrained judicial review of legislation, but that is a more discrete and limited argument. It concerns only legislation, and only in the context of a rights-based review of legislation, and would thus have much less of an impact in practice on the lives of citizens. The argument here is that republican democracy requires more general political contestation and, in the context of the argument of this chapter, intense parliamentary scrutiny of government, in that ongoing and everyday sense. It is difficult, particularly at this juncture, to draw specific conclusions from the necessarily abstract argument: hence, any specific proposals we make, we make hesitantly: our aim, as we suggested earlier, is to subject the system of government practised in Ireland to a specifically republican analysis. But this notion of individualised control would seem to be enhanced by empowering the opposition within parliament, as well as individual parliamentarians in respect of both its accountability and law-making functions. It might be promoted, for example, by the election of chairpersons of parliamentary committees by secret ballot rather than by government diktat, and by the integration of the committee stage of legislation at an earlier stage in the legislative process. Such constraining of the elected government – much like our argument for constrained judicial review of legislation in Chapter 4 – enhances rather than undermines democracy, where democracy is understood in these republican terms. The same essential argument emerges from the second criterion: that of unconditioned popular control. The idea is that popular control over government cannot be contingent on the indulgence of an agent other than the people themselves. It cannot be, for example, by virtue of the government’s own inclination to humour the people, or because another powerful agent – such as a group of international agencies bailing out a financially crippled government on condition that that government satisfies certain demands – is so inclined.32  We should think here of ‘government’ in the broader sense, incorporating the civil service, for instance, and the police, rather than as just the members of cabinet. The fact that the government in that sense is so powerful by comparison with its individual citizens intensifies the concern on this front. Thus periodic elections, while necessary, are hardly sufficient to promote unconditioned popular control. This condition, as we saw, requires a ‘resistance-prone people’ along with a ‘resistance-averse government’. Clearly, it requires a virtuous citizenry, willing and able to engage in public deliberation on the basis of non-factional reasoning and of identifying and countering abuse or concentrations of power. But we

Political constitutionalism and executive power

101

leave that to Chapter 6. In terms of institutional design, it is promoted, Pettit suggests, by the mixed constitution ideal, in which governmental power is dispersed rather than concentrated in one body.33 Where power is dispersed in this way, government is less likely to ‘close ranks and assert its authority’ in a manner that would face down or ignore popular resistance, thereby countering the ‘reserve’ power of the people to resist in the face of governmental abuse of power.34 Rather than fostering or actively encouraging popular revolt against the State, this criterion might be better understood as emphasising the importance of institutional mechanisms for checking the power of government such that citizens can engage and feel their voice counts, and government is constrained such that its subordination to the people becomes a matter of common awareness.  The practice of judicial review of executive and administrative action is one example of a mechanism that might be understood as serving this goal of constraining government power and promoting the rule of law. But the point in the present context is more to bolster the arguments already made in favour of the political, rather than the legal, accountability of government and thus of empowering parliament vis-à-vis government in the Irish constitutional system. It might also be used to argue in favour of bicameralism, although we steer clear of this debate here.35  While a non-political mechanism such as judicial review – of executive or administrative action – may play some role in promoting this particular republican goal, it would do so only in respect of egregious instances where the public power wielder can be said to have exercised the discretion in a way that was unreasonable almost to the extent of being absurd.36 In fact the rationale of the stringent test for judicial review of administrative action – where judges are to stand back from the fray and quash only those decisions that are manifestly unreasonable – is that these kinds of decisions are often technical or political in nature and thus ought to be decided through political forums or by expert bodies that, unlike courts, are answerable through political forums.37 The same conclusions can be drawn from the final criterion of efficacious influence. It is inevitable that government involves the exercise of discretion – no matter how hemmed in it might be – on the part of power wielders at all of its different levels, meaning there will inevitably be citizens who are frustrated by particular government decisions and who experience this as a form of uncontrolled, alien will. It may be that a government minister, answering to what is thought to be the majority view, pursues a policy with which a particular citizen (or group of citizens) profoundly disagrees, or that a mid-ranking decision maker within a public authority, operating within broad statutory constraints, decides on an application for public funding, for example, in a manner that excludes a particular citizen. The point is that popular influence on government must be such that each citizen – even when the outcome of government decision making

102

Republican institutions

is adverse to their interests – can be satisfied that the decision has been made through a process in which they have had an equal share and that it has not been determined by an alien will, in the manner of a master’s decision with respect to his slave. The fact that the outcome may be adverse to the interests of a particular citizen may thus be seen, from that citizen’s point of view, more as a matter of tough luck than as a matter of uncontrolled, arbitrary, dominating power.38 Again, while this, as Pettit suggests, points to the limitations of electoral mechanisms and emphasises the need for forums of contestation in a general sense, we argue that it points in particular towards political and parliamentary modes of contestation.39 Elected politicians are indeed vulnerable to being influenced by factors other than the common good. The ‘money-follows-the-minister’ culture in Irish politics – where ministers pump disproportionate funds into projects within their own electoral constituencies – and the tendency to delay unpopular but necessary decisions until after an electoral test are examples. And these are the kinds of alien interests that are best countered through parliamentary forums. It is through transparent decision making, robust freedom of information laws and a parliamentary system in which ministers and senior civil servants can be brought before parliament or parliamentary committees and, in full public glare, be required to publicly justify their decisions, that such decision making is countered, and that government is forced to track the public interest. Other mechanisms, such as media and civil society, may equally have some role in countering and checking government power. But given the legitimacy and prestige it may potentially command, at least, a popularly elected assembly is uniquely positioned to effectuate an efficacious and directive form of control over government – at least if its constitutional powers in respect of the executive are appropriately designed.

Government and parliament under the 1937 Constitution: theory and practice For technical and political reasons relating mainly to partition, the 1937 Constitution stopped short of formally declaring a ‘republic’.40 De Valera, who thought of himself as a republican, regarded the Constitution as republican in all but name.41 Indeed much of the text has a seemingly republican flavour. Chubb has described the presidency as a ‘symbol of republican status’, while the preamble and Article 6, as we have seen, clearly reflect a principle of popular sovereignty.42 Similarly, much like its predecessor, the text formally subordinates executive power to legislative oversight and control. While Article 28.2 vests executive power in a government composed of between seven and fifteen

Political constitutionalism and executive power

103

members, the executive is subject to the overriding authority of the Parliament. Article 15.2.1° provides that ‘the sole and exclusive power of making laws for the State is … vested in the Oireachtas’. Article 13.1 provides that the Dáil, as the directly elected lower house, nominates the Taoiseach and approves the members of government.43 And Article 28.4.1°, one of the most critical provisions in the text, requires simply that ‘the Government shall be responsible to Dáil Éireann’.44 Article 28.10 gives effect to this broad principle in providing that the Taoiseach must resign upon ceasing to retain the support of a majority of the Dáil.45 Thus the functions of the national Parliament under the 1937 Constitution, just as in the case of all parliaments operating on the Westminster model, are threefold: to appoint and dismiss governments, to make laws, and to hold those governments to account.46 The role of the Dáil (as the lower House) in the appointment and dismissal of government is, much as in other Westminster-type parliaments, essentially formal, despite the constitutional provisions that envisage the House as a powerful agent in this process.47 Generally, a party coalition representing a majority of seats will be negotiated following a general election, and the deputies duly vote, accordingly, for an agreed candidate as Taoiseach, and on approving his proposed members of cabinet.48 The same point can be made with respect to Article 28.10 and the power of the Dáil to terminate a government.49 Because of the solidity and discipline of political parties within the political culture, a government will generally either last a full term, or choose to ‘go to the people’ at whatever time the leaders of a government and their advisors deem it most advantageous electorally. Government backbenchers will generally toe the line because to do otherwise would be likely to end their prospects of gaining high political office. The phenomenon of party discipline might seem to undermine the parliament’s function in holding government to account, and thus, to leave government power relatively uncontested between elections: for the most part, government deputies will vote along government lines. In short, it might make the lower House merely an electoral college for appointing governments. In this light, in the period between parliamentary elections governments might seem to break free of any meaningful form of directive popular control, as their policies will be supported and ratified primarily on the basis of partisan and factional considerations as the requirement of ongoing parliamentary confidence remains a dead letter. In turn, this raises the spectre of a form of arbitrary or uncontested government, and of democratic control being reduced to an empty formula. However, the picture is not quite as simple as this. Even though most governments will feel secure against any no-confidence motion by virtue of party

104

Republican institutions

discipline, they will hardly enjoy impunity. Of course, they will remain contested in other forums, particularly media and civil society. More fundamentally, however, party discipline serves an important political function. A system of atomised, uncoordinated parliamentarians would be chaotic and unworkable: governments would be made and broken much too regularly and usually, no doubt, on the basis of populist or unworthy reasons, perhaps in response, for example, to the demands of a small faction concerned with local needs, upon whose support a government might rely. The system also facilitates, at least in a general sense, the offering of a preelection choice to the citizens based on a policy and legislative platform on which a government’s performance might subsequently be appraised. This can be compared with the presidential model of government in which individual legislators are not as tied by the party whip, and are thus more vulnerable to moneyed influence and indeed are bound to engage in post-election, unorganised political bartering rather than formulating a coherent collective platform. Although group discipline in parliament prevents deputies from contesting government according to their own judgement, it allows for a degree of coordination in the execution of legislative and policy programmes, which itself serves a broader goal of political accountability. Indeed this would seem to suggest that, in some respects at least, the Westminster model offers a superior model for facilitating popular control over laws and policies.50 Since the Irish version of the model makes coalition government more likely, with its PR-STV system of voting, this potentially benfits smaller parties, both in winning seats in parliament and potentially a role in government, thereby checking the power of larger parties in government.51 While this does make for some degree of post-election bartering over a programme for government, it remains substantively different from the presidential model in which individual and relatively independent legislators are perpetually engaged in ad-hoc political bartering. On the question of making and breaking governments, the model also seems to play a role in facilitating the reserve power of the people in resisting governmental abuse, since parliament retains a perpetual threat of terminating government. While it remains unlikely by virtue of the party system, the voting down of the executive at least remains possible, whereas under the presidential model a government usually cannot be removed from office during its term, once a president wins an election. But while the Westminster model may seem to do well on the question of making and breaking governments – at least in its basic structure and conception – it does much less well in respect of the legislative function. Article 15.2.1°, which, as we saw, vests ‘sole and exclusive’ authority to the Dáil over law-making power, might be described, as Basil Chubb put it, as the single greatest myth of the Constitution.52 In reality, the government dominates to an extent that renders

Political constitutionalism and executive power

105

parliament close to redundant. The legislative process begins when a government minister brings a ‘memorandum for government’ to the cabinet outlining the essentials of a proposed law.53 The dominant pattern is that once a minister receives approval for a bill at this stage, it will become law more or less in the same form, despite going through a number of formal parliamentary stages. The second-stage debate on the principles of the bill is usually treated as a set-piece formality, with little incentive for the opposition to offer an alternative approach in virtue of government dominance (and also, arguably, a culture that has developed, presumably in response to government dominance, whereby opposition legislators react in theatrical disapproval rather than in a spirit of principled deliberative engagement). The committee stage comes later, once the essential principles have been set, leaving only technical details and minor amendments to be determined (although there have been moves recently towards introducing a system of pre-legislative committee hearings). We have seen that the republican argument is effectively that the legitimacy of government relies on institutional processes of government being such that individual citizens can feel that they have an equal chance of having an equal impact on how governmental power is exercised and on their being able to see their ‘defeats’ on law and policy outputs as more akin to ‘tough luck’ than as the manifestation of an alien will.  We also saw that these criteria in turn prompt the need for robust contestatory mechanisms. We argue that these ideas require a much more vigorous parliamentary role in scrutinising legislation. Specifically, as we elaborate in Chapter 4, we argue for a dedicated rights-reviewing committee stage of legislation along the lines of the Joint Committee on Human Rights established at Westminster following the enactment of the Human Rights Act 1998.54 Such a committee might be chaired by a member of the opposition, as per the convention that currently operates in relation to the Public Accounts Committee, and its members might be elected by secret ballot so as to ensure a measure of protection from dominance by government. Furthermore it might deliberate prior to the plenary vote on the general principles, the idea being that this would promote a more principled law-making process in which basic liberties are accorded a central emphasis. This brings us to the final function of parliament: the accountability of government to the Dáil, in respect of its executive function, in the day-by-day, month-by-month sense. The constitutional principle of government responsibility to Dáil Éireann, enshrined in Article 28.4.1°, is given effect not only in the requirement that governments resign upon loss of confidence, but also through mechanisms providing for ongoing scrutiny of government, specifically Parliamentary Questions and the committee system. As Tomkins and others have claimed, it is this constitutional function of parliament that gives

106

Republican institutions

the Westminster-style system its ‘republican’ flavour. Correspondingly, it is the weak operation of this function in practice that represents perhaps the greatest shortcoming of the Irish constitutional system from the standpoint of republican idealism. In particular, the scholarship on Parliamentary Questions in Ireland points to a dysfunctional system and, especially, to a culture of secrecy and obfuscation among both ministers and senior civil servants.55 For example, the Beef  Tribunal report suggests that if questions had been answered in the Dáil as comprehensively as they had been in the Tribunal itself, the inquiry – which lasted three years – would never have been necessary.56 It found evidence of deliberate vagueness and evasiveness among civil servants who were concerned to protect their minister and department.57 On the other side, there is evidence of an excessive tendency among Deputies to the Dáil (TDs) to submit Parliamentary Questions relating to constituency-specific issues.58 But by far the most potent mechanism in modern parliamentary systems (not only with respect to the accountability and scrutiny functions but also in respect of the legislative process) is the committee system, which, if designed appropriately, allows for specialisation on policy matters and – partly because of the ‘small-group psychology’ effect – tends to offset the excessive partisanship found elsewhere in the legislative process.59 But the committee system in the Oireachtas is also seen as ineffective.60 MacCarthaigh, for example, attributes its failings mainly to partisan political culture. He suggests that ‘if the committees used all their powers to look at such issues as secondary legislation, departmental strategy statements or the work of state agencies under the aegis of various departments, they could contribute significantly to a culture of parliamentary accountability’, but notes that ‘the attraction of media attention rather than the obligation of democratic accountability’ undermines the system.61 The failure of the committee system can be attributed mainly to the stranglehold exercised by government, as it holds a majority of seats on committees as well as controlling the chair position in a disproportionate number of them.62 Thus committee seats tend to be distributed on the basis of loyalty and patronage, with the election of chairs and vice-chairs negotiated and designated by the party whips. In many ways this brings us back to the contradiction that developed in the nineteenth century as control of the executive shifted from Crown to parliament: the accountability of government, incongruously, came to rely on parliamentarians, a majority of whom saw their primary parliamentary role as being to maintain the government of the day in power. With this in mind, we point briefly to the reforms introduced at Westminster following the Wright Committee Report of 2009.63 The report recommended retaining the system whereby committee seats are distributed on the basis of party representation and whereby majority or opposition parties hold a proportionate number of committee chairs.64  This

Political constitutionalism and executive power

107

latter arrangement would represent a notable improvement on the Irish system where all bar two of the committees are automatically chaired by members of government parties. The key innovation recommended by the report was that the House of Commons would elect committee chairs by secret ballot, in order to give chairs a mandate directly from the House itself rather than by dint of government patronage.65 Similarly, members of each party would elect their quota of ordinary committee members by secret ballot.66  While there are several other reforms that might boost the prestige and effectiveness of the committee system, this, we suggest, is most pivotal, as it would ensure a measure of independence from the entity that it is tasked with scrutinising.

Conclusion In this chapter we have examined the model of government established in the Irish Constitution in light of republican political theory, with its understanding of popular control over government as the cornerstone of non-arbitrary rule. We have argued that, at least in its central premise, the Westminster parliamentary model does well in this light, with reference to the criteria of individualised, unconditioned and efficacious popular influence over government. The fact that parliament can remove a government from office at any moment supports the key condition of subordinating government power to popular control. It plays a central role in bringing about a shared public consciousness of the reserve power of the citizenry to resist governmental abuse and corruption and, more pertinently, to make governments averse to such abuse. And the fact that it requires a potential government to win popular approval for its broad legislative programme seems to given it an advantage over the alternative presidential model in which legislators engage in ongoing bartering, thereby seeming to open up avenues for alien or factional interventions. We have also argued for greater parliamentary scrutiny of legislation – specifically in respect of rights-based review – based on the notion that only through intensive, public and political scrutiny of legislation can all citizens come to see legislation as non-arbitrary in the sense of not being attributable to an alien will. While the Westminster parliamentary model has tended towards a consolidation of executive power in a relatively unchecked cabinet government, its foundational premise  – that of ongoing scrutiny and accountability of government in a representative public forum – captures a central republican theme: the concern for concrete contestation of government power, in preference to more abstract notions of democratic and electoral legitimacy. Thus we assume that executive dominance can be attenuated, at least, within the basic framework of this model.

108

Republican institutions

However, while the parliamentary model might be premised towards republican idealism in its essential features and devices, in practice it has tended to facilitate an excessive concentration of relatively unchecked power in the executive, in a manner that ultimately undermines this promise. The main shortcoming of the model as it is practised in Ireland lies in the weak accountability role exercised by the lower house with respect to the government’s executive function, notwithstanding the forthright language of Article 28. It is this routine and everyday scrutiny, rather than the dramatic act of voting down governments, that is the essence of the political contestation that is so central to the republican idea of political freedom as requiring non-dominating or non-arbitrary rule. Those who wield most power, in a republic, must answer openly, under the public glare, and on the basis of ordinary public reason, such that citizens can see themselves as controlling those who control them. And it is not that the text of the Constitution falls short: the words of Article 28.4.1°, as we saw, hold that ‘Government shall be responsible to Dáil Éireann’. Indeed the Irish text brings out the underlying republican imperative more forcefully: ‘Tá an Rialtas freagrach do Dháil Éireann’. The government is, or ought to be, answerable to parliament. The problem is not that individual government decisions enjoy impunity: they will be subject to certain forms of scrutiny and deliberation, but typically in secret forums such as cabinet or parliamentary party meetings rather than on the floor of the Dáil or in its committees. That, above all, is where the Irish version of the Westminster model fails. Here, as in respect of the Dáil’s other functions, there is a dissonance between constitutional theory and institutional practice. The Constitution theoretically envisions a ‘House of Representatives’ as an agent of control over government. But in practice, governments are hardly checked by the Dáil at all, even through they may be checked through other means. Our essential argument is that the formal electoral mandate enjoyed by governments is insufficient in light of the republican concern to contain arbitrary power; instead, power wielders must be checked on an ongoing and continual basis – and in a contestatory public forum rather than back-room political machinations. And the final point is that the freedom of citizens and their effective, meaningful enjoyment of the basic liberties, relies much more on this ordinary political realm than on judges and lawyers. Those non-political forums have a role to play in supporting individualised, efficacious and unconditioned control. But it is a secondary one and it can never be as effective. It is through a process in which ministers and senior civil servants are required to publicly justify their decisions that the prospect of factionalist interventions – like the preferment of friends in well-paying public roles or of electorally marginal areas for public funding – is

Political constitutionalism and executive power

109

best countered. In this way citizens can begin to see government’s exercises of its immense powers of coercion as legitimate and as consistent with (indeed as constitutive of) their own individual freedom. The premise of political constitutionalism, then, is that citizens’ freedom is constituted through and not despite the political and legislative process – a theme we continue in the following chapter.

Notes 1 On ‘responsible government’, see Colin Turpin and Adam Tomkins, British Government and the Constitution, 7th edn, (Cambridge: Cambridge University Press, 2011), pp. 566–72. 2 See generally Philip Pettit, On the People’s Terms: a Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2013). 3 On the distinction between ‘Westminster’ models and ‘consensus’ models, see generally Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, 2nd edn, (New Haven, CT:Yale University Press, 2012), pp. 9–45. 4 See Adam Tomkins, Our Republican Constitution (Oxford: Hart Publishing, 2005), p. 1. 5 Ibid. 6 Walter Bagehot, The English Constitution (London: C. A. Watts & Co. Ltd., 1867), p. 65 (emphasis added). 7 Duverger suggested in 1951 that ‘in 1850 no country in the world (except the United States) knew political parties in the modern sense of the word … In 1950 parties function in most civilized nations’. See Maurice Duverger, Political Parties:Their Organization and Activity in the Modern State, trans. B. and R. North (London: Metheun & Co. Ltd., 1951), xxiii. See also Giovanni Sartori, Parties and Party Systems: A Framework for Analysis, Volume I (Cambridge: Cambridge University Press, 1976), p. 21. 8 William IV was the last monarch to dismiss a Prime Minister who continued to enjoy the confidence of the House of Commons in 1834.The constitutional shift is dated from this point. See John Ward, Colonial Self-Government: The British Experience 1759–1856 (London: MacMillan, 1976), pp. 172–208. Gillian Peele suggests that in the eighteenth century the ‘authority of the cabinet was still derived from the sovereign and the continuation of a government was dependent on the sovereign’s good will rather than on the ministry being able to command parliamentary support … Only in the 19th century did the Crown lose the power to choose who should become prime minister and to veto ministers to whom the monarch objected.’ Gillian Peele, Governing the UK, 3rd edn (Oxford: Blackwell Publishers, 1995), p. 92. 9 Peele, Governing the UK, p. 92. 10 As Bagehot wrote in The English Constitution in 1867, the system he was describing was in the process of changing dramatically. He suggested, for instance, that the House of Commons ‘lives in a state of perpetual choice’ and that ‘at any moment it can choose a ruler and dismiss a ruler’. Bagehot, The English Constitution, p. 158. Notably, in the period between 1832 and 1867 no less than seven cabinets had been replaced by the House of Commons, that is, without an intervening general election.

110

Republican institutions

11 Following these developments, the Westminster model came to be associated with party government and the diminution of parliament. Lord Hailsham famously described it as an ‘elective dictatorship’ in his 1976 Richard Dimbleby Lecture. See Quintin Hogg, Elective Dictatorship (The Richard Dimbleby Lecture) (London: British Broadcasting Corporation, 1976). 12 In the Dáil debates around the 1919 Constitution the Cumann na nGaedheal TD, J. J. Walsh, brought a motion, seconded by Seán MacEntee TD, proposing that executive power would be vested in ministers assisted by committees of the Dáil, which would enjoy genuine control of the executive: ‘Whereas Mr. de Valera has repeatedly publicly announced in America that the Constitution of the Irish Republic was based on the democratic foundations underlying the Constitution of the United States; and whereas the latter body provides for the consideration of all phases of legislative activity through the medium of Committees whose findings are subject only to the veto of the whole Parliament … and as no such machinery has yet been set up within the Irish Republican Government, with the consequent practically entire exclusion of three-fourths of the people’s representatives from effective work on the nation’s behalf, we now resolve to bring this Constitution into harmony with the American idea of Committees elected by the whole House, and clothed with similar powers.’ The motion was resoundingly defeated. As quoted in Alan Ward, The Irish Constitutional Tradition: Responsible Government and Modern Ireland, 1782–1992 (Dublin: Irish Academic Press, 1994), p. 159. 13 See generally Brian Farrell, ‘The Drafting of the Irish Free State Constitution’, The Irish Jurist, 5 (1970), Laura Cahillane, ‘Anti-Party Politics in the Irish Free State Constitution’, Dublin University Law Journal 35 (2012), pp. 43–54. 14 As Minister for Home Affairs Kevin O’Higgins reasoned: ‘why lose your best servant because he does not agree with you on matters outside the scope of his work?’ See Dáil Éireann Debates, vol. 1, 20 September 1922, col. 487. 15 Dáil Éireann Debates, vol. 1, 5 October 1922, col. 1271. 16 Dáil Éireann Debates, vol. 1, 6 October 1922, cols 1306–7. 17 Article 53 of the Constitution of the Irish Free State provided that the ‘Oireachtas shall not be dissolved on the advice of an Executive Council which has ceased to retain the support of a majority of Dáil Éireann’. 18 Ward, The Irish Constitutional Tradition, pp. 223–4. 19 Cahillane, ‘Anti-Party Politics’. 20 For an interesting (and damning) critique of de Valera’s republican credentials, see Mark McNally, ‘Séan O’Faoláin’s Discourse of “The Betrayal of the Republic” in MidTwentieth Century Ireland’, in Jeremy Jennings and Iseult Honohan (eds), Republicanism in Theory and Practice (London: Routledge, 2005), pp. 79–94. 21 Basil Chubb, The Constitution and Constitutional Change in Ireland (Dublin: Institute of Public Administration, 1978), p. 32. 22 The discussion of popular control relies on Pettit, On the People’s Terms, pp. 146–79. 23 Ibid., pp. 141–6. 24 Ibid., pp. 146–79.

Political constitutionalism and executive power

25 26 27 28 29 30 31 32 33 34 35 36

37 38 39 40

41 42 43

111

Ibid., pp. 168–70. Ibid., pp. 170–4. Ibid., pp. 175–9. Ibid., p. 167. Ibid., p. 177. Ibid., p. 211. Ibid., pp. 211–15. The condition evokes the role of the ‘Troika’ in Ireland in the period 2010–13. Pettit, On the People’s Terms, pp. 220–5. Ibid., p. 223. Mainly because we disagree between ourselves as to the merits of bicameralism, on both practical and theoretical grounds. This reflects the standard test in Irish law as per the decision in O’Keeffe v. An Bord Pleanàla [1999] 1 IR 39, although it has evolved in recent times, as most notably illustrated by the decision in Meadows v. Minister for Justice [2010] IESC 3. It corresponds with the test laid down in the famous case of Associated Provincial Picture Houses v. Wednesbury Corporation [1948] I KB 223. For a good account of the democratic rationale of restricted judicial review see Timothy Endicott, Administrative Law (Oxford: Oxford University Press, 2011), Chapter 2. Pettit, On the People’s Terms, pp. 176–7. We argue that Pettit underplays the extent to which political forums of answerability, and especially parliamentary forums, can and should perform the contestatory role he advocates. The absence from the document of the term itself was strategic on de Valera’s part. He went as far as to suggest that ‘if the Northern Ireland problem were not there … in all probability there would be a flat downright proclamation of a republic in this Constitution’. See Dáil Éireann Debates, vol. 68, 14 June 1937, col. 430. This is a reference, apparently, to the view that an outright proclamation would have required an exit from the Commonwealth, which would in turn have ended any prospect of tempting Northern Ireland unionists into an all-island State. On this point, see Chubb, The Constitution and Constitutional Change in Ireland, p. 43. See John A. Murphy, ‘The 1937 Constitution – Some Historical Reflections’, in Tim Murphy and Patrick Twomey (eds), Ireland’s Evolving Constitution 1937–97: Collected Essays (Oxford: Hart Publishing, 1998), pp. 18–19. Chubb, The Constitution and Constitutional Change in Ireland, p. 43. There was a notable elevation of the power of the Taoiseach under the 1937 Constitution by comparison with the President of the Executive Council under the Free State Constitution. The provision in the Free State Constitution that had prevented the Executive Council from seeking a dissolution where it had lost its Dáil majority was replaced by a new arrangement under Article 13.2.2° whereby a Taoiseach who had lost his majority could request a dissolution of the President, although the President could refuse such a request ‘at his absolute discretion’. Also,

112

44 45 46 47

48 49 50 51 52 53 54

55

Republican institutions

where previously the power to dissolve the Dáil had been enjoyed collectively by the Executive Council, under Article 28.9.1°, it was now vested personally in the Taoiseach, so long as he continued to enjoy the support of a majority in the Dáil. This undoubtedly enhances the prestige of the office and also his power over his parliamentary party and, by extension, over parliament. As Bagehot argued in the British context, the vesting of this power in the Prime Minister meant that Members of Parliament were ‘collected by a deferential attachment to particular men … and they are maintained by fear of those men – by the fear that if you vote against them, you may find yourself soon to have no vote at all’. Bagehot, The English Constitution, pp. 158–9. Finally, where there was no provision in the 1922 Constitution allowing the President of the Executive Council to dismiss a minister, under Article 28.9.4° of the 1937 Constitution, the Taoiseach may request a minister to resign ‘at any time, for reasons which to him seem sufficient’. Tom Hickey, ‘Our Constitution and Our Politics: Why Political Culture Matters and Constitutional Text Does Not’, in Theo Dorgan (ed.), Foundation Stone: Notes Towards a Constitution for a 21st Century Republic (Dublin: New Island Books, 2014), p. 97. The Taoiseach holds the office that had been held by the President of the Executive Council under the previous Constitution. See Hickey ‘Our Constitution and Our Politics’, pp. 93–112. The important constitutional provisions are as follows: Art. 13.1.1° declares that ‘[t]he President shall, on the nomination of Dáil Éireann, appoint the Taoiseach’, while Art. 13.1.2 provides that ‘[t]he President shall, on the nomination of the Taoiseach with the previous approval of Dáil Éireann, appoint the other members of the Government’. For a more detailed historical analysis, see Michael Gallagher,‘The Oireachtas: President and Parliament’, in John Coakley and Michael Gallagher (eds), Politics in the Republic of Ireland (London: Routledge, 2009), pp. 204–7. Art. 28.10 provides that ‘[t]he Taoiseach shall resign from office upon ceasing to retain the support of a majority of Dáil Éireann …’ Pettit, On the People’s Terms, pp. 205–7. The problems of clientelism and localism associated with candidates from the same political party competing for seats within a constituency are especially troubling on a republican analysis, although this is not an intrinsic feature of the Westminster model. See Basil Chubb, ‘Constitutional Myth and Political Practice’ in Brian Farrell (ed.), De Valéra’s Constitution and Ours (Dublin: Gill and MacMillan, 1988). This relies on Michael Gallagher, ‘The Oireachtas: President and Parliament’, in Coakley and Gallagher, Politics in the Republic of Ireland, pp. 230–2. The parliamentary forum is the Joint Committee on Human Rights (JCHR). It scrutinises section 19 statements and prepares reports on the compatibility of legislation with the Convention. Its reports also inform parliamentary debates at subsequent stages of legislation. See e.g. Seán Dooney and John O’Toole, Irish GovernmentToday (Dublin: Gill and McMillan, 2009), Chapters 1–3; Muiris MacCarthaigh, Accountability in Irish Parliamentary Politics (Dublin: Institute of Public Administration, 2005), Chapter 4.

Political constitutionalism and executive power

113

56 See The Report of the Tribunal of Inquiry into the Beef Processing Industry (Dublin: Statutory Office, 1994), as quoted in Fintan O’Toole, Meanwhile Back at the Ranch: The Politics of Irish Beef (London: Vintage, 1995), p. 241. 57 O’Toole, Meanwhile Back at the Ranch, p. 241. 58 Shane Martin’s analysis of Parliamentary Questions between 1997 and 2002 finds that 55 per cent of them do not have a constituency basis. By any measure, this suggests that a disproportionate number concern constituency issues, given that the parliament is concerned, fundamentally, with national laws and policies. Shane Martin, ‘Monitoring Irish Government’, in Eoin O’Malley and Muiris MacCarthaigh (eds), Governing Ireland (Dublin: Institute of Public Administration, 2011). See also Fintan O’Toole, Enough is Enough: How to Build a New Republic (Dublin: Penguin, 2010), pp. 67–70. 59 As Strom argues, committees are ‘critical to the deliberative powers of parliaments’ and a ‘necessary condition for effective parliamentary influence in the policy-making process’.See Kaare Strom, ‘Parliamentary Committees in European Democracies’, The Journal of Legislative Studies, 4 (1998), p. 47. 60 See Shane Martin, ‘The Committee System’, in Muiris MacCarthaigh and Maurice Manning (eds), The Houses of the Oireachtas (Dublin: Institute of Public Administration, 2010). 61 See MacCarthaigh, Accountability in Irish Parliamentary Politics, p.  142. Gallagher attributes the shortcomings to the fact that government ministers  – just like all power wielders – tend to dislike scrutiny, and so have a plain disincentive to improve the committee system. He suggests that those most likely to benefit from a strong committee system – backbenchers and the opposition – have a related disincentive: they aim to be ministers themselves one day, and would prefer not to place their future selves under a heavier burden should they be successful. See Gallagher, ‘The Oireachtas’, p. 232. 62 The example of the 29th Dáil (elected in 2011) may be instructive. Of the thirteen substantive committees in the 29th Dáil, the government parties together hold twenty-four of the twenty-six chair and vice-chair positions, with the chair of the Public Accounts Committee (as per the same constitutional convention that operates at Westminster) and the chair of the newly formed Public Service Oversight and Petitions Committee (as promised in the Programme for Government) held by members of the opposition. This amounts to a 92 per cent share for the government parties, compared to their 68 per cent share of the overall seats in the Dáil. The Government held a majority on eleven of those thirteen committees, an equal share on one and a minority on one. See Oireachtas Joint, Select and Standing Committees for the 31st Dáil and 23rd Seanad, at www.oireachtas.ie/parliament/oireachtasbusiness/committees_list/ (accessed 31 May 2014). 63 See House of Commons Reform Committee: First Report of Session 2008–9, ‘Rebuilding the House’, available at www.publications.parliament.uk/pa/cm200809/ cmselect/cmrefhoc/1117/111702.htm (accessed 31 May 2014). 64 ‘Rebuilding the House’, p. 25.

114

Republican institutions

65 The report recommends that the relevant minister and the principal front-bench Opposition spokesperson would voluntarily abstain from casting their votes for the chairs of the departmental committee relating to their responsibilities. ‘Rebuilding the House’, pp. 26–7. 66 ‘Rebuilding the House’, p. 28.

4 Judicial power and popular control

Introduction: republican dilemmas of judicial power In this chapter we continue our discussion concerning the translation of republican ideas at the level of institutional design. While many contemporary republicans favour a model of accountable government along the lines considered in Chapter  3, there is no settled consensus as to the appropriate boundaries of judicial power in the republican State. In particular, republicans differ as to whether or not parliamentary legislation ought to be subject to judicial review on constitutional grounds. For some republicans, rights-based judicial review offers a form of security against government power; for others, however, it itself represents a form of unaccountable, and thus potentially dominating, power. We consider here how this theoretical debate translates in the Irish context. Unlike in the classical-liberal or utilitarian traditions  – where freedom is understood in terms of non-interference  – there is an important conceptual connection in the republican tradition between freedom and democracy.1 That is, any non-democratic form of political relationship between power wielder and subject – even one in which actual interference through coercive law is minimal – is inimical to freedom as the subject does not enjoy ultimate control over the power wielder and is thus vulnerable to an alien will.2 To assess the full implications of this for judicial power over legislation would require a more comprehensive understanding of democracy, which is left for later in the chapter, but the immediate conclusion that can be drawn is that republican theory seems to require an institutional framework in which law-making power is vested in a body comprised of agents who are themselves subject to the people’s control, and which in turn is unfettered by any unaccountable or uncontrolled authority. Thus an elected legislative assembly of some kind ought to form the centrepiece of the institutional architecture in a republican democracy. More broadly, the idea of political constitutionalism suggests that a non-dominating form of self-rule

116

Republican institutions

cannot be secured by entrusting to apolitical judicial authorities the interpretation and enforcement of basic rights, but only by providing a democratic procedure through which competing ‘rights’ claims can be ordered and reconciled. The basic idea of freedom as non-domination has been used both to support and reject the power of judicial review over legislation.3 Some republican thinkers argue that a legislature, with its popular mandate, ought to stand supreme as a forum in which elected legislators deliberate on legislation and that any power of judges to intervene, given their lack of elective credentials, would represent the intervention of an alien will.4 Indeed the fact that republican theorists tend to reject the state-of-nature thinking that posits fundamental rights as pre-political or immutable, and to share with political constitutionalists the conception of rights as essentially contestable and thus political claims, seems to place republican theory behind the case for a model of parliamentary supremacy.5 That is, republican scholars, just like political constitutionalists, tend to recognise the fact of disagreement in free political communities in respect of how competing ‘rights claims’ are to be balanced and reconciled. The fact that judges in constitutional courts so routinely reach such different conclusions on the balancing of rights in particular cases suggests that legal disagreements about the nature of rights hinge on precisely the same kind of disagreements that exist in the political community generally. It may also suggest that legal interpretation is open-ended such that judges may, consciously or otherwise, draw on their own political preferences in their legal reasoning, thus again facilitating a rather arbitrary influence over the process. On these bases, republican theorists might share with political constitutionalists the conclusion that disputes concerning rights ought to be resolved through ordinary political channels in which decision makers are periodically answerable to the general community through electoral processes. On the other hand, the concern to disperse power and to safeguard against majority tyranny – both familiar republican themes – may seem to support at least some forms of judicial review over parliamentary legislation.6 It may also be supported with reference to the nature of the democratic process itself.The mere fact of periodic elections may be insufficient to render legislative power subject to democratic control. But also the individual rights necessary for the democratic process to function – such as equal rights of voting power and representation, along with rights of expression, assembly and association – may themselves be undermined by legislation, partly because of self-interested legislators being left to control their own fates. This would make the democratic argument for unfettered legislative supremacy somewhat self-defeating, and might seem to prompt a justification for judicial review as a necessary (if partial) safeguard for the broader democratic conditions of republican government. It would not conceive of judicial review as a limit upon democracy, but simply as a procedural

Judicial power and popular control

117

safeguard against its corruption or degeneration: an invocation essentially of the maxim nemo iudex in causa sua (‘let no-one be a judge in their own cause’). And, alternatively, rights-based judicial review need not be framed in all-ornothing terms: it might not necessarily entail judicial power to invalidate parliamentary legislation. Instead, various intermediary solutions might allow for judicial oversight of legislation without entirely divesting rights-based deliberation away from the legislative domain. We will argue in this chapter that although judicial review poses intractable dilemmas for republican theory, it is defensible in certain forms at least. And whereas most republican literature has concentrated on whether or not judicial review of legislation is legitimate in the bare sense, we will assume that republican thought can equally be addressed at the question of how – where such power is established – it can be appropriately contained and checked.7 With this conceptual framework in mind, this chapter has four sections. First, we give an overview of the historical relationship between the judiciary and the political arms of government in Ireland in respect of judicial review of legislation. Secondly, we consider republican ideas concerning democracy and popular control in more detail, with a view to developing a more considered republican approach to judicial review. Thirdly, based on this republican understanding of democracy, we make a normative case for a particular form of judicial power, which in the final section we relate to the Irish constitutional system.

