I attended the inaugural meeting of The Constitution Project last night, a new academic research unit at UCC, whose meetings are open to the public. Groups and projects on The Irish Constitution and Irish Constitutional Law seem to be springing up in many places, some by the lunatic fringe, some deep in sheltered academia, and others – like this, it seems – trying to find a balance between the two. It was a well organised, well chaired event, with a good range of subjects within a reasonably tight framework. Kicking things off was the subject of the Referendum Process, with Mr Justice Gerard Hogan speaking on the history of referendums, or more accurately the amendment structure under the 1922 constitution and why it was bad. He was followed by Mr Justice Bryan McMahon (who taught me Tort in Galway 22 years ago) who had been chairman of the Referendum Commission in the two most recent referendums, speaking of how the commission works – a rare and insightful discussion. Dr Theresa Reidy then outlined some opinion poll based research into why people voted as they did in the Oireachtas Inquiries referendum, which was very interesting, particularly in the context of Mr Justice McMahon’s comments. And finally Dr Maria Cahill revisited the Crotty decision, one that began to get at why we have so many referendums (not just in EU cases).
Mr Justice Hogan’s history of the 1922 constitution, and the parallels with Weimar Germany were interesting, but I thought there were one or two flaws; notably, he seemed to attach a preeminence to the Constitution as the highest form of law. It strikes me that while that is de facto the case in many jurisdictions, that in pre-1937 and Weimar Germany there was merely an alternate hierarchy of law, statutory law taking precedence. There is nothing wrong with this system in and of itself; the failure of the Weimar state was not due to its weak constitution, but in fact due to a weak rule of law. Free State Ireland suffered from a similar weakness, the fledgling state struggling to assert itself in the face of subversion and immaturity, as witnessed by the reaction to the assassination of Kevin O’Higgins (referenced by Mr Justice Hogan). I guess these are complex issues; but my main point remains – constitutionalism has no inherent right to supremacy. No constitution works fine in the UK, and constitutions as guiding principles or “mission statements” as opposed to binding law are perfectly fine as well.
Mr Justice McMahon’s comments on the Referendum Commission left one significant question rumbling around in my head. How does he know if he was successful? He described his concern about “his campaign being unsuccessful” due to the noise being created by the concurrent presidential campaign – is the objective of the commission to shout loudest? To get attention? To stimulate (rather than merely inform) debate? I suspect the Commission might be going off a little ultra vires, as they say, if it is to be measured in terms of fighting apathy rather than interpreting complex legal issues. Two things come to mind – first, that we should have no Referendum Commission at all, and that people should figure it out for themselves. This would avoid any interpretive errors, and even reassert popular engagement, particularly in civic society (which seems to be booming post-crisis). The second thing that comes to mind is that if a referendum decision is so complex that it requires a pseudo-judicial, or pseudo-legislative body to facilitate objective interpretation, then it should not be decided upon by the people in the first place.
Dr Reidy’s presentation was very interesting, I hope it is posted on the website. More and more, opinion polling is helping us to understand the behaviour of people in elections (and indeed in other scenarios as well) and this serves to inform the effectiveness of the state, and its relationship with the people. The juxtaposition of this presentation after Mr Justice McMahon was excellent. Dr Cahill’s treatment of Crotty was too brief, and too technical, I think. It’s a fantastic story, and an exceptional study for a public lecture (a longer one!), as one of the few really important cases that people should understand, if they want to understand the constitution. At the end of the evening, and only given 20 minutes, perhaps we could revisit this at a later session. The substantive question in her subtitle – ‘are referendums really necessary for EU treaties?’ – was never really adequately addressed; the broader question of whether we should have so many referendums at all deserves further attention as well.
All in all a great event, thought provoking and necessary. I look forward to the next event.