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Response to Review of New Beginnings: Constitutionalism & Democracy in Modern Ireland

In his close reading of my book Michael Kerr sees in the organisation of the chapters a central theme, ‘revolution incomplete’. These focussed on five discrete constitutional moments that were largely responses to the inadequacy of what had gone before. Sinn Féin’s 1919 constitution,  intended to symbolise the birth of an Irish Republic, involved a marked rejection of the Home Rule tradition which had dominated Irish political life for decades. Those who drafted the 1922 constitution did so for a state which fell far short of that 32-county Republic, although remaining committed to the 1921 Anglo-Irish Treaty as ‘a stepping stone’ to full independence. The limitations of the 1920–2 settlement, which partitioned Ireland, were a main motivation for Eamon de Valera’s replacement of the 1922 constitution with  Bunreacht na hÉireann (the current Irish constitution) in 1937. By 1972, after the collapse of Northern Ireland’s system, that constitution had become an insufficient basis for moving towards a united Ireland (the nationalist option) or changing relations with the Unionists (the revisionist option). Thirty years of amendments followed, culminating in the acceptance of the Good Friday Agreement in 1998, an agreement which required the southern electorate to revise the claim on Northern Ireland made in 1937.

These  turning-points in Ireland’s modern constitutional history were ‘New beginnings’ in that they symbolised the renunciation of what had gone before and the birth of something new. Do they nonetheless, as Kerr implies, really show the general limitations of Irish nationalism, or, more precisely, suggest a revolution destined to remain incomplete? The argument has much to it. Although the 1919, 1922, and 1937 constitutions claimed to be providing for Irish unity in some way, the 1998 Agreement has given the majority of the Northern electorate the right to opt out of the Irish state indefinitely, exactly what was provided for by the 1921 Treaty. Secondly, while the 1922 and 1937 constitutions were premised on the existence of a unified Irish nation, the reality was ‘more substance in our enmities than in our loves’ (as Yeats’ put it). Civil war waged as the 1922 constitution was being debated by a constituent assembly, and in 1937 less than half the electorate backed the new constitution in the plebiscite. When an all-party committee agreed it was advisable to amend  Article three (on Northern Ireland) in 1967, consensus quickly broke down when Fianna Fáil then moved to hold a second referendum on replacing the STV-PR electoral system, a move which clearly threatened the smaller parties. Thirdly, the fact that current arguments for constitutional reform still use the language of a new, renewed or second Republic, suggests that the very founding of the state, due to its consistent failure to meet its founding ideals, remains incomplete. Nicholas Allen noted that the perception of the Anglo-Irish Treaty being provisional, ‘a stepping stone’ to full independence, encouraged restless innovations in artistic life.(1) This sense of provisionality still exists in different ways.

The revolution was also incomplete in terms of democratic change. The book has as a central question whether these were ‘constitutional moments’ in the sense of transforming  prevailing conceptions of democracy. Certainly, the familiar armoury of ‘we the people’ moments was deployed: a democratizing election in 1918, an expert committee and a constituent assembly in 1922, a plebiscite in 1937, the mobilisation of civil society after 1969, and all-party negotiations in 1998. Yet strong continuity marks the constitutional record and it was a  secretive top-down process that produced the most lasting document in 1937. There are obvious reasons for this continuity. The influence of the Westminster model, the self-reinforcing nature of institutions which concentrate power, the absence of a strong (Unionist) minority able to challenge two centre-right  nationalist parties (Fianna Fail and Fine Gael) in the Republic. The poverty of constitutional thinking after independence is another factor. At moments of crisis the tendency has clearly been to redirect constitutional debate onto identity issues, with the result that these moments can be seen as exercises in nationalist self-definition rather as than attempts at genuine democratic transformation. Although reform is once again in the air, and a constitutional convention is coming, the core features of the system are not up for discussion. At moments of crisis the Irish instinct has always been for consolidation, whether by duplicating British state structures during the War of Independence (1919–21), abandoning the experimental features of the 1922 constitution in the interests of strong government, or valorising the structural features of Catholic and nationalist society in 1937. The 'what we have we hold' approach largely sums up the political economy of post-Celtic Tiger Ireland too.