Judicial power in the Irish constitutional order The Irish Constitution of 1937 clearly establishes a judicial power to review and invalidate parliamentary legislation on constitutional grounds. Article 34.3.2° provides that the jurisdiction of the High and Supreme Courts extends ‘to the question of the validity of any law having regard to the provisions of [the] Constitution’ while Articles 40–44 set out various fundamental rights owing to each citizen. Despite the relative clarity of the constitutional text with regard to the power of judicial review, judicial approaches to the exercise of this power have evolved considerably in the period since independence.8 The prevailing commentary suggests that judges adopted a reticent stance in the early decades of the State’s existence before pursuing a more activist approach in the 1960s through to the 1990s, while retreating again in the decades since.9 The case of State (Ryan) v. Lennon, decided under the Irish Free State Constitution, is taken as the starkest illustration of this early reticence.10 The Oireachtas had manipulated a transitory provision of the Constitution whereby it could be amended by ordinary legislation for a period of eight years by extending that period by

118

Republican institutions

a further eight years. Relying on that power, it had subsequently introduced an amendment allowing for the establishment of a military tribunal empowered to summarily arrest, detain and, indeed, execute those suspected of terrorist activity.11 The constitutional provisions dealing with the rights to liberty and to trial by jury, as well as that against retroactive punishment, were effectively cast aside, yet, by a 2:1 majority, the Supreme Court rejected a constitutional challenge.12 The 1937 Constitution represented a conscious attempt to introduce a more rigid, entrenched constitutional order, which would remain immune from frequent change via ordinary legislation. The transitory provisions allowed for a three-year period of ‘flexible’ amendment via ordinary legislation, but specifically provided that this period could not itself be extended (unlike the 1922 Constitution). Effectively this paved the way for the development of rights-based judicial review of parliamentary legislation  – a practice that was alien to the British common-law tradition in which the early Irish judges were educated. Despite this power to invalidate legislation being established from 1937, it lay more or less dormant in the early decades of the new constitutional order. In the years following the introduction of the 1937 Constitution the judges continued in the tradition of judicial restraint. However, a relatively activist era of constitutional jurisprudence was heralded by the 1965 High Court judgment of Justice Kenny in Ryan v. Attorney General, which considered the constitutionality of legislation requiring fluoridation of public water supplies.13 The case is celebrated as having established the doctrine of unenumerated rights. Whereas Article 40.3 of the Constitution guarantees that the State will ‘vindicate the personal rights of the citizen’ before going on to specify that ‘in particular’ it will vindicate the rights to ‘life, person, good name and property’ of every citizen, the phrase ‘in particular’ was found to imply other unspecified rights that had constitutional protection.14 Justice Kenny held that judges, in identifying these unenumerated rights, could be guided by the ‘Christian and democratic nature of the State’, while citing a papal encyclical to support his finding of a right to bodily integrity.15 With the Supreme Court’s approval of the judgment, it seemed the senior judiciary had arrogated to themselves what amounted to considerable political power, as they could now invalidate parliamentary legislation based on broad interpretations of somewhat vague, open-ended principles. This tendency was confirmed in the landmark 1974 judgment of McGee v. Attorney General.16 The plaintiff, Mary McGee, challenged a statutory ban on the importation of contraceptives.17 A majority of the Supreme Court upheld her claim that the ban violated an unenumerated constitutional right of marital privacy. Justice Walsh’s judgment in McGee is widely cited for its exposition of natural-law theory, as discussed in Chapter 2. But his elucidation of judicial power

Judicial power and popular control

119

more generally is most striking for our purposes. He held that the under the Irish Constitution, unlike under the British, the authority of the legislature was ‘not absolute’ but was ‘capable of being reviewed by the courts’.18 Specifically, the legislature was ‘not free to encroach unjustifiably upon the fundamental rights of individuals … in the name of the common good’. There were natural rights owing to individuals ‘over which the State has no authority’ and which it ‘could not control’.19 The difficult task of identifying these rights was a matter for judges: ‘in this country, it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable’.20 The task was to be carried out by judges ‘as best they can from their training and their experience’.21 Justice Walsh’s judgment was not then primarily concerned with abstract questions as to the theoretical basis for constitutional rights, or about the philosophical debate between positivist and natural-law thought. Rather, it was about the distribution of power between the legislative and judicial branches of the State. In concrete terms, ‘natural law’ represented a by-word for extensive powers of judicial review over parliamentary legislation. This era of activist judicial power arguably ended – or was at least attenuated – from the 1990s onwards. As discussed in Chapter 1, the 1995 Abortion Information case considered the validity of a constitutional amendment allowing for the provision of information relating to abortion services abroad.22 Counsel opposing the amendment drew on natural law in arguing that the amendment itself was unconstitutional.That is, in allowing for the distribution of information concerning the termination of unborn life it clashed with the imprescriptible rights that the Irish courts had held to be beyond the authority of the State, and which it was the task of judges to identify and protect. The argument was entirely consistent with the account of judicial power that had been proffered in McGee.23 If certain rights were placed beyond the authority of the State – and if it fell to judges to determine what these rights consisted of – it stood to reason that judicial interpretations of natural law would supersede not only ordinary legislation, but also constitutional amendments passed through the referendum process. However, the Supreme Court emphatically rejected this argument, apparently disavowing the very far-reaching concept of judicial power that had been repeatedly claimed in the period since Ryan v. Attorney General. Instead it emphasised the principle of popular sovereignty in Articles 5 and 6, as considered in Chapter 1. Judicial activism has unmistakably waned in the area of constitutional rights, with recent cases like Roche v. Roche and Fleming v. Ireland confirming a trend of deference to the legislature.24 This deference stems at least in large part from judges’ recognition that controversial social and economic questions that touch

120

Republican institutions

on constitutional rights are best, or more legitimately, resolved through the legislative process itself. Thus the courts have effectively recognised the opentextured and indeterminate nature of constitutional rights.25 However, this trend is not reflected in all areas of constitutional doctrine. In particular, judicial review over electoral and political processes has, if anything, expanded in scope and intensity since the 1990s. In the early 1960s the High Court invalidated legislation permitting relatively wide discrepancies in the ratio between representatives and voters in different constituencies depending on their population density. This had permitted greater political representation for constituencies along the Western seaboard (where Fianna Fáil, the governing party, was electorally strong) compared to Dublin (where they were comparatively weak).26 In O’Donovan v. Attorney General, Justice Budd held that the act breached the requirement in Article 16.2.3° that the ratio of TDs to population in each constituency be ‘as far as practicable … the same throughout the country’.27 The more recent case of Doherty v. Government of Ireland reflects the same theme of judicial oversight of the political process (although it involved review of executive conduct rather than of legislation).28 After the Government had resisted three attempts to ‘move the writ’ for a Dáil by-election, the applicant sought and was granted a declaration that the ‘excessive delay’ in filling the vacancy was unconstitutional,29 despite the absence of any explicit time limit in the relevant constitutional and legislative provisions.30 Finally, in McKenna v. AnTaoiseach, Coughlan v. Broadcasting Complaints Commission and McCrystal v. Minister for Children, although again none of these cases concerned the invalidation of legislation, the courts intervened to police the political process on the basis of constitutional norms.31 In McKenna and McCrystal the Supreme Court upheld the applicant’s claim that the Government was constitutionally barred from spending public money to advocate a particular vote in a referendum campaign, while in Coughlan it held that the state broadcaster had acted unconstitutionally in allocating more broadcasting time to parties favouring a ‘Yes’ outcome in a referendum campaign.Thus, whereas the Court arguably has adopted a more deferential stance in respect of the balancing and interpretation of constitutional rights by the legislature, it has taken a more activist role in defending the integrity of the democratic process. The dilemmas around judicial power are perhaps most starkly illustrated by the earlier case State (Ryan) v. Lennon, decided under the 1922 Constitution. As already mentioned, the case centred on the provision in Article 50 allowing constitutional amendment by ordinary legislation for an eight-year transitory period, and the subsequent extension of this transitory period by ordinary legislation.32 The intention of the framers, apparently, was to enable the passing of minor or technical amendments that might come to light in the early years of the

Judicial power and popular control

121

life of the State.33 However, the transitory period was itself extended by ordinary legislation and was routinely used. One such amendment inserted a lengthy Article 2A into the Constitution, providing for the establishment of the military tribunal mentioned earlier.34 By any measure, the powers of the military tribunal, and ultimately of its master, the Executive Council (the Government), were staggering. The provision authorised the Executive Council to initiate the operative parts of the Article whenever it was ‘of the opinion that circumstances exist which render it expedient’.35 The tribunal was to comprise five members of the Defence Forces who were removable at the will of the Executive Council. It had competence to try any terrorist-related offence of the many listed in the annex. It could even try an ‘offence’ that was not an offence at the time of its commission, or that had been committed before the article had been introduced, so long as the relevant minister ‘certifie[d] in writing … that to the best of his belief the act constituting such offence was done with the object of impairing or impeding the machinery of government or the administration of justice’.36 Section 7 authorised the tribunal, in cases where it found a person guilty of an offence, to impose any penalty (including the death penalty) greater than the ordinary legal punishment for such an offence ‘if in the opinion of the Tribunal such greater punishment is necessary or expedient’.37 The separation of powers ideal was thus compromised insofar as so much judicial and legislative power – in respect of the trial of certain offences, specified and unspecified, and in respect of the designation and sentencing of offences – was concentrated in the Government.38 More broadly, the Supreme Court’s approval of the extended transitory period  – during which the Constitution could be amended by ordinary legislation – meant that, far from being held in check by the Constitution, the Oireachtas (and by extension the Government) now controlled it. The two main judgments are instructive for the contrasting understandings of democracy upon which they are premised. Based on a formalist reading of Article 50 and a proceduralist account of democracy, Justice Fitzgibbon upheld the authority of the Oireachtas to amend the Constitution in the manner challenged.39 In his stinging and celebrated dissent, Chief Justice Kennedy heralded popular sovereignty, rather than the parliamentary sovereignty that informed Justice Fitzgibbon’s judgment, as an immutable constitutional principle.40 In doing so, however, he drew heavily on natural rights thinking, perhaps preempting the tension between popular sovereignty and natural rights that was confronted in the Abortion Information case some six decades later.41 In the event, the elected legislators – in a constitutional order that lacked the conventions of the British Constitution, which would have softened an otherwise unbridled parliamentary sovereignty – were set free to amend the Constitution

122

Republican institutions

at will. It was duly dismantled by ordinary legislation in the years that followed, although the agenda was the casting off of the marks of subordination to the British Crown, and to introduce a more ‘republican’ constitution in 1937, rather than anything more sinister. Gerard Quinn has compared this apparently lawful dismantling of the Free State Constitution with the ‘tactic of legality’ employed by the Nazi party in roughly the same period to set aside the constraints imposed by the Weimar Constitution (most dramatically through the Enabling Act 1933, which concentrated virtually absolute power in the German Chancellor).42 Although the outcome for Irish citizens was incomparable, Quinn’s point is that judicial reticence left the Constitution, and the democratic system, somewhat vulnerable to being dismantled in a similar, highly procedural way. He argues that this experience shows that ‘space should be created for courts to prudentially intervene to save systems from self-destructing and to place limits on the “tactic of legality” toward that end’.43 The question is thus how to structure judicial power so that it may bolster rather than undermine democracy and remain consistent with citizens’ shared political freedom. From the republican perspective, the question relies on an account of democracy that is consistent with or promotes freedom understood as non-domination. Neither the values-oriented account of democracy, in which judges may be said to play the role of philosopher kings, nor the purely procedural account of democracy, in which legislators are left to determine the rules by which they rule, is satisfactory. Both leave citizens open to an alien will, either in the form of thoughtful or ‘democracy-supporting’ judges, whose conception of rights or inclinations on how they might be balanced will inevitably deviate from those of many citizens, or in the form of elected legislators who, while probably subject to electoral checks, are left to control the terms by which they exercise their own power. Insofar as some judicial check on democratic proceduralism is warranted, the question, then, is how it might be effectively constrained.

Republicanism and democracy The dilemma revealed by State (Ryan) v. Lennon underlines the extent to which debates concerning judicial power are connected with democracy. Both of the judgments discussed were premised on particular understandings of democracy. For Justice Fitzgibbon, the people had authorised the legislature to amend the Constitution by ordinary legislation and so judicial interference in that process was deemed anti-democratic. Yet the upshot of this rather procedural account of democracy was that, paradoxically, the Government could subvert the democratic process itself. For Chief Justice Kennedy, this meant that judicial

Judicial power and popular control

123

intervention was positively necessary to uphold democracy. Yet his reliance on natural law seemed to potentially subjugate democratic politics to judicial ideology. While both judgments thus proceeded from arguments concerning democracy, neither seemed to rest on a coherent account of democracy. This brings us back to the republican theory of democracy and democratic legitimacy developed in Pettit’s more recent work, which we addressed in Chapters  1 and 3.44 Based on that theory, we argue here in favour of a particular kind of institutional arrangement that better balances the relationship between the political and the judicial arms of government; one which we will argue is more consistent with the republican account of freedom than either of the opposing models of legal constitutionalism and legislative supremacy. A reminder of that theory of democracy is warranted here.45 For contractarians such as Hobbes and Locke, political legitimacy was conceived through the idea of the state of nature and with reference to the notion of consent (i.e. the criteria of political legitimacy were determined by the hypothetical terms of consent from the pre-political state of nature).46 For the most part, however, republicans – for whom freedom is an essentially political concept – have rejected consent as a yardstick for political legitimacy, preferring instead the criterion of control. As Pettit points out, we can consent to forms of power over which we have no control  – as in the example of a slave contract  – but we can also control authority to which we have never specifically consented.47 In this light, the salient question is whether judicial authority over legislation might promote or frustrate popular control. More broadly, are electoral mechanisms – which are plainly necessary – sufficient to fulfil popular control, at least under certain conditions? For Pettit, popular control must mean that the people, considered collectively, have a ‘directive influence’ over government; effectively, that they have an influence on political outcomes and that that influence directs those outcomes.48 This is a demanding requirement which, he suggests, entails three conditions.49 While we have elaborated on these already in Chapter 3 in the context of issues of parliamentary power, we will re-state these briefly here. First, since the powers of government are exercised over each individual, this system of control must be ‘individualised’ appropriately:50 each individual must enjoy equal access to a system of joint control of government. Second, the popular control must be ‘unconditioned’, in the sense of not being conditional on the goodwill of any other agent, whether the government itself or any other powerful entity within or outside the State.51 This means the people must have a disposition to rise up in the face of government abuse, and that government must be prone to backing down in response. Thirdly this control must be sufficiently ‘efficacious’.52 Citizens must come to see government power not as the product

124

Republican institutions

of an alien will, but rather as being exercised in accordance with commonly avowable norms which emerge over time through the exercise of democratic contestation in the public sphere.53 This means that where a law works against the interests of a particular group, it would be recognised as ‘bad luck’ rather than as the expression of a dominating factional interest.54 These criteria suggest, first of all, that electoral mechanisms will be a central pivot in a republican system: how else, or how better, to promote equal access to a system of joint control, along with the other criteria. But, as Pettit emphasises, they also point to the limitations of electoral mechanisms and to the consequent need for contestatory supplements. Take the criterion of individualised control, for example. For reasons of implausibility, among others reasons, this cannot be said to require that each citizen has an equal impact on each exercise of governmental power. But it does seem to require each citizen to have an equal chance of having an equal impact. That is, in a final policy decision to be made by government where some citizens will lose out and others will gain, each citizen must have an equal chance of being on the winning side.55 Under a purely electoral system, it cannot be that each citizen will have such an equal chance. There will be certain groups that, because of their religion or sexual orientation, for example, could not be said to have such an equal chance, if a government decision undermining their particular religion or sexual identity could be taken purely on the basis of majoritarian voting.56 Moreover, a government that is controlled solely through electoral mechanisms will tend to answer to the concerns of particular voters, perhaps in marginal constituencies or because of other traits that make them electorally pivotal, and to ignore others. Or there may be a significant constituency of voters, such as a cultural minority or even just a group sharing an unpopular set of political commitments, who tend to lose out in electoral contests. None of this makes the case for judicial review; still less for a particular form of judicial review. But it does make a broad case, in the name of democracy, for fundamental rights and for their protection through institutional mechanisms that are not purely majoritarian and electoral. And it suggests generally, again in the name of democracy, that its electoral dimensions have to be complemented by contestatory mechanisms. The same conclusion can be drawn from the second criterion: that of unconditioned popular control. The idea is that popular control over government cannot be contingent on the indulgence of an agent other than the people themselves. It requires a ‘resistance-prone people’ along with a ‘resistance-averse government’ and so relies in part on a virtuous citizenry that is willing and able to identify and counter abuse of power. But in terms of institutional design, it is promoted by the mixed constitution ideal, in which governmental power is dispersed rather

Judicial power and popular control

125

than concentrated in one body.57 Where power is dispersed in this way, government is less likely to ‘close ranks and assert its authority’ in a manner that would face down popular resistance or through which such resistance could be ignored.58 Again this does not itself establish the case for judicial review, but it emphasises the importance of the dispersal of power to democracy, and particularly of power relating to control of the democratic system. The case of State (Ryan) v. Lennon is again illuminating.59 The lack of authority or willingness to use their authority on the part of judges to intervene – combined with the lack of constitutional checks such as the conventions developed over time in the British system – meant that nothing, other than the goodwill of power wielders, stood in the way of government from dispensing with democratic procedures. The amending provision could have been used to suspend elections for an indefinite period, or to suspend freedom of assembly, for example, rather than merely to remove the oath of allegiance to the British Crown. One underlying consequence of this concentration of constitutional control was arguably that government was empowered vis-à-vis the citizenry in a manner that undermined the citizens’ reserve power. In this light, an unbridled political constitutionalism, established in the name of popular democracy, risks being self-defeating where its procedural and structural foundations are left vulnerable to the vicissitudes of ‘ordinary’ politics. Instead, democracy requires that the task of controlling fundamental rights and democratic procedures should be dispersed across institutional forums such that the ultimate subservience of government to the people is secured both in fact and in the general consciousness of the community of citizens. And so too with the final criterion of efficacious popular influence. While the strength of popular control may be considerable under electoral mechanisms, it will not be sufficiently efficacious to satisfy citizens that their collective fate is determined only in accordance with their collectively avowed norms.60 Such a system, let run on its own, would leave room for an ‘alien will’ to intervene. The examples of O’Donovan v. Attorney General or Doherty v. Government of Ireland illustrate the point: elected politicians left with unchecked control over the electoral system would have to be angelic not to allow their own interests, at least in part, to influence the design of that system.61 Those who are ‘defeated’ in such instances are not likely to see their defeats in terms of a different set of reasonable arguments having defeated their own set. Rather – despite their having come about through processes governed by equal voting – these outcomes can be attributed to an alien stream of influence. Again, democracy, or the kratos (control) enjoyed by the demos (people), requires electoral mechanisms to be supplemented by non-electoral contestatory supplements.

126

Republican institutions

This picture of democratic popular control challenges Jeremy Waldron’s and Richard Bellamy’s legitimacy-based arguments against judicial review.62 Their response to a central dilemma – the intractably political character of rights – leads them to conclude that disputes about the meaning of rights should be resolved through majoritarian electoral politics. But this fails to account for the various ways in which ‘one-person-one-vote’ majoritarianism can become corrupted by the intervention of factional interests and thus, how it fails to offer sufficient protection from domination. Their objection to judicial power over legislation  – or at least the absoluteness of their objection  – looks less convincing in light of the fact that non-electoral contestatory forums are necessary if democratic popular control over government is to be secured. But this only introduces a broad case for judicial review of some kind as a non-electoral forum for democratic contestation; it does not defeat many of the objections to the stronger forms of judicial review of the sort that exist in the Irish or American Constitutions. One possible defence of judicial review, based on this republican theory of popular control, is that it offers a site of contestation that requires government policies to be justified in light of commonly avowable interests and considerations.63 This defence of legal constitutionalism need not rest on the claim that judicial reasoning can yield authoritative ‘right answers’ in respect of the interpretation and meaning of basic rights.64 Instead, it suggests that since judicial review is focused on fundamental rights and executed by agents that do not have re-election in mind, it encourages forms of reasoning based on considerations to which all citizens can subscribe, or which all citizens, regardless of their particular commitments and interests, may see as relevant.65 These considerations might then be deployed – perhaps even further refined – in other deliberative settings and sites of contestation, including political ones, where analogous policy disagreements fall to be resolved. Overall, popular control of government is thus secured over the long haul, as more refined understandings of common, non-factional considerations emerge, resulting over time in specific policies that are more in tune with the common good rather than the good of particular groups that do well in electoral contests. Yet despite judges arguably being well placed to identify and refine shareable considerations, the fact that they routinely reach different, often diametrically opposed, conclusions in their judgments cannot be ignored. While their disagreements may often be attributable to matters of principle, less principled or less carefully considered political predilections must play a role too. Factional interests of the sort that emerge in electoral or political contexts, and which may represent a form of dominating, alien power, may equally exist in the judicial context – albeit under the guise of principled discourse.66 Just as any social

Judicial power and popular control

127

issue can be framed in ‘rights’ terms, more or less any given intuition or indeed prejudice can be presented as the product of careful, principled deliberation. Therefore it is difficult to escape the conclusion that where judges enjoy the final word on the constitutionality of legislation, the resolution of important policy disagreements can be determined in significant part by the happenstance of judicial intuitions on matters of justice. And although its overall supplementary contribution in defining and identifying shared avowable considerations may be valuable, ‘strong’ forms of judicial review could in certain instances quell or distort subsequent political deliberation on controversial social issues that would otherwise be decided through the political process. Those questions  – which judges in constitutional litigation may have been reasonably divided upon, and which may similarly divide citizens and their political representatives  – may be treated as having been authoritatively and definitively answered by judges enjoying constitutional supremacy, and thus as being beyond further deliberative assessment. However, this is not an argument against rights-based review of legislation as such, but only against strong-form judicial review in which such considerations are divested entirely from the political to the judicial domain. There are alternatives to the contrasting models of strong-form judicial review and an unbridled majoritarian democracy in which rights considerations are ignored or paid little heed. In particular, the credentials of ordinary parliamentary oversight of legislation should not be overlooked.67 The key translation of the republican idea of popular control in this context is that those who control the legislative process (government, in other words, at least in systems adhering to the Westminster model) cannot enjoy the power to push through legislation regardless of its implications but rather must be subject to rights-based constraints that facilitate individual contestation as well as the offering and exchange of commonly-avowable justifications, whether these are presented in rights terms or otherwise. With this in mind, a parliamentary committee dedicated to rights-based scrutiny of legislation, so long as it is independent of government, would in some respects seem to fare well in comparison with an independent judiciary enjoying constitutional supremacy. It may be comprised of elected officials, thus presenting concerns as to partisan and self-interested considerations. But by the same token, the resolutions of such a body on rights-based policy disagreements cannot be attributed to the happenstance of how many of its members favour or disfavour a particular outcome, but rather can be explained with reference to their representative credentials. Also, given its independence from government (and thus from the victors in the majoritarian contest), it is more likely to bring to bear the perspectives of those citizens who may see themselves as having lost out in electoral contests.68

128

Republican institutions

The republican argument against outright judicial supremacy is strengthened by the fact that parliamentarians as well as judges can and indeed do, use principled considerations – that is, rights-based arguments – as well as considerations of the common good. The use of openly factional arguments in contemporary political debate in any setting is likely to be unsuccessful; even highly partisan proposals are more powerful when made with reference to arguments that all citizens can recognise as relevant. Principled reasoning on rights-related issues cannot plausibly be understood as a peculiarly judicial terrain. Given the legitimacy and prestige it may potentially command, a parliamentary mechanism for a rights-based review of legislation might therefore prove an effective institutional font of pressure through which government can be forced, in full public glare, to justify its legislative initiatives with fundamental rights in mind. Its deliberations might be informed by those of judicial bodies, particularly constitutional courts, that operate according to different jurisdictions and at different stages of the legislative process. Thus, from the republican standpoint, the best institutional framework for protecting rights – understood in the republican sense – might combine judicial and parliamentary mechanisms in some such way.

The republican credentials of the ‘new commonwealth model of constitutionalism’ In light of the earlier analysis, the salient question is what form judicial review might take if it is to promote popular control over the legislative process – and yet avoid unwarranted judicial interference over legislative choice – where popular control is understood along the lines of individualised, unconditioned and efficacious influence. The debates around judicial review of legislation in recent decades have taken place mainly in the context of the two neatly contrasting constitutional arrangements referenced throughout: US-style judicial review, with its entrenched bill of rights enforced by a Supreme Court that enjoys a ‘final say’ over the constitutionality of legislation, on the one hand, and the British mode of parliamentary sovereignty, on the other, in which the legislative jurisdiction of parliament is substantively unfettered. While these models may be seen as opposites on a spectrum of possible constitutional systems, strong-form judicial review has generally prevailed in the post-World War II period, with the traditional orthodoxies of legislative supremacy having been effectively discarded in most European democracies in particular.69 Our key argument here is that the republican justification for judicial review lies not in any claim that judges are better-placed to resolve disputes concerning rights, as per many of the liberal justifications, but rather, that – at least in some

Judicial power and popular control

129

forms – it may offer a forum of contestation in respect of legislation that promotes individualised, unconditioned and efficacious control over government. While strong-form judicial review does not do well on these fronts, the ‘new commonwealth model of constitutionalism’, developed in Canada and more recently adopted in New Zealand and the United Kingdom in varying guises, represents an intermediate position between the traditional binary alternatives that does much better than either in securing the aims of a republican concept of democracy.70 In this model, a codified bill of rights is enforced by way of preenactment, political review along with post-enactment judicial review. However, it stops short of giving judges powers to invalidate legislation, and thus, of conceding the final say to judges in respect of rights issues. In particular, this model has the advantage of establishing public forums for contestation and deliberation as to the meaning (and balancing) of fundamental rights, neither excusing the legislature from the obligation to account for its rights-based appraisals, nor, however, positing courts as unassailable authorities on constitutional-rights issues. To an extent, it simply brackets the question of whether judicial or political institutions are best positioned to reconcile competing rights claims, focusing instead on the value of inter-institutional dialogue in this domain. Here it will be helpful to briefly outline the essential features of Canadian and UK versions of this model. The judicial mechanism is based around the Canadian Charter of Rights which became supreme law in Canada as Part I of the Constitution Act 1982.71 The courts can invalidate legislation but cannot be said to have the final say, as section 33 of the Charter empowers parliament to make a declaration that a statute will apply notwithstanding that it conflicts with the courts’ interpretation of Charter rights, with such declarations being effective for indefinitely renewable five-year periods. The political mechanism – a preenactment rights-based review of legislation – centres on the requirement that the Minister for Justice formally examines all government bills and reports any Charter inconsistency to parliament.72 As it has worked in practice, at least, the Canadian version leans closer than the UK version to the judicial supremacy model. Although the pre-enactment political review element has prompted the establishment of dedicated rightsreviewing forums at both executive and legislative levels, its effectiveness is seen as being undermined by various problems, including those flowing from executive dominance.73 Moreover, the section 33 override power seems to have come to be understood as a nuclear option, whereby a government deployment would be perceived as a conscious and forthright ousting of human rights rather than as the exercise of a mechanism whose purpose is to facilitate interpretative disagreement between judges and legislators.74 The prevailing practice is that the courts use their invalidating power and that the legislature responds with withdrawal

130

Republican institutions

or amendment of the legislation, thus prompting the so-called ‘constitutional dialogue’ associated with models of outright judicial supremacy.75 Gardbaum points out that the legislature, when so responding, often openly expresses its disagreement with judges concerning their interpretation of rights or endorses a dissenting judicial opinion, yet still avoiding the use of the override provision.76 Therefore, insofar as the Canadian version more or less concedes judicial supremacy in practice, it may seem to lack the republican virtues associated with the ‘new commonwealth model of constitutionalism’. It may be that the dialogue would work both more efficiently and more legitimately if the section 33 facility were understood and used more as a political final say on the interpretation of rights (and in deliberative response to the considered positions of the judges on the question) rather than seen as a mechanism to supersede rights altogether. Or it may be that the particular design of the Canadian version fails to capture the republican virtues of the general model. The UK version developed with the enactment of the Human Rights Act 1998, which incorporated the European Convention on Human Rights into domestic law. The political review mechanism, operating pre-enactment, involves a mandatory ministerial statement on the compatibility (or incompatibility) of any proposed legislation with the Convention,77 which has prompted the establishment of dedicated rights-reviewing forums at both executive and parliamentary levels.78 Although it is difficult to evaluate the effectiveness of these forums, the latter in particular has been heralded as a model of principled rights-based deliberation and is seen as having had a substantial impact on legislation.79 In addition to the pre-enactment mechanism, the Human Rights Act has given judges considerably more powers over legislation than the traditional model permitted, to an extent that has led many to decry (or celebrate) the (alleged) diminution of parliamentary sovereignty.80 Section 3 requires that ‘so far as it is possible to do so’, legislation – regardless of when enacted – must be ‘read and given effect in a way which is compatible with the Convention rights’.81 Where judges deem that it is impossible to interpret the legislation in such a manner – that is, when the wording and thrust of the legislation is straightforwardly at odds with the Convention – section 4 empowers them to make a ‘declaration of incompatibility’. There is provision in section 10 for the relevant minister to respond to such a declaration by amending the legislation through a remedial ‘fast-track’ order as a speedier alternative to the ordinary legislative process. So far as judicial power is concerned, much hinges on the distinction between the provisions of section 3 (‘interpretive’) and section 4 (‘declaration of incompatibility’), with the former seen as the primary remedy and the latter as a measure of last resort.82 The judicial approach has settled towards a consensus since the Ghaidan v. Godin-Mendoza decision in which the majority judgments

Judicial power and popular control

131

emphasised that section 3 could be used to depart from the intention of parliament up to the point where such interpretations could not be said to depart from a ‘cardinal principle’ or a ‘fundamental feature’ of the legislation.83 The section 4 remedy has been used on several occasions with all but one resulting in a government or legislative response by way of amendment or repeal of the offending provision.84 As its proponents argue, the model is an intermediate between the two extremes of judicial and legislative supremacy in respect of fundamental rights. But the claim here is that this model is amenable to the republican understanding of democracy and that it does much better, in this light, than the model of judicial supremacy that prevails in so many jurisdictions across the world. So now it is time to make good on that claim. First, the requirements of individualised and efficacious influence require that government remains responsive to commonly avowable public norms, so that the democratic channels remain equally open to all and do not become clogged by the factional concerns of power wielders. Yet neither can judges, who will have their own predilections and policy intuitions, be permitted to exercise unchecked power in this respect. These considerations point to a need for strong rights consciousness as well as principled rights deliberation. There must be a shared sense among citizens that, although they may object to particular laws, those laws come about by way of a process in which they have had an equal voice rather than by way either of the alien will of powerful lobbies or in virtue of enlightened and benevolent judicial activism. So how does the new commonwealth model satisfy these republican concerns? Unlike the judicial supremacy model, it appropriately caters to the fact of reasonable disagreement concerning rights because, in the event of competing reasonable interpretations between judges and legislators, it privileges the interpretation preferred by the agent that is answerable both in the parliamentary and the electoral forums. But, unlike pure political constitutionalism, it does so in a way that ensures there is an independent contestatory facility that will bring moral and political pressure to bear on the resolution. Even a requirement that a legislature formally repudiates a judicial interpretation of rights will likely prompt a degree of public dialogue or at least scrutiny in respect of the relevant issue. Thus on the question of principled rights deliberation it does much better than the other models. The pre-enactment political rights review not only facilitates the political deliberation needed to develop democratically reasoned resolutions on contested questions, it also caters to the open-textured, indeterminate and political nature of constitutional rights. While judges possess technical and analytical skills that legislators may lack, they may decide the fate of legislation

132

Republican institutions

in the context of a particular set of facts and often in the face of unhelpful or distorting legal precedents.85 The anomaly of the American-style model, at least (as opposed to continental European civil courts), is that the fate of legislation is decided simply as a by-product of adversarial litigation. Legislators, by way of contrast, will be better positioned to evaluate competing rights claims in a wider light. The new commonwealth model also requires this deliberation to take place prior to enactment and thus in a more flexible format that is amenable to greater input from multiple perspectives compared to the adversarial setting of litigation.Yet, unlike pure political constitutionalism, it recognises the potential weaknesses of rights-based adjudication in a legislative setting by allowing for an additional, independent forum for principled deliberation. This is not to concede that judicial deliberations on rights are necessarily more principled or otherwise superior; its rationale, when assessed under the republican lens, is that courts represent a principled forum that is independent from electoral considerations, thus countering important concerns around majority tyranny or the under-enforcement of rights while facilitating individualised contestation of government.Yet the role of judges in this respect remains conditioned and constrained: it thus represents an institutional font of moral and political pressure on the political arms of government, but one that can be resisted by actors who are answerable both to parliament and through elections. The upshot is that citizens who may be frustrated by certain legislative outputs will at least be minded to accept them, as they can see their defeat more as a matter of bad luck than as the dominating influence of an alien will.86 And what then of the other criterion of the directive influence required by republican theory: that of unconditioned popular control? This has already been considered with reference to the State (Ryan) v. Lennon example: the people’s control over government cannot be contingent on either ‘democracy-supporting’ judges, under judicial supremacy, or on the virtuous self-restraint of political power wielders under pure political constitutionalism. But the new commonwealth model supports the republican goal of unconditioned popular control in a more concrete way. With its various stages and forums for rights-based review pre-enactment, political review, post-enactment judicial review and indeed post-litigation political review, it disperses rights-related appraisals among the three arms of government, whereas both of the other models tend towards the concentration of such powers in either the judiciary or the executive/legislature. Indeed it actively consigns power over rights, and thus responsibility for them, to each of the three arms of government – thereby enhancing overall rights consciousness and opening rights debates to wider deliberative inputs – while at the same time constraining those powers as required by republican theory. The key point in respect of this particular republican criterion is that the distribution of

Judicial power and popular control

133

power supports Pettit’s notion of a ‘resistance-averse’ government: power over legislation is dispersed and so the capacity of government to ‘close ranks and assert its authority’ is countered.

