de Valera on Time
Eamon deValera on the front Cover of Time Magazine in 1940, shortly after the plebiscite that adopted his 1937 Constitution, Bunreacht na hEireann

An interesting opportunity has presented itself in my native jurisdiction in the form of the Constitutional Convention and its upcoming deliberations on the Electoral System. Notwithstanding the Justice Minister’s comments on the national radio station this morning, where he was – at best – non-committal on the notion of bringing forward a constitutional referendum on Marriage equality despite the overwhelming vote at the convention, there appears to be a de facto legitimacy attaching to the convention through its deliberate and measured process, and quasi-legislative approach.  If any proof was needed of this, it was in the structure of Senator Mullen’s attack on the result of yesterday’s vote – a strong Catholic advocate, and predisposed to oppose marriage equality, Mullen’s response was not to attack the virtue or otherwise of the decision, but the process by which it was reached.  In attempting to undermine the process, he was directly attacking the legitimacy of the institution (and convention members would do well to refer to it as such) in order to mitigate its impact on the legislature that have retained the final say. 

sean_lemass_02
Seán Lemass, Taoiseach of Ireland 1959-1966. Lemass believed Ireland had given up its sovereignty to the International Community in the years after World War II.

Ireland has had a well documented, rather turbulent recent economic history.  Following on from the bursting of the property bubble and the attendant banking collapse, an extraordinarily myopic political decision to nationalise the exposure of the banks led to a sovereign debt crisis, and, ultimately, a bailout from the troika of the IMF, ECB and European Commission.  Apart from the loss of money, there was plenty dramatic wailing about the loss of National Sovereignty, and references to the War of Independence and the heroes of 1916 and ‘is this what they died for?’ rhetoric.  There was even a nuance to the sovereignty question, in that the country had lost her economic sovereignty, whatever that meant.

Now, politics has always had an uneasy alliance with the propriety of language, bending it to its will as any situation may have seen fit.  The distinction between economic sovereignty, and other sovereignty, one supposes, is that while we’re not necessarily allowed to award pay rises to civil servants, we are still permitted to invade England.  At least we have that, I guess.   Of course, the extent to which we are – truly – permitted to invade England is limited in exactly the same way as our freedom to spend money has been limited.  It is not a flat prohibition on action through coercive or other power that has limited what Ireland as a State can do; it is the threat of exclusion from international systems upon which we have become irrevocably dependent that limits our action.

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).