I do not see a blanket failure of constitutionalism in all of this. There is a tendency in political science to romanticise constitution-making and present highly idealised accounts of successful cases as models. As we can see in Egypt, Tunisia and Turkey today, a new constitution, even when backed by all-party consensus, is a perilous undertaking. By any standards the Republic of Ireland is a constitutional democracy,  and though Michael Kerr is right to see in the partisan instincts of Fianna Fáil the antithesis of the spirit of those that tried to write a non-party constitution in 1922, the 1937 constitution did keep that party’s dominance within limits, and has outgrown the polarised circumstances of its birth. The system is not a winner take all one. If the revolution has been completed in this sense, if the constitutional values of the independence movement have been realised within the ambit of the southern state, the question is whether that outcome is due to a specifically nationalist constitutional tradition. The revisionist answer is that the Irish were always ‘more British than the British themselves’ when it came to constitutional rules, with the British model providing the backbone of the system. Yet the current crisis is specifically about representative politics, and the innovative aspects of the constitution – judicial review, the Presidency, the referendum, have not been dragged down in the process. In contrast, the centralised nature of the state, the constituency link, and the weak parliament, with their  origins before 1921, are seen by many as dysfunctional.

Constitutionalism is  a relatively  autonomous part of Irish political culture. It  is not  identical to Irish  nationalism, but has derived much of its telos and ethos from that value system. Not everyone would accept this. The late John Kelly, Professor of Constitutional Law at University College Dublin, distinguished between the ‘manifesto’ and ‘bare law’ qualities of the 1937 constitution.(2) The former consisted of those aspects of the constitution which expressed a specific vision of Irish society. The latter were (presumably) sufficiently judicious to allow this society to transform itself under the existing constitution during the last 40 years. This argument tends to ignore the strong fundamental law quality of the 1937 constitution, and its significance for subsequent developments. Nonetheless,  Irish revolutionary nationalism is generally not considered a major source of law, unlike in the American case. I once encountered an American law Professor who went to Ireland to investigate whether the Irish had tried to establish an indigenous kind of public law after independence, as with literature and music. He returned empty-handed. Nonetheless, my book stresses  the crucial inter-connection between treaty (an international source of law) and constitution in Ireland. Both at the outset, (while asserting sovereignty and remaining faithful to the Treaty in 1922), and later on (legitimising European treaties through referendums), the  tension between them has been at the heart of Irish constitutionalism. That it also exists in Northern Ireland under an Agreement ‘part constitution part Treaty’, brings me to Michael Kerr’s final observation that both parts of Ireland are less out of step with each other in terms of this constitutional framework than people realise.  Both have had to revise the identification of their polities with the values and identities of one dominant political community. The result has been incremental change in the Republic: conflict and reconstruction in the North. The wider context is increasingly the same. In Northern Ireland the peace process changed hearts and minds as it brought two groups locked in conflict (‘Scorpions in a Bottle’) into a much wider set of relationships. One consequence of this for the Republic, as Kerr suggests, is that it also finds itself in a set of relationships (cross border, east-west, and European), which  all have constitutional dimensions. Although one initial response to the 1998 Agreement was to ask (as part of ‘countdown to unity’) what legal changes would be necessary on the  road to a united Ireland.(3) Now it seems  more plausible to say that the  constitutionalism of the Home Rule era, (involving co-ordination between different power centres and adjudication over their rival spheres of competencies), envelopes both entities. This context raises a set of constitutional issues discussed before independence and there is strong similarity between the themes of the intellectual Sinn Féiners and contemporary thinkers like Tom Nairn. As the anniversary of the  Rising which renounced the Home Rule tradition approaches, it also poses interesting questions about the nature of  foundational constitutional moments.

Notes

  1. N. Allen, Modernism and Civil War (Cambridge, 2009).Back to (1)
  2. G. W. Hogan and G. F. Whyte,  J.M. Kelly: The Irish Constitution (Dublin, 2006).Back to (2)
  3. R. Humphreys, Countdown to Unity: Debating Irish ReUnification (Dublin, 2008).Back to (3)