Restrained judicial review and the new commonwealth model In Ireland, the power of judicial review over legislation was clearly established in the text of the 1937 Constitution but, in contrast to other jurisdictions, the merits of this model are rarely questioned. From a republican perspective, we have argued against the models of judicial and legislative supremacy. Based on a republican account of democracy that is premised on contestation and popular control, we have argued instead in favour of a model that gives judges a robust yet constrained and contestable role in reviewing legislation, and which establishes dedicated, formalised political forums for rights-based review of legislation in both the executive and legislative arms of government. When democracy is conceived along these republican lines, the power of judges under this model can be understood as an inherent component of democracy rather than as a necessary constitutional limit required to save democracy from itself. The underlying justification for the judicial role is not based on any notion of rights as having an objective content that transcends political conflict, but rather on a concern to establish sites of contestation and accountability through which at least publicspirited citizens may be reassured that, although they may be disadvantaged by particular laws, those laws are publicly justifiable and thus not imposed by an alien will. Indeed the value of the model is not that it represents a compromise between the two traditional models, as a ‘least-worst’ option. Rather, each of its central features answers in specific ways to the conditions of republican popular control. The pre-enactment political rights review requires political agents to forthrightly assess the rights implications of legislation. To at least some extent, these political deliberations will be independent of the policy and other considerations that must or do come into play at other stages of the legislative process. The more the process operates independently of government and the greater the role of representatives from opposition and smaller parties, the more it facilitates the rights-based contestation of legislation that can be said to enhance the individualised, unconditioned and efficacious influence of the people over government. The value of the post-enactment judicial review element does not lie in the notion that judges are immune from factional influences or sectional concerns, or that they are uniquely positioned to identify the right answers to rights questions. Rather it is that the constitutional court represents a rights-focused contestatory

134

Republican institutions

forum that is immune from certain kinds of factional influences to which political agents are subject, and that judges can approach rights questions with different deliberative considerations in mind. This means that individual citizens who see themselves as having lost out in respect of particular legislation, or groups of citizens who see themselves as electorally weak, have a supplementary democratic forum in which their voice may be heard in the legislative process. Even if their claim is defeated, they are more likely to accept this as bad luck rather than attributable to an alien or dominating will. This is particularly so given that judges will not be as readily deterred by considerations of democratic legitimacy as they might be under a stricter model of judicial supremacy. They are liberated to consider the constitutional validity of legislation on its merits, or to draw out and refine the relevant considerations. But by the same token, the constrained nature of their power in this context obviates many of the familiar (and compelling) republican objections to the more uncompromising version of strong-form judicial review. We return to concrete arrangements to close the chapter. There are certain features of contemporary Irish constitutional jurisprudence that may seem to place the Irish version of judicial supremacy close to the new commonwealth model.87 In particular, judges in recent decades have, as we have argued, demonstrated a degree of interpretive humility in respect of constitutional rights. The doctrine of the ‘presumption of constitutionality’, for example, places the onus of proof on those challenging legislation on constitutional grounds and requires that there be a clear repugnancy before judges consider invalidation.88 Indeed one of the earliest and most widely cited incantations of the doctrine – from Justice Hanna in Pigs Marketing Board v. Donnelly – suggest that its rationale has much to do with the political and contestable nature of constitutional rights and correspondingly, the necessity of at least a limited degree of judicial deference.89 It may thus seem to be in keeping with the rationale of the judicial role under the new commonwealth model. The related ‘double-construction rule’, which holds that where two or more interpretations of a statute are reasonably open, judges are to assume that the Oireachtas intended one of the constitutional constructions, bears close comparison with section 3 of the UK Human Rights Act.90 Similarly, Tuohy v. Courtney established a rather deferential threshold concerning the balancing of competing rights in legislation, suggesting that judges will not ‘impose their view of the correct or desirable balance in substitution for the view of the legislature … but rather … determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights’.91 This concedes a good deal to the role of the legislature in adjudicating competing rights claims in society and eschews judicial absolutism notwithstanding the constitutional text. This is arguably evident, also, in the

Judicial power and popular control

135

Canadian-imported proportionality test identified in Heaney v. Ireland92 and used, for example, in Fleming v. Ireland, which upheld the constitutionality of the statutory prohibition on assisted suicide.93 While the European Convention on Human Rights was incorporated into Irish law through the European Convention on Human Rights Act 2003, it contained no requirement of pre-enactment rights- based review either on the part of the executive or the legislature. As de Londras and Kelly suggest, this renders it something of a ‘missed opportunity’ so far as ‘the cultivation of a political and parliamentary ethic of rights’ is concerned.94 However, this culture of judicial restraint in constitutional matters does not satisfy the republican model we have described. Not only does it lack a ‘political’ provision for a political rights-based review of legislation, but also judges – despite their tendency towards deference – ultimately retain the final word on the constitutionality of legislation. When they do strike, they may be said to have exercised arbitrary power and undermined popular control, as dialogue and contestation of the relevant judicial appraisal are impossible (except by way of a referendum, this being necessarily a ‘nuclear option’ in political terms). Thus, judicial self-restraint is in itself insufficient to bring about a culture of dialogue and contestation in respect of constitutional rights. Too much hinges on the discretionary and contingent character of judicial deference to legislative appraisal. And in cases where judges do extend deference, the absence of such a deliberative culture will mean that the judicial determination is likely to be treated as conclusive, thus precluding ongoing deliberative engagement around the legislative issue in question. For example, when the High Court rejected the claim of a constitutional right to same-sex marriage in the 2008 Zappone & Gilligan case, a political consensus developed that it was not constitutionally possible for the Oireachtas to legislate for marriage equality, despite the constitutional text itself being moot on this issue.95 Conor O’Mahony argues that judicial activism on this point might, following US precedents, simply prompt a populist backlash against sexual equality.96 The broader point we seek to illustrate through this example is that the Irish version of judicial supremacy, which is often distinguished from the US version on the basis of a relatively expedient constitutional amendment procedure, often undermines the deliberative processes required to promote the equal voice of citizens so far as the rights implications of legislation are concerned.97 Were the softer option of a declaration of constitutional incompatibility open to judges in a case such as this, they may be much less constrained by concerns around illegitimate judicial imposition or populist backlashes and more likely to scrutinise the legislation on a principled basis such that, if justified, appropriate pressure would be brought to bear on the political arms of government. In summary,

136

Republican institutions

then, a qualified power of judicial review of legislation not only respects the role of political organs in rights-based deliberation, but also potentially enhances the quality and scope of judicial intervention.

Notes 1 Hobbes famously wrote that: ‘there is written on the Turets of the city of Lucca … the word LIBERTAS; yet no man can thence inferred, that a particular man has more Libertie, or Immunitie from the service of the Commonwealth there, than in Constantinople. Whether a Commonwealth be Monarchical, or Popular, the Freedome is still the same.’ See Thomas Hobbes, Leviathan, ed. Crawford MacPherson (London: Penguin, 1651/1968), p. 264. 2 See generally Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2013). 3 In this chapter, ‘strong-form judicial review’ and ‘legal constitutionalism’ are used interchangeably, to refer generally to institutional arrangements whereby judges have power to invalidate legislation. The phrase ‘political constitutionalism’ is used to refer to institutional systems in which political actors, rather than judges, have final control over constitutional questions. 4 This reflects the republican case made for political constitutionalism by Richard Bellamy and Adam Tomkins. See Richard Bellamy Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007); Adam Tomkins Our Republican Constitution (Oxford: Hart Publishing, 2005). 5 On the general republican argument on rights, see Chapter 2. Cass Sunstein has argued that ‘republicans do of course believe in rights, understood as the outcome of a well-functioning deliberative process … But republicans are sceptical of approaches to politics and constitutionalism that rely on rights that are said to antedate political deliberation.’ See Cass Sunstein, ‘Beyond the Republican Revival’, Yale Law Journal, 97 (1988), pp. 1579–80. 6 As Madison argued in Federalist 47,‘The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’ James Madison, Alexander Hamilton and John Jay, The Federalist Papers, ed. I. Kramnik (London: Penguin, 1987), p. 303. On the republican concern to guard against majority tyranny, see for example, Iseult Honohan, Civic Republicanism (London: Routledge, 2002), pp. 219–21. 7 Richard Bellamy and Adam Tomkins – who both argue that judicial powers of invalidation are illegitimate – are most prominent among the republican scholars who have applied republican theory to the question of judicial review. See Bellamy, Political Constitutionalism and Tomkins, Our Republican Constitution. See also Iseult Honohan, ‘Republicans, Rights and Constitutions: Is Judicial Review Compatible with Republican Self-Government’, in Samantha Besson and José-Luis Marti (eds), Legal Republicanism: National and International Perspectives (Oxford: Oxford University Press, 2009).

Judicial power and popular control

137

8 Unlike in the United States, where judicial power to invalidate legislation is well established and widely practised despite no express constitutional authorisation, the Irish courts do have express authority: Article 34.3.2° provides that the jurisdiction of the High and Supreme Courts extends ‘to the question of the validity of any law having regard to the provisions of [the] Constitution’ while Articles 40–44 set out various fundamental rights owing to each citizen. 9 See Gerard Quinn, ‘The Rise and Fall of Natural Law in Irish Constitutional Adjudication’, American Philosophical Association Newsletter, 1 (2000). 10 State (Ryan) v. Lennon [1935] IR 170. 11 The tribunal was established to address post-Civil War IRA violence. 12 Constitution of the Irish Free State, Articles 6, 45 and 70. 13 Ryan v. AG [1965] IR 294. 14 Constitution of Ireland, Article 40.3.2°. 15 Ryan v. Attorney General [1965] IR 294, 312–14. 16 McGee v. Attorney General [1974] IR 284. 17 Criminal Law (Amendment) Act 1935, s. 27(1). 18 McGee v. Attorney General [1974] IR 284, 310. 19 Ibid. 20 Ibid. 21 Ibid. 22 Re Article 26 and the Regulation of Information (Services Outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR 1. 23 Indeed, McGee had established that ‘positive law’ was superseded by ‘natural law’ – however this might be interpreted – and the logical corollary of this appeared to be that the people could not amend the Constitution in a manner that violated natural law. 24 Roche v. Roche [2010] 2 IR 321; Fleming v. Ireland [2013] IESC 19. 25 Tuohy v. Courtney [1994] 3 IR 1. 26 The combined population of Donegal, Mayo and Kerry was 532,736 and returned 30 TDs while the population of the combined Dublin constituencies was 568,838 but returned only 25 TDs. See James Casey, Constitutional Law in Ireland (Dublin: Round Hall Sweet & Maxwell, 2000), p. 107. See also David Gwynn Morgan, A Judgment Too Far? Judicial Activism and the Constitution (Cork: Cork University Press,2001), p. 82. 27 Drawing on the characterisation of Ireland as a ‘democratic State’ in Article 5, and on the equality provision in Article 40.1, Justice Budd concluded that equality of voting power was the ‘dominant principle’ of Article 16.2.3° and that the ‘spirit of equality’ would ‘not be maintained if the vote of a person in one part of the country has a greater effect in securing parliamentary representation than the vote of a person in another part of the country’. Of the relationship between the judicial and political arms of government he noted that the former ‘must be careful not to trespass into the domain of the legislature’ but also that, under the Constitution, the courts are nonetheless ‘clothed with the power and burdened with the duty of seeing that the legislature shall not transgress the limits set upon its powers’. O’Donovan v. Attorney General [1961] IR 114, 127.

138

Republican institutions

28 Doherty v. Government of Ireland [2011] 2 IR 222. 29 In his judgment, Justice Kearns noted the description of the State in Article 5 as ‘democratic’ and asserted that ‘implicit in that Article is recognition of the requirement for democratic representation through the electoral system which the Constitution provides’. [2011] 2 IR 222, 241. 30 The key question was thus whether the court could interpret s. 39(2) of the Electoral Act 1992 as requiring that a by-election be held within a reasonable time frame. 31 McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10; Coughlan v. Broadcasting Complaints Commission [2000] 3 IR 1; McCrystal v. Minister for Children [2012] 2 IR 726. 32 Constitution of the Irish Free State, Article 50 read: ‘Amendments of this Constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of voters on the register, or two-thirds of the vote recorded, shall have been cast in favour of such an amendment. Any such amendment may be made within the said period of eight years by way of ordinary legislation and as such shall be subject to the provisions of Article 47 hereof.’ 33 See Gerard Hogan, The Origins of the Irish Constitution, 1928–1941 (Dublin: Royal Irish Academy, 2013), p. 7. Chief Justice Kennedy, a member of the drafting committee, wrote in his foreword to Leo Kohn’s book on the Free State Constitution that ‘at the last moment … it was agreed that a provision be added to Article 50 allowing amendment by way of ordinary legislation during a limited period, so that drafting or verbal amendments, not unlikely to appear necessary … might be made without the more elaborate process proper for the purpose of more important amendments’. See Hugh Kennedy, ‘Foreword’, in Leo Kohn, The Constitution of the Irish Free State (London: George Allen & Unwin, 1932). 34 Constitution (Amendment No 17) Act 1931. 35 See the judgment of Chief Justice Kennedy in State (Ryan) v. Lennon [1935] IR 170, 195 (emphasis added). 36 State (Ryan) v. Lennon [1935] IR 170, 197. 37 Ibid., 195. 38 The Executive Council controlled the trial of offence through its control of the Tribunal. As Chief Justice Kennedy put it in his judgment, ‘every act from the arrest of the individual and the charging him with an “offence” to the sentence and its execution is, therefore, in naked reality, the act of the Executive Council’ [1935] IR 170, 202. 39 He agreed with the proposition put to the Court that the Dáil, when sitting as a Constituent Assembly in 1922, had transmitted ‘full power of legislation and [of] amendment [of the Constitution] to the Oireachtas’ (emphasis added). See ibid, 226. In supporting his arguments, Justice Fitzgibbon rejected natural-rights thinking, emphasising its open-textured and uncertain content. See [1935] IR 170, 230–4. He also disavowed judicial intervention in the ‘spheres assigned to the legislative and executive

Judicial power and popular control

40

41

42

43

44

139

organs’, which was expressed with reference to the notion of ‘judicial despotism’ and of ‘making the courts sovereign over both the Constitution and the people’. See [1935] IR 170, 220. Where Justice Fitzgibbon had stressed a version of parliamentary sovereignty  – in the sense of the Oireachtas having unfettered jurisdiction over constitutional amendment  – Chief Justice Kennedy understood the people as having ultimate authority on this question. This authority was derived not only from the assertion of popular sovereignty in the Constituent Act and in Article 2, but also through the checks contained in the amending provision itself. Thus the Constituent Assembly ‘even during the preliminary period would not relax the ultimate authority of the people and expressly reserved to the people the right to intervene when they considered it necessary to restrain the action of the Oireachtas affecting the Constitution’. The attempt by the Oireachtas to arrogate this ultimate power over the Constitution was thus, for Chief Justice Kennedy, a ‘usurpation … done without lawful authority’. See [1935] IR 170, 217. Chief Justice Kennedy referred to the assertion, in the preface to the Constituent Act, that ‘all lawful authority comes from God to the people’. He took this as implicitly limiting the scope of constitutional amendment: it meant that every act, ‘whether legislative, executive or judicial, in order to be lawful under the Constitution, must be capable of being justified under the authority thereby declared to be derived from God’. On his understanding, certain aspects of Article 2A – such as the tribunal’s power to impose the death penalty whenever they might think it expedient – were contrary to natural law. In similar vein, he insisted that the Constituent Assembly, with its ‘supreme authority’, had designated certain principles as ‘fundamental and absolute … and so, necessarily, immutable’. These included the principles of the separation of powers and popular sovereignty in Article 2 and that of ‘inviolable’ liberty in Article 6, among others. The power of amendment given by the Constituent Assembly to the Oireachtas could not, he insisted, have included powers to amend these principles. See [1935] IR 170, 204–8. Gerard Hogan has wondered whether Chief Justice Kennedy might have steered clear of natural law had Article 2A been endorsed by the people in a referendum. See Gerard Hogan, ‘A Desert Island Case set in the Silver Sea: The State (Ryan) v. Lennon’, in Eoin O’Dell (ed.), Leading Cases of the Twentieth Century (London: Sweet & Maxwell, 2000), p. 96. See Gerard Quinn,‘Dangerous Constitutional Moments:The “Tactic of Legality” in Nazi Germany and the Irish Free State Compared’, in John Morison, Kieran McEvoy and Gordon Anthony (eds), Judges,Transition and Human Rights (Oxford: Oxford University Press, 2007). Interventions of that kind, he insists, would ‘not … be motivated by an illegitimate wish to substitute one substantive viewpoint (that of the judge) for that of the people’ but rather ‘would be motivated to preserve the democratic system according to which the people can democratically decide’. See Quinn, ‘Dangerous Constitutional Moments’, p. 248. See Pettit, On the People’s Terms.

140

Republican institutions

45 The account that follows draws heavily from Pettit’s On the People’s Terms, in particular Chapters 4 and 5. 46 Pettit, On the People’s Terms, pp. 141–6. 47 Ibid., pp. 146–79. 48 Ibid., pp. 168–79. 49 Ibid. 50 Ibid., pp. 168–70. 51 Ibid., pp. 170–4. 52 Ibid., pp. 175–9. 53 Ibid., p. 176. 54 Ibid. 55 Ibid., p. 211. This is reminiscent of Waldron’s discussion of alignments between ‘topical’ and ‘decisional’ minorities. See Jeremy Waldron, ‘The Core of the Case against Judicial Review’, TheYale Law Journal, 115 (2006), pp. 1396–7. 56 Thus if the issue pertains to the ‘basic liberties’ members of minority groups, despite having an equal vote in decision-making processes, cannot be said to have an equal chance of having an equal impact. See Pettit, On the People’s Terms, pp. 211–15. 57 Ibid., pp. 220–5. 58 Ibid., p. 223. 59 See State (Ryan) v. Lennon [1935] IR 170. 60 See Pettit, On the People’s Terms, pp. 229–38. 61 See notes 27–30 and accompanying text. 62 Waldron, ‘Judicial Review’; Bellamy, Political Constitutionalism. 63 While Pettit regularly refers to the importance of judicial review as a contestatory mechanism that promotes non-domination, he does not comprehensively address the particular form that judicial review should take. See for example, Pettit, On the People’s Terms, p. 216. See also Philip Pettit, ‘Democracy: Electoral and Contestatory’, in Ian Shapiro and Stephn Macedo (eds), Designing Democratic Institutions: Nomos XLII (New York: New York University Press, 2000). 64 Pettit is not perturbed by the fact that disagreements in particular sites of contestation may ultimately have to be resolved through a ‘blunt instrument like voting’, as he is satisfied that the principled nature of the process will ‘lay down a foundation of common ground’ between those who disagree and that while ‘the dissensus with which they end may be a failure in one dimension [it] … is going to represent an achievement in another: it will secure or reinforce the norms of argument that the disagreement drives the different sides to identify’. Pettit, On the People’s Terms, p. 261. 65 This is the line broadly argued from republican theory by Frank Michelman and Cass Sunstein. See for example Frank Michelman, ‘Foreword: Traces of Self-Government’, Harvard Law Review, 100 (1986); Frank Michelman, ‘Law’s Republic’, Yale Law Journal, 97 (1998), Sunstein, ‘Beyond the Republican Revival’; Cass Sunstein, ‘Interest Groups in American Public Law’, Stanford Law Review, 38 (1985). 66 Bellamy argues that their disagreements can be attributed to factors including the difficulty of assessing complicated empirical evidence; disagreement about the weighting

Judicial power and popular control

67

68

69

70 71 72 73

74 75 76 77

141

to be given to particular considerations, even where there is agreement about the relevance of those considerations; and differences in social background and experience of individual judges that informs their assessment of evidence and weighting of moral and political values. See Bellamy, Political Constitutionalism, p. 21. For a case supporting the principled, rights-based deliberative credentials of parliament, see Adam Tomkins, Our Republican Constitution, pp. 126–30; Adam Tomkins, ‘The Role of the Courts in the Political Constitution’, University of Toronto Law Journal, 60 (2011). It is worth pointing out that the contestation will occur more routinely than in judicial settings; they will not rely on there being a perceived egregious rights breach, or on there being an individual or group with the financial resources, as well as the standing, to bring a claim. It is often suggested that the popularity of strong-form judicial review since World War II has much to do with the violations of rights in the Nazi era, with Hitler having risen to power through the Reichstag. The system is found, in different forms, all across Europe including the post-Soviet Eastern European states; in South and Central America and in most Asian and many African states, including South Africa. For an advocacy of this model of constitutionalism see Stephen Gardbaum, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge: Cambridge University Press, 2013). Gardbaum, The New Commonwealth Model of Constitutionalism, pp. 97–110. See Peter Hogg, Constitutional Law of Canada, 5th edn (Scarborough: Thomson, 2007), p. 26. Gardbaum suggests that the relative ineffectiveness of the pre-enactment parliamentary reviewing element is explained by ‘the dominance of the government in the House of Commons … the relatively weak parliamentary committee system generally … and the lack of warning and information, given the absence of any ministerial reports of inconsistency combined with the secrecy and confidentiality of the executive rightsvetting process’. Gardbaum, The New Commonwealth Model of Constitutionalism, p. 104. Gardbaum reports that it has been used on seventeen occasions since 1982, and last in 2000, all by provincial legislatures and never by the federal Parliament. See Gardbaum, The New Commonwealth Model of Constitutionalism, p. 109. Ibid., pp. 102–10. Ibid., pp. 108–10. Section 19 of the Human Rights Act requires that the minister sponsoring the bill must make a statement before the second reading to the effect that either the bill is compatible with Convention rights or that ‘although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the bill’. This latter provision – notably in the light of the general argument – was used on one occasion where the Government argued that its interpretation of freedom of expression, in the circumstances, was superior to the Strasbourg court’s interpretation. That analysis was later upheld by the Judicial Committee of the House of Lords in R (Animal Defenders International) v. Secretary of State for Culture, Media and Sport [2008] UKHL 15.

142

Republican institutions

78 The parliamentary forum is the Joint Committee on Human Rights (JCHR). It scrutinises section 19 statements and prepares reports on the compatibility of the legislation with the Convention. Its reports also inform parliamentary debates at subsequent stages of legislation. 79 As it is a joint committee comprising an equal number of peers and MPs it is not necessarily controlled by government and is thus seen as non-partisan. See Tomkins, Our Republican Constitution. 80 For general analysis, see, for example, Tom Hickman, Public Law After the Human Rights Act (Oxford: Hart Publishing, 2010); Aileen Kavanagh, Constitutional Review under the Human Rights Act (Cambridge: Cambridge University Press, 2009). 81 For a good account, see Timothy Endicott, Administrative Law, 2nd edn (Oxford University Press, 2011), pp. 75–84. 82 Ibid. 83 Ghaidan v. Godin-Mendoza [2004] UKHL 30. Kavanagh has argued that the test is not really one of ‘possibility’ but rather of overall appropriateness bearing in mind the general questions around judicial and legislative law making. See Kavanagh, Constitutional Review under the Human Rights Act, p. 90. 84 The exception is notable insofar as it seems to point to the political rather than technical nature of rights and their resolution: it concerns interpretative disagreement between legislators and judges in respect of the compatibility of legislation banning convicted prisoners from voting with provisions of the Convention relating to free elections. The ECtHR decided in an earlier case that such a ban conflicted with the Convention, but in a later case that a ban limited to those sentenced to three years or more fell within the margin of appreciation (and thus did not conflict with the Convention). See Gardbaum, The New Commonwealth Model of Constitutionalism, pp. 174–5. 85 See Waldron, ‘Judicial Review’, pp. 1383–4. 86 This model may thus provide some of the institutional devices that Marco Goldini, in his defence of political constitutionalism, has argued are needed in order to broaden the notion of ‘the political sphere’ beyond the ‘electocracy’ that he associates with contemporary political constitutionalists. Goldoni has argued that ‘democratic sovereignty … must be conceived in a way that can explain the idea that the citizenry do not delegate everything on the day of the election, but they retain the power to investigate, judge, and control their representatives’. Yet he shares with political constitutionalists the objections to strong-form judicial review based largely on the fact of disagreement concerning the meaning and application of rights. See Marco Goldini, ‘Two Internal Critiques of Political Constitutionalism’, International Journal of Constitutional Law, 10 (2013), p. 942. 87 Fiona de Londras and Cliodhna Kelly, European Convention on Human Rights Act: Operation, Impact and Analysis (Dublin: Round Hall, 2010), p. 248. 88 On the doctrine, see Oran Doyle, Constitutional Law: Cases, Texts and Materials (Dublin: Clarus, 2008), pp. 437–9. 89 Justice Hanna held: ‘In Éire we have a written Constitution which enacts that the Oireachtas is the only body to pass laws for the peace, order and good government

Judicial power and popular control

90 91 92

93

143

of the State, and it is submitted that their power of legislation is to be limited to these purposes and that any law passed by them must conform to this test. It seems to me difficult, if not impossible, for any Court of law to give all analytical definition of these words – “peace, order and good government of the State,” based upon any known principle of law, or upon any principle of law could operate. I am certainly unable to do so. The question of peace, order and good government of the State in reference to legislation is primarily a matter for the Oireachtas, and the application of the phrase would seem to be more a guide than positive law. The reason for this opinion is that upon this question there is no rule to guide the Court. It is a question of practical political science and of the theory of good government, a question which, if it were decided by the Court, would be determined, not by any principle of law, but would depend on the individual view of each particular Judge, or body of Judges, on the theory of government and their knowledge of political science. It seems to me to be a vague phrase, a kind of political shibboleth, the meaning and application of which has changed and will continue to change from one generation to another.’ Pigs Marketing Board v. Donnelly [1939] IR 413, 417–18. On the rule, see Doyle, Constitutional Law, pp. 441–2. Tuohy v. Courtney [1994] 3 IR 1. The test was set out in the following way by Justice Costello in Heaney v. Ireland: ‘In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights … and has recently been formulated by the Supreme Court in Canada in the following terms: The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:- (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible; and (c) be such that their effects on rights are proportional to the objective.’ Heaney v. Ireland [1994] 3 IR 593, 607. The test was applied by Justice Kearns in Fleming v. Ireland: ‘the State has a profound and overwhelming interest in safeguarding the sanctity of all human life … These are, of course, concerns which any free and democratic society must strive to protect and uphold. The prohibition on assisted suicide is rationally connected to this fundamental objective of protecting life and is not remotely based on arbitrary, unfair or irrational considerations. The Court appreciates, of course, that from [the applicant’s] perspective it seems unfair that she is condemned by the law and society to endure that which, for the rest of the able-bodied population, we could not endure and would not personally tolerate … Yet the fact remains that if this Court were to unravel a thread of this law by even the most limited constitutional adjudication in her favour, it would – or, at least, might – open a Pandora’s Box which thereafter would be impossible to close

144

94 95 96 97

Republican institutions

… the Court considers that the absolute prohibition on assisted suicide also satisfies the second and third limbs of the proportionality test. It follows, therefore, that we find ourselves compelled to reject the constitutional challenge insofar as it concerns the claim based on the protection of the person in Article 40.3.2 (including overlapping and ancillary rights, such as dignity and bodily integrity).’ Fleming v. Ireland [2013] IESC 19. De Londras and Kelly, The European Convention on Human Rights, p. 248. Zappone & Gilligan v. Revenue Commissioners [2008] 2 IR 417. See generally Conor O’Mahony, ‘Principled Expediency: How the Irish Courts Can Compromise on SameSex Marriage’, Dublin University Law Journal, 35 (2012). Ibid. The argument concerning the ease of amendment under Irish constitutional arrangements by comparison with the United States is made specifically in the context of Carolan’s critique of the new commonwealth model of constitutionalism. See Eoin Carolan, ‘Between Supremacy and Submission: A Model of Collaborative Constitutionalism’, (unpublished, on file with the authors). It is also made, more generally, by Gerry Whyte. See, for example, Gerry Whyte, Social Inclusion and the Legal System: Public Interest Law in Ireland (Dublin: Institute of Public Administration, 2001), pp. 36–7.

5 Republican perspectives on constitutional interpretation

Introduction Republican scholarship has focused a great deal on the legitimacy of rights-based constitutional review, as considered in Chapter 4, and to a lesser extent on the concept and nature of constitutional rights, as discussed in Chapter 2. However, it has paid relatively little attention to the discrete issue of constitutional interpretation.Yet since the power of constitutional review itself is so well established and widely accepted in Ireland, the question of constitutional interpretation is probably more important in practical terms. Questions of legitimacy in respect of arbitrary power, accountability and popular control may arise not only in relation to the distribution of institutional powers – whether, for example, of constitutional review or legislative invalidation  – but also in the conventions and norms that emerge concerning their exercise in practice. And constitutional interpretation, specifically, raises foundational, normative questions to which republican themes can be usefully applied. On the one hand, it is widely accepted that the narrow and literal methods of interpretation that are typically used for parliamentary statutes are unsuitable for constitutions, primarily because of their terse and vague style. Whereas statutory interpretation is thought of as a relatively mechanical and uncreative exercise in discerning parliamentary intent in the form of relatively precise rules, constitutions have a much broader function in setting out a principled, political-moral framework for state power, and so seem to require wider methods of interpretation that cannot be confined to historical and linguistic analysis. However, the dilemma, from a republican standpoint, is roughly the following: if constitutional interpretation is posited as an ‘interpretivist’ exercise that sees judges invoke general principles and philosophical justifications for the exercise

146

Republican institutions

of far-reaching and relatively unaccountable powers, the republican values of contestation, popular control and indeed the non-arbitrary rule of law risk being undermined. In this chapter, we will argue, on the one hand, that there can be no republican objection as such to judges invoking background principles of public philosophy, connected to say, democracy or the rule of law, in reviewing the constitutionality of legislation and executive action. However, on the other hand, republicanism should have a great deal to say about the sources of interpretive principle in constitutional adjudication. In particular, it cannot sustain any conception of judges as invoking freestanding philosophical or moral conceptions of justice, particularly those associated with natural law. In this sense, republicanism must endorse a concept of ‘public reason’, which requires judges, as well as other public officials, to justify their decisions based on reasons that citizens can endorse independently of their religious or philosophical doctrines. We will discuss how, historically, Irish judges rejected literalist and positivistic approaches to constitutional interpretation, and proved quite willing to invoke background or extratextual principles as sources of constitutional authority. However, recently the prevailing concept of constitutional interpretation has demonstrated a greater epistemological and methodological humility than in the past, particularly since natural law has been jettisoned as a freestanding source of constitutional authority. There is little evidence of a singular, coherent replacement for natural law as a constitutional philosophy. Indeed with the demise of natural-law thinking, there has been a greater tendency to resort to linguistic and historical analysis in constitutional interpretation. As we will explore, however, some judgments have appealed to distinctively republican ideas in elucidating constitutional norms and standards, albeit in a piecemeal and isolated way.

Doctrines of constitutional interpretation in Ireland It is widely accepted that constitutional interpretation cannot be considered a technical, lawyerly skill and that, in particular, constitutions cannot be interpreted in isolation from political and moral issues. To some extent, this is true of all legal standards and sources, given the indeterminacy and manipulability of all linguistic rules and principles. But while linguistic indeterminacy is not peculiar to constitutional law, it is accentuated, at least, by the comparatively vague and abstract nature of constitutional provisions. The problem is not only that constitutional texts will include lacunae or ambiguities that must be resolved using judicial discretion or creativity – a problem that may equally arise in statutory interpretation. Rather, it is that constitutions often do not consist of ‘rules’ or

Constitutional interpretation

147

‘commands’ at all, but rather normative ideals, aspirations and manifesto-type political rhetoric, the meaning or content of which will depend on controversial normative appraisals that are irreducible to ‘legal’ knowledge in any discrete sense. In this light, constitutional adjudication risks reproducing the full spectrum of ideological disagreement in politics, but clothing itself in a more esoteric, inaccessible terminology. In the United States, the originalist movement argues that historical intentions should be used to guide constitutional meaning, but the intentions of constitutional framers and enactors is often too vague or indeterminate to be of decisive assistance, and raises separate questions concerning democratic legitimacy.1 Neither plain linguistic meaning nor historical understandings are sufficiently dispositive to authoritatively resolve issues of constitutional meaning: constitutional interpretation can never be fully extricated from politics in its broad sense. The broad approach to constitutional interpretation

Generally speaking, Irish courts have acknowledged that constitutional interpretation is necessarily more creative than statutory interpretation, advocating a ‘broad’ approach. Statutory interpretation has generally been depicted as an exercise in discerning parliamentary intent – an intent that is presumed to be found, subject to some exceptions, in the literal meaning of statutory language.2 However, in the Paperlink3 case, Justice Costello suggested that since the Constitution was ‘a political instrument as well as a legal document’,4 literal interpretation was unsuitable for constitutional interpretation in many instances. Thus it has been generally accepted that the default literalism of statutory interpretation is unsuitable simply because constitutions ‘in the nature of things tend to lay down general principles’.5 In short, the distinctiveness of constitutional interpretation is depicted as springing from the distinctive form, content and function of constitutional provisions. However, despite this broader approach, constitutional interpretation is nonetheless often described, somewhat unrealistically, as an exercise in discerning the historical intent of the legislators – that is, the people. For example, in Sullivan v. Robinson, Justice O’Byrne suggested ‘a Constitution is to be liberally construed so as to carry into effect the intentions of the people embodied therein’ – thereby downplaying any judicial creativity, or indeed any role for public philosophy as a guide to constitutional meaning.6 Thus, judges who reject a literalist approach may nonetheless understand constitutional interpretation as an exercise in retrieving some determinate set of historical intentions, rather than as an interpretivist or creative exercise. As we have already argued in Chapter 1, this conception of popular sovereignty – that of the people being in some true sense

148

Republican institutions

the authors of the constitutional text – is unrealistic and misleading. In many cases it will likely serve only to obscure the true basis for a judicial decision as to constitutional meaning. Sometimes the broader approach used for constitutional interpretation is described as a ‘purposive’ approach. According to this doctrine, the literal meaning of constitutional clauses must be qualified or at least elucidated in view of their underlying purpose – this being understood, in turn, in light of the ethos or philosophy of the constitution as a whole. This approach is deemed more suitable for constitutional provisions involving standards and values as distinct from those concerning technical institutional functions. In Quinn’s Supermarket v. Attorney General, the Supreme Court qualified an apparently strict constitutional prohibition against ‘discrimination’ on religious grounds which, on its face, had appeared to preclude positive discrimination – in this case, a statutory exemption for butcher shops observing the Jewish Sabbath.7 Since the overall purpose of the relevant article of the Constitution was said to be to protect freedom of religious practice, a literal reading of the text could not be allowed to defeat this. Ostensibly this resembles doctrines of statutory interpretation that allow courts to depart from literal meaning where it would lead to absurd consequences, thus privileging statutory purpose over literal meaning.8 However, the doctrine seems more far-reaching in constitutional cases, as there is no requirement that the literal meaning should first be ‘absurd’ before it can be qualified with reference to purpose. Moreover, ‘purpose’ seems to refer to the overall philosophy and ethos of the Constitution rather than the policy goal, the sort of which a statute is presumed to represent. In Quinn’s case, for example, the court’s readiness to depart from the apparent literal meaning of the constitutional text was informed by a conception of the relative importance of religious practice in the Constitution’s overall scheme of values – it was a highly interpretive appraisal that went far beyond an assessment of plain meaning. Thus, however it might be labelled, this broader approach conceives of constitutional adjudication as being, in part, an exercise in discerning the underlying moral, political and philosophical ethos of the Constitution, conceived of as a political charter as well as legal instrument. This principled approach may operate to yield concrete propositions from vague, abstract clauses, to qualify the literal meaning of specific technical clauses, and to resolve conflicts between clauses. It incorporates a judicially defined constitutional philosophy – one that is irreducible to linguistic and historical analysis of constitutional text – within the corpus of constitutional authority. This sees the usual canons of legal interpretation being adapted to the very distinctive role of the Constitution as a foundational political charter. Indeed Justice Geoghegan said in Ó Beoláin v. Fahy ‘a

Constitutional interpretation

149

Constitution is not simply a piece of legislation. It embodies the aspirations and emotional feelings of the people who have enacted it.’9 Dworkin’s interpretivism

Given their broad approach to constitutional interpretation, Irish judges have arguably echoed Ronald Dworkin’s influential interpretivist theory of adjudication. Dworkin famously rejected the central tenets of legal positivism – that legal standards can be identified on the basis of enacted criteria of validity established through official practice and relatedly, that questions of legal validity are separable, at least, from open-ended political and moral debate.10 Instead, Dworkin insisted that the law includes not only those rules enacted in accordance with conventionally recognised criteria in a purely descriptive sense, but also a range of inchoate background political and moral ‘principles’ that are never enacted at all. In turn, judges interpret legal rules – which are indeterminate when taken by themselves – in a manner that best accords with the principled basis of the political community. They should ‘decide hard cases by interpreting the political structure of their community … by trying to find the best justification they can find, in principles of political morality, for the structure as a whole’.11 They should decide such cases in a manner that best fits the ‘background moral rights’ of the parties.12 Thus adjudication is an exercise in principled discourse  – an attempt to give the best possible account of the community’s legal and political practices – rather than simply an exercise in applying conventionally established rules.The truth of a legal proposition does not depend only on it being located in an institutional enactment designated as authoritative by official practice; rather, it depends on whether or not it accords with a principled justification of the community’s institutional practices.13 Moreover, where formal legal rules are indeterminate – that is, where they accommodate competing contradictory outcomes – judges do not resolve this using discretion as such; rather they reach to a background forum of principle gleaned from the history and ethos of the political community. Thus, since principle cures rule indeterminacy, the law is a ‘seamless web’ rather than a patchwork of rules, lacunae and discretion.14 By extension, constitutional provisions cannot be understood based solely on textual and historical analysis; interpretations of the Constitution must rely on some account of its underlying philosophical and ethical values.15 Dworkin argued: ‘fidelity to law, as such, cannot be a constitutional philosophy because a judge needs a constitutional philosophy to decide what the law is’.16 Thus, the corpus of constitutional authority is extended to embrace an inchoate constitutional philosophy which can be used to make sense of often vague and obscure

150

Republican institutions

provisions. Constitutional interpretation is, in this lens, an ‘unfolding political narrative’.17 In summary, then, for Dworkin, public philosophy is a part of the law in its broad sense and it is one of the sources of authority legitimately available to a virtuous judge. There is nothing distinctively republican about this approach to constitutional interpretation. Republicans might reasonably seek to deny judges any role as arbiters of public values, given the open-ended and malleable nature of principled discourse. Indeed, the power to adjudicate cases and develop the law based on inchoate background values might be thought of as somewhat untethered, even arbitrary. On this view, a republican concept of the rule of law must conceive of the constitution as a relatively stable and precise set of rules defined textually and in precedent, rather than as a set of ad hoc propositions of political philosophy that may hinge on the ideological and personal predilections of particular judges. Indeed most people will recognise intuitively that principled discourse is remarkably malleable – that it can be used to justify any range of disparate, contradictory conclusions. With sufficient imagination and eloquence, more or less any plausible interpretation of constitutional law might find support in the background political culture and tradition, precisely because public philosophy is not a unified discrete corpus, but rather a set of conflicting and antagonistic principles.18 Of course, legislators and politicians might also manipulate principle to gloss a preferred ideology: but a crucial distinction is that unlike legislators, judges will not be accountable for their principled stance, which provides good reason in itself for limiting them to narrow rule-based sources. Thus a positivist or formalist account of adjudication might be favoured on the grounds that it stems the potentially arbitrary nature of judicial decision making. Indeed while critical legal scholars insist that ‘principled’ adjudication is more or less untethered and open-ended – and irremediably ideological – this might usefully inform a republican analysis of judicial power (as we considered from a different angle in Chapter 4). However, from an alternative standpoint, interpretivist adjudication might find republican support. Republicans might argue that, far from appropriating public philosophy to an unaccountable elite forum, principled adjudication might in fact – as Eisgruber argues – enhance public deliberation on foundational values.19 While a positivist concept of adjudication might limit the arbitrariness of judicial power – in accordance with the traditional concept of the rule of law – formally enacted legal rules will always leave ambiguities and lacunae. The positivist account cannot preclude the arbitrariness that stems from the indeterminate nature of linguistic rules. If principle is excluded as a basis for judicial decision making, lacunae and indeterminacies must be resolved based on a judge’s intuition or discretion – and thus, on grounds that are potentially more arbitrary than open-ended principled reasoning. In this light, principled

Constitutional interpretation

151

discourse might in fact remedy the arbitrariness of judicial decisions in ‘penumbral’ cases, as the interpretivist account at least requires judges to justify their rulings based on transparent public standards. The rival account – that of adjudication being based partly on discretion – seems to admit of a greater degree of arbitrariness in judicial power, as the essence of discretion is that it is exercised essentially at the pleasure of the decision maker rather than on the basis of any discernible public standard. Indeed as Nordahl notes, principled adjudication has a ‘disciplining and integrative’ effect as it requires judges to justify their rulings with reference to the moral identity of the political community.20 In any event, something approximating the interpretivist approach is evident in certain landmark Irish judgments. For example, in McKenna v. An Taoiseach (No 2), the Supreme Court ruled it was unconstitutional to use public funds to promote a ‘Yes’ vote in referendum campaigns, despite the absence of any constitutional or statutory provisions governing referendum expenditure.21 The ruling relied primarily on background constitutional principles of democracy, fairness and popular sovereignty. Thus it appealed to a background public philosophy implicit in the Constitution rather than the literal or historical meaning of the constitutional provisions. For example, Chief Justice Hamilton invoked ‘the democratic nature of the state’ and the status of the people as the ‘guardians of the Constitution’.22 Indeed, it was criticised as an excessively activist judgment, because it relied, in Doyle’s terms, on ‘general propositions’ of political principle.23 This is effectively to complain that the court bypassed the textual provisions of the Constitution and instead incorporated inchoate principles of public philosophy as a part of the constitutional corpus – and indeed this reflects many of the criticisms of interpretivist adjudication as being somewhat indeterminate, malleable and open-ended. In some senses, the public philosophy invoked in McKenna had a recognisably republican flavour. A similar approach was evident in the more recent ruling in Doherty v. Government of Ireland.24 As outlined in Chapter 4, the plaintiff challenged the Government’s ‘unreasonable’ delay in allowing a Dáil by-election to be held. Again, while there were no constitutional or statutory provisions requiring byelections to be held within any particular time frame, the High Court nonetheless held the delay unconstitutional. In particular, it cited the highly interpretive concept of a ‘“constitutional contract” between the citizen and the State’, thus invoking – as in McKenna – inchoate principles of popular sovereignty and political equality.25 Again, while the use of general political-moral principles is in itself noteworthy, the principles invoked had a distinctively republican air. These strident articulations of constitutional philosophy could be said to be relatively unusual; more typically, courts tend to describe these endeavours in a modest light, underplaying their creativity out of a concern for legitimacy.Where

152

Republican institutions

the constitutional text is unclear, courts are more likely to resort to the presumed intendment of particular provisions,26 even though the historical approach to constitutional interpretation has sometimes been rejected or at least strongly qualified.27 There is nonetheless a discernible interpretivist strain in Irish constitutional jurisprudence, as exemplified in the judgments discussed. Judgments such as Doherty and McKenna (No 2) seem to echo Dworkin’s insistence that abstract constitutional clauses ‘require interpreters to develop what they believe to be the best theory of equal citizenship … [including] at least a rough theory about the best conception of democracy’.28 In this view, the validity or truth of particular constitutional propositions depends on a political-moral interpretation of the broader constitutional scheme, rather than a semantic and historical analysis of the text – even if this approach is rarely described in such forthright terms by the judges themselves. This is echoed, in particular, in references to politicalmoral principles such as popular sovereignty and the social contract. While not explicitly elucidating any comprehensive constitutional philosophy, this approach acknowledges the role of the constitution as encapsulating the polity’s fundamental values. This is reflected in doctrines of constitutional interpretation as well as specific accounts of substantive constitutional principle. For example, Hogan and Whyte describe the so-called ‘harmonious’ approach to constitutional interpretation as ‘a presumption that the people who enacted the Constitution had a single scale of values, and wished those values to permeate their charter evenly and without internal discordance’.29 This echoes Dworkin’s conception of ‘integrity’ – a partner idea of interpretivism – which ‘instructs judges to identify legal rights and duties … on the assumption that they were all created by a single author – the community personified – expressing a coherent conception of justice and fairness’.30 Similarly, in Irish constitutional jurisprudence, interpretivist judgments have assumed that the constitutional provisions, taken as a whole, reflect a conception of the State as the creature of, and deriving its authority exclusively from, the ‘people’. In turn, this philosophical conception of the State as a creature of the people implies certain unspecified principles which are incorporated in the corpus of constitutional authority in the broad sense, and which can be given effect by judicial review even in the absence of any explicit textual mandate for such.

Interpretivism and natural law Insofar as it has been accepted that constitutional adjudication requires judges to invoke a background public philosophy, this role was previously occupied by natural-law theory. As briefly explored in Chapter 2, natural-law theory refers

Constitutional interpretation

153

to an understanding of rights as deriving from an objective moral order, antecedent to and independent of the ‘positive’ law that is enacted by institutions or established by social practices.31 Clarke describes the version of natural law inspiring Irish jurisprudence as stemming in part from the influence of Aquinas and Roman Catholic theology.32 Indeed, to an extent, the influence of naturallaw thinking in Irish constitutional law stemmed from the Roman Catholic ethos of the early State as well as the wording of the constitutional provisions.33 In early landmark constitutional cases, the positivist heritage of the British constitutional tradition was resoundingly discarded, although it took some decades for this to be fully acknowledged and affirmed. This natural-law philosophy was evident in the phraseology of certain constitutional rights, particularly family rights described as ‘antecedent and superior to all positive law’, and the right to private property as a ‘natural right, antecedent to positive law’.34 Children are described as possessing (unspecified) ‘natural and imprescriptible rights’, and parents, ‘inalienable’ rights in respect of their education.35 As Justice Walsh put it, the constitutional provisions suggest ‘justice is placed above the law’.36 Thus, natural law represented a dominant element of the background moral landscape in light of which constitutional provisions were to be interpreted. In particular, as elaborated on in the previous chapter, it was identified as one of the sources for identifying unenumerated constitutional rights in judgments such as Ryan v. Attorney General37 and McGee v. Attorney General.38 Under the constitutional philosophy identified in McGee, ‘justice’ was said to be superior to ‘law’. Yet the concrete effect of this affirmation was to empower judges both to recognise and to delimit rights with reference to controversial ethical doctrines. As Justice Walsh said: ‘in this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law’.39 What this really meant was that judicial interpretations of natural law were to be given effect as positive law. Its real effect had little to do with the relative status of ‘positive’ and ‘natural’ law; rather, it represented an accretion of judicial power at the expense of parliamentary authority. Although both approaches reject legal positivism, natural law theory – at least of the sort described – differs substantially from Dworkinian interpretivism. For Dworkin, principle and background moral rights are a part of the law in its broad sense; although never formally enacted, they derive from institutional practice and history. The ‘rights’ judges invoke are not part of a freestanding moral conception. In McGee, a much wider concept of natural rights was invoked. Justice Walsh did not suggest that the ultimate source of rights simply lay in a broader sense of ‘law’, but rather that the origin of rights was extra-legal – and moreover, that this extra-legal source was a legitimate instrument of judicial power (as

154

Republican institutions

paradoxical as this may seem). While interpretivism broadens the range of ‘legal’ materials legitimately available in adjudication to include background principle, this order of principle is derived from the history and ethos of the political community; it is not a freestanding moral theory in the sense of natural law. The principles Dworkin invokes as a source of legal rights are not antecedent in the same sense as natural law; rather, they stem from particularist institutional histories in the context of historically situated political communities. In Dworkin’s literary metaphor, interpretivist judges are ‘authors in a chain novel’ – they do not articulate normative ideals in an institutional and historical vacuum.40 In contrast, natural law is, in its very essence, less institutionally and historically tethered, and correspondingly it would seem to empower judges to a greater extent. Thus for Dworkin, ‘judges can only impose political convictions that they believe, in good faith, can figure in a coherent general interpretation of the legal and political culture of the community’.41 Interpretivism does not give judges carte blanche to incorporate a preferred moral or ethical vision in the basic law of the State. Therefore, compared with natural law, it would seem to have the advantage of combining a broad approach to constitutional interpretation, which captures background moral rights, with a greater respect for democratic legitimacy and popular control – although there remains the objection, as explained above, that ‘principle’ itself is sufficiently malleable to justify either conclusion in a ‘hard’ case at appellate level. As explored in Chapter 2, republicans do not regard rights as pre-political or natural; they stem from the conventional nature of political community rather than a freestanding moral or philosophical theory, and they are constituted by membership of the polity. Thus, despite possible republican objections, interpretivism is more consistent with the republican conception of rights. We can distinguish between cases such as McGee on the one hand, in which natural rights were understood as antecedent to law itself, and decisions such as McKenna and Doherty, where the relevant moral rights were rooted in political tradition and institutional practice. In a sense, such interpretivist judgments are attempts at capturing political rather than moral philosophy as a component of the constitutional order and accordingly, they are more amenable to the republican way of thinking about political authority and rights. However, this dichotomy is not as neat as it may first appear. As we already noted, the domain of principle is both ideologically inflected and indeterminate in its content; for many critical scholars, interpretivism serves simply to clothe a dominant ideological agenda, or dominant social interests, in principled terms. And from a more distinctively republican perspective, the indeterminacy and malleability of principle risks rendering judicial power arbitrary in the manner described. While it is ostensibly less unconstrained than natural

Constitutional interpretation

155

law, interpretivism affords judges a great deal of latitude nonetheless. While the interpretivist judge does not formulate a theory of constitutional right in an institutional and textual vacuum, their endeavour is unmistakeably creative, and for some, therefore, insidiously ideological.42 Indeed, Dworkin himself attacks the ‘harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality … a judge needs a constitutional philosophy to decide what the law is’.43 Yet a judge, unlike a legislator or elected president, is not publicly accountable for their particular version of ‘constitutional philosophy’. Judicial renditions of constitutional philosophy might harbour a conservative bias, as difficult as this is to prove. And while the rough-and-tumble of legislative politics might appeal to base sectional interests rather than political principle or the common good, at least this provides a measure of transparency – principled judicial discourse might simply serve to obscure dominant sectional interests in oratorical sophistry. Thus again, we see that the question of constitutional interpretation, and its connection to political principle, presents republicans with a dilemma. While republicans might wish for judicial rulings to be grounded in a public philosophy that incorporates republican themes, judicial interpretivism in practice seems to risk undermining the republican goals of accountability, transparency and popular control.

The decline of natural law in Ireland: the role of public reason In recent decades, the erstwhile standing of natural law as something akin to a constitutional philosophy has gradually weakened to a point where it is generally acknowledged to be, at most, simply the background moral inspiration for the constitutional provisions, and not a direct source of constitutional principle. The decline of natural law as a constitutional philosophy has, to some degree, simply mirrored secularisation in Irish society, as it has been strongly associated with religious thought.44 From the 1990s, natural-law claims ‘encountered increasing scepticism’ in the Supreme Court.45 While natural-law thought was explicitly decoupled from Catholic theology as early as the 1970s with the landmark judgment in McGee v. Attorney General,46 the decline of natural law was given forceful expression in the Abortion Information case discussed in Chapter  1.47 Specifically, the Supreme Court rejected the contention that natural law could be used to invalidate constitutional amendments passed via the referendum process. In doing so it rejected the idea of natural law as any independent, freestanding source of constitutional authority and emphasised the primacy of popular sovereignty in the constitutional order. This effectively signalled a retreat from Justice

156

Republican institutions

Walsh’s affirmation, in McGee, that the court had the duty and power to enforce the primacy of ‘justice’ over ‘law’. However, natural law has not been replaced by any new interpretivist doctrine, or indeed any constitutional philosophy, at least not in a sustained or comprehensive way. Instead, it has apparently given way to a more conservative approach to constitutional interpretation that privileges textual, semantic and historical analysis over principled discourse. In Roche v. Roche,48 for example, in which it was unsuccessfully claimed that frozen embryos shared in the constitutional right to life of the ‘unborn’, some of the Supreme Court judges explicitly disavowed any role in discerning the philosophical content and character of the Constitution, or any transcendent set of ethical values implicit within it, that might elucidate the scope and extent of the right to life.49 Instead the judges decided, based on an historical analysis of the Eighth Amendment and its likely intendment (as applying to abortion alone) as well as its semantics (specifically, that the literal meaning of the term ‘unborn’ implied post-implantation protection alone). Justice Denham stated: This case is not about the wonder and mystery of human life. This is a court of law which has been requested to make a legal decision on the construction of an article of the Constitution. … This is not a forum for deciding principles of science, theology or ethics.50

While it is difficult to discern decisive trends, the landmark judgment in Fleming v. Ireland, for example – the so-called ‘right to die’ case – similarly showed the court reluctant to stray beyond the narrow analysis of constitutional text and precedent, eschewing controversial ethical and philosophical issues of the sort broached in the McGee case.51 Thus the decline of natural law has arguably given way to a more conservative judicial methodology in constitutional law. It is likely that the rejection of natural law as a source of constitutional authority is attributable in part to concerns surrounding the breadth of judicial power it permits: Clarke argues that the real significance of natural-law theory was to ‘facilitate the emergence of a self-confident judicial oligarchy’, arrogating to itself an interpretive monopoly over ‘justice’.52 In turn, much the same concerns underlie the intellectual modesty of the doctrines that have replaced it.

Public reason and republicanism From a republican perspective, a further possible objection to the use of natural law as a source of constitutional authority is that is violates a norm of public

Constitutional interpretation

157

reason. This idea  – often associated with John Rawls’s liberalism, but which equally has a strong republican flavour – suggests that state power must be justified on terms that all citizens can reasonably be expected to endorse independently of their comprehensive religious and ethical doctrines. Correspondingly, it holds that a political conception of justice must appeal to a shared public philosophy rather than to a ‘complete conception of the good’.53 The doctrine precludes citizens, as well as public officials, from relying on controversial philosophical and religious precepts as justifications for public action. Freeman observes: In a constitutional democracy citizens normally have a sense of the kinds of reasons that are fittingly appealed to, as well as those that are not, in legislative and judicial forums and when arguing about laws and the constitution with people who hold different religious or philosophical views.54

Thus Rawls argued that the public philosophy of a democratic society, conceived as a ‘fair system of social co-operation’, cannot be defined with reference to ‘an authority distinct from the persons cooperating, say, by God’s law … or by reference to what some have viewed as “natural law”’.55 The public philosophy of a constitutional democracy cannot be a ‘comprehensive doctrine’ addressing itself to the whole of life, so to speak, or embracing a ‘zeal for the complete truth’.56 This precludes comprehensive secular doctrines, aimed at promoting autonomy or individuality, as much as religious conceptions. Instead, a public philosophy must be ‘political not metaphysical’; it must be addressed exclusively at the question of how state power can legitimately be exercised upon those holding irreconcilably different, but reasonable worldviews. Thus the departure point for political philosophy is the recognition of ‘reasonable pluralism’ as a permanent feature of a democratic society.57 Public reason generally appeals to citizens’ capacity to advance justifications and arguments from a principled perspective independent from their various rival comprehensive doctrines. Essentially, then, the public conception of justice eschews ultimate questions of truth: for Rawls, ‘political power is legitimate only when it is exercised in accordance with a constitution … the essentials of which all citizens, as reasonable and rational, can endorse in light of their common human reason’.58 This ‘constructivist’ approach ‘does not deny … the concept of truth, [but] does without [it]’.59 In this light, natural law is unsuitable as a basis for public justification because it addresses itself to controversial metaphysical questions: it transgresses the limits of public reason because, in addressing itself to an objective moral order, it circumvents the problem of political consent and the conventional nature of political community. It defies the pluralist assumption that the foundational

158

Republican institutions

constitutional precepts of a democratic society should be accessible to reasonable citizens who hold diverse conceptions of the good yet who must find some basis for social cooperation which transcends these.60 In short, then, it cannot serve as an appropriate standard of justification for state power in a pluralist society. Insofar as this ‘constructivist’ approach insists ultimate questions of truth or of the good life must be set aside in the arena of political justification, it arguably echoes republican assumptions concerning the nature and scope of citizenship and political community. Just as Rawls insists that a democratic political community cannot rest on a complete conception of the good, republicans argue that the role of politics is neither to mediate disaggregated individual interests nor, however, is it to realise particularist understandings of human flourishing. The stricture of public reason applies with peculiar force to judges. Dworkin argues that a key task of legal theory – and indeed of adjudication – is to provide a general justification for law’s coercive authority.61 From the perspective of public reason, then, judicial rulings must be justified with reference to a public political conception of justice and never to any particular ‘comprehensive doctrine’. On the one hand, the concept of public reason does not necessarily suggest that judges will invoke any particular domain of political-moral principle to justify their rulings; indeed, as argued, republicanism provides strong normative grounds for insisting on a separation between legal interpretation and political morality. However, while judges might be denied any role as arbiters or expositors of public philosophy, the doctrine of public reason circumscribes the order of moral justification that judges may invoke. Indeed Rawls envisaged that his doctrine of public reason would apply to judges, citing the Supreme Court as an ‘exemplar of public reason’.62 (Dworkin, by way of contrast, rejects the stricture of public reason and envisages that judges may invoke comprehensive liberal doctrines insofar as these cohere with the relevant institutional history.63) Judges may not routinely need to use a theory of political morality as grounds for decision making. But in ‘hard’ cases where there seems to be no exclusive ‘right answer’ from within the existing legal materials, Rawls seemed to envisage that judges would draw on background principles of justice rather than deciding on discretionary grounds. While the principles of justice are to be concretised in successive stages, first in a constitution and then at the legislative stage, the problem of semantic indeterminacy in law will mean judges may effectively have to rely on some extra-legislative source of authority. Indeed, Dworkin argues that Rawls’s rejection of utilitarianism means his substantive theory of justice lends itself to an interpretivist understanding of adjudication.64 The same might be argued of republicanism, given its resonance in many aspects of Rawls’s thought. This must be distinguished from any argument in favour of strong-form judicial review as such, as considered in Chapter 4. And it is not to discount the critical

Constitutional interpretation

159

arguments concerning the potentially ideological nature of ‘principled’ judicial discourse. However, given the intractable problem of legislative indeterminacy, there is always a possibility that judicial power will be exercised based on ideological or ‘political’ considerations, whether consciously or otherwise, no matter how judicial power is framed or described.While the requirement for public reason does not obviate this problem, at least it needs the reality of judicial power to be explicated and acknowledged – and judicial decision making to be grounded on transparent public norms, as limited and rarefied as a justificatory process this might represent in practice. Although it may have a valuable role, it is important to note the limits of public reason as a doctrine of constitutional interpretation. On the one hand, it may impose excessive and unrealistic circumscriptions on the scope of judicial discourse as well as public discourse generally. For Rawls, the public conception of justice consists of principles that reasonable and rational individuals could agree upon if deliberating under certain constraints that express their moral equality – that is, from within the famous ‘original position’, in which the deliberating parties are denied knowledge of their contingent features and resources. For Dworkin, public philosophy in adjudication is to be derived from institutional practices and history; therefore, it is quite contextually specific. For Rawls, however, it is more abstract and decontextualised, based only on a thin moral conception of the person as a ‘free and equal citizen’, understood not in relation to any determinate ends or commitments, but only as having an interest in the exercise and development of the ‘powers of moral personality’ as distinct from any comprehensive account of autonomy.65 Thus, given the strictures of public reason, the public conception of justice may have little determinate content, serving only as a constraint on adjudicative justification. And since it is so abstract and decontextualised, by the same measure it may fail to command allegiance from an ‘overlapping consensus’ in wider society.66 Dworkin’s interpretivist account gives greater licence to judges to invoke comprehensive liberal doctrines that are part of the background institutional culture of the polity in question. He argues that interpretivism’s requirement – that judges ‘fit’ their conclusions within the community’s institutional values – provides sufficient constraints on judicial power, so that public reason is unnecessary. Moreover, the idea of a unitary concept of public reason probably underestimates the ideological antagonisms and spectrums of real-world politics and, for the reasons discussed, may harbour a conservative bias. Any understanding of law as the expression of a singular, coherent moral vision is often dismissed as obscuring the baser mesh of incommensurable ideologies and power relations it embodies.67 In real-world adjudication, principled discourse is likely to simply give expression to the dominant social and political worldview of the judiciary

160

Republican institutions

and the legal professions. Indeed the background public philosophy of any constitutional democracy is probably sufficiently flexible to give expression to these dominant norms and expectations. Moreover, even if it may be possible for judges to adjudicate under the constraints of public reason, there is arguably little reason to suppose that this, in itself, meaningfully constrains judicial power, or can produce determinate ‘right answers’ to settle hard cases. Public reason is unlikely in itself to settle various constitutional controversies involving competing rights claims  – such as, for example, the conflict as to whether freedom of association may legitimately be balanced in the interests of equality. It does little in itself to yield substantive constitutional propositions. Even Dworkin – a liberal admirer of Rawls – said ‘I doubt that Rawls’s doctrine of public reason can help us much in filling out a conception of legality and adjudication.’68

Republican principles in interpretivist adjudication As discussed, republicanism can probably be regarded as agnostic on the central theoretical question of judicial methodology  – that is, whether judges should be confined to relatively precise and stable legal standards or invoke a broader domain of principled discourse that appeals to the polity’s moral identity. On balance, while interpretivist adjudication risks representing a mystifying and non-transparent ideological practice, the requirement that rulings be linked to commonly avowable public values at least avoids the element of arbitrariness that inheres in purely discretionary decision making. And although the doctrine of public reason may, in its strict sense, impose excessive constraints on the scope of public discourse generally as well as principled judicial discourse, it nonetheless has an important role in regulating the forms of public justification that can be accepted in a republican political community. While republicanism perhaps offers no conclusive insight on the methodology of judicial interpretivism, it will likely inform its content. Given the salience of republican themes in constitutional texts, including the Irish Constitution, principled or interpretivist adjudiciation may often appeal to republican themes – at least obliquely or indirectly – and in this way, republican principles might indirectly become part of the corpus of constitutional authority. To some extent, the decline of natural-law thinking in Irish jurisprudence opens a space for republican themes in constitutional adjudication. Curiously, the revived interest in civic republicanism in recent years has not filtered through to constitutional discourse, at least in an explicit or comprehensive way. Certainly, as discussed in Chapter 2, there has been little discussion of how

Constitutional interpretation

161

republican principles might inform the interpretation and scope of constitutional rights. Some republican themes are evident nonetheless. Even before the decline of natural law in Irish constitutional jurisprudence, there was a clear, alternative narrative of constitutional ethos or identity, rooted in a vague conception of the Constitution as a democratic and republican charter. In particular, judgments such as Doherty and McKenna posited a range of unspecified constitutional principles stemming from the sovereign status of the people. On the one hand, these cases are somewhat isolated and do not amount to a comprehensive or well worked-out philosophy of constitutional republicanism. The concepts of national and popular sovereignty are not peculiarly republican, although in their articulation they contain echoes of important republican themes. Certainly, republican terminology has been more or less absent from constitutional discourse, perhaps unsurprisingly given the Irish historical context. As we discussed in Chapter 1, the Supreme Court identified popular sovereignty as a definitive, overarching constitutional principle in its Abortion Information judgment. However, it understood the principle in narrow, almost purely procedural terms – simply as enabling the people to amend the Constitution without judicial constraint – and thus declined to consider what substantive rights, particularly in relation to civic participation, it might imply. It was said the Constitution derives its authority from the people, but there was little sense of what this meant for the content of constitutional law beyond the mere procedural right of the people to amend the Constitution. However, in other judgments popular sovereignty has seemingly been given more substance as a source of concrete principles of constitutional law. In the Doherty judgment, for example, the sovereignty principle was understood as supporting a right of equality in political representation, which, in turn, required the Government to allow a Dáil vacancy to be filled in a reasonable time frame. Similarly in Webb v. Ireland69 – a case concerning the ownership of the Derrynaflan hoard  – the Supreme Court held that popular and national sovereignty, and the Constitution’s ‘constant concern for the common good’, entitled the State, as a creature of the people, to ownership of historical antiquities.70 Again, this exemplified the interpretivist approach to adjudication in invoking background principles of political morality – but moreover, the principles invoked, in this case, had a strongly republican flavour. This was evident in Chief Justice Finlay’s assertion that private ownership by finders of national antiquities would be inconsistent with ‘the framework of the society sought to be created and sought to be protected by the Constitution’.71 Similarly, Justice Walsh argued that Article 10 of the 1937 Constitution relating to ownership of natural resources – along with its precursor in the 1922 Constitution – ‘owed

162

Republican institutions

its political philosophy’ to the republican tenors of the Dáil programme of 1919. Thus, in a principled, interpretivist and implicitly republican reading of the Constitution, the court concluded: ‘the People as the sovereign authority have the right and the duty, acting by the State … to exercise dominion over all objects forming part of the national heritage’.72 Similarly, in Byrne v. Ireland,73 the Supreme Court affirmed that ‘the State is the creation of the people … [as] the sovereign authority’ (emphasis added) – and partly on this basis, it concluded that the royal prerogative had never carried over into the post-independence constitutional order in Ireland.74 Implicitly, then, the idea of prerogative powers was deemed inconsistent with a republican conception of the State as the creature of a sovereign people. This precluded the recognition of any government powers other than those stemming from the Constitution itself as a framework for popular government. Thus, in some important constitutional judgments, a vaguely republican concept of the State is used to derive specific constitutional rules and standards that are given effect in judicial rulings. In this understanding, a republican understanding of the State as the product of a social contract, between citizens conceived of as free and equal, generates further specific rights, beyond those explicitly set out in the constitutional text. This view finds some support in the constitutional text itself beyond the references, in Articles 5 and 6, to the sovereign and democratic nature of the State, and the powers of government deriving ‘from the people’. For example, the Constitution is replete with reference to the ‘common good’. And while to some extent this simply reflects the Catholic influences on the Constitution, as well as the social thinking of the 1930s, it is suggestive of a particular, republican conception of political community that offers a counterfoil to the rival Hobbesian (or indeed the ultra-liberal) conception of society as a federation of atomised, self-interested individuals.

Conclusion In Chapter 1, we discussed the tensions between the principle of popular sovereignty – giving the corporate ‘people’ an abstract power of self-government and self-definition – and references elsewhere in the constitutional text that suggest the ‘people’ is understood in a more organic sense, as being defined by a Christian-Gaelic identity. Thus the Constitution oscillates between an abstract concept of the people as a community of citizens considered as interdependent moral agents, and a more situated understanding of the people as being defined by a shared, non-political identity. This oscillation between competing accounts of political authority in the Constitution has allowed constitutional interpretation

Constitutional interpretation

163

to respond to changed social circumstances since its enactment in 1937.75 The rise of republican discourses in constitutional adjudication has, in this light, stemmed partly from the more secularised understanding of the constitutional order that now prevails (as explored further in Chapter  7). Ultimately, judicial discourse is unlikely to appeal to republican ideas in the long run unless these ideas gain traction in the broader public sphere. Equally, the demise of a Christian-inspired jurisprudence of natural law may be more likely to give rise to narrower, technical forms of analysis – methods that seem unsuitable for constitutional interpretation – rather than to a political-philosophical understanding of constitutional themes.

Notes 1 Samuel Freeman, ‘Original Meaning, Democratic Interpretation and the Constitution’, Philosophy & Public Affairs, 21 (1992). 2 See generally David Dodd, Statutory Interpretation in Ireland (Dublin: Tottel, 2008). 3 Attorney General v. Paperlink Ltd. [1984] ILRM 373. 4 [1984] ILRM 373, 385. 5 See Gerard Hogan and Gerry Whyte, J M Kelly: The Irish Constitution (Dublin: Butterworths, 2001), p. 5. 6 [1954] IR 161, 174 (emphasis added). 7 [1972] IR 1. 8 See generally Dodd, Statutory Interpretation. 9 [2001] 2 IR 279. 10 Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985). 11 Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), p. 165. 12 Dworkin, Taking Rights Seriously, p. 16. 13 Ibid. 14 Ronald Dworkin, Law’s Empire (Cambridge, MA: Harvard University Press, 1986), Chapter 3. 15 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996). 16 Ronald Dworkin, ‘Justice Sotoyamor: the Unjust Hearings’, NewYork Review of Books, 24 September 2009. 17 Dworkin, Law’s Empire, p. 225. 18 Roberto Unger, ‘The Critical Legal Studies Movement’, Harvard Law Review, 96 (1983); MarkTushnet,‘Following the Rules Laid Down:A Critique of Interpretivism and Neutral Principles’, Harvard Law Journal, 96 (1983); Andrew Altman, ‘Legal Realism, Critical Legal Studies, and Dworkin’, (1986) 15 Philosophy and Public Affairs, 15 (1986).

164

Republican institutions

19 Christopher Eisgruber, ‘Civic Virtue and the Limits of Constitutionalism’, Fordham Law Review 69 (2001), p. 2139. 20 Richard Nordahl, ‘Rousseau in Dworkin: Judicial Rulings as Expressions of the General Will’, Legal Theory, 3 (1997). 21 [1995] 2 IR 10. 22 [1995] 2 IR 10, 42. 23 Oran Doyle, Constitutional Law:Text, Cases and Materials (Dublin: Clarus, 2008), p. 410. 24 [2010] IEHC 369. 25 Ibid. 26 Roche v. Roche [2009] IESC 82. 27 McGee v. Attorney General [1974] IR 284. 28 Dworkin, ‘The Unjust Hearings’. 29 Hogan and Whyte, The Irish Constitution, p. 9. 30 Dworkin, Law’s Empire, p. 225. 31 For a recent work on the subject, see Tim Murphy and Garrett Barden, Law and Justice in Community (Oxford: Oxford University Press, 2010). 32 Desmond Clarke, ‘The Role of Natural Law in Irish Constitutional Law’, Irish Jurist, 17 (1982), p. 193. 33 See generally Eoin Daly, Religion, Law and the Irish State (Dublin: Clarus, 2012), Chapter 1. 34 Constitution of Ireland, Article 43.1. 35 Ibid., Article 42.1. 36 McGee v. Attorney General [1974] IR 284, 310. 37 [1965] IR 241. 38 [1974] IR 284, 310. 39 [1974] IR 284, 318. 40 Dworkin, Law’s Empire, p. 169. 41 Ibid., p. 2. 42 Jack Balkin,‘Taking Ideology Seriously: Ronald Dworkin and the CLS Critique’, UMKC Law Review, 55 (1987), p. 392. 43 Dworkin, ‘The Unjust Hearings’. 44 See generally Daly, Religion, Law and the Irish State, Chapter 1. 45 Siobhán Mullally, ‘Searching for Foundations in Irish Constitutional Law’, Irish Jurist, 33 (1998), p. 334. 46 [1974] IR 284, 317–18. 47 Re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill 1995 [1995] 1 IR 1. 48 Roche v. Roche [2009] IESC 82. 49 Constitution of Ireland, Article 40.3.3°. 50 [2009] IESC 82 (emphasis added). 51 [2013] IEHC 2. 52 Desmond Clarke, ‘Ireland: A Republican Democracy, a Theocracy or a Judicial Oligarchy?’, Irish Law Times, 29 (2011), p. 86.

Constitutional interpretation

165

53 John Rawls, Political Liberalism (New York: Columbia University Press, 1996). 54 Samuel Freeman, ‘The Idea of Public Reason Revisited: Public Reason and Political Justifications’, Fordham Law Review, 72 (2003–4), p. 2021. 55 John Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), p. 14. 56 Ibid., p. 18. 57 John Rawls, ‘Justice as Fairness: Political not Metaphysical’, Philosophy and Public Affairs, 14 (1985). 58 Rawls, Justice as Fairness, p. 41. 59 Joshua Cohen, ‘Truth and Public Reason’, Philosophy & Public Affairs, 37 (2009), p. 2 (emphasis added). 60 See generally John Rawls, Political Liberalism. 61 ‘A conception of law must explain how what it takes to be law provides a general justification for the exercise of coercive power by the state.’ Dworkin, Law’s Empire, p. 190. 62 Rawls, Political Liberalism, p. 231. 63 Dworkin observes: ‘if I believe that a particular controversial moral position is plainly right – for example, that individuals ought to take charge of their own lives and bear the financial responsibility for any mistakes they make themselves  – then how can I not believe that other people in my community can reasonably accept the same view, whether or not it is likely that they will accept it.’ Ronald Dworkin, ‘Rawls and the Law’, Fordham Law Review, 72 (2003–4), p. 1397. 64 Ibid. 65 Rawls, Justice as Fairness. 66 John Rawls, ‘The Idea of an Overlapping Consensus’, Oxford Journal of Legal Studies, 7 (1987). 67 See generally Balkin, ‘Taking Ideology Seriously’. 68 Dworkin, ‘Rawls and the Law’, p. 1399. 69 [1988] IR 353. 70 [1988] IR 353, 383. 71 Ibid. 72 [1988] IR 353, 393. 73 [1972] IR 241. 74 [1972] IR 241, 262. 75 See generally Conor O’ Mahony, ‘Societal Change and Constitutional Interpretation’, Irish Journal of Legal Studies, 71 (2010).

Blank page

Part III Republican society

Blank page

6 Education and civic virtue

Introduction The distinctiveness of republican thought lies partly in its commitment to civic virtue. This may be conceived of narrowly, as a preparedness to participate in political life, or more broadly, as a commitment to prioritise the common good over sectional interest. In all strands of the republican tradition, civic virtue is understood as a bulwark against corruption, understood simply as the appropriation of political power by private or factional interest. And in turn, of course, corruption engenders unchecked or arbitrary power – the essence of domination and unfreedom. Civic virtue is accorded central importance both in the Aristotelian and Roman strands of republican thought, albeit in different senses and to different extents. In the Aristotelian version, civic virtue is valued simply because it is understood as a central aspect of human flourishing, as the realisation of man’s political telos. Indeed, for Aristotle, political freedom itself is valued simply as a means of facilitating virtuous action.1 In the Roman (and neoRoman) version, civic virtue is valued instead for its role in enabling citizens to resist corruption and tyranny in public life, and thus ultimately, in safeguarding freedom understood as non-domination. In this account, virtuous political activity is valued not as an intrinsic aspect of human flourishing, but only instrumentally, as a bulwark against domination. Many quintessentially liberal thinkers share this modest understanding of civic virtue; Rawls, for example, suggests ‘if we are to remain free and equal citizens we cannot afford a general retreat into private life’.2 For either version, promoting civic virtue will be a central object of the republican constitution. Realising the ideal of freedom as non-domination will require not only well-designed institutions and laws, but also virtuous citizens, sensitive and resistive to arbitrary power. Political institutions, no matter how well designed, cannot survive without at least some general participation by the

170

Republican society

citizenry, or even some degree of civic patriotism. Thus civic virtue is needed to give life and energy to institutional frameworks that would otherwise remain sterile abstractions. In turn, the republican constitution will foster virtue by providing avenues for citizens to participate in public affairs, as well as establishing integrative institutions aimed at socialising republican citizens  – for example, public education or historically, military service. For republicans, then, the constitutional system is inextricably linked with the dispositions and virtues of citizens: indeed, a republic remaining indifferent to the mores and dispositions of its citizens risks instability and decline. Yet the commitment to civic virtue presents an important paradox. While promoting civic virtue may be necessary, at least over the long run, in order to protect freedom as non-domination, specific measures designed to promote civic virtue may themselves be experienced as oppressive. Efforts to promote favoured dispositions may engender domination, thus calling into question the entire republican schema. In this chapter, we discuss this tension within republican thought specifically as it applies to education in the broad sense. We will consider the treatment of education in Irish constitutional doctrine and in particular, to what extent it can be understood as conducive or otherwise to republican aims.

Republican concepts of civic virtue In the contemporary liberal mindset, the very concept of civic virtue may seem somewhat quaint, archaic or even faintly oppressive. It is suggestive of an austere, even dour public spiritedness, associated with self-denial, sacrifice and the exaltation of public duty at the expense of individual interest.3 It seems at odds with a commonplace understanding of political society as a framework for facilitating the pursuit of individual – and essentially private – interests and life plans. Historically, republicans voiced concern that the ‘moderns’ were defined by the pursuit of private, and indeed commercial interest, to an extent that threatened the very possibility of republican citizenship in its full-throated ancient sense.4 The citizenry of Ancient Greek city-states may have had the time and means to engage in the public life of their polis, while of course, citizenship was the preserve of the propertied and male elite. But, as the argument goes, many citizens of modern polities have neither the time nor the inclination to participate to the same extent, as they are typically preoccupied by private interests and pursuits. As early as the eighteenth century, Montesquieu concluded that republican virtue was too lofty an ambition for modern men.5 Thus in some analyses ‘the Republic decisively recedes into the past as Western societies become more

Education and civic virtue

171

oriented towards commerce, finance and the production of wealth … so that the political community based on common political deliberation … gives way to a corrupted collective life constituted by egoism and competition’.6 Additionally, a commitment to civic virtue seems to contradict the commonplace idea that the just State should remain neutral towards competing conceptions of the good life. The State’s commitment to civic virtue will involve promoting favoured dispositions and patterns of life and discouraging alternative conceptions. By placing considerable burdens of public duty on individuals, it risks undermining ethical and moral diversity, excluding alternative modes of human flourishing. And in starker terms, republican virtue risks sacrificing individual independence for the sake of ill-defined and elusive communal goods. Nonetheless, a qualified concept of republican virtue is easily defended. Republicans are not usually committed to fostering virtue as such – across all the spheres of life, so to speak – but rather civic virtue in a narrower sense. Civic virtue will be exercised and fostered in the discrete domain of politics and public life, and so it does not correspond, in Rawls’s terms, to a ‘complete conception of the good’, or a ‘comprehensive doctrine’.7 While the commitment to fostering a sense of citizenship is not value ‘neutral’ in a deep sense, it need not rely on any exclusive concept of human flourishing – even if many republicans have done so historically. Thus the commitment to civic virtue must be distinguished from any perfectionist philosophy defined by a specific idea of the good life. Certainly, some strands of ancient republican thought, in particular, promoted civic virtue simply as an extension of a perfectionist commitment in which political activity is understood as integral to human flourishing. For Aristotle in particular, virtuous political action is part of the human telos.8 However, modern civic republicanism generally values civic virtue in a more instrumental sense, as a corollary of freedom as non-domination. Civic virtues are needed not in order to enable citizens to realise any favoured way of life, but merely in order to exercise contestation and directive control upon political life. Therefore, since it does not exalt politics as a privileged way of life, it is consistent with a plurality of different comprehensive doctrines and, indeed, can form part of the common good of citizens who are committed to radically different life plans or ‘conceptions of the good’. Of course, although the State’s commitment to civic virtue may be based on a ‘neutral’ justification, in practice it will encourage certain patterns of life and discourage others. Maynor argues that republicanism is a distinctively antineutralist doctrine because it ‘affects the whole of an individual’s life’,9 that it inevitably has a transformative impact in the social as well as political spheres – such that effectively, it aims to structure the whole of social relations. However, contra Maynor we will assume that this is a feature of all political doctrines and

172

Republican society

not a problem unique to republicanism specifically.10 No political doctrine can be neutral in its instantiation or effects, even if it remains neutral at an abstract justificatory level. Rawls notes: ‘no society can include within itself all ways of life. We may indeed lament the limited space … of social worlds’.11 Republican policies might well have a transformative impact on dispositions and beliefs beyond the political domain, but republicanism is not directed towards promoting any particular ‘comprehensive doctrine’, nor does it correspond to any particular doctrine as such – even if it may inevitably promote some and disfavour others in its implementation. Indeed in general terms, contemporary republican thinkers will insist on a limited concept of civic virtue that aims to cultivate favoured dispositions and orientations exclusively in the domain of politics, while eschewing any perfectionist commitment to moulding or elevating human character as such. Nonetheless, some scholars question the feasibility of this distinction between ‘public’ and ‘private’ virtues. Weithman, for example, questions whether republican virtues can be confined to the ‘political’ domain, disconnected from broader understandings of human excellence. He points out that for ancient republicans, ‘private’ moral virtues such as ‘temperance’ were indissociable from ‘civic’ or political virtues in the narrower sense, and that these are needed to give life to republican aims.12 This is probably why many historical republican thinkers rejected any sharp distinction between civic virtue and moral virtue as such. John Adams, for example, insisted ‘public virtue cannot exist … without private’.13 Indeed Garvin has noted that in Ireland, republican values were commonly understood to involve ‘some kind of moral and cultural transformation of the Irish people, a people held to be unsatisfactory from some cultural or “spiritual” point of view’.14

The skills and dispositions of citizenship Having discussed in general terms the importance of civic virtue in republican thought, we turn now to the question of what specifically civic virtue requires of citizens. At the most basic level, virtuous citizens will wish to obey just laws, at least, based on their sense of affiliation to the political community rather than on purely rational or prudential grounds. Machiavelli suggested: ‘just as good morals, if they are to be maintained, have need of the laws, so the laws, if they are to be observed, have need of good morals’.15 In a broader sense, republican citizens will be inclined to participate in public affairs. Therefore, a republican constitution will include various mechanisms aimed at giving citizens the skills

Education and civic virtue

173

and resources needed to participate in public life in its broad sense. At a most basic level, the republican concern is that ‘a [free] society needs a widespread commitment to participate in democratic processes by an active and informed populace’.16 Young citizens, in particular, must become aware of the role and importance of the democratic institutions of the State. They must develop some commitment to these institutions, and a sense of the importance of minimal civic participation at least. To this end, the republican State may legitimately promote a minimal civic patriotism.17 This should not be an overly robust or unthinking patriotism, and it must be sharply distinguished from any form of ethnic, religious or non-political solidarity. It implies a commitment to a shared citizenship rather than to a national identity understood in organic or non-political terms, say in ethnic or religious commonalities. Republican citizens will not simply be prepared to participate in political life, but will approach politics with a particular orientation or attitude. Specifically, they will approach politics not as a framework for satisfying and mediating disaggregated private interests, but rather as a forum for deliberation on common goods. Political institutions are not to be understood or valued solely as forms of leverage for private, sectional or local interest.18 Indeed this quintessential republican disposition towards politics can be contrasted with the clientelism that has consistently marked Irish political life.19 Thus, as already argued in Chapter 1, republican citizens will consider political issues at least partly from the perspective of general public interest. The idea is that citizens ought to be capable of abstracting away from their immediate and short-term interests, and to develop understandings of the ways in which they share more valuable longterm interests in common with all citizens.20 This concern for the common interest will inform the deliberative orientation of the republican citizen – that is, the manner in which they present and consider political arguments. Republican citizenship consists partly in offering reasons, in public discourse, that other citizens can reasonably be expected to comprehend and accept independently of their comprehensive worldviews  – such as their religious or philosophical doctrines – as well their strategic or conjectural self-interest. Thus republican citizens must develop skills of public reason, as touched upon in Chapter 5.21 They must be willing and able to offer one another non-factional  – that is, commonly avowable reasons in support of their arguments in political deliberation. They must avoid arguments that are grounded either in their ethical or religious commitments or that are based on factional or individual interests. This is not to say that citizens cannot be inspired by religious beliefs in their political engagement, or that they can never take individual interest into account – rather, it asks citizens to be willing to justify their stances to one another in terms of interests that they share and can mutually comprehend.22

174

Republican society

There are some objections, however, that this deliberative requirement simply privileges eloquence, fluency and mastery of political idiom, allowing factional interest and social domination to be obscured in the phraseology of the common interest.23 Public reason may be approached in one sense simply as a social technique, deployed in insincere or at least self-interested ways; indeed this is partly why Rousseau assumed republican politics could only be realised in an austere, cohesive and undifferentiated society. For some republicans, civically virtuous orientations are to be promoted simply because they are integral aspects of human flourishing, in the manner already discussed. Others, however, will adopt a more instrumental approach, and thus will focus on developing those skills and dispositions that are necessary to enable citizens to resist arbitrary power, and thus domination, whether in public or private life. These different understandings of the purpose of civic virtue partly determine its content.Therefore, the neo-Roman account will focus on the value of resistiveness and vigilance towards abuses or factional appropriations of public power. For example, they will insist there must be a general distaste for the arrogation of arbitrary power.24 More fundamentally, perhaps, citizens must first be equipped with the necessary skills to identify when others enjoys arbitrary control over them in the more immediate, interpersonal sense. They will need to be acculturated in the linguistic and indeed the idiomatic strategies needed to contest decisions that affect their avowable interests. This neo-Roman account, indeed, is less demanding of citizens – and thus, arguably more consistent with contemporary social conditions – because it values contestation rather than participation as such, since the contestatory citizen need not be fully devoted to or immersed in participatory public life. Furthermore, civic virtue might not be understood solely in terms of political activity in the narrow sense. Insofar as republicanism is understood at least partly in terms of freedom as non-domination, citizens will need to be safeguarded against arbitrary power not only in the public realm, but also in the private spheres of family and community life. In turn, civic virtue requires citizens not only to resist arbitrary public power through political participation and contestation, but also to refrain from dominating their fellow citizens in their private and interpersonal relations. As Maynor points out, republican virtues ‘help individuals not to dominate others’25 – and this applies not only to domination exercised collectively through the State, but also in more intimate infra-political relationships. And correspondingly, the resistive and contestatory dispositions that republican citizens require must be appropriately attuned to the peculiar and multifarious forms of domination that exist in private as well as public realms. Going further again, some republican traditions will not only aim to foster those dispositions that are necessary to forestall domination in social life, but

Education and civic virtue

175

also to promote solidarity and fraternity in a more full-throated sense. This concern is usually based on the assumption that citizenship and political community need strong affective foundations. In short, citizens must have some regard and concern for one another, and this cannot be confined to an abstract sense of political solidarity, to be exercised and experienced only in the political domain. Laborde notes that the French tradition, for example, has aimed not simply to make citizens resistive to arbitrary power and tolerant of one another, but also to foster ‘the more demanding virtues of mutual empathy and even altruistic devotion to the community of citizens’ – this being needed to provide the requisite ‘motivational anchorage’26 for republican citizenship. More minimally, perhaps, Honohan argues that citizens in contemporary States must be educated towards an awareness of their ‘shared common predicament and common fate’ – they must have an awareness that their own private good  – and the good of their families and localities – is intimately connected with that common good. They must understand how their own interests are so profoundly bound up in the interests of their fellow citizens. This, in turn, implies that they must learn to exercise ‘civic self-restraint’.27 Again, these perspectives suggest that the virtues of republican citizenship cannot be confined to the ‘political’ domain in the narrow sense, and will permeate much of social life.

Educating virtue Having considered the content of civic virtue, we now discuss the mechanisms and institutions through which it might be fostered. In contemporary discourse, civic education tends to be associated more or less exclusively with formal schooling. Indeed contemporary republics such as France continue to hold a strong understanding of public schools (i.e. state schools) as crucibles of citizenship.28 Historically, however, republicans focused on more diverse institutional mechanisms for socialising and acculturating republican citizens – particularly military service. And to an extent, civic orientations are fostered simply by virtue of participation in democratic politics, most obviously through voting in elections and referendums and competing for public office.29 However, since we considered the integrative and formative function of the referendum in Chapter  1  – and since historical institutions such as civic militia seem somewhat redundant in the Irish context – here we will focus on civic education in the more obvious sense of formal schooling. First, however, it is worth considering in more abstract terms the processes and strategies, institutional and psychological, through which civic virtues and dispositions may be fostered. As already argued, civic virtue may consist simply

176

Republican society

of the ‘disposition to further public over private good in action and deliberation’30 – but this seems a rather demanding task of constitutional design, bearing in mind the inevitable orientation of modern citizens towards private and commercial interests. In this light, the idea that any republican institution could succeed in fostering a disposition towards public goods might be thought to have an air of unrealism. How realistic is it, then, to expect modern citizens to be educated or socialised such as to prioritise the common good over their personal agendas or concerns – or indeed their various non-civic identities, whether ethnic, religious or regional? Republicans have proposed diverse solutions to this problem and have offered rather contrasting theories of the processes and mechanisms through which civic virtue is promoted. Shelley Burtt suggests that republicans have adopted three distinctive strategies for locating the ‘psychological sources of civic virtue’.31 The first and perhaps the most ‘realist’ approach is simply the aim of harmonising the pursuit of private interests with the common good. Republicans such as James Harrington, Burtt argues, did not expect individuals to set aside self-interest – or ‘sacrifice personal advantage to a greater public good’,32 but rather that under appropriate conditions, self-interest ‘can in itself produce politically virtuous behaviour’.33 Thus, ‘the pursuit of such self-interest can produce civically virtuous actions in a properly structured political environment’.34 Indeed for republicans like Madison, the purpose of constitutional design is to check domination or tyranny by ‘factions’, but not necessarily to orient citizens generally away from factionalist or self-interested ways of thinking. Constitutional mechanisms such as federalism or the separation of powers do not inculcate civic or publicly oriented behaviour as such, but simply ensure that the pursuit of factional interests in the political process is harmonised with citizens’ common interest in enjoying freedom, roughly understood as security from arbitrary power. A second, much less realist approach – associated more with ancient republicans like Cicero – emphasises the ‘inculcation of duty’. That is, it aims to imbue citizens with a sense of ‘moral discipline’ such that their ‘personal desires find satisfaction only through public service’.35 In this tradition, Burtt notes, the inculcation or moral duty may be left to intermediary associations such as religions as much as the State itself. In a third approach, associated primarily with Rousseau, the republican State neither confines itself to containing or filtering private interest, nor does it rely solely on inculcating moral duty in virtuous citizens. Rousseau’s starting point is to recognise our need for recognition and approbation in the eyes of our peers. Amour-propre is a form of socially constituted self-love consummated in recognition by others – distinct from amour de soi, understood as the natural inclination

Education and civic virtue

177

towards self-preservation.36 And while amour-propre is a potent source of corruption and domination, it can in fact be harnessed or manipulated so as to orient citizens towards civically virtuous actions and dispositions. Thus, Rousseau’s strategy for fostering civic virtue rests on what Burtt terms the ‘manipulation of desire’.37 In this vision, the republican constitution makes citizens virtuous by appealing to their passions, their love of pleasure, and the manipulable self-love that prompts them to desire recognition and esteem. Rousseau envisages that a range of constitutional devices and incentives – particularly awards, ceremonies, oath-swearing and even civic festivals – will ensure that amour-propre is consummated in the public realm rather than through the pursuit of private distinction. The aim is that, ultimately, citizens will not be required to sacrifice their personal passions and desires for the common interest, but rather that their passions and desires will become bound up with their civic identity. This partly explains Rousseau’s seemingly eccentric emphasis on civic symbols, pageantry and ceremony as a central aspect of constitutional design. This approach has the advantage of making republicanism less reliant on dour or austere self-sacrifice, since it appeals to the passion and self-affirmation that citizens can find in public life. And it has echoes beyond the specificities of the Rousseauan tradition, particularly in Arendt’s writings.38 Indeed the Italian scholar Maurizio Viroli attributes a similar view to much of the classical republican canon. The ancients, he argued, did not conceive of virtue as the sacrifice of private interest, but rather as a source of self-worth. And the Florentine republicans of the fifteenth century, he suggests, did not conceive of virtue as entailing the triumph of reason over passion, but rather the privileging of a particular form of passion over others. Similarly for Machiavelli, he suggests, virtue does not require self-sacrifice, but rather the expansion of certain passions at the expense of others.39 All three strategies are vulnerable to compelling objections. For obvious reasons, it may be somewhat unrealistic in complex, differentiated modern societies either to inculcate moral duty to a sufficient extent or to channel individuals’ passions towards consummation in the public realm. Compared to eighteenthcentury conditions, the inestimably greater diversity, complexity and indeed, the intensity of private interest will make it correspondingly more difficult to ensure that citizens achieve self-affirmation or self-realisation in public life. And even under eighteenth-century conditions, Rousseau’s (and others’) strategy for promoting civic passions relied partly on potentially oppressive mechanisms and practices – including a rather bracing vision of austerity, or even peasant autarky, in which luxury and private consumption are discouraged or suppressed.40 Thus, as we consider below, the attempt to secure republican freedom by fostering civic virtue may itself ironically generate countervailing forms of domination and dependency. Conversely, however, the more modest Madisonian aim

178

Republican society

of harmonising, filtering or checking private, factional interests raises questions of stability and sufficiency, simply because it is unclear whether such institutional checks will procure sufficient priority for common goods in republican political life. The more ‘liberal’ mechanisms for promoting civic virtue seem inefficacious, but the more robust mechanisms insufficiently attentive to individuality and autonomy.

The tension between civic virtue and individual freedom Civic virtue is usually understood in light of a broader aim of promoting republican freedom, whether understood in neo-Roman or neo-Aristotelian terms. However, as already discussed, it is unclear whether institutional mechanisms can promote civic virtues of sufficient intensity and extent without themselves engendering countervailing forms of oppression and domination. It is often argued that any plausible theory of justice cannot be successfully realised in the ‘real world’ if it places unreasonable burdens on individuals, say, by denying their need for independence or self-worth. As Jubb puts it, ‘a putative demand of justice which in trying to protect or respect agency requires the destruction of someone’s ability to coherently direct their life runs the risk of being self-contradictory’.41 The demands of justice cannot, then, ‘exceed the capacity of human nature’.42 But Goodin argues that the republican emphasis on fostering civic virtue presents this very problem. He claims that standard republican policies aimed at fostering virtue have engendered oppressive social conformity. Since the republic is a ‘status’ society, driven by ‘dignity and embarrassment’, it requires members to internalise notions of ‘honor and shame’. He argues that republican morality is essentially pious, focused on outward performance, requiring citizens to internalise ‘concerns with one’s image’ rather than morality as such.43 In short, then, the commitment to fostering civic virtue risks engendering ‘communitarian excess’.44 Indeed Honohan notes that while historical republics aimed to inculcate virtue by conferring honour and ‘social approval’ on virtuous behaviour, more coercive mechanisms may be needed.45 In contemporary societies, this concern has arisen most commonly in debates surrounding the role of public education in fostering common values. This is often expressed as a fear that the republican commitment to a ‘common’ or public school will undermine the ability of religious and other communities to impart their values through faith-specific or other non-public forms of schooling.46 Liberal philosophers have often dismissed civic republicanism on the grounds that it ignores the reality of ‘reasonable pluralism’ – the fact, that is, that individuals living in free societies hold a diversity of conflicting, yet reasonable

Education and civic virtue

179

worldviews. Kymlicka, for example, objects that republicanism ‘privileges political participation over other spheres of human endeavour’.47 The challenge raised by liberal critics can be phrased as follows: how can republicans argue for a robust account of civic virtue, in the interests of promoting liberty as non-domination, while not going so far as to end up dominating some individuals or groups whose values clash with the account promoted? A commonplace objection is that republicanism is necessarily intolerant of comprehensive doctrines or worldviews  – whether religious or otherwise  – which are interpreted as undermining the virtues and dispositions of citizenship. As Kautz has put it, ‘republicans worry that the indiscriminate practice of tolerance weakens the civic and moral virtues that are necessary for self-government’.48 While Rousseau, for example, accepted the principle of toleration, he was concerned that Christianity would induce a spirit of servility that was inconsistent with republican citizenship. Thus his ‘civil religion’ aimed to foster a ‘love of the laws’ and a respect for the ‘sanctity of the social contract’.49 The decisive point, perhaps, is that even if civic republicans tolerate religious worldviews in formal terms, their commitment to fostering robust republican virtues may undermine religious ideas and doctrines in various inadvertent ways. Promoting autonomy?

Insofar as republicanism is characterised in large part by a commitment to freedom as non-domination, correspondingly any republican scheme of civic education will aim to promote the dispositions and virtues that will make citizens resistive to domination in various social spheres. However, a further problem this raises – in addition to the potentially invasive mechanisms it relies on – is that it may effectively commit the State to promoting a favoured ‘comprehensive doctrine’, or philosophical worldview, centred on the ideals of autonomy and individuality. Correspondingly, a State of this nature cannot maintain a stance of neutrality or indeed respect towards competing worldviews or ‘conceptions of the good’. In turn, there is a risk that any effort at fostering the dispositions and social conditions of freedom as non-domination through the State’s publiceducation apparatus may ultimately itself engender domination in the guise of an insidious form of agenda setting, if not of outright indoctrination. Such efforts will involve the State promoting certain beliefs and agendas at the expense of alternative views. To impose or promote a ‘comprehensive’ civic doctrine using the machinery of state power might be seen as dominating in the same way that state-enforced religious doctrines will be experienced as a form of arbitrary power. Imposing a particular conception of the good on all citizens, in the form of a thick account of civic virtue, undermines the liberty of citizens who

180

Republican society

subscribe to values that differ from that account. Furthermore, where the State conceives of itself as having a responsibility to emancipate young citizens from their inherited traditions and beliefs in the hope of promoting freedom as nondomination, this may expand state power in the education domain at the expense of parents, families and other intermediary, non-public institutions.50 The problem  – as touched upon in previous sections  – is partly that civic education is likely to mould dispositions and attitudes well beyond the political domain. Historically, republicans have often acknowledged that the contestatory and resistive dispositions of republican citizenship cannot be promoted without disrupting or challenging citizens’ non-political doctrines and beliefs, even if these virtues are ‘neutral’ at the justificatory level. As Spitz notes, French republicanism has encouraged individuals to ‘view themselves (individually) as an independent centre of moral action … to distance themselves from traditional group-imposed values and habits’.51 From this perspective, education is conceived of as an instrument of emancipation across all of life, and not merely in the discrete domain of formal politics. Indeed, beyond the public-education context specifically, Maynor argues that republicans should aim to shape citizens’ character forthrightly and ‘without regret’. Specifically, he argues that in order for freedom as non-domination to be meaningfully realised, the republican State must inculcate ‘a high degree of moral autonomy’52 – and this, he argues, means republicans must reject liberal concepts of neutrality. Indeed, it is sometimes assumed that promoting nondomination and civic virtue commits the State to favouring the value of autonomous ethical reflection, usually in the guise of a secular-humanist philosophy focused on critical inquiry and the questioning of traditional precepts and ways of life.53 And yet while an over-invasive projection of civic values might be experienced as dominating, public schooling is sometimes defended as a means of emancipating children from the domination potentially experienced in communal, family and religious life. A very basic problem is that children’s exposure to secular instructional material – not to speak of civic virtue as such – may create a conflict with religious doctrines and traditions. For example, in the US case Mozert v. Hawkins County Board of Education,54 a group of Christian parents objected that the defendant public school’s secular reading materials would encourage their children to think independently about the merits of alternative ethical perspectives and to engage in ‘critical reasoning’ – thus hindering their ability to educate their children in accordance with their faith. Such conflicts concerning the content of public-education curricula, and the right to opt out of morally controversial areas, expose a tension between competing claims to liberty or autonomy: the claim of parents, on the one hand, to determine the religious and moral

Education and civic virtue

181

education of their children without arbitrary or undue state interference, and the claim of the State, on the other, to ‘emancipate’ young citizens by exposing them to alternative ethical perspectives. Mozert is simply an extreme example of a wider intractable problem: the fact that the ethical, moral and religious commitments subscribed to by every parent are likely to deviate to at least some extent from whatever scheme of civic education might be promoted in a particular State. The better-known US Supreme Court judgment, Wisconsin v. Yoder,55 concerned the claim of the Old Order Amish to have children over the age of fourteen exempted from compulsory school attendance. In that case, the State’s interest in promoting ‘universal education’ was held to have been outweighed by the religious-liberty interest of the defendants in preserving a conservative religious way of life. In principle, the lack of opportunity for ‘exit’ from a religious community, or even of access to information and reflection about alternative doctrines and ways of life, might engender domination. And it is conceivable that unbridled parental rights in respect of religious or moral education may lead to children being dominated where they are protected from exposure to or education in secular ideas. Although he does not explicitly use the republican language of domination, the educational philosopher Eamon Callan discusses the problem of ‘ethical servility’ – that is, the concern that the inculcation of ‘ignorant antipathy’ by parents or others may result in permanent control over the child’s future ethical life.This means more than a lack of information about alternative ethical perspectives: it entails a ‘settled affective disposition to refuse to register whatever reason might commend in the objects of one’s antipathy, even if, at some later date, one might acquire knowledge about them’.56 The concern is that through childhood education, ethical choice may be constrained in advance in such a manner that amounts to arbitrary control: in Callan’s terms, again, ‘the field of deliberation in which the agent operates as an adult has been constrained through childhood experience so as to ensure ongoing compliance with another’s will’.57 This antipathy might not be deliberately cultivated; rather it might be instilled, in varying degrees, sub-consciously and gradually over the course of a child’s upbringing. From the neo-republican perspective at least, the problem of ethical servility in education lies not so much in the fear that individuals will fail to choose self-directed and autonomous ways of life, but rather that their lack of means or knowledge concerning ‘paths of exit’, or alternatives to their inherited communal life, renders them vulnerable to arbitrary, dominating power within their communities. A lack of awareness of alternative ways of life may leave citizens unable to identify and contest arbitrary power. Even Rawls, who specifically eschews any state commitment to ‘comprehensive liberalism’, argues that citizens in the politically liberal State have to be ‘educated to a conception of themselves as free and

182

Republican society

equal’ – such that they know ‘apostasy is not a legal crime’58 – but without being taught about the superiority of ethically autonomous ways of life as such. In turn, this might limit the extent to which the State can tolerate exemptions or opt-outs from public-education programmes in order to cater to religious sensibilities, or indeed, the extent to which it will limit, regulate, or even tolerate faith-specific schooling. In Mozert, the reading programme that parents challenged on religiousliberty grounds can be seen as pursuing legitimate aims in a republican light – not because it promotes a particularist conception of human flourishing based on individuality or autonomy, but simply because it equips citizens with the skills and dispositions necessary to resist domination, or at least that it enhances the range of undominated choice they may enjoy. While it might indirectly promote ‘comprehensive’ liberalism or autonomy, we do not find this particularly remarkable or objectionable, for reasons already outlined. And while over-extensive accommodation of illiberal religious claims might entail domination for the children affected, there remains a broader concern that a more general willingness to permit opt-outs will lead to a diminishing of the civic skills and dispositions needed for the operation of republican politics generally. Put differently, while education might alleviate private domination directly for the individuals who receive it, it may also operate instrumentally so as to promote the wider dispositions that help to render public power non-dominating more generally. Culture and autonomy

Notwithstanding this bona fide concern about domination in insular communities, in practice it may well serve as a pretext for oppressing or marginalising religious doctrines that are interpreted as ‘fundamentalist’ or illiberal. A further problem is that while, in theory, republicanism will aim to combat all sources of domination based on their intensity and extent, in practice republican policies are likely to be implemented from the perspective of a cultural majority. Sincere republicans, aiming to endow young citizens with a sense of independence vis-àvis their inherited traditions and beliefs, may be more likely to identify servility and domination in certain religious and cultural practices than in the ostensibly mundane life patterns of secular, mainstream society. Thus, in practice, republican discourse and policies focusing on autonomy and independence might disproportionately problematise minority religious and cultural practices. Flesh-and blood-republicans, operating in concrete cultural frameworks – and no matter how sincere – may be less inclined to identify dominating patterns in majority traditions; these may be universalised, appearing as a natural, normal state of affairs. There may well be no good reason to believe that religious communities, specifically, are intrinsically prone to cultivating ‘ignorant antipathy’.

Education and civic virtue

183

Domination in the guise of ethical acculturation may, then, assume diverse modes and forms, but our perception of these will likely be skewed by cultural factors. This is not an argument for a culturally relativist stance as such; rather, it is simply to acknowledge that abstract political norms, whether ‘republican’ or otherwise, will likely be instantiated and implemented from a somewhat particularist cultural perspective. As Wendy Brown has argued, secularist political theories often delineate the public and private in culturally specific ways.59 This should offer some grounds for caution in any republican aim of emancipating young citizens from religious or cultural traditions thought of as being servile or dominating, simply because this might serve as a normative pretext for majority domination. How might some of the commonplace objections to republican civic virtue be countered? In the first instance, we have already argued that civic virtue can be justified on neutral grounds, independently of any particular conception of the good. Whatever our worldviews or life plans, we need to enjoy security from arbitrary power in order to pursue and exercise these. Therefore, the commitment to fostering civic virtue can be seen simply as stemming from a broader commitment to freedom as non-domination, and so it forms part of the common good of citizens – whatever their comprehensive worldviews – rather than a comprehensive doctrine as such. Thus we maintain an important distinction between any philosophical conception of the good life based on individuality and autonomy – what we will term ‘outright autonomy’ – and the skills and dispositions that citizens need in order to participate and contest power, such that ultimately they will be secured, at least to a degree, against arbitrary and invidious interference in their life plans. This republican commitment brackets philosophical questions concerning the good life. The republican aim, then, is not to promote autonomy as such, as a favoured pattern of life, but rather to guard against servility in social life generally as well as education specifically. Non-domination can equally be availed of and exercised by those who believe, for example, that their happiness and good lies in a life of devotion to a deity rather than one of independent and critical inquiry or ethical reflection. In the neo-republican variant, at least, freedom is not understood as the achievement of self-mastery  – consisting of those conditions that allow the agent to live a truly self-directed life – but rather as the absence of arbitrary control. It is silent as to how that freedom is best exercised. Translating this at the concrete level of policy, it seems that the republican State would legitimately refuse educational opt-outs or accommodations that are aimed at or result in children being denied awareness and opportunities concerning diverse ethical perspectives, such that amounts to a form of arbitrary control

184

Republican society

or domination of their ethical lives. But it cannot refuse such accommodations in the aim of promoting a philosophical concept of autonomy as such. The objection remains that while civic virtue might be ‘neutral’ at the abstract justificatory level, it is hardly neutral in its implementation and effects, as it will likely promote certain comprehensive doctrines and discourage others. But this is not unique to republicanism: even a relatively minimal liberalism, committed only to safeguarding basic liberties, will inevitably have a causal effect on individuals’ life plans, incentivising certain ways of life and others, notwithstanding protestations of ‘neutrality’ in the abstract. Of course, the ostensibly minimal, market-based State will itself foster market-oriented forms of discipline. Any theory of justice will, when implemented in institutional and legal forms, inevitably shape citizens’ preferences and dispositions, in many subtle and inadvertent ways. Endowing young citizens with contestatory skills and dispositions may indeed lead them to question, and possibly to ultimately reject their religious worldviews. No political doctrine can claim a neutrality of effect in this sense. Insofar as the State commits itself to providing citizens with freedom understood as security against arbitrary worldviews, of course this will disfavour and exclude some worldviews. Thus while a republican model of education cannot accommodate all worldviews, this simply illustrates legitimate limits to the pluralism of the just State.

Education in the Irish Constitution Under Article 42 of the Irish Constitution, the State is obliged to ‘provide for’ free primary education. It is also mandated to support voluntary secondary education, although in line with the expectations and conditions of the 1930s, this is not phrased in prescriptive terms.60  Thus, it has been held there is an enforceable constitutional right for children under the age of 18 to have free primary education appropriate to their needs provided at public expense.61 The State is not obliged to provide this directly, hence the formulation ‘provide for’. Thus, historically, the State has devolved the public-education function to religious denominational schools, and the constitutional provisions in Articles 42 and 44 largely reflect this historical model. And while the Constitution recognises a limited right to state-funded education, a much stronger emphasis is placed on limiting state power in the educational domain – with Article 42 protecting parents’ ‘natural and imprescriptible’ right to provide, in particular, for the ‘religious and moral’ education of their children. Thus while citizens are entitled to receive free primary education, they are not obliged to attend schools of any particular type, prescribed by the State. The right of home schooling is also protected.62

Education and civic virtue

185

We suggest that from a republican perspective, the Irish constitutional provisions on education are problematic in two distinct respects. First, the prevailing concepts and definitions of educational rights and duties neglect the relationship between citizenship and education. Secondly, since the Constitution permits, and even to an extent requires the State to devolve the public-education system along denominational lines, accordingly, it neglects to establish a public-education system in which a common civic identity can be cultivated and formed. The constitutional concept of public education

In other liberal-democratic jurisdictions, constitutional doctrine has framed the educational function of the State partly in relation to concepts of citizenship and civic duty. For example, in the US Mozert case discussed earlier, the court noted the purpose of the public school was to teach fundamental values ‘essential to a democratic society’ including ‘tolerance of divergent political and religious views’ and the ‘ability to consider … the sensibilities of others’.63 Indeed in the Yoder case, the US Supreme Court – while rejecting the State’s absolute interest in universal education – noted: Thomas Jefferson pointed out early in our history, that some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence.64

Similarly in the famous desegregation ruling, Brown v. Board of Education, it was noted that education ‘is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship’.65 In another case it was said the role of the public school was partly ‘to inculcate fundamental values necessary to the maintenance of a democratic political system’.66 By way of contrast, the State’s duty to educate has been understood in narrower terms in Irish constitutional doctrine. And in particular, the prevailing understanding almost completely neglects education’s civic function. O’Sullivan argues that in Ireland, more generally, the prevailing official concept of education has evolved from a ‘theocentric’ paradigm, which placed God at its core, to a ‘mercantile’ one that understands citizenship, and thus public education, in largely economic terms.67 Indeed an older concept understood education as inculcating a Gaelic-Catholic identity and aimed at a wider, more comprehensive sense of virtue than that embraced by republican thought – defining common identity in non-civic, ‘blood and soil’ terms.68 But the ‘mercantile’, or vaguely neo-liberal orientation that O’Sullivan argues has superseded it

186

Republican society

equally discards any sense of common civic identity as being of intrinsic value. Both understandings neglect how education might develop citizens’ consciousness as members of a political community – one oriented neither towards the promotion of a shared, non-political identity, nor merely the pursuit of disaggregated private interests. To an extent, the wider cultural and policy shift O’Sullivan notes is echoed in constitutional discourse. On the one hand, the Irish courts have never considered a conflict between civic education and religious scruples of the sort commonly adjudicated in other jurisdictions – partly because the Constitution, as well as education legislation, accords such broad powers of opt-out to parents, both from prescriptive schooling generally as well as specific subjects.69 However, the few Supreme Court cases that have addressed the meaning of ‘education’ have defined it in rather narrow terms. In Ryan v. Attorney General, for example, the court said: ‘education essentially is the teaching and training of a child to make the best possible use of his inherent and potential capacities, physical, mental and moral’70 – neglecting the civic function of education that has frequently been referenced in American jurisprudence. Thus while principled official definitions of education in Ireland, whether judicial or otherwise, refer to the imperative of individual flourishing more or less in isolation from the context of political community, the French Education Code, by way of contrast, proclaims that ‘besides the transmission of knowledge, the Nation fixes as its primary educational goal to impart to pupils the values of the Republic’. It sets out that the right to education serves not only to allow pupils to ‘develop their personality’, but also to ‘exercise their citizenship’.71 The language of Article 42 of the Irish Constitution, emphasising parents’ ‘antecedent’ and ‘natural’ rights – and implicitly portraying the State as a threatening presence or at best a necessary evil – can be contrasted with a republican view of interdependence that envisages educational freedom as taking on meaning only in an institutional and social framework. More broadly, the Irish Constitution is informed by a strong principle of state subsidiarity in the educational domain. As explained in Crowley v. Ireland, ‘The State is under no obligation to educate’;72 rather, the Constitution envisaged that it ‘should ensure by the arrangements it made that free primary education would be provided’.73 Thus, educational provision was to be divested to essentially private bodies, usually denominational schools under the patronage of Catholic and Protestant bishops. At the time the Constitution was enacted, this principle of subsidiarity dovetailed with a sense that public morality, as well as religious and moral education, should be divested to the domain of institutional religion, specifically the Christian churches.74 To an extent, it also reflected the status and importance accorded to religion in the public realm generally. Today, the historically idiosyncratic structures of the patronage model are defended

Education and civic virtue

187

on rather different grounds: specifically, that they enhance ‘choice’, defined in religiously neutral terms – in preference to a state-run monolith, as the alternative is often depicted.75 Again, however, both perspectives ignore the citizenship dimension of education. One divests the moral dimension of education to ‘comprehensive doctrines’ that frame common identity in non-political terms; the other treats it as a more-or-less private and individualised good, to be consumed by and for the benefit only of an individual conceived of primarily as a rational, economic consumer. Civic identity and denominational schools

In recent years considerable attention and critique has been focused on the overwhelmingly denominational, and particularly Catholic, control of Irish primary schools. Despite limited efforts at diversification of school patronage in response to parental preference, approximately 90 per cent of primary schools remain under Catholic patronage.76 The main cause for concern in this context is that given the absence of a non-religious alternative, parents in many areas of the State may effectively have no choice but to send their children to schools that are committed to imparting Catholic doctrines77  – and that consequently freedom of religion may be undermined. Notwithstanding a limited right to withdraw from timetabled religious-instruction classes, children may become inadvertently instructed in or influenced by Catholic ideas without parental permission or consent.78 From a republican perspective particularly, the power held by school managers and authorities to shape and determine belief may be seen as an arbitrary one, being based on factional interests and concerns. Accordingly those who are subject to unwanted religious education may experience this as a form of domination in respect of religious and ethical choice. Crucially, it is not the fact of state support for religious schools as such – but rather the absence of a default common school – which lies at the heart of this religious-freedom problem. This religious-freedom issue need not be framed in exclusively ‘republican’ terms. However, the absence of a common school – and relatedly, the divestment of the public-education function to denominational ‘patrons’ – raises additional, and distinctively republican concerns. Some may object that the very extensive educational prerogatives that the Irish Constitution guarantees for parents correspondingly diminishes the capacity of the State to instil common values through compulsory education – bearing in mind the wide right of opt-out available to religious parents along with the right of home schooling. However, this is not our main concern. That argument would assume that citizenship is formed through the content of public-education

188

Republican society

curricula, whereas we argue that a stronger emphasis should be placed on the common school as a site or social framework in which civic skills and dispositions are formed. From this perspective, the problem in the Irish constitutional framework is not that the excessive prerogatives or licence it affords to parents undermine civic goals, but rather that its divestment of public education to private bodies removes the possibility of the common school itself serving this civic function. In concrete terms, the absence of a system of common public schools in Ireland means the vast majority of children will be educated in schools whose ethos is defined by particular religious, or indeed, communal values. While this will undermine religious freedom in the sense outlined, an additional, and distinctively republican concern, is simply that the absence of a common school, in which children of diverse religious and social backgrounds are taught together, will undermine the formation of a sense of common civic identity. In one sense, this concern is simply that denominationally specific schooling will encourage the development of sectarian or faith-specific solidarities that will correspondingly discourage any sense of identification with a broader public interest defined in non-sectarian terms. A more specific concern is that in publicly funded denominational schools, moral education will inevitably be understood in denominationally specific terms, thus precluding any comprehensive programme of civic education across the schooling system. But we suggest that the value of a common or public school, freely available in all areas of the State, should not be understood primarily in terms of the opportunity to teach didactic civic education. Rather, from the republican perspective it should be valued as forming a part of the physical and social geography for republican citizenship, a crucible in which common identity is formed and republican citizenship is experienced. As Laborde argues in the French context: … attitudes of mutual civic recognition are fostered, not through the forcible inculcation of common values … but rather though the actual sharing of genuinely public spaces  – from political forums to mixed neighbourhoods and common secular schools – where citizens learn to live together.79

For example, it seems more likely that, in the common school, young students will develop attitudes of respect and empathy for citizens holding different ethical perspectives if they are educated in an environment comprising such citizens. They are more likely to develop the rudimentary skills of non-factional reasoning and so on. This argument emerges from a simple recitation of the Aristotelian thesis of habituation; that ‘a state of character arises from the repetition of similar activities’.80 That is, moral character can only be acquired through active practice of the virtues rather than their inculcation at a purely abstract

Education and civic virtue

189

level. But if children are effectively segregated in their education along religious (or other communal) lines, the prospect of them developing republican skills and dispositions is undermined. The common school, by implication, is a ‘virtual republic’ within which children from radically different cultural and religious perspectives engage with one another in a critical, formative environment. They are better placed to gain an appreciation of the fact that they share a common political fate with such citizens and of the complex ‘multiply reiterated interdependencies’ of all citizens in the diverse modern polity.81 It seems more likely that through the common school, citizens will develop non-factional identities, solidarities, allegiances and agendas. And this can be considered from the standpoint of race and ethnicity, gender and social class as well as religion. Of course, we do not deny the very live possibility of various factional divisions emerging within a system of common schooling. Segregations along ethnic and socio-economic lines will be at least as destructive for the civic mission of republican education as sectarian division is. These may require separate checks and correctives. In recent public discourse, the existing ‘patronage’ model is often defended – in preference to a ‘one-size-fits-all’ model of common schooling  – based on the secular goods of diversity and choice.82 Indeed, the patronage model gives some parents the opportunity to have their children educated in publicly funded schools that are specifically attuned to their particular beliefs. However, it is difficult to conceive how choice in this sense could meaningfully be understood as a right such that would trump the countervailing aims of a common-school system.83 Ultimately, choice in this sense is distributed in an uneven, unequal and ad hoc way, largely as a function of demographic and social considerations. Most notably, it requires that particular communities must have the demographic ‘critical mass’ that is necessary to attract state funding and recognition for faithspecific schools, before the ‘right to choice’ can be concretely realised.84 If this model of pluralistic faith-specific education safeguards religious liberty, as is so often claimed, it does so in a markedly precarious and unequal way. And since the concept of religious liberty underlying this claim could only ever be provided for some citizens – and on a rather precarious and insecure footing – it is probably best discarded. In this light, the prevailing assumption is that non-denominational schools should be provided in certain areas on the basis of parental demand. This means a monopoly of religious schools may well remain in many areas of the State. However, this stance treats common or non-denominational schools simply as another choice, and as being valuable simply as the expression of an alternative, secular preference. It assumes that the non-denominational character of such a school is simply an expression of private choice – no different from the choice

190

Republican society

of, say, a Catholic or Jewish school. Yet the common school, by contrast, is not defined by its commitment to any particular ‘comprehensive’ doctrine, belief or worldview. As Justice Brennan stated in a landmark US case on bible reading in public schools, the religious neutrality of the public school is ‘neither theistic nor atheistic, but simply civic and patriotic’.85 Of course, this is not to say that the common school will be neutral in the full sense, or that it will not aim to promote certain values. Rather, we argue that the common school should be valued not simply as a means of accommodating parents who have non-religious preferences; rather, it may ensure, first, that citizens will have access to a publicly funded school in which no particular comprehensive doctrine is taught – so that their religious liberty can be maintained – and secondly, it may constitute a crucible or microcosm of citizenship in the manner we have described. The non-denominational character of the common school should correspond to the common good of citizens  – that is, their common good in receiving a public education that respects their religious freedom – rather than serving a factional identity. Thus far we have made arguments in favour of maintaining a system of common public schools, rather than against support for religious schools as such. In principle there is no reason why religious schools might not be publicly supported alongside a universal common school. In France, for example, the State is constitutionally obliged to provide ‘free and secular’ education at all levels,86 but since the 1950s it has provided financial support for private religious schools to teach the public curriculum. Thus, even in secular-republican France, a substantial proportion of children are educated in private, but publicly funded Catholic schools.87 Of course this has the advantage of accommodating diverse beliefs and doctrines within the overall public-education system, as well as accommodating the preference for an alternative school model. Equally, however, republicans might resist faith-specific public schools on the basis of a commitment to promoting a common civic identity through public schooling. In concrete terms this hostility might be manifested as a refusal to legally recognise or even permit non-public schools; more usually, and less drastically, it will translate as a refusal to provide them with state funding, even for secular instruction. Where state funding of religious schools is permitted, this raises the question as to what conditions or limits the State must impose; for example, must it insist that the full public curriculum be taught irrespective of religious objections? The classic example is the teaching of evolution notwithstanding creationist objections.88 More fundamentally, the very fact of state support for denominational schooling, notwithstanding parallel provision for a common school, might lead to various forms of division and stratification that ultimately undermine republican

Education and civic virtue

191

goals. It might be queried whether such schools can foster civic skills and dispositions to the appropriate degree, especially if they fail to encourage students to socialise outside particular factions, whether denominationally defined or otherwise. Here again, it is important to distinguish two senses in which republican virtues and dispositions are valued: first, they are needed by individuals as a safeguard against arbitrary power in their private lives; but secondly, there needs to be sufficient levels of civic dispositions in society generally such that political power can be rendered non-dominating at the public level by popular contestation. The latter perspective  – a concern for domination in the public realm specifically – might accommodate greater compromises to public or universal education as it only requires that virtues be sufficiently possessed and exercised in society generally to such a level that succeeds in subjecting state power to an adequate degree of popular control; republican freedom in this lens does not require that every citizen be civically minded or disposed.89 However, if republican virtues and dispositions are needed to secure the individual against private domination in the immediate, interpersonal sense, then there is less scope for compromise, as every citizen must be equipped to resist domination in the private, familial, communitarian and cultural domains. But although this sense of republican virtue must be applied universally, it is thinner in scope, because it does not require any orientation towards political life as such.Therefore, we suggest that state support for denominational schooling should be conditioned on this basis. For the most part, the requirement of teaching a public curriculum – including, say, the theory of evolution – may be sufficient to ensure students in denominational schools are not exposed to ‘permanent control’ of their ethical perspective. The public curriculum may be taught in an environment reflecting a specific religious worldview, but it cannot be rewritten or moulded to a specific religious perspective, say, in the areas of science or even the new ‘politics and society’ syllabus.90 Of course, the State may also legitimately take measures to ensure that public funding is not used for discriminatory or oppressive purposes: French law, for example, requires that publicly funded private schools must admit pupils irrespective of religious affiliation, although in Ireland the Equal Status Act permits denominational schools to accord priority to coreligionist candidates.91 It is not our aim to exhaustively describe these conditions, but simply to suggest a conceptual framework within which this might be addressed. Here we can also distinguish between two different senses in which republicanism might reject religious claims in the public-education context. Republicans, in the more full-throated sense, might simply interpret certain religious doctrines as servile, dominating, or as otherwise incompatible with republican citizenship, and accordingly, refuse to accommodate or even tolerate these in the

192

Republican society

public-education context for these very reasons. Alternatively, however, republicans might simply reject these claims simply as a corollary of their commitment to preserving the common school, while remaining silent on the merits of religious doctrines as such or their compatibility with republican citizenship.

Conclusion In this chapter, we have not aimed to provide an original solution to the familiar and timeless theoretical conundrums concerning the role of civic virtue in the republican State. A persistent and intractable problem seems to lie in the fact that while republican ideals require citizens to possess certain dispositions, skills and attitudes, the mechanisms and institutions used to promote these will risk undermining republican ideals in practice. In the aftermath of a serious economic and social crisis which has been attributed in part to clientelism and corruption in its broad sense, it is possible to conclude that the Irish ‘constitution’ in the wide sense – the set of institutions and norms governing the exercise of public power – has not adequately fulfilled the function of cultivating a culture of the common good, or indeed a sense of civic patriotism. We have focused on this problem specifically in the context of education, suggesting that the constitutional framework neglects the relationship between education and citizenship, and falls well short of the republican ideal by substantially divesting moral education to religious and other comprehensive doctrines, and to private bodies that are beyond democratic control. Unusually in comparative terms, education is considered almost entirely apart from the concept of political community specifically. Ultimately, of course, this problem is irreducible to the constitutional text: it is more deeply embedded in cultural, historical and structural factors.

Notes 1 Ernest Barker, The Politics of Aristotle (Oxford: Oxford University Press, 2009). 2 John Rawls, Justice as Fairness: a Restatement (Cambridge, MA: Harvard University Press, 2001), p. 145. 3 Iseult Honohan, Civic Republicanism (London: Routledge, 2002). 4 See Benjamin Constant, ‘De la Liberté des Anciens Comparée à celle des Modernes’, in Benjamin. Constant, Ecrits Politiques (Paris: Gallimard/Folio, 1997), pp. 591–619. 5 Maurizio Viroli, Republicanism (New York: Hill and Wang, 2002), p. 72. 6 Jean-Fabien Spitz, ‘The Défense Républicaine: Some Remarks about the Specificity of French Republicanism’, in Samantha Besson and José-Luis Marti (eds), Legal Republicanism: National and International Perspectives (Oxford: Oxford University Press, 2009), p. 292.

Education and civic virtue

193

7 Rawls, Justice as Fairness. 8 Barker, The Politics of Aristotle. 9 John Maynor, ‘Without Regret: the Comprehensive Nature of Non-domination’, Politics, 22 (2002), p. 51. 10 For further elaboration of this argument see Eoin Daly, ‘Non-domination as a Primary Good: Re-Thinking the Frontiers of the ‘Political’ in Rawls’ Political Liberalism’, Jurisprudence, 2 (2011). 11 Rawls, Justice as Fairness, p. 154. 12 Paul Weithman, ‘Political Republicanism and Perfectionist Republicanism’, The Review of Politics, 66 (2004), p. 300. 13 Adrienne Kock and William Peden, The Selected Writings of John and John Quincy Adams (New York: Knopf, 1946), p. 52. 14 Tom Garvin, ‘An Irish Republican Tradition?’, in Iseult Honohan, Republicanism in Ireland: Confronting Theories and Traditions (Manchester: Manchester University Press, 2008), p. 24. 15 Niccolò Machiavelli, The CompleteWorks and Others, ed. and trans. Allan Gilbert (Durham: Duke University Press, 1965), p. 493. 16 Maynor, ‘Without Regret’, p. 52. 17 Jan-Werner Mueller, Constitutional Patriotism (Princeton, NJ: Princeton University Press: 2007). 18 Sara Shumer, ‘Republican Politics and its Corruption’, Political Theory, 7 (1979), pp. 15–16. 19 See Tom Hickey, ‘Civic Virtue, Autonomy and Religious Schools’, in Fintan O’Toole (ed.), Up the Republic! Towards a New Ireland (London: Faber and Faber, 2012), pp. 90–114. 20 For a discussion of different concepts of the common good, see Iseult Honohan, ‘The Common Good and the Politics of Community’, in Joseph Dunne, Attracta Ingram and Frank Litton (eds), Questioning Ireland: Debates in Political Philosophy and Public Policy (Dublin: Institute of Public Administration, 2000). 21 On the idea of public reason, see John Rawls, ‘The Idea of Public Reason Revisited’, University of Chicago Law Review, 64 (1997). 22 Ibid. 23 Clarissa Hayward, ‘Doxa and Deliberation’, Critical Review of International Social and Political Philosophy, 7 (2004); Kevin Olson, ‘Legitimate Speech and Hegemonic Idiom: The Limits of Deliberative democracy in the Diversity of its Voices’, Political Studies, 59 (2011), p. 533. 24 Philip Pettit, On the People’s Terms: a Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2013), Chapters 3–4. 25 Maynor, ‘Without Regret’, p. 52. 26 Cécile Laborde, ‘On Republican Toleration’, Constellations, 9 (2002), p. 176. 27 See Iseult Honohan, ‘Educating Citizens: Nation-Building and its Republican Limits’, in Jeremy Jennings and Iseult Honohan (eds), Republicanism in Theory and Practice (London: Routledge, 2005), pp. 199–207.

194

Republican society

28 Cécile Laborde, ‘Secular Philosophy and Muslim Headscarves in Schools’, The Journal of Political Philosophy, 13 (2005), p. 305; Claude Nicolet, Histoire, Nation, République (Paris: Odile Jacob, 2000); Henri Pena-Ruiz, Dieu et Marianne: Philosophie de la Laïcité (Paris: PUF, 1999). 29 See Chapter 1, Referendums, sovereignty and the Supreme Court, and Referendums and the popular will. 30 Richard Dagger, CivicVirtues: Rights, Citizenship and Republican Liberalism (Oxford: Oxford University Press, 1997), p. 14. 31 Shelley Burtt, ‘The Good Citizen’s Psyche: on the Psychology of Civic Virtue’, Polity, 23 (1990). 32 Ibid., p. 26. 33 Ibid. 34 Ibid., p. 28. 35 Ibid., p. 35. 36 Ibid., p.  39; see also David Gauthier, Rousseau: the Sentiment of Existence (Cambridge: Cambridge University Press, 2006). 37 Gauthier, Rousseau. 38 Ibid. 39 Viroli, Republicanism, Chapter 5. 40 Eoin Daly, ‘Austerity and Stability in Rousseau’s Constitutionalism’, Jurisprudence, 2 (2013). 41 Robert Jubb, ‘Rawls and Rousseau: Amour-Propre and the Strains of Commitment’, Res Publica 17 (2011), p. 256. 42 John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), p. 176. 43 Robert Goodin, ‘Folie Républicaine’, Annual Review of Political Science, 6 (2003), p. 63. 44 Ibid., p. 72. 45 Honohan, Civic Republicanism, p. 5. 46 Nomi M. Stolzenberg, ‘“He Drew a Circle that Shut Me Out”: Assimilation, Education and the Paradox of Liberal Education’, Harvard Law Review, 106 (1993), p. 581; Stephen Macedo, ‘Liberal Civic Education and Religious Fundamentalism: The Case of God v John Rawls?’, (1995) 105 Ethics, 105 (1995). 47 Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford: Oxford University Press, 2001), p. 297, fn. 6. 48 Steven Kautz, ‘The Liberal Idea of Toleration’, American Journal of Political Science, 37 (1993), p. 610. 49 Jean-Jacques Rousseau, Du Contrat Social: Principes de Droit Politique (Paris: ENAG 1762/1988) Book IV, Chapter 8. 50 For a general discussion on the problem of autonomy in education, see Stolzenberg, ‘Liberal Education’, and Macedo,’Liberal Civic Education’. 51 Spitz, ‘The défense républicaine, p. 285. 52 Maynor, ‘Without Regret’, p. 51. 53 Stolzenberg, ‘Liberal Education’, and Macedo,’Liberal Civic Education’.

Education and civic virtue

195

54 Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir.1987). 55 Wisconsin v. Yoder, 406 US 205 (1972). 56 Eamon Callan, Creating Citizens: Political Education and Liberal Democracy (Oxford: Oxford University Press, 2004), p. 153. 57 Ibid., pp. 153–4. 58 Rawls, Justice as Fairness, p. 156. 59 Wendy Brown, ‘Civilisation Delusions: Secularism, Tolerance, Equality’, Theory and Event, 15 (2012). 60 See generally Áine Hyland, ‘Education in Post-Christian Ireland’, Irish Review, 27 (2001); Conor O’Mahony, Educational Rights in Irish Law (Dublin: Thomson Round Hall, 2006). 61 On the scope of this right see O’Donoghue v. Minister for Health [1996] 2 IR 20; Sinnott v. Minister for Education [2001] 2 IR 545. 62 Constitution of Ireland, Article 42.2. 63 Mozert v. Hawkins County Board of Education, 827 F.2d 1058 (6th Cir.1987), 1068. 64 Wisconsin v. Yoder, 406 US 205, 221 (1972). 65 Brown v. Board of Education, 347 U.S. 483, 493 (1954). 66 Ambach v. Norwick 441 US 668, 676–7 (1979). 67 Denis O’Sullivan, Cultural Politics and Irish Education since the 1950s: Policy, Paradigms and Power (Dublin: Institute of Public Administration, 2005). 68 See Eoin Daly, ‘Narratives of Constitutional Identity in the Republic of Ireland’, Etudes Irlandaises, 2 (2011); Karin Fischer, École et religion: Hiérarchies identitaires et égalité citoyenne en République d’Irlande (Caen: Presses Universitaires de Caen, 2011). 69 Education Act 1998, s. 30(2)(e). 70 See also O’Donoghue v. Minister for Health [1996] 2 IR 20. 71 Education Code, L 111-1, authors’ translation (emphasis added). 72 [1980] IR 102, 126. However, Article 42.4 does not prevent the State from providing primary education directly, subject to the various guarantees contained in Article 42 and elsewhere.The Dublin Vocational Educational Committee opened the first state-run primary school in Diswellstown, Co. Dublin in 2008. See also Patsy McGarry, ‘Big First as Two New State-run Community Schools Open’, Irish Times, 2 September 2008. 73 [1980] IR 102, 126. 74 Eoin Daly, Religion, Law and the Irish State (Dublin: Clarus, 2012), Chapters  3 and 4; John Coolahan, Irish Education: History and Structure (Dublin: Institute of Public Administration, 1981). 75 For a summation of these arguments see Rory O’Connell, ‘Theories of Religious Education in Ireland’, Journal of Law and Religion, 14 (1999); see also Paul Andrews, ‘Pluralism Revisited’, Studies: An Irish Quarterly Review, 83 (1994). 76 See Information on Areas for Possible Divesting of Patronage of Primary Schools (Dublin: Department of Education and Skills, 2010). 77 Daly, Religion, Law and the Irish State, Chapter 4. 78 Ibid. 79 Cécile Laborde, Critical Republicanism: The Hijab Controversy and Political Philosophy (Oxford: Oxford University Press, 2008), p. 11.

196

Republican society

80 Aristotle, Nicomachean Ethics, trans.Terence Irwin (Indianapolis, IN: Hackett, 1985), p. 35. 81 Honohan, Civic Republicanism, p. 275. 82 Eoin Daly, ‘Religious Freedom as a Function of Power Relations: Dubious Claims on Pluralism in the Denominational Schools Debate’, Irish Educational Studies, 28 (2009). 83 Ibid. 84 Ibid. 85 Abington School Dist. v. Schempp 374 US 203, 242 (1963). 86 This obligation is contained in the preamble to the Constitution of the Fourth French Republic of 1946, but it is given legal effect by the Constitution of the Fifth Republic, 1958. 87 Education Code, L 442–5; Xavier Ternisien, Etat et Religions, (Paris: Odile, 2007), p. 75. 88 Epperson v. Arkansas 393 US 97 (1968). 89 Pettit, On the People’s Terms, Chapters 4 and 5. 90 Niall Murray, ‘Ruairi Quinn readies politics for Leaving Cert’, Irish Examiner, 24 March 2014. 91 Education Code, L 442–5; Equal Status Act 2000, Section 7(2).

7 State and religion in the pluralist republic Our whole people consists of Catholics, Protestants and Presbyterians, and is, therefore, greater than any of these sects, and equal to them altogether Wolfe Tone, Writings1

Introduction Questions concerning the institutional relationship between State and religion – and the appropriate role of religion in the political domain – have naturally engaged most republican thinkers. Historically, of course, the relationship between religion and ‘real-world’ republicanism has proven somewhat antagonistic. For republicans, religion may represent a potentially destabilising form of communal attachment that threatens the secular, social and civic bond: certain religious practices may be seen as undermining republican virtues, and as a potentially potent source of domination in society and politics. Conversely, for religions, republicanism – with its peculiar forms of ‘soulcraft’2 and its own peculiar folklore and rituals – may itself constitute a rival form of religiosity, sacralising the civic and the political. Such concerns have framed debates on the constitutional treatment of religion. Religion is implicated both in questions of institutional design and in what might loosely be termed republican social politics. In this chapter, we offer a republican analysis of the constitutional framework for Church–State relations in Ireland. The provisions concerning religion in the 1937 Constitution are ambiguously poised between contradictory theoretical models: on the one hand, religion is accorded an essentially private status for most practical purposes; on the other, it is given strong symbolic recognition as a central feature of national identity, and there are few strong constitutional fetters on Church–State entanglement. Indeed the nominally separationist model contained in Article 44 of the Constitution

198

Republican society

– which recognises no religious denominations – stood in stark contrast with the practical realities of Irish political life over the Constitution’s lifespan – and in particular, the historically dominant (and indeed dominating) position of the Catholic Church, at least in the decades following independence. Much of the existing literature on the constitutional treatment of religion in Ireland has centred either on the definition and scope of individual rights in the domain of religious belief and practice, or on the role of religion as a source of constitutional authority – whether directly in the guise of the official recognition of Christianity, or indirectly in the guise of ‘natural law’.3 From this perspective, the Constitution can be seen as ambiguously poised between a liberal model that regards religion as a matter of private choice, and a more ‘communitarian’ concept that posits it as a public good and, indeed, as a constitutive element of national identity. From a liberal perspective, it may be argued that the Constitution provides inadequate protection for ‘negative’ individual rights in the religious domain, chiefly because it contains insufficient safeguards against legislation enshrining or enforcing favoured religious doctrines  – or indeed against policies, institutions and practices that accord religious denominations powers of interference in individual choice. While these concerns are well covered in existing literature, we analyse the Irish constitutional framework concerning religion with reference to a set of separate – and distinctively republican – concerns. We will argue that religious freedom should not be interpreted narrowly, simply as a ‘hands-off’ principle of non-interference in religious practice and in religious communities. We suggest that Irish jurisprudence has overlooked the role of concrete power relationships in those social contexts in which religious rights are exercised – and, therefore, that it has obscured the problem of domination, as distinct from interference in religious choice. However, since this argument concerning the concept of the right to religious freedom is already elaborated in Chapter 2, in this chapter we focus primarily on formulating a republican analysis of the constitutional separation of Church and State – a principle which, in the Irish context, assumes an idiosyncratic (and highly qualified) form. Drawing on the republican principles explored in previous chapters, we suggest that constitutional Church–State separation should not be understood – at least primarily – simply as a safeguard for individual choice in the religious domain. Instead, it can be interpreted as safeguarding the public realm against the development of relationships of dependency – and thus, of domination – as between the State and organised religions. Therefore, while Church–State separation is irreducible to a concern for religious freedom as a negative liberal right, it is ultimately connected to freedom understood as non-domination, albeit in rather indirect and instrumental ways. In turn, this interpretation of Church–State separation stems from a concern

State and religion in the pluralist republic

199

that the development and cultivation of public identity should not be divested to or captured by the most dominant religious bodies, and that common civic values should not be substituted by or confused with religious morality (concerns we addressed separately in Chapter 6.) Thus, ultimately, the principle of separation can be related to a broader concern of maintaining the deliberative public sphere as the crucible of republican citizenship. And this project, we will suggest, has strongly symbolic and affective dimensions.

Religion and Church–State relations in republican thought Historically, while real-world republics have experienced deep antagonisms with organised religions, republican thinkers have tended to advocate a constitutional separation between civil and religious authority. Principles of constitutional secularism have been formulated and defended with reference to a number of distinctive republican concerns. However, different strands of the republican tradition have offered contrasting and somewhat contradictory justifications for the constitutional separation of Church and State. To a certain extent, the principle of Church–State separation – or more generally, the religious neutrality of the State – responds to an imperative of political legitimacy.4 If, in a republic, the people are the originators of political power, the State cannot then be legitimated with reference to any antecedent doctrines or comprehensive worldviews, religious or otherwise. In this light, the State cannot be considered as a creature of the people, yet simultaneously, as being defined with reference to a higher religious truth that precedes and transcends that people’s claim to self-definition. In this way of thinking, democratic legitimacy requires the State to remain neutral towards religion. However, this understanding of religious neutrality as a condition of political legitimacy is by no means an exclusive (or perhaps even a distinctive) attribute of republican thought. By way of contrast, perfectionist republicans – that is, those who conceive of citizenship as a means of promoting human flourishing – will reject any strong principle of state neutrality between comprehensive doctrines and visions of the good life, and so are less likely to justify Church–State separation based on an understanding of religious neutrality as a corollary of political legitimacy. Religion might be institutionally privatised, instead, based simply on a desire to encourage favoured ways of life – in particular, those which are defined by a goal of individual autonomy – and correspondingly, a desire to discourage religious practices or ways of life that are perceived as servile, backward or otherwise contrary to this vision of human flourishing. Privatising religion at the institutional level might then serve simply to reduce religions’ social influence generally,

200

Republican society

and thus, their influence in individuals’ lives. The best historical example of perfectionist republican secularism is probably the anti-clerical politics of the Third French Republic during the late nineteenth century. Constitutional secularism in this sense was not understood as an abstract precept of neutrality that would provide a liberal legitimation for the State, but rather as a more ambitious project of emancipating the citizenry from oppressive beliefs and ways of life – a project that extended well beyond the political and institutional domain. Thus Hazareesingh argues that the separation of Church and State in France ‘sought to turn France away from the ignorance and servility of its past and promote a conception of the good life based on the flowering of human reason’.5 Again, however, there is nothing distinctively ‘republican’ about state perfectionism. What, then – if anything – is the distinctive contribution of republican thought to the Church–State question? Arguably, separating Church and State might be justified based on a specifically republican concern to foster civic virtue. In one view, republicans might support a principle of constitutional secularism based not on a concern to promote human flourishing as such – across all spheres of life, so to speak – but simply to foster civic virtue understood in a narrower sense, in terms of participation in political life and deliberation on common goods. A republican might consistently be non-perfectionist or anti-perfectionist in the sense of eschewing any official commitment to promoting favoured ways of life or conceptions of the good, while accepting the need to promote certain civic dispositions in order to ensure the stability and vitality of a republican system of government. While this stance necessarily eschews any strong principle of neutrality, the virtues promoted are to be exercised in the domain of the political rather than all spheres of life.6 If, in turn, certain religious practices and dispositions are interpreted as inconsistent with or as positively undermining civic virtues, a principle of constitutional secularism or Church–State separation might be understood as checking the influence of unfavoured religious dispositions in social life generally. Thus in the broadest and starkest sense, religious dispositions might be interpreted not as a barrier to human flourishing as such, but rather as a source of civic corruption, which Church–State separation might aim to check. For this reason, some scholars have argued that given its emphasis on active citizenship and participation, republicanism necessarily implies a weak commitment to religious toleration. Kautz observes that for republicans, ‘the indiscriminate practice of tolerance weakens the civic and moral virtues that are necessary for self government’.7 In stark terms he argues: Republicans are intolerant. It almost goes without saying that republican political communities depend on the virtue of patriotic citizens to a higher degree than do

State and religion in the pluralist republic

201

other forms of government. But since such virtue and patriotism do not emerge naturally or spontaneously, partisans of republican politics have always argued that a more or less ‘repressive’ moral and civic education, including censorship among other species of intolerance, would be required in order to bring into being a virtuous republican citizenry.8

However, in an alternative view, civic virtue might be promoted by non-coercive means, thus promoting civic dispositions without sacrificing toleration (at least in its narrow sense).9 Indeed, the assumption that ‘republican’ commitments are invasive and intolerant simply because they are character-forming rests on the rather unrealistic assumption that more quintessentially ‘liberal’ models can somehow avoid influencing moral character. Any form of government, indeed, will have character-forming effects, whether inadvertent or otherwise, but this cannot in itself represent a source of oppression. Some prominent republican thinkers have specifically juxtaposed civic virtue with Christian dispositions. Most notoriously, perhaps, Machiavelli specifically distinguished the civic and political virtue required of rulers from Christian virtue in its conventional sense. In some interpretations, at least, he was an admirer of ancient pagan virtue as a foundation for republican politics.10 Rousseau, while advocating an official ‘civil religion’ as a buttress for republican cohesion and virtue, also rejected Christianity as being an unsuitable moral and social framework for the republican constitution. He viewed Christianity’s ‘separation of the theological from the political’ as inimical to the development of the virtues he associated with the ancient pagan republics.11 His insight was that the orientation of religion away from the temporal would lead to a failure of civic virtue and thus, ultimately to political tyranny. Conversely, the State itself needed a ‘religious basis’ – a sacralisation and ritualism that Christianity could not provide in suitable form.12 Similarly, for Machiavelli (according to Isaiah Berlin’s interpretation), Christianity facilitated political domination because of its sense of ‘other-worldliness’ and its role in fostering a ‘meek endurance of suffering’.13 In sum, both Machiavelli and Rousseau identified Christianity as having deleterious consequences for republican politics. Each advocated varying forms of civic ritualism or civil religion to counter this, albeit while accepting a general but limited principle of toleration. However, few modern republican thinkers have explicitly articulated or defended this stance. It tacitly relies on certain untenable generalisations about the nature and effects of religious practice. More to the point, it seems inconsistent with a commitment to religious pluralism and indeed, with the diverse and complex nature of religious commitment and practice in contemporary societies.

202

Republican society

Nonetheless, we suggest that republican theory offers two distinctive justifications for the constitutional separation of Church and State that can offer an appropriate form of guidance in contemporary, diverse societies. Firstly, republicanism might insist on Church–State separation based not on any perfectionist concern to promote a secular conception of the good life as such, but rather, a concern for freedom as non-domination in the area of religion and religious choice. From this perspective, any fusion, alliance or entanglement of religious and civil power risks giving religious bodies a power of domination – if not formally of interference – over individuals’ religious choices, and indeed, their life-plans more generally. In this light, the constitutional barrier between Church and State prevents religions from being delegated civil authority – whether legislative, administrative or adjudicatory – simply because coercive power exercised on the basis of religious reasons, or by religious agents who cannot be held accountable through conventional administrative mechanisms, is by its nature arbitrary and thus, dominating. An example of this concern was illustrated by the United States Supreme Court ruling in Larkin v. Grendel’s Den.14 It held that Massachusetts had unconstitutionally delegated civil power to religious authorities by preventing local authorities from issuing liquor licences to premises within five hundred feet of churches that objected in writing. In this light, the constitutional principle of separation (or non-establishment in the US context) means that coercive public power cannot be exercised by religious authorities or on the basis of religious reasons.15 A second, and perhaps more salient republican concern relates to the potentially damaging effect of religious establishment on political life and specifically, on the dynamics of civic participation. From this perspective, Church–State separation is necessary because historical experience shows that institutional entanglement or alliance between civil and religious authorities tends to generate sectarian strife and resentment. In turn, this tends to undermine the resources of civic identity – and the sense of common citizenship – that republicans value. In the United States, the constitutional prohibition on religious ‘establishment’16 has been interpreted partly as a historical response to similar republican concerns as to the divisive and potentially destabilising effects of Church–State entanglement. In the standard liberal narrative, the prohibition on religious establishment has been defended as a necessary extension or corollary of individual freedom of religion. From this perspective, governmental financing of established religions represents a form of coercive interference in religious choice, as citizens are deprived of the liberty to support religion according to the dictates of their own conscience. In its seminal establishment-clause judgment, Everson v. Board of Education, the United States Supreme Court affirmed: ‘The [American] people reached the conviction that individual religious liberty could be achieved

State and religion in the pluralist republic

203

best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions.’17 This understanding of religious establishment as an attack on freedom of conscience found strong support in the colonies and the early American republic. The preamble to the 1776 Virginia Bill for Religious Liberty declared: to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern

However, according to an alternative, and more distinctly republican narrative, the constitutional commitment to Church–State separation stems from quite distinct concerns about the debilitating political effects of religious establishment. This view found strong support among the American ‘founders’. Thomas Jefferson famously argued that a ‘Wall of Separation’ between Church and State was necessary to protect the young Republic ‘against ecclesiastical depredations and incursions’.18 James Madison – perhaps the foremost republican intellectual among the founders  – feared religious establishment would lead to sectarian strife. He argued that religious establishments in the early colonies had caused ‘ignorance and servility’ in the lay populace – and ‘pride and indolence’ in the clergy.19 Thus separationists believed the entanglement of government and religion would corrupt each. Therefore, while American republicans generally supported a pluralistic ‘civil religion’, they opposed sectarian divisions in political life.20 Since Madison viewed the spectre of ‘factions’ as the main threat to political freedom, the purpose of the republican constitution was partly to design institutions that would neutralise or counterbalance competing factions such that none could predominate. He understood a ‘faction’ as a group ‘united … by some common impulse of passion or interest, adverse to the rights of other citizens, or the permanent and aggregate interests of the community’.21 Correspondingly, the prohibition on religious establishment served partly to contain religious factionalism.22 This stemmed from his insight that religion could represent ‘a source of especially virulent political factions’.23 In Eisgruber’s interpretation of the constitutional ‘religion clauses’, Madison ‘relies heavily on structural features of the Constitution to diminish the threat that religions will form damaging factions’24 – albeit while recognising the potential social and political utility of religion as a source of virtue and cohesion, and perhaps even as ‘a profound and valuable source of dissent’.25 In contrast, Tocqueville saw

204

Republican society

religion as providing a sort of social capital that gave energy and life to early American democracy.26 This understanding of the establishment clause as a check on sectarian divisions in politics has found some expression in the Supreme Court’s Church–State jurisprudence. One early ruling asserted: ‘the structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference’.27 While the Everson judgment portrayed the prohibition on governmental financing of religions as a safeguard for individual religious freedom, it also referred to its role in preventing sectarian strife. Justice Black noted that the establishment clause was motivated by the historical memory, from the early colonies, of ‘civil strife and persecutions, generated in large part by established sects’.28 In particular, ‘the imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused [dissenters’] indignation. It was these feelings which found expression in the First Amendment.’29 Even in Zorach v. Clauson,30 where the Supreme Court tempered its initially strident separationism with an ‘accommodationist’ approach, it still insisted – in a distinctively republican tenor – that the establishment clause was aimed at preventing ‘concert or union or dependency’31 between Church and State. This strand of establishment-clause doctrine has been informed in particular by a concern that public financing of religions may engender competition for funding – and a ‘dangerous scramble for government largesse’32 – which in turn may engender resentment, division and even sectarian strife among religious denominations. In Lemon v. Kurtzman, the Supreme Court, setting out an influential three-part test for establishment-clause cases, suggested that the Constitution should be interpreted as precluding any governmental action that would result in the ‘entanglement’ of civil and religious authorities. In justifying this doctrinal approach it affirmed that ‘political division along religious lines was one of the principal evils against which the First Amendment was intended to protect’.33 In a more recent case concerning the public display of the Ten Commandments, Justice Breyer wrote that one of the ‘basic purposes’ of the constitutional ‘religion clauses’ was ‘to avoid [the] divisiveness based on religion that promotes social conflict’34 – a divisiveness which, in Feldman’s terms, raises ‘a fundamental challenge to the problem of self-government’.35 On the one hand, this seemingly intractable problem of religious division in pluralistic societies  – a feature that Rawls described as a ‘permanent condition’ of democratic society, and thus, as a foundational problem of political life – raises fundamental issues concerning the ultimate source of political legitimacy as well as the limits and form of political deliberation.36 However, in light of the above analysis, it also raises implications – in a more immediate, practical sense – for the dispositions, virtues, and indeed the affective dimensions of self-

State and religion in the pluralist republic

205

government. It is this latter dimension of the relationship between religion and politics with which republican thought has been most concerned: and in particular, with the question of how religious commitments affect the participative and affective dimensions of citizenship. While religious persecution obviously denies individuals the opportunity to participate in the public realm and thus to exercise political freedom in its republican sense, religious strife and division may have the same effect, indirectly, by undermining sentiments of fraternity or civic belonging.37 Thus, in societies marked by religious division – or simply, religious diversity – a central question of institutional design is how such potentially destructive forms of division can be contained. The aim of countering ‘division’ should not be confused with a rejection of pluralism. The republican aim, we suggest, is not to check or counter difference in the religious sphere itself, with which the republic is not directly concerned: rather, it is a narrower concern to influence how citizens conceive of themselves specifically in the domain of citizenship in their political relationship to others. If it is a form of ‘soulcraft’, it is of a very limited scope. While religious establishment may engender sectarian strife and division, how precisely do such divisions impact on the dynamics of civic belonging? Most obviously, religious establishment may result in non-adherents being alienated or even disaffiliating from the public realm – thus undermining a key republican aim. More subtly, it may affect the distribution of status in the polity even if it does not result in wholesale alienation or disengagement. In this light, recent scholarship has linked the United States’ establishment clause with a broader principle of equality in civic status, and specifically, a concern to prohibit any link – however symbolic – between civic status and religious affiliation. In this view, articulated most recently and systematically by Martha Nussbaum, religious establishment creates ranks of citizens – favoured ‘insiders’ and ‘outsiders’38 – and thus undermines civic equality. In turn, this supports two specifically republican concerns. First, republicans have traditionally argued that institutional design must support a particular economy of status  – through various ranks, awards and distinctions – but of a sort that supports republican goals and in particular, the prioritisation of common interests. The distribution of status along religious lines clearly undermines this. Secondly, at a more fundamental level, republicans generally insist that membership of political community must be understood in political and civic terms, and not on the basis of non-political identities such as religion or ethnicity. In sum, then, while liberalism (broadly defined) views Church–State separation as a bulwark for individual liberty against interference or coercion of religious choice, republicans will tend to take a broader view. Specifically, they will tend to view it as having a broader function in protecting the public sphere

206

Republican society

from the imposition of ranks or distinctions – including those assuming a symbolic form – of the sort that may undermine the social and deliberative conditions of republican democracy. In turn, this arguably justifies a wider (or at least a different) interpretation of the separationist concept. And in turn, this republican concept may provide firmer grounds for resisting the sort of ‘mild’ religious establishments that are often maintained and defended in some contemporary European democracies. Arguably, at least some forms of liberalism can accommodate ‘mild’, non-coercive types of religious establishment that are confined to the purely symbolic realm and which have no effect on private religious choice.39 However, republicanism offers grounds for resisting these, partly because it places greater emphasis on the affective and symbolic dimensions of political membership.The symbolic offence that stems from mild religious establishment can easily be dismissed as trivial, or as the product of over-sensitivity. As noted, perhaps the main harm caused by mild religious establishment is that of alienation on the part of non-adherents. And while alienation of this sort might ostensibly seem a peripheral problem of politics – particularly because it does not seem to undermine religious freedom in its narrow sense – a republican perspective supports the view that in fact, not being alienated from one’s polity is, in Brudney’s terms, ‘an important aspect of the human good’.40 The problem is not, then, that Church–State entanglements will necessarily lead to domination of religious choice in the republican sense as outlined in Chapter 2 – although this is possible in certain instances, such as the delegation of civil power to religious authorities, as discussed above. Its relation to freedom is more indirect: the problem is rather that even the symbolic forms of ranking and exclusion that religious establishment may entail can undermine the conditions of equal status and respect that are needed to sustain a deliberative public sphere in which citizens can regard each other as co-equals. As considered in Chapters 1 and 3, these conditions are, in turn, necessary to subject state power to a form of equally shared democratic control – and thus rendering it non-dominating in the long run.Therefore, the symbolic dimensions of religious establishment are indirectly related to republican freedom.

Religion and Church–State separation in the Irish Constitution The Irish Constitution includes comparatively detailed provisions on religion.The Constitution’s ‘religion clauses’ can be placed in three broad categories. Firstly, in broad terms, Article 44.2 guarantees the ‘free practice and profession’ of religion along with freedom of conscience, subject to ‘public order and morality’. It also guarantees against ‘disability or discrimination’ being imposed on grounds

State and religion in the pluralist republic

207

of religious ‘status, profession or belief’. Secondly, in addition to protecting freedom of religion, Article 44 (and other provisions) serve an additional, distinctive purpose: to symbolically affirm the religious dimensions of national identity.This reflects the broader identity-affirming role of the 1937 Constitution: its character as ‘manifesto’ as well as ‘law’.41 The 1922 Constitution was more or less silent on questions of symbolism and identity and thus, was apparently ‘suited to a country of any religious complexion’.42 In contrast, the 1937 Constitution embraced a more extra-legal, identity-affirming role. Whereas the 1922 Constitution was later described by the Supreme Court as a ‘totally secular Constitution’,43 its predecessor broke from this mould in appealing not only to the sovereignty of the mythologised ‘people’, but also an antecedently defined national identity that was understood partly in religious terms. Under Article 44.1,‘The State acknowledges that the homage of public worship is due to Almighty God … and shall respect and honour religion.’ While Article 2 of the Irish Free State Constitution had declared that ‘all powers of government and all authority … are derived from the people of Ireland’, Article 6 of the current Constitution adjusted this in providing: ‘all powers of Government legislative, executive and judicial, derive, under God, from the people’ (emphasis added). Along with invoking ‘centuries of trial’ in the national struggle, the constitutional preamble acknowledges ‘the Most Holy Trinity’ as the authority ‘to Whom, as our final end, all actions both of men and States must be referred’. The people are depicted as ‘humbly acknowledging all our obligations to our Divine Lord, Jesus Christ’ (emphasis added). These seemingly bellicose and arcane references, Clarke concludes, ‘invited interpretations of our Bunreacht as a Christian law for a Christian state’.44 On the one hand, the Constitution’s appeal to dual, competing sources of ultimate legitimation – the authority of God along with that of the sovereign people – entails an obvious philosophical contradiction. These provisions are not directly justiciable, but they have influenced the interpretation of other constitutional provisions: for example, the Christian references in the preamble were invoked to support the Supreme Court’s ruling against David Norris’ claim of a right to sexual privacy.45 And of course, since the Constitution is a charter of public values as a well as a legal document, these references have a political significance independently of their justiciability in courts. Indeed, the appeal to a particularist religious identity as a source of public norms – even if only in a symbolic sense – raises issues of the sort addressed above; specifically the question of how the State’s religious identification impacts on the affective dimensions of citizenship and public deliberation. It seems to contradict, at a fundamental level, the idea that citizenship be understood in terms of common political participation rather than a shared non-political identity or a ‘blood and soil’ nationalism.

208

Republican society

However, in this chapter we focus on a third function of the constitutional provisions concerning religion: that of defining the institutional relationship between Church and State. It is this function of the Constitution’s ‘religion clauses’ that has received (by far) the least attention and comment. It is significant that the Constitution places specific constraints on the relationship between the State and organised religion independently of the principle of religious freedom itself. This is comparatively unusual: many liberal-democratic constitutions will enshrine only the principle of religious freedom itself, leaving specific institutional questions to the vicissitudes of legislative politics. And depending on how it is interpreted, religious freedom may allow for certain forms of establishment or other institutionalised privileges for one or more recognised religions.46 Yet in Ireland, institutional separation is – at least to a certain extent – constitutionally entrenched independently of the religious freedom principle. While Article 44.2.5° enshrines denominational autonomy in granting religious denominations the right to ‘manage [their] own affairs’, conversely Article 44.2.2° appears to prohibit public financial support for religions in providing, tersely: ‘the State guarantees not to endow any religion’. Thus, despite the historically close relationship between the Irish State and the dominant denomination – especially in the early decades of independence – the Constitution itself is, for all its bellicose theistic references, relatively separationist at the institutional level. Postindependence, there was little appetite for a formal establishment or endowment of Catholicism; in the drafting process for the 1937 Constitution, any Catholic efforts at securing preferential treatment were directed solely at symbolic recognition of the Church (an earlier draft of Article 44, later discarded, had recognised it as the ‘Church of Christ’).47 There was no appetite to restore, for Catholicism, the model of Anglican establishment (and endowment) that had been in force until 1869, and in contrast with other Catholic-majority European countries there has never been a Concordat-style arrangement with the Vatican.48 At the time of disestablishment, Paul Cullen, a modernising Catholic Archbishop of Dublin, rejected an alternative plan to concurrently establish the Catholic Church along with the Church of Ireland.49 Thus the endowment clause – which had an equivalent provision in the 1922 Constitution – was in a sense simply a continuation of the historical status quo following Anglican disestablishment (the public endowment of the Church of Ireland having been the main institutional pillar of Anglican establishment).50 Given the historical context from which the Constitution’s religion clauses emerged, they might plausibly have been interpreted as precluding a range of state interventions in the religious domain, whether benignly intended or otherwise. In principle at least, the endowment clause may have represented a safeguard for religious minorities against any Catholic triumphalism in the post-

State and religion in the pluralist republic

209

independence period. As the Supreme Court recognised, the clause has, in effect, prohibited any full-blown ‘establishment’ of religion in its narrow traditional sense – because any such ‘establishment’ would inevitably necessitate ‘endowing’ religion51 (‘establishment’ has been understood in a much broader sense in the American constitutional setting).52 However, in practice, the endowment clause has not prevented various versions of state support for religion, including indirect forms of financial subvention, that fall short of outright religious ‘establishment’. Thus the prohibition on religious endowment, in particular, has been interpreted in a remarkably narrow fashion, and in reality it has failed to provide much by way of a fetter on the development on the Church–State relationship. In fact, despite the various forms of Church–State solidarity – whether in symbolic or more concrete forms  – that crystallised following independence, the endowment clause has never successfully been invoked to challenge any aspect or instance of this relationship. In the single judgment in which it received an extensive exposition by the Supreme Court, the provision was interpreted in a manner that seemed not only to be implausibly narrow on a technical and literal reading but also that, as we will argue below, ignored the fundamental political aims of the constitutional Church–State separation, both in guarding against sectarian strife and guaranteeing equal political status irrespective of religion. The endowment clause, along with other provisions in Article 44, were the subject of extensive discussion in the 1998 Supreme Court judgment Campaign to Separate Church and State v. Minister for Education.53 This remains the only superior court ruling to have directly addressed the question of public financing for religious bodies. In Campaign, the plaintiff association challenged the constitutionality of the State’s payment of chaplains’ salaries in community and comprehensive schools, both Catholic and Protestant. On its face, the chaplaincy funding scheme seemed to involve the State sponsoring religious instruction and related activities, and thus ‘endowing’ the benefited denominations, albeit in an indirect form. In their evidence, the archbishops accepted that the scheme conferred an indirect financial benefit on their respective denominations as they would have felt obliged to meet the costs of the scheme if the State had not.54 However, the Supreme Court unanimously rejected the challenge, and in doing so reduced the ostensible scope of the endowment clause in a number of important ways. Firstly, the court referred to the broader intendment of the Constitution in facilitating a system of public funding for denominational schools. Given that, in Articles 42 and 44, the Constitution envisages an extensive system of state support for religious schools (subject to parental rights), the chaplaincy scheme was described as simply a ‘modern manifestation’55 of this long-established principle.

210

Republican society

Justice Barrington affirmed that ‘the system of denominational education was well known to the framers of the Constitution’,56 and that ‘clearly the framers of the Constitution did not consider [payments to teachers in denominational schools] to be an endowment of religion’.57 Thus the purpose of the scheme was not to financially benefit the denominations concerned as such, but rather to support secondary education in the manner mandated by Article 42. And moreover, the fact that this education might sometimes have a religious dimension was not considered an expression of state support for the relevant beliefs and doctrines, but rather an attempt to recognise and support parental choice.While the scheme had to be equally available to any denominations requesting it, and while chaplains could not instruct children without parental consent, Justice Barrington went on to suggest, in stronger terms, that parents enjoyed a ‘right to have religious education provided in the schools which their children attend’.58 Thus, the court depicted this particular instance of indirect financial subvention for religions not only as having an essentially secular purpose (that of education), but also as positively facilitating the exercise of parental freedom of religious choice in the context of state-supported education. Justice Keane went further in qualifying the scope of the endowment clause. Based on a dictionary definition of ‘endow’, he concluded that an unconstitutional ‘endowment’ of religion would have to take a direct form, and be extended ‘on a perpetual or quasi-perpetual basis’.59 This ruling has been interpreted as permitting the State to make ‘occasional financial contributions in money or money’s worth to religious bodies’.60 Indeed in an earlier case (in which the endowment clause was not directly invoked), Chief Justice Hamilton commented: ‘the endowment of religion implies the selection of a favoured State religion for which permanent provision is made out of taxation or otherwise’.61 Justice Keane justified this stance partly with reference to the broader status of religion in the Constitution as well as its importance in Irish society generally  – considerations that, he implied, might justify some forms of indirect financial assistance towards religion: ‘Courts could not disregard the fact that religious beliefs and practices are interwoven throughout the fabric of Irish society.’62 In ‘a democratic society’, it was appropriate to acknowledge ‘the importance of the part played by religion in the lives of so many people’.63 The Campaign judgment may be criticised on several grounds, not least based on the implausibly narrow literal meaning the court attributed to the word ‘endow’. And given that many parents may have little choice but to send their children to a state-funded religious school irrespective of their own beliefs, the idea that the state funding of chaplaincies could be considered merely a corollary of parental choice is nothing short of fanciful.64 And indeed, if Justice Keane’s ruling were followed, it would be difficult to see how anything short of a

State and religion in the pluralist republic

211

full-blown ‘establishment’ of religion in the traditional sense could fall foul of the endowment clause. However, here we focus on the judgment’s failure to coherently relate the endowment clause to the broader normative and philosophical underpinnings of the (limited) constitutional separation of Church and State – ideas that, as we have argued, have a strongly republican flavour. The interpretive approach favoured by the Campaign court focused on the literal meaning and the (presumed) historical intent of the endowment clause. In general terms, this seems an unsatisfactory approach to constitutional interpretation, for the reasons set out in Chapter 5.65 More specifically, we argue that this approach divorced the endowment provision from its underlying purpose in protecting and enhancing equality of civic status and in preventing sectarian strife and division. In sum, it failed to articulate a coherent normative theory of the endowment clause. In the following section, we consider how a republican interpretation of Church–State separation might be applied in the Irish context.

State financing of religion: from dependency to domination We argue that the constitutional separation of Church and State in the Irish Constitution – specifically in the guise of the endowment clause – can be read and interpreted in light of the two distinctively republican concerns we have discussed. First, the prohibition on state financing of religions can be understood as safeguarding against any power of domination the State might otherwise enjoy in the religious realm by virtue of denominations’ financial dependency on government. Secondly, it can be understood as a safeguard against sectarian divisions in political life. In turn, these republican interpretations of Church–State separation can be used as a basis to critique the Irish courts’ rather conservative jurisprudence on Church–State issues and, in particular, the Supreme Court’s narrow and rather literalist reading of the endowment clause. On the first point, the prohibition on religious endowment, specifically, can be seen as stemming from a fear that governmental financing of religion may engender various forms of governmental influence, or even of interference over religion  – powers that, in turn, can constitute domination in the republican sense. On the one hand, publicly funded denominations may become dependent on the largesse of the State and thus beholden to its agenda and its preferences. In particular, the conditions attached to public funding may grant public agents powers of influence over religious bodies. Underkuffler, for example, notes that public funding may grant the State the power ‘rein in’ more ‘radical’ sects, which may come under pressure to alter their doctrines or their public stances in order to maintain support.66 For Ravitch, again writing in the US context, a salient fear

212

Republican society

is that ‘religious entities may be forced or induced to compromise their religious values in order to gain the biggest (or any) share of the government-funded – and government-regulated – pie’.67 Thus the United States Supreme Court has, for the most part, acknowledged that religious establishment can generate significant harm even where it entails no coercion of religious choice. In Lee v. Weisman, it noted: The favored religion may be compromised as political figures reshape the religion’s beliefs for their own purposes; it may be reformed as government largesse brings government regulation … [therefore] our cases have prohibited government endorsement of religion … whether or not citizens were coerced to conform.68

This stance – that government action in the religious domain can be dominating without being coercive – has a distinctly republic resonance, bearing in mind the conceptual schema set out in Chapter 2. Domination or manipulation in this context may also stem simply from the discretion that officials will inevitably enjoy in administering schemes of public funding for religions. In Campaign, the court rather blithely suggested that indirect financial subventions to religious bodies – whether used for secular or quasireligious purposes – were permissible where extended on an equal basis, based on neutral criteria.69 However, since the criteria to be used to determine what might constitute ‘equal’ provision for different religions are, inevitably, somewhat flexible and vague, this overlooks the danger that formally ‘equal’ funding will in fact leave a good deal of discretion to administrators (and perhaps legislators) in determining how such funding is to be distributed among competing denominational claims – and more importantly, perhaps, which authorities or entities within such religions are to receive that funding. The argument here is not that the constitutional framework should aim, as some scholars have argued, to preserve religion in a pure or pristine form – that is, to leave it as unaffected or untainted by state power as possible.70 It is probably inevitable that the content and nature of religious belief and practice will always be affected by the operation of state power, at least indirectly: in any event, there is no hypothetical yardstick against which the impact of government on religion could be measured. Therefore, the argument is that rather than leaving religion as such unaffected by state power, a republican system of government must aim to leave religious choice undominated to the greatest possible extent – and that in light of historical experience, this, in turn, will require institutional safeguards against governmental manipulation of organised religion. It might be counter-argued that where the State intervenes in and finances various other aspects of cultural and social life outside the religious domain,

State and religion in the pluralist republic

213

similar conditions and oversight will normally attach to such support, and that this is not normally thought to inevitably entail domination in the same sense. Why should the financing of religious bodies be treated any differently? Historical experience has arguably illustrated the peculiar and unique risks of domination that are inherent in any state intervention in religious life. On the one hand, the peculiar position of social power that religions will typically enjoy, relative to other private organisations, will give States an interest in co-opting or harnessing this symbolic or social authority. On the other hand, religion has contributed to the social capital and infrastructure of civil society – and its resources of civic dissent.71 There are good reasons, accordingly, for preventing religions from being instrumentalised by public authorities, particularly since government may have an interest in co-opting or neutralising religions’ social influence. Secondly, the prohibition on public financing of religion can be understood as a safeguard against sectarian strife and resentment. To some extent, this understanding of religious endowment as a source of sectarian strife, as discussed in the previous section, responds to the specificities of the American historical experience, and particularly the divisive effects of religious establishments in the early colonies. But this concern to prevent sectarian divisions in public life can be extended well beyond this particular historical narrative. Indeed the experience of religious strife linked to establishment is also familiar in Irish history. The establishment of the Church of Ireland pre-independence – in particular, the government financial support it encompassed  – engendered considerable resentment and sectarian strife well after the repeal of the anti-Catholic penal laws in 1829.72 As argued earlier, historical experience shows that religious divisions of this nature – of the sort that stem from establishment – tend to undermine citizens’ sense of identification with the public realm, and the development of the shared civic consciousness that is thought necessary to republican politics. Indeed this insight resonates in the history of Irish republican thought.The United Irish rising of 1798 had the stated aim of ending civil and political distinctions based on religion: Wolfe Tone claimed that if this could be achieved, ‘the memory of religious dissension will be lost’.73 Whelan argues ‘the United Irish movement had, as its central aim, the demolition of a political system rooted in sectarian privilege and its replacement with a secular democratic politics’.74 On one interpretation, one of the distinctive and, indeed, quintessentially republican insights of this period relates to the link between the fraternal and affective dimensions of selfgovernment and the symbolic (as well as more concrete) connection between State and religion. Borrowing French-Jacobin language, the pledge of the United Irishmen referred to ‘a brotherhood of affection, an identity of interests, a communion of rights and a union of power among Irishmen of all religious persuasions,

214

Republican society

without which every reform in Parliament must be partial, not national, inadequate to the happiness of this country’.75 While Wolfe Tone invoked the republican leitmotif of external domination in justifying insurrection, he understood Ireland’s unfreedom – that is, the denial of self-government to its people – partly in relation to the sectarian divisions that he believed were perpetuated by external rule. This was primarily why he argued that in order ‘to assert the independence of their country … and their own individual liberties’ it was necessary for non-coreligionists ‘to forget all former feuds … and form for the first time but one people’.76 Indeed, more recently, there is some evidence that De Valera’s reluctance to accord Roman Catholicism any stronger recognition in the 1937 Constitution stemmed partly from a fear of religious strife and division.77 In this light it is curious that the Campaign judgment made virtually no reference to the link between the historical experience of religious strife and the constitutional prohibition on religious endowment. There is little evidence of debate concerning the endowment clause specifically in the drafting process for the 1937 Constitution. However, although adopted from the 1922 Constitution, in turn taken from the Anglo-Irish Treaty, it had older origins in the Government of Ireland Acts of 1914 and 1920.78 This suggests it was intended as a safeguard for religious minorities in the context of Irish self-government. In the Campaign judgment, Justice Keane appeared to suggest that some forms of non-permanent or indirect public funding for religions might be permissible in light of the ‘honour and respect’ the State owes to religion, in the terms used by Article 44.1. Indeed in an earlier judgment the Supreme Court ruled that the Article 44 provisions should be read in light of an overarching aim of securing ‘vitality and independence’ for religions generally.79 Yet a republican perspective, supported by historical experience, suggests that far from promoting status, respect and vitality for religion, state endowment tends to engender relations of interference, ingratiation and dependency between civil and religious authorities. For example, during the campaign for Catholic emancipation in the early nineteenth century, the British administration initially proposed that the conditions of civil emancipation should include some state payment for Catholic clergy. The purpose of such proposed ‘endowment’ was not to glorify or exalt religion, or even to recognise its social importance – but rather to control and subordinate it by maintaining it in a relationship of dependency. In Ó Tuathaigh’s terms, its aim was ‘to institutionalise in some way the State’s claim on the loyalty of the Catholic clergy’.80 Similarly, Whelan describes how in the aftermath of the United Irish rebellion of 1798, the institutional Catholic Church was ‘appeased’ by the British government through funding for a seminary at Maynooth. Moreover, he claimed, it deliberately sought to quash Ulster

State and religion in the pluralist republic

215

radicalism by stoking sectarian division and, specifically, through funding for ‘carefully vetted Presbyterian ministers’.81 In the Campaign decision itself, Justice Barrington, in an historical discussion of religious endowment, noted that a British Act of 1795 – declared to be ‘for the better education of persons professing the Popish or Roman Catholick religion’82  – provided a public grant for a Roman Catholic seminary. He further noted: while it was not stated in the Act everyone knew that the purpose of the seminary was to educate young men for the Catholic priesthood … the purpose being to discourage them from going to the continent for their education lest they come under the influence of the principles of the French revolution.83

However, he failed to draw out what might be thought of as a natural conclusion from this analysis: that set against historical experience and the history of ideas, the endowment clause can be seen as a response to a well-founded fear that the governmental largesse towards religion stems from an impulse of domination and control. Furthermore, contra Justice Keane’s analysis in the same case, religious endowment has historically been deployed not as a means of recognising the social and communal importance of religion, but rather as an instrument through which the State has sought to instrumentalise and dominate religious bodies. The United States Supreme Court has also recognised that the constitutional provisions should be read in light of the historical importance of religion in national life (it said ‘we are a religious people whose institutions presuppose a Supreme Being’84). However, it has taken this premise to precisely the opposite practical conclusion: that religion’s exalted status warrants a non-interventionist stance rather than one of ostensibly benign support. It was through ‘bitter experience’, it opined in the 1960s, that Americans believed the ‘exalted’ autonomy of religion could be corrupted even through well-intentioned government assistance aimed at ‘aiding’ rather than opposing religion.85 Benignly intended forms of support were to be precluded, not based on a desire to marginalise religion socially, but rather a belief that religious beliefs were ‘too precious’ to be jeopardised or instrumentalised in this way.86

Conclusion In a rare comment on Irish republican thought, Philip Pettit suggests that a distinctive feature of Wolfe Tone’s philosophy – in contrast with the anti-clericalist, Jacobin French version by which it was inspired – was its ‘ecumenical’ stance

216

Republican society

towards religion.87 There has never been an appetite in Irish thought, whether on the part of civic republicans or otherwise, either to strictly exclude religion from public life or to create a categorical constitutional barrier between the State and organised religion. Nonetheless, one of the aims of the United Irishmen’s insurrection had been the creation of ‘a society [where] the linkage between confessional affiliation and political power would be broken’. 88 We have argued that this general aim cannot be considered independently of the institutional Church–State question – an issue which is, in turn, reflected in dilemmas of constitutional interpretation and institutional design. This is not to claim any sense of overriding historical legitimacy for a stricter conception of the constitutional Church–State separation. Rather, it is to argue that Irish political and legal thought has generally failed to approach the constitutional Church–State relationship in the normative terms of civic status and equal citizenship. It has ignored how institutional Church–State questions relate to the affective structure of the public realm. In turn, republicanism can offer rich intellectual and historical resources for considering the Church–State question in this light.

Notes 1 Theodore Moody, Robert McDowell and Christopher Woods (eds), The Writings of TheobaldWolfe Tone 1763–98:Volume I (Oxford: Oxford University Press, 1998), p. 100. 2 Robert Goodin, ‘Folie Républicaine’, Annual Review of Political Science, 6 (2003), p. 70. 3 See generally Eoin Daly, Religion, Law and the Irish State (Dublin: Clarus, 2012), Chapter 1. 4 John Rawls, Political Liberalism (New York: Columbia University Press, 1996). 5 Sudhir Hazareesingh, Political Traditions in Modern France (Oxford: Oxford University Press, 1994), p. 71. 6 See Paul Weithman, ‘Political Republicanism and Perfectionist Republicanism’, The Review of Politics, 66 (2004). 7 Steven Kautz, ‘The Liberal Idea of Toleration’, American Journal of Political Science, 37 (1993). 8 Ibid., p. 614. 9 Denise Meyerson, ‘Three Versions of Liberal Tolerance: Dworkin, Rawls, Raz’, Jurisprudence, 3 (2012). 10 See especially ‘Discourses’ in Niccolò Machiavelli, The Complete Works and Others, ed. and trans. Allan Gilbert (Durham: Duke University Press, 1965), p. 493. See also V. B. Sullivan, ‘Neither Christian nor Pagan: Machiavelli’s Treatment of Religion in the “Discourses”’, Polity, 26 (1993). 11 Jean-Jacques Rousseau, Du Contrat Social: Principes de Droit Politique (Paris: ENAG 1762/1988) Book IV, Chapter 8.

State and religion in the pluralist republic

217

12 Ibid. 13 Isaiah Berlin, Against the Current: Essays in the History of Ideas (Princeton, NJ: Princeton University Press, 2013), p. 60. 14 459 US 116 (1982). 15 See also Board of Education of Kiryas Joel Village School District v. Grumet 512 US 687 (1994). 16 The First Amendment provides: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ 17 330 US 1, 10–11 (1947). 18 Laurence Tribe, American Constitutional Law (Mineola, NY: Foundation Press, 1988), pp. 1158–9. 19 John Witte, Religion and the American Constitutional Experiment (Emory, CO: Westview Press, 2000), p. 8. 20 Ibid., pp. 35–6. 21 James Madison, The Federalist No. 10 (New York: Clinton Rossiter, 1961), p. 78. 22 See generally Christopher Eisgruber, ‘Madison’s Wager’, Northwestern University Law Review, 89 (1995). 23 Ibid., p. 349. 24 Ibid., p. 350. 25 Ibid., p. 369. 26 Alexis de Tocqueville, Democracy in America, ed. Kramnick, trans. Bevan (London: Penguin, 2003). 27 Larkin v. Grendel’s Den 459 US 116 (1982), 126, quoting Watson v. Jones 13 Wall. 679 (1872), 730. 28 330 US 1, 9 (1947). 29 330 US 1, 10–11 (1947). He also noted that this view of taxation supporting religion as inimical to liberty of conscience was reflected in the preamble to the 1776 Virginia Bill for Religious Liberty, which stated: ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern’. The Bill itself provided: ‘That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened, in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.’ 330 US 1, 13 (1947). 30 343 US 306 (1952). 31 343 US 306, 312 (1952) (emphasis added). 32 Laura Underkuffler, ‘Public Funding for Religious Schools: Difficulties and Dangers in a Pluralistic Society’, Oxford Review of Education, 27 (2001). 33 403 US 602, 622 (1971). 34 Van Orden v. Perry 545 US 677, 694 (2005).

218

Republican society

35 Noah Feldman, Divided by God – America’s Church–State Problem – And What We Should Do About It (New York: Strauss and Giroux, 2005). 36 Ibid., and Rawls, Political Liberalism. 37 Daniel Brudney, ‘On Non-coercive Establishment’, Political Theory 33 (2005). 38 Lynch v. Donnelly, 465 US 668 (1984). 39 Sune Laegaard, ‘Secular Religious Establishment: a Framework for Discussing the Compatibility of Institutional Religious Establishment with Political Secularism’, Philosophy and Public Issues, 3 (2013). 40 Brudney, ‘On Non-coercive Establishment’. 41 John Maurice Kelly, ‘Constitution: Law and Manifesto’, in Frank Litton, The Constitution of Ireland: 1937–1987 (Dublin: Institute of Public Administration, 1988), pp. 208–17. 42 John Whyte, Church and State in Modern Ireland (Dublin: Gill and Macmillan, 1980), p. 51. 43 Corway v. Independent Newspapers [1999] 4 IR 484, 499. 44 Desmond Clarke, ‘Ireland: A Republican Democracy, a Theocracy or a Judicial Oligarchy?’, Irish Law Times, 29 (2011), p. 83. 45 Norris v. Attorney General [1984] IR 36. 46 Gerhard Robbers (ed.), Church and State in the European Union (Baden-Baden: Nomos, 2005). Indeed, in Darby v. Sweden (application no 11581/85, 1990), the European Court of Human Rights confirmed that the mere fact of an established Church, supported by taxation, did not in itself violate freedom of thought, conscience and religion under Article 9 of the European Convention on Human Rights. 47 In Campaign to Separate Church and State v. Minister for Education [1998] 3 IR 321, Justice Barrington observed, at 351, in relation to the drafting discussions: ‘some Roman Catholic lay men and clerics were tempted by the idea of establishing a model Catholic state in Southern Ireland’. However, ‘they did not claim to have the Roman Catholic Church established on the model of the Church of England’. Instead, they ‘did wish to have the Roman Catholic Church “recognised” as the one true church.’See more generally Dermot Keogh and Andrew McCarthy, The Making of the 1937 Constitution (Cork: Mercier, 2007), p. 153. 48 Whyte, Church and State in Modern Ireland, p. 15. 49 John Joseph Lee, The Modernisation of Irish Society 1848–1914 (Dublin: Gill and Macmillan, 1973), p. 47. 50 The Irish Church Act 1869 begins with the recital: ‘Whereas it is expedient that the union created by Act of Parliament between the Churches of England and Ireland, as by law established, should be dissolved, and that the Church of Ireland, as so separated, should cease to be established by law, and that after satisfying, so far as possible, upon principles of equality as between the several religious denominations in Ireland, all just and equitable claims, the property of the said Church of Ireland, or the proceeds thereof, should be applied in such manner as Parliament shall hereafter direct’. 51 In Campaign to Separate Church and State v. Minister for Education [1998] 3 IR 321, Justice Barrington observed that, for reasons that are unclear, the prohibition on the

State and religion in the pluralist republic

52

53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70

71 72 73

219

‘establishment’ as well as the ‘endowment’ of religion that had been contained in the Government of Ireland Act 1920 was not repeated in the Anglo-Irish Treaty of 1921, and therefore did not carry over, in turn, into the Constitutions of 1922 and 1937. Nonetheless, he noted (at 351)  that ‘establishment’ was rendered impossible by the confluence of the different constitutional provisions: ‘Why the express prohibition on the establishment of any religion was dropped is not quite clear. But presumably it was because the combined effect of the ban on the endowment of any religion and the prohibition of the granting of any preference on the grounds of religious belief or status was to make an express ban on establishment unnecessary.’ Witte, American Constitutional Experiment, p. 74. The establishment clause went beyond prohibiting the outright ‘establishment’ of a single religion in the limited historical sense of the institutionalisation of a single favoured sect. Instead, it was ‘broadly defined as a general guarantee of religious equality, liberty of conscience, and separation of church and state’. [1998] 3 IR 321. Ibid., 357. Ibid., 358. Ibid., 356. Ibid., 357. Ibid. Ibid., 365. Gerard Hogan and Gerry Whyte, J M Kelly:The Irish Constitution (Dublin: Butterworths, 2003), para. 7.8.72. Campaign to Separate Church and State v. Minister for Education [1998] 3 IR 321, 354. Ibid., 359. Ibid., 358. Daly, Religion, Law and the Irish State, Chapter 7. There is a valuable discussion on constitutional interpretation in Gerard Hogan, ‘Constitutional Interpretation’, in Litton, The Constitution of Ireland. Underkuffler, ‘Public Funding for Religious Schools’, p. 587. Frank Ravitch, Masters of Illusion: The Supreme Court and the Religion Clauses (New York: New York University Press, 2007), p. 83. 505 US 577, 689 (1992), 608–9 (emphasis added). [1998] 3 IR 321, 358. See e.g. Michael McConnell, ‘The Origins and Understanding of Free Exercise of Religion’, Harvard Law Review, 103 (1990); Douglas Laycock, ‘Formal, Substantive, and Disaggregated Neutrality Towards Religion’, DePaul Law Review, 39 (1990) Richard Garnet, ‘Assimilation, Toleration and the State’s Interest in the Development of Religious Doctrine’, UCLA Law Review, 51 (2004). See generally Eisgruber, ‘Madison’s Wager’. See generally Lee, The Modernisation of Irish Society. Cited in Philip Pettit, ‘The Tree of Liberty: Republicanism, American, French and Irish’, Field Day Review, 1 (2005) p. 40.

220

Republican society

74 Kevin Whelan, ‘Republicanism: The Legacy of the United Irishmen’, in Robert Savage (ed.), Ireland in the New Century (Dublin: Four Courts Press, 2003), p. 97. 75 Cited in Gearoid Ó Tuathaigh, Ireland Before the Famine 1798–1848 (Dublin: Gill and Macmillan, 1972), p. 11 (emphasis added). 76 Theobald Wolfe Tone, Memoirs of Theobald Wolfe Tone (London: Henry Colburn, 1827), vol. 1, p. 65. 77 Keogh and McCarthy, The Making of the Irish Constitution, pp. 164–5. 78 Article 15 of the Anglo-Irish Treaty provided: ‘neither the Parliament of Ireland nor any subordinate legislature in Ireland shall make any law so as either directly or indirectly to endow any religion’. The Government of Ireland Act 1920, which was intended to provide for ‘Home Rule’ but never came into force, had also repeated the provisions of the Government of Ireland Act 1914, which had prohibited the Southern Irish Parliament from establishing or endowing any religion. Section 5 of the 1914 and 1920 Acts provided: ‘In the exercise of their power to make laws under this Act neither the Parliament of Southern Ireland nor the Parliament of Northern Ireland shall make a law so as either directly or indirectly to establish or endow any religion, or prohibit or restrict the free exercise thereof, or give a preference, privilege, or advantage, or impose any disability or disadvantage, on account of religious belief or religious or ecclesiastical status, or make any religious belief or religious ceremony a condition of the validity of any marriage, or affect prejudicially the right of any child to attend a school receiving public money without attending the religious instruction at that school, or alter the constitution of any religious body except where the alteration is approved on behalf of the religious body by the governing body thereof, or divert from any religious denomination the fabric of cathedral churches, or, except for the purpose of roads, railways, lighting, water, or drainage works, or other works of public utility upon payment of compensation, any other property, or take any property without compensation.’ 79 Re Article 26 and the Employment Equality Bill 1996 [1997] 2 IR 321. 80 Ó Tuathaigh, Ireland before the Famine, p. 50. 81 Whelan, ‘The Legacy of the United Irishmen’, p. 113. 82 [1998] 3 IR 321, 349. 83 Ibid. 84 Zorach v. Clauson 343 US 306, 313 (1952). The court noted ‘an unbroken history of official acknowledgment … of the role of religion in American life’, and recognised that such references to ‘our religious heritage’ are constitutionally acceptable. Lynch v. Donnelly 465 US 668 (1984), 677, 674. 85 Abington School Dist. v. Schempp 374 US 203, 226 (1963). 86 Lee v. Weisman US 577, 6589 (1992). 87 Pettit, ‘Tree of Liberty’, p. 40. 88 Ibid., p. 41.

References Articles Altman, Andrew, ‘Legal Realism, Critical Legal Studies, and Dworkin’, Philosophy and Public Affairs, 15 (1986). Amar, Akhil, ‘The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem’, Colorado Law Review, 65 (1994). Andrews, Paul, ‘Pluralism Revisited’, Studies: An Irish Quarterly Review, 83 (1994). Balkin, Jack, ‘Taking Ideology Seriously: Ronald Dworkin and the CLS Critique’, UMKC Law Review, 55 (1987). Banda, Sibo, ‘Taking Indirect Horizontality Seriously in Ireland: A Time to Magnify the Nuance’, Dublin University Law Journal, 31 (2009). Barrett, Richard, ‘Church and State in Light of the Report of the Irish Constitution Review Group’, Dublin University Law Journal, 5 (1998). Brown, Wendy, ‘Civilisation Delusions: Secularism, Tolerance, Equality’, Theory and Event, 15 (2012). Brudney, Daniel, ‘On Non-coercive Establishment’, Political Theory, 33 (2005). Burtt, Shelley, ‘The Good Citizen’s Psyche: on the Psychology of Civic Virtue’, Polity, 23 (1990). Cahillane, Laura, ‘Anti-Party Politics in the Irish Free State Constitution’, Dublin University Law Journal, 35 (2012). Carolan, Eoin, ‘Between Supremacy and Submission: A Model of Collaborative Constitutionalism’, (unpublished, on file with the authors). Chirwa, Danwood, ‘The Horizontal Application of Constitutional Rights in a Comparative Perspective’, Law, Democracy and Development, 10 (2006). Christman, John, ‘Liberalism and Individual Positive Freedom’, Ethics, 101 (1991). Clark, Sherman, ‘A Populist Critique of Direct Democracy’, Harvard Law Review, 112 (1998). Clarke, Desmond, ‘Ireland: A Republican Democracy, a Theocracy or a Judicial Oligarchy?’, Irish Law Times, 29 (2011). ———‘The Role of Natural Law in Irish Constitutional Law’, Irish Jurist, 17 (1982).

222

References

Coffey, Donal, ‘Judicial Review in the Irish Free State’, Dublin University Law Journal, 33 (2011). Cohen, Joshua, ‘Reflections on Habermas on Democracy’, Ratio Juris, 4 (1999). ———‘Truth and Public Reason’, Philosophy & Public Affairs, 37 (2009). Colón-Ríos, Joel, ‘De-Constitutionalizing Democracy’, California Western Law Review, 47 (2010) Dagger, Richard, ‘Neo-republicanism and the Civic Economy’, Politics, Philosophy, Economics, 5 (2006). Daly, Eoin, ‘Austerity and Stability in Rousseau’s Constitutionalism’, Jurisprudence, 2 (2013). ———‘Freedom of Association Through the Prism of Gender Quotas in Politics’, Irish Jurist, 47 (2012). ———‘Narratives of Constitutional Identity in the Republic of Ireland’, Etudes Irlandaises, 2 (2011). ———‘Non-domination as a Primary Good: Re-thinking the Frontiers of the “Political” in Rawls’ Political Liberalism’, Jurisprudence, 2 (2011). ———‘Religious Freedom as a Function of Power Relations: Dubious Claims on Pluralism in the Denominational Schools Debate’, Irish Educational Studies, 28 (2009). Daly, Eoin and Hickey, Tom, ‘Religious Freedom and the “Right to Discriminate” in the School Admissions Context: a Neo-republican Critique’, Legal Studies, 31 (2011). Dworkin, Ronald, ‘Justice Sotoyamor: the Unjust Hearings’, New York Review of Books, 24 September 2009. ———‘Rawls and the Law’, Fordham Law Review, 72 (2003–4). Eisgruber, Christopher, ‘Civic Virtue and the Limits of Constitutionalism’, Fordham Law Review, 69 (2001). ———‘Madison’s Wager’, Northwestern University Law Review, 89 (1995). Farrell, Brian, ‘The Drafting of the Irish Free State Constitution’, Irish Jurist, 5 (1970). Freeman, Samuel, ‘Original Meaning, Democratic Interpretation and the Constitution’, Philosophy & Public Affairs, 21 (1992). ———‘The Idea of Public Reason Revisited: Public Reason and Political Justifications’, Fordham Law Review, 72 (2003–4). Frey, Bruno and Goette, Lorenz, ‘Does the Popular Vote Destroy Civil Rights?’, American Journal of Political Science, 42 (1998). Garnet, Richard, ‘Assimilation, Toleration and the State’s Interest in the Development of Religious Doctrine’, UCLA Law Review, 51 (2004). Goldini, Marco, ‘Two Internal Critiques of Political Constitutionalism’, International Journal of Constitutional Law, 10 (2013). Goodin, Robert, ‘Folie Républicaine’, Annual Review of Political Science, 6 (2003). Griffith, John, ‘The Political Constitution’, Modern Law Review, 42 (1979). Grimm, Dieter, ‘Conflicts Between General Laws and Religious Norms’, Cardozo Law Review, 30 (2009). Guttman, Julia, ‘Primary Elections and the Collective Right of Freedom of Association’, Yale Law Journal, 94 (1984).

References

223

Habermas, Jurgen, ‘Remarks on Legitimation through Human Rights’, Philosophy and Social Criticism, 24 (1998). Haider-Markel, Donald, Querze, Alana and Lindaman, Kara, ‘Lose, Win, or Draw?: A Reexamination of Direct Democracy and Minority Rights’, Political Research Quarterly, 60 (2007). Halmai, Gábor, ‘Unconstitutional Constitutional Amendments: Constitutional Courts as Guardians of the Constitution?’, Constellations, 19 (2012). Hayward, Clarissa, ‘Doxa and Deliberation’, Critical Review of International Social and Political Philosophy, 7 (2004). Hyland, Áine, ‘Education in Post-Christian Ireland’, Irish Review, 27 (2001). Issacharoff, Samuel, ‘Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition’, Columbia Law Review, 101 (2001). Ivison, Duncan, ‘Republican Human Rights?’, European Journal of Political Theory, 9 (2010). Jubb, Robert, ‘Rawls and Rousseau: Amour-Propre and the Strains of Commitment’, Res Publica, 17 (2011). Kautz, Steven, ‘The Liberal Idea of Toleration’, American Journal of Political Science, 37 (1993). Kavanagh, Aileen, ‘Natural Law, Christian Values and the Ideal of Justice’, Irish Jurist, 48 (2012). Laborde, Cécile, ‘On Republican Toleration’, Constellations, 9 (2002). ———‘Secular Philosophy and Muslim Headscarves in Schools’, Journal of Political Philosophy, 13 (2005). Laegaard, Sune, ‘Secular Religious Establishment: a Framework for Discussing the Compatibility of Institutional Religious Establishment with Political Secularism’, Philosophy and Public Issues, 3 (2013). Larmore, Charles, ‘A Critique of Philip Pettit’s Republicanism’, Philosophical Issues, 11 (2001). Laycock, Douglas, ‘Formal, Substantive, and Disaggregated Neutrality towards Religion’, DePaul Law Review, 39 (1990). Lee, Patrick and George, Robert, ‘The Nature and Basis of Human Dignity’, Ratio Juris, 21 (2008). Macedo, Stephen, ‘Liberal Civic Education and Religious Fundamentalism: The Case of God v John Rawls?’, Ethics, 105 (1995). Maynor, John, ‘Without Regret: the Comprehensive Nature of Non-domination’, Politics, 22 (2002). McAuslan, Patrick, ‘Administrative Law, Collective Consumption and Judicial Policy’, Modern Law Review, 46 (1983). McConnell, Michael, ‘The Origins and Understanding of Free Exercise of Religion’, Harvard Law Review, 103 (1990). Meyerson, Denise, ‘Three Versions of Liberal Tolerance: Dworkin, Rawls, Raz’, Jurisprudence, 3 (2012). Michelman, Frank, ‘Conceptions of Democracy in American Constitutional Argument: Voting Rights’, Florida Law Review, 41 (1989).

224

References

———‘Foreword: Traces of Self-Government’, Harvard Law Review, 100 (1986). ———‘Law’s Republic’, Yale Law Journal, 97 (1998). Moeckli, Daniel, ‘Of Minarets and Foreign Criminals: Swiss Direct Democracy and Human Rights’, Human Rights Law Review, 11 (2011). Mullally, Siobhán, ‘Searching for Foundations in Irish Constitutional Law’, Irish Jurist, 33 (1998). Neuhouser, Frederick, ‘Freedom, Dependence and the General Will’, Philosophical Review, 102 (1993). Nordahl, Richard, ‘Rousseau in Dworkin: Judicial Rulings as Expressions of the General Will’, Legal Theory, 3 (1997). O’Cinneide, Colm, ‘The People are the Masters: the Paradox of Constitutionalism and the Uncertain Status of Popular Sovereignty within the Irish Constitutional Order’, Irish Jurist, 48 (2012). O’Connell, Rory, ‘Theories of Religious Education in Ireland’, Journal of Law and Religion, 14 (1999). O’Dowd, T. John, ‘Remembering the Constitution: The Easter Proclamation and Constitutionalism in Independent Ireland’, UCDWorking Papers in Law, Criminology & SocioLegal Studies Research Paper No. 36/2010, 3 August 2010, available at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=1652843 (accessed 9 December 2014). O’Mahony, Conor, ‘Principled Expediency: How the Irish Courts Can Compromise on Same-Sex Marriage’, Dublin University Law Journal, 35 (2012). ———‘Societal Change and Constitutional Interpretation’, Irish Journal of Legal Studies, 71 (2010). O’Neill, Timothy, ‘Liberal Constitutionalism & Bureaucratic Discretion’, Polity, 20 (1988). Olson, Kevin, ‘Legitimate Speech and Hegemonic Idiom: The Limits of Deliberative Democracy in the Diversity of its Voices’, Political Studies, 59 (2011). Pestritto, Ronald, ‘The Progressive Origins of the Administrative State’, Social Philosophy and Policy, 24 (2007). Pettit, Philip, ‘The Consequentialist Can Recognise Rights’, Philosophical Quarterly, 35 (1988). ———‘The Tree of Liberty: Republicanism, American, French and Irish’, Field Day Review, 1 (2005). Pincione, Guido, ‘The Constitution of Non-domination’, Social Philosophy and Policy, 28 (2011). Pitkin, Hannah, ‘Justice: On Relating Private and Public’, Political Theory, 9 (1981). Quinn, Gerard, ‘The Rise and Fall of Natural Law in Irish Constitutional Adjudication’, American Philosophical Association Newsletter, 1 (2000). Rawls, John, ‘Justice as Fairness: Political not Metaphysical’, Philosophy and Public Affairs, 14 (1985). ———‘The Idea of an Overlapping Consensus’, Oxford Journal of Legal Studies, 7 (1987). ———‘The Idea of Public Reason Revisited’, University of Chicago Law Review, 64 (1997). Schachter, Jane, ‘The Pursuit of “Popular Intent”: Interpretive Dilemmas in Direct Democracy’, Yale Law Journal, 95 (1995).

References

225

Shapiro, Ian, ‘On Non-domination’, University of Toronto Law Journal, 62 (2012). Shumer, Sara, ‘Republican Politics and its Corruption’, Political Theory, 7 (1979). Sinnott, Richard,‘Cleavages, Parties and Referendums: Relationships between Representative and Direct Democracy in the Republic of Ireland’, European Journal of Political Research, 41 (2003). Stolzenberg, Nomi M., ‘“He Drew a Circle that Shut Me Out”: Assimilation, Education and the Paradox of Liberal Education’, Harvard Law Review, 106 (1993). Strom, Kaare, ‘Parliamentary Committees in European Democracies’, Journal of Legislative Studies, 4 (1998). Sullivan, V. B., ‘Neither Christian nor Pagan: Machiavelli’s Treatment of Religion in the “Discourses”’, Polity, 26 (1993). Sunstein, Cass, ‘Beyond the Republican Revival’, Yale Law Journal, 97 (1988). ———‘Interest Groups in American Public Law’, Stanford Law Review, 38 (1985). Tierney, Stephen, ‘Constitutional Referendums: A Theoretical Inquiry’, Modern Law Review, 72 (2009). Tomkins, Adam, ‘The Role of the Courts in the Political Constitution’, University of Toronto Law Journal, 60 (2011). Tushnet, Mark, ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles’, Harvard Law Journal, 96 (1983). Underkuffler, Laura, ‘Public Funding for Religious Schools: Difficulties and Dangers in a Pluralistic Society’, Oxford Review of Education, 27 (2001). Unger, Roberto, ‘The Critical Legal Studies Movement’, Harvard Law Review, 96 (1983). Waldron, Jeremy, ‘The Core of the Case against Judicial Review’, Yale Law Journal, 115 (2006). Weithman, Paul, ‘Political Republicanism and Perfectionist Republicanism’, The Review of Politics, 66 (2004). West, Ellis, ‘The Case against a Right to Religion-based Exemptions’, Notre Dame Journal of Ethics and Public Policy, 4 (1990).

Chapters in books Chubb, Basil, ‘Constitutional Myth and Political Practice’ in Farrell, Brian (ed.), De Valéra’s Constitution and Ours (Dublin: Gill and MacMillan, 1988). Constant, Benjamin, ‘De la Liberté des Anciens Comparée à celle des Modernes’, in Constant, Benjamin, Ecrits Politiques (Paris: Gallimard/Folio, 1997). Gallagher, Michael, ‘The Oireachtas: President and Parliament’, in Coakley, John and Gallagher, Michael, Politics in the Republic of Ireland (London: Routledge, 2012). Garvin, Tom, ‘An Irish Republican Tradition?’, in Honohan, Iseult (ed.), Republicanism in Ireland: Confronting Theories and Traditions (Manchester: Manchester University Press, 2008). Hickey, Tom, ‘Civic Virtue, Autonomy and Religious Schools’, in O’Toole, Fintan (ed.), Up the Republic! Towards a New Ireland (London: Faber and Faber, 2012).

226

References

———‘Our Constitution and Our Politics:Why Political Culture Matters and Constitutional Text Does Not’, in Dorgan, Theo (ed.), Foundation Stone: Notes Towards a Constitution for a 21st Century Republic (Dublin: New Island Books, 2014). Hogan, Gerard, ‘A Desert Island Case set in the Silver Sea: The State (Ryan) v. Lennon’, in O’Dell, Eoin (ed.), Leading Cases of the Twentieth Century (London: Sweet & Maxwell, 2000). ———‘Constitutional Interpretation’, in Litton, Frank, The Constitution of Ireland: 1937– 1987 (Dublin: Institute of Public Administration, 1988). Honohan, Iseult, ‘Educating Citizens: Nation-Building and its Republican Limits’, in Jennings, Jeremy and Honohan, Iseult (eds), Republicanism in Theory and Practice (London: Routledge, 2005). ———‘Republicans, Rights and Constitutions: Is Judicial Review Compatible with Republican Self-Government’, in Besson, Samantha and Marti, José-Luis (eds), Legal Republicanism: National and International Perspectives (Oxford: Oxford University Press, 2009). ———‘The Common Good and the Politics of Community’, in Dunne, Joseph, Ingram, Attracta and Litton, Frank (eds), Questioning Ireland: Debates in Political Philosophy and Public Policy (Dublin: Institute of Public Administration, 2000). Kelly, John Maurice, ‘Constitution: Law and Manifesto’, in Litton, Frank, The Constitution of Ireland: 1937–1987 (Dublin: Institute of Public Administration, 1988). Kennedy, Hugh, ‘Foreword’, in Kohn, Leo, The Constitution of the Irish Free State (London: George Allen & Unwin, 1932). Kissane, Bill, ‘Is the Irish Referendum Majoritarian?’, in Marxer, Wilfried (ed.), Direct Democracy and Minorities (London: Springer, 2012). Kramer, Matt, ‘Liberty and Domination’, in Laborde, Cécile and Maynor, John (eds), Republicanism and Political Theory (London: Blackwell, 2008) Loughlin, Martin and Walker, Neil, ‘Introduction’ in Loughlin, Martin and Walker, Neil, (eds), The Paradox of Constitutionalism (Oxford: Oxford University Press, 2007). Martin, Shane, ‘Monitoring Irish Government’, in O’Malley, Eoin and MacCarthaigh, Muiris (eds), Governing Ireland (Dublin: Institute of Public Administration, 2011). ———‘The Committee System’, in MacCarthaigh, Muiris and Manning, Maurice (eds), The Houses of the Oireachtas (Dublin: Institute of Public Administration, 2010). McNally, Mark, ‘Séan O’Faoláin’s Discourse of “The Betrayal of the Republic” in MidTwentieth Century Ireland’, in Jennings, Jeremy and Honohan, Iseult (eds), Republicanism in Theory and Practice (London: Routledge, 2005). Murphy, John A., ‘The 1937 Constitution – Some Historical Reflections’, in Murphy, Tim and Twomey, Patrick (eds), Ireland’s Evolving Constitution 1937–97: Collected Essays (Oxford: Hart Publishing, 1998). O’Callaghan, Margaret, ‘Reconsidering the Republican tradition in Nineteenth-century Ireland’, in Honohan, Iseult (ed.), Republicanism in Ireland: Confronting Theories and Traditions (Manchester: Manchester University Press, 2008). O’Cinnéide, Colm, ‘Irish Constitutional Law and Direct Horizontal Effect’, in Oliver, Dawn and Fedtke, Jorg (eds), Human Rights and the Private Sphere: A Comparative Study (Oxford: Routledge, 2007).

References

227

Pettit, Philip, ‘Deliberative Democracy, the Discursive Dilemma and Republican Theory’, in Fishkin, James and Laslett, Peter (eds), Philosophy, Politics and Society, vol. 7 (New York: Cambridge University Press, 2003). ———‘Democracy: Electoral and Contestatory’, in Shapiro, Ian and Macedo, Stephen (eds), Designing Democratic Institutions: Nomos XLII (New York: New York University Press, 2000). Pettit, Philip, ‘Law and Liberty’, in Besson, Samantha and Marti, José-Luis (eds), Legal Republicanism: National and International Perspectives (Oxford: Oxford University Press, 2009). Quinn, Gerard, ‘Dangerous Constitutional Moments: The “Tactic of Legality” in Nazi Germany and the Irish Free State Compared’, in Morison, John, McEvoy, Kieran and Anthony, Gordon (eds), Judges, Transition and Human Rights (Oxford: Oxford University Press, 2007). Rousseau, Jean-Jacques, ‘Considerations on the Government of Poland’, in Watkins, Frederick (ed.), Jean-Jacques Rousseau: Political Writings (New York: Thomas Yelsen, 1953). Spitz, Jean-Fabien, ‘The défense républicaine: Some Remarks about the Specificity of French Republicanism’, in Besson, Samantha and Marti, José-Luis (eds), Legal Republicanism: National and International Perspectives (Oxford: Oxford University Press, 2009). Tomkins,Adam,‘Crown Privileges’, in Sunkin, Maurice and Payne, Sebastian (eds), The Nature of the Crown: A Legal and Political Analysis (Oxford: Oxford University Press, 1999). Whelan, Kevin, ‘Republicanism: The Legacy of the United Irishmen’, in Savage, Robert (ed.), Ireland in the New Century (Dublin: Four Courts Press, 2003).

Books Arendt, Hannah, The Promise of Politics (Berlin: Schocken, 2007). Aristotle, Nicomachean Ethics, trans.Terence Irwin (Indianapolis, IN: Hackett, 1985). Bagehot, Walter, The English Constitution (London: C. A. Watts & Co. Ltd., 1867). Barker, Ernest, The Politics of Aristotle (Oxford: Oxford University Press, 2009). Bellamy, Richard, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007). Bentham, Jeremy, TheWorks of Jeremy Bentham: Published under the Superintendence of His Executor, John Bowring, vol. 2 (Edinburgh: William Tait, 1843). Berlin, Isaiah, Against the Current: Essays in the History of Ideas (Princeton, NJ: Princeton University Press, 2013). ———Two Concepts of Liberty (Oxford: Clarendon, 1958). Callan, Eamon, Creating Citizens: Political Education and Liberal Democracy (Oxford: Oxford University Press, 2004). Casey, James, Constitutional Law in Ireland (Dublin: Round Hall Sweet & Maxwell, 2000). Chubb, Basil, The Constitution and Constitutional Change in Ireland (Dublin: Institute of Public Administration, 1978). Cicero, On Duties (Cambridge: Cambridge University Press, 1999).

228

References

Coolahan, John, Irish Education:History and Structure (Dublin: Institute of Public Administration, 1981). Dagger, Richard, Civic Virtues: Rights, Citizenship and Republican Liberalism (Oxford: Oxford University Press, 1997). Daly, Eoin, Religion, Law and the Irish State (Dublin: Clarus, 2012). de Londras, Fiona and Kelly, Cliodhna, European Convention on Human Rights Act: Operation, Impact and Analysis (Dublin: Round Hall, 2010). de Tocqueville, Alexis, Democracy in America, ed. Kramnick, trans. Bevan (London: Penguin, 2003). Dicey, Albert, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1897). Dodd, David, Statutory Interpretation in Ireland (Dublin: Tottel, 2008). Dooney, Seán and O’Toole, John, Irish Government Today (Dublin: Gill and McMillan, 2009). Doyle, Oran, Constitutional Law: Cases,Texts and Materials (Dublin: Clarus, 2008). Duclerc, Vincent and Prochasson, Christophe, Dictionnaire Critique de la République (Paris: Flammarion, 2002). Durand, Béatrice, La Nouvelle Idéologie Française (Paris: Editions Stock, 2010). Duverger, Maurice, Political Parties:Their Organization and Activity in the Modern State, trans. B. and R. North (London: Metheun & Co. Ltd., 1951). Dworkin, Ronald, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985). ———Freedom’s Law:The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996). ———Law’s Empire (Cambridge, MA: Harvard University Press, 1986). ———Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978). Eisgruber, Christopher and Sager, Lawrence, Religious Freedom and the Constitution (Cambridge, MA: Harvard University Press, 2007). Endicott, Timothy, Administrative Law (Oxford: Oxford University Press, 2011). Feldman, Noah, Divided by God – America’s Church–State Problem – AndWhatWe Should Do About It (New York: Strauss and Giroux, 2005). Finnis, John, Natural Law and Natural Rights (Oxford: Oxford University Press, 1990). Fischer, Karin, Ecole et religion: Hiérarchies identitaires et égalité citoyenne en République d’Irlande (Caen: Presses Universitaires de Caen, 2011). Freeman, Samuel, Justice and the Social Contract: Essays in Rawlsian Political Philosophy (Oxford: Oxford University Press, 2007). Gardbaum, Stephen, The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge: Cambridge University Press, 2013). Gauthier, David, Rousseau:The Sentiment of Existence (Cambridge: Cambridge University Press, 2006). Hazareesingh, Sudhir, Political Traditions in Modern France (Oxford: Oxford University Press, 1994). Hickman, Tom, Public Law after the Human Rights Act (Oxford: Hart Publishing, 2010). Higgins, Michael D., Renewing the Republic (Dublin: Liberties Press, 2012). Hobbes,Thomas, Leviathan, ed. MacPherson, Crawford (London: Penguin, 1651/1968).

References

229

Hobbes,Thomas, Leviathan: Or the Matter, Forme, and Power of a Common-Wealth Ecclesiasticall and Civill, ed. by Shapiro, Ian (New Haven, CT:Yale University Press, 2010). Hogan, Gerard, The Origins of the Irish Constitution, 1928–1941 (Dublin: Royal Irish Academy, 2013). Hogan, Gerard and Whyte, Gerry, J M Kelly: The Irish Constitution (Dublin: Butterworths, 2001). Hogg, Peter, Constitutional Law of Canada, 5th edn (Scarborough: Thomson, 2007). Hogg, Quintin, Elective Dictatorship (The Richard Dimbleby Lecture) (London: British Broadcasting Corporation, 1976). Honohan, Iseult, Civic Republicanism (London: Routledge, 2007). Jacobsohn, Gary, Constitutional Identity (Cambridge, MA: Harvard University Press, 2010). Kavanagh, Aileen, Constitutional Review under the Human Rights Act (Cambridge: Cambridge University Press, 2009). Keogh, Dermot and McCarthy, Andrew, The Making of the 1937 Constitution (Cork: Mercier, 2007). Kock, Adrienne and Peden, William, The SelectedWritings of John and John Quincy Adams (New York: Knopf, 1946). Kohn, Leo, The Constitution of the Irish Free State (London: George Allen & Unwin, 1932). Kymlicka, Will, Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship (Oxford: Oxford University Press, 2001). Laborde, Cécile, Critical Republicanism: The Hijab Controversy and Political Philosophy (Oxford: Oxford University Press, 2008). Lee, John Joseph, The Modernisation of Irish Society 1848–1914 (Dublin: Gill and Macmillan, 1973). Lijphart, Arend, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, 2nd edn (New Haven, CT:Yale University Press, 2012). MacCarthaigh, Muiris, Accountability in Irish Parliamentary Politics (Dublin: Institute of Public Administration, 2005). Machiavelli, Niccolò, The Complete Works and Others, ed. and trans. Allan, Gilbert (Durham: Duke University Press, 1965). Madison, James, The Federalist No. 10 (New York: Clinton Rossiter, 1961). Madison, James, Hamilton, Alexander and Jay, John, The Federalist Papers, ed. Kramnik, I. (London: Penguin, 1987). Mawhinney, Alison, Freedom of Religion and Schools: the Case of Ireland (Saarbrücken: VDM, 2009). Mill, John Stuart, On Liberty (London: John Parker and Son, 1859). Montesquieu, Charles-Louis, Spirit of the Laws (Cambridge: Cambridge University Press, 1748/1989). Moody, Theodore, McDowell, Robert and Woods, Christopher (eds), The Writings of Theobald W   olfe Tone 1763–98:Volume 1 (Oxford: Oxford University Press, 1998). ———(eds), The Writings of Theobald Wolfe Tone 1763–98: Volume 2 (Oxford: Oxford University Press, 2001).

230

References

Morgan, David Gwynn, A Judgment Too Far? Judicial Activism and the Constitution (Cork: Cork University Press, 2001). ———Constitutional Law of Ireland (Dublin: Gill and Macmillan, 1990). Morgan, David Gwynn and Hogan, Gerard, Hogan and Morgan’s Administrative Law (Dublin: Round Hall, 2010). Mueller, Jan-Werner, Constitutional Patriotism (Princeton, NJ: Princeton University Press, 2007). Murphy, Tim and Barden, Garrett, Law and Justice in Community (Oxford: Oxford University Press, 2010). Nicolet, Claude, Histoire, Nation, République (Paris: Odile Jacob, 2000). O’Mahony, Conor, Educational Rights in Irish Law (Dublin: Thomson Round Hall, 2006). O’Sullivan, Denis, Cultural Politics and Irish Education since the 1950s: Policy, Paradigms and Power (Dublin: Institute of Public Administration, 2005). O’Toole, Fintan, Enough is Enough: How to Build a New Republic (Dublin: Penguin, 2010). ———Meanwhile Back at the Ranch:The Politics of Irish Beef (London: Vintage, 1995). O’Toole, Fintan (ed.) Up the Republic! Towards a New Ireland (Dublin: Faber, 2012). Ó Tuathaigh, Gearoid, Ireland before the Famine 1798–1848 (Dublin: Gill and Macmillan, 1972). Oliver, Dawn and Fedtke, Jorg (eds), Human Rights and the Private Sphere: A Comparative Study (Oxford: Routledge, 2007). Peele, Gillian, Governing the UK, 3rd edn (Oxford: Blackwell Publishers, 1995). Pena-Ruiz, Henri, Dieu et Marianne: Philosophie de la Laïcité (Paris: PUF, 1999). Pettit, Philip, Just Freedom: A Moral Compass for a ComplexWorld (London: Norton, 2014). ———On the People’s Terms: A Republican Theory and Model of Democracy (Cambridge: Cambridge University Press, 2013). ———Republicanism: A Theory of Freedom and Government (Oxford: Clarendon Press, 1997). Pocock, John, The Machiavellian Moment (Princeton, NJ: Princeton University Press, 1975). Ravitch, Frank, Masters of Illusion: The Supreme Court and the Religion Clauses (New York: New York University Press, 2007). Rawls, John, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971). ———Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001). ———Lectures on the History of Political Philosophy (Cambridge, MA: Harvard University Press, 2007). ———Political Liberalism (New York: Columbia University Press: 1996). Robbers, Gerhard (ed.), Church and State in the European Union (Baden-Baden: Nomos, 2005). Rousseau, Jean-Jacques, Discours sur l’origine et les fondements de l’inégalité parmi les hommes (Paris: Flammarion, 1755/2008). ———Du Contrat Social, ou Principes du Droit Politique (Paris: ENAG 1762/1988). ———Projet de Constitution pour la Corse (Paris: Nautilus, 2000). Sandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1998). Sartori, Giovanni, Parties and Party Systems: A Framework for Analysis, Volume I (Cambridge: Cambridge University Press, 1976).

References

231

Schumpeter, Joseph, Socialism, Capitalism and Democracy (New York: Harper and Row, 1956). Sellers, Mortimer, American Republicanism: Roman Ideology in the United States Constitution (New York: Macmillan and New York University Press, 1994). Skinner, Quentin, Liberty before Liberalism (Cambridge: Cambridge University Press, 1998). Smith, Daniel and Tolbert, Caroline, Educated by Initiative: The Effects of Direct Democracy on Citizens and Political Organizations in the American States (Ann Arbor, MI: University of Michigan Press, 2004). Taylor, Charles, Sources of the Self (Cambridge, MA: Harvard University Press, 1989). Ternisien, Xavier, Etat et Religions (Paris: Odile, 2007). Tierney, Stephen, Constitutional Referendums: The Theory and Practice of Republican Deliberation (Oxford: Oxford University Press, 2012). Tomkins, Adam, Our Republican Constitution (Oxford: Hart, 2005). Tribe, Laurence, American Constitutional Law (Mineola, NY: Foundation Press, 1988). Turpin, Colin and Tomkins, Adam, British Government and the Constitution, 7th edn (Cambridge: Cambridge University Press, 2011). Van Dijk, Pieter, Van Hoof, Fried and Van Rijn, Arjen (eds), Theory and Practice of the European Convention on Human Rights (The Hague: Kluwer, 1998). Viroli, Maurizio, Republicanism (New York: Hill and Wang, 2002). Walzer, Michael, Spheres of Justice (Oxford: Blackwell, 1985). Ward, Alan, The Irish Constitutional Tradition: Responsible Government and Modern Ireland, 1782– 1992 (Dublin: Irish Academic Press, 1994). Ward, John, Colonial Self-Government:The British Experience 1759–1856 (London: MacMillan, 1976). West, Henry R., An Introduction to Mill’s Utilitarian Ethics (Cambridge: Cambridge University Press, 2004). Whyte, Gerry, Social Inclusion and the Legal System: Public Interest Law in Ireland (Dublin: Institute of Public Administration, 2001). Whyte, John, Church and State in Modern Ireland (Dublin: Gill and Macmillan, 1980). Witte, John, Religion and the American Constitutional Experiment (Emory, CO: Westview Press, 2000). Wolfe Tone, Theobald, Memoirs of TheobaldWolfe Tone (London: Henry Colburn, 1827).

Index abortion, 4, 27, 31, 41, 119, 121, 155–6, 161 Adams, John, 172 Amish, 181 Amour-propre, 62, 176–7 Anglo-Irish Treaty (1921), 5, 23, 214 Aquinas, Thomas, 57, 153 Arendt, Hannah, 11, 177 Aristotle, 11–12, 42, 169, 171, 177, 188 Autonomy, 8, 10, 56, 60, 69–70, 81, 159, 178–84, 199, 208, 215 Bagehot, Walter, 93 Bellamy, Richard, 7, 36, 45–6, 67–8, 126 Bentham, Jeremy, 12, 60–1, 64–5 Bicameralism, 35, 40, 101 Brown, Wendy, 183 Burtt, Shelley, 176–7 by-elections, 120, 151 Callan, Eamon, 181 Canadian Charter of Rights (1982), 129 Catholicism, Roman, 3–4, 57–8, 153, 155, 162, 185–6, 187, 190, 197–8, 208–9, 213–15 Chubb, Basil, 96, 103, 105 Church and State, separation of, ix, 4, 198–200, 204, 208–9, 211 Cicero, 3, 12, 42, 46, 176 civic virtue, 4, 9–10, 14, 169–85 Clarke, Desmond, 57, 207 clientelism, 4, 173, 192 collective cabinet responsibility, 84 committees (parliamentary), 94, 96, 100, 102, 105–8, 127 common good, the, 9, 11–12, 23, 43–7, 63–4, 67, 71, 76, 102, 119, 126, 128, 155, 161–2, 169, 171, 173, 175–6, 178, 190, 192, 200

Commonwealth constitutionalism, 14, 35, 55, 128–34, 178, 191, 198 communitarianism, 6, 9–12 Constant, Benjamin, 13 Constitutional Convention (2012), 33 corruption, 4, 44, 107, 117, 169, 177, 192 culture, 182–4 Cumannn an Gaedhal, 96 Dagger, Richard, 44, 46 Dáil Éireann, 4, 40, 94–6, 103, 105–6, 108, 120, 151, 161–2 Dáil Éireann Constitution (1919), 94 De Valera, Eamon, 3, 5, 24, 33, 96, 102, 214 Declaration of Independence (1919), 3 deliberative democracy, 36 Dicey, Albert, 75 direct democracy, 30, 33–4, 36–8, 40, 42–3 discrimination, 79–83, 148, 206 Doyle, Oran, 151 Dworkin, Ronald, 152–5, 158–9, 160 education, 169–92 Eisgruber, Christopher, 150 European Convention on Human Rights, 71, 76, 130, 135 European Court of Human Rights, 70 extern ministers, 94–6 factions, 43, 45, 65, 84, 99–101, 104, 107, 109, 124, 126, 128, 131, 133–4, 169, 173–4, 176, 178, 187–91, 203 Fixed Term Parliament Act (2011), 95 Florence, 177 France, 2, 7, 175, 190, 200 constitution of 1958, 27 freedom of association, 56, 70, 82, 160

Index

freedom of expression, 23, 28, 56, 68–71, 76, 82, 116 freedom of religion, 70, 72, 82–3, 187, 202, 207 Garvin, Tom, 3, 172 Germany, 122 Goodin, Robert, 9–10, 178 Greece, Ancient, 170 Harrington, James, 65, 176 Hazareesingh, Sudhir, 200 Higgins, Michael D., 4 Hobbes, Thomas, 12, 57, 61–5, 97, 123, 162 Honohan, Iseult, 175, 178 Human Rights Act (1998), 105, 130, 134–5 humanism, 9–11, 180 interpretation, constitutional, 145–63 interpretivism, 145–56, 158–61 Irish Free State, 5, 23, 40, 92, 94–5, 117–22, 207 Jefferson, Thomas, 203 judicial supremacy, 128–35 Kant, Immanuel, 63 Kavanagh, Aileen, 58 Laborde, Cécile, 175, 188 legal constitutionalism, 45, 67, 123, 126 liberalism, 55, 62, 65, 77, 157, 184, 205–6 comprehensive, 181–2 neo-, 4 Locke, John, 1, 6, 55, 57, 62, 97, 123 Locus standi, 74 Maastricht Treaty, 26 MacCarthaigh, Muiris, 106 Machiavelli, 2, 65, 172, 177, 201 Madison, James, 36, 43, 176–8, 203 marriage, same-sex, 4, 135 Maynor, John, 171, 174, 180 military service, 170, 175 military tribunals, 40, 118, 121 mixed constitution/mixed government, 35, 42, 48, 101, 124 Montesquieu, 1, 170, 180

233

natural justice, 77 natural law, 118–19, 123, 146, 152–7, 160–1, 163, 198 Nazism, 122 New Zealand, 129 Nussbaum, Martha, 205 O’Callaghan, Margaret, 3 O’Cinneide, Colm, 23, 28, 45 O’Faoláin, Seán, 3 O’Mahony, Conor, 135 O’Sullivan, Denis, 185–6 O’Toole, Fintan, 4 Oireachtas, the, 23–5, 32, 40, 92, 95, 103, 106, 117, 121, 134–5 originalism, 147 Pacem in Terris, 58 Parliamentary inquiries, 40 Pettit, Philip, vii, 12, 27, 35–9, 41–3, 63, 65–6, 78, 98–102, 123–4, 133, 215 plebiscites, 21, 24, 26, 31, 33, 34–8, 41, 48 political constitutionalism, 91–2, 109, 115–16, 125, 131–2, 135, 157, 159 popular initiative, 23, 32, 34, 37–41, 46–7 Presbyterianism, 197, 215 Presidentialism, 82, 104, 107 privacy, 56, 58–9, 71, 78, 118, 207 proportional representation, 40 proportionality, 71, 76, 135 public reason, 44, 108, 146 Quinn, Gerard, 122 Rawls, John, 157–60, 169, 171–2, 181, 204 referendums, 13, 21–48 religion civil religion, 179, 201, 203 denominations, 80–1, 184–91 endowment of, 208–15 establishment of, 202–13 sectarianism, 77, 188–9, 202–5, 209, 211, 213–14 Renaissance, the, 1, 6, 12, 55, 65 ritual, 3, 62, 172, 197, 201 Roman republic, 7, 12, 35, 43, 62, 64 Rousseau, Jean-Jacques, 1–3, 9, 35, 43–4, 62–4, 67, 175, 176–7, 179, 201

234

Sandel, Michael, 11 sexual orientation, 81, 99, 124 Skinner, Quentin, 12, 64–5 social contract, 57, 63, 97, 152, 162, 179 social justice, 67 sovereignty national, 1, 3 of the people, ix, 1, 5, 8, 13, 21–48, 56–7, 59–61, 64, 96, 103, 119, 121 parliamentary, 23, 121, 128 Spitz, Jean-Fabien, 180 Switzerland, 32 Taoiseach, the, 1–3, 4, 120, 151 Taylor, Charles, 11 Tierney, Stephen, 29–30, 33, 42 Tocqueville, Alexis de, 203 Tomkins, Adam, 7, 36, 45, 92

Index

Tone, Wolfe, ix, 3, 197, 213–15 United Irishmen, 213–14, 216 United Kingdom, 2, 6–7, 129 United States, 2, 6–7, 9, 29, 55, 147, 155, 202, 212, 215 Utilitarianism, 60–2, 115, 158 Vatican, the, 4, 208 Virginia Bill for Religious Liberty (1786), 203 Viroli, Maurizio, 177 Weimar Constitution, 122 Weithman, Paul, 172 Westminster, 13, 23–4, 39–41, 91–6, 99, 103–8 World War II, 128 Wright Committee report (2009), 107