Popular sovereignty in Irish constitutional law

Popular Sovereignty in Irish Constitutional Law Tom Hickey* Referendums – the Oireachtas – Crotty v An Taoiseach – Pringle v Government of Ireland – Lisbon Treaty Decision – Justice Donal O’Donnell – Justice Adrian Hardiman – Carl Schmitt – Eoin Daly – republican theory This article is to be published in the Dublin University Law Journal in 2018. Abstract This paper considers the ideal of popular sovereignty, and the means of its institutional realisation, in the Irish constitutional order. It identifies a tendency on the part of judges to associate the ideal almost exclusively with the referendum process, arguing that such an understanding is problematic both as a matter of interpretation of the text of the Constitution overall, and as a matter of normative political theory. The suggestion is that this tendency may be explained more by happenstance than by constitutional principle, however – although it may also have to do with an incongruous image of a ‘people’ sharing a thick, value-laden identity that renders that ‘people’ antecedent and superior to the Constitution. The paper argues that the basic features of the Irish Constitution imply a much broader account of the ideal of popular sovereignty as well as a more sophisticated set of institutional mechanisms through which it is to be realised in practice. It also argues for an understanding of the people as immanent within, rather than as antecedent to, the democratic constitutional system. Drawing on republican theory to elaborate that account of popular sovereignty, the paper suggests that something approximating to it might be emerging in recent jurisprudence. The paper is in four parts. Part I introduces popular sovereignty as it has been understood in Irish constitutional law and practice. Part II considers this broader account of popular sovereignty in political theory. Part III looks at relevant aspects of the constitutional text. Part IV turns to the Crotty v An Taoiseach and Pringle v Government of Ireland cases, identifying nascent shifts towards a judicial endorsement of this broader account of popular sovereignty. I. Popular Sovereignty in the Constitutional Jurisprudence What image does the phrase ‘popular sovereignty’ conjure up in the mind’s eye? Possibly something along the following lines: that ‘The People’1 call the shots, and *School of Law and Government, Dublin City University. The author would like to thank all those who engaged so thoughtfully with this paper at the University of Limerick ‘Constitution at 80’ conference in November 2017, and those who helped with it in other ways, including Conor O’Mahony, Eoin Daly, David Fennelly, Maria Cahill, Richard Humphreys, Donal O’Donnell, Laura Cahillane and David Kenny. that ‘Government’ – or other agents who enjoy authority in the constitutional order – dutifully respond, bowing to the will that is foundational within that order. The image is attractive, but it leaves important questions open. How might we conceive of the people in the image? It is tempting in the context of such a heady notion to think of the people as a unitary agent with some kind of collective will, commanding the government and other such actors, as a 16th-century monarch commanded his subjects. How might the people execute their supposed capacity to call the shots, in institutional terms? The temptation here might be to cite the plebiscitary referendum, on the thinking that it facilitates this people in coming together as one, announcing this collective will on a given, presumably fundamental, question. In that line from Crotty v An Taoiseach, the referendum thus concretises the ‘unfettered right of the people to decide: to say “Yes” or “No”.’2 This image of popular sovereignty approximates to that prevailing in Irish constitutional law and discourse. The text of the Constitution as it relates to the theme is considered more carefully in Section II below, but two of the provisions most commonly associated with it are the Preamble and Article 6.1. The Preamble proclaims that ‘We, the people of Éire… do hereby enact, adopt, and give ourselves this Constitution.’ This suggests an image of the people existing prior to the Constitution and as thus enjoying an antecedent authority – the people as the constituent power, in the vernacular of the literature. 3 It similarly suggests Carl Schmitt’s ‘strong popular sovereignty’ premised on a conception of the people defined by a thick, value-laden identity; an identity that similarly precedes the constitution and political state.4 Article 6.1 might be read as comprising two arms, which for illustrative purposes I distinguish by italicising one: All powers 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. The arm in italics has the people similarly enjoying that Schmitt-like preconstitutional authority, over and above the Constitution itself as well as the actors that enjoy authority in virtue of the Constitution. The constituted institutions of the State – the legislature, the executive and the judiciary in this instance – derive their 1 I use capital letters in this instance, in an effort to convey this notion of The People as a unitary agent. I use small case hereafter, except where direct quotation of others dictates otherwise. The word ‘people’ appears a little under thirty times in the text of the Irish Constitution. In all bar two instances it appears in small case. In the heading to Article 27, and within the text of Article 30.3, it appears as ‘…the People.’ 2 This is the memorable phrase from Walsh J’s judgment in Crotty v An Taoiseach [1987] IR 713, 781. It should be noted that in that context it referred to external sovereignty rather than popular (or internal) sovereignty. 3 See Martin Loughlin and Neil Walker, The Paradox of Constitutionalism (OUP 2007) 1–8 and, for an excellent assessment in the context of the Irish constitutional order, Colm O’Cinnéide, ‘“The people are the masters” – The Paradox of Constitutionalism and the Uncertain Status of Popular Sovereignty within the Irish Constitutional Order’ (2012) IJ (XLVIII) 249. 4 Lars Vinx, ‘The Incoherence of Strong Popular Sovereignty’ (2013) 11(1) International Journal of Constitutional Law 101, 103. Carl Schmitt, Constitutional Theory (Jeffrey Seitzer ed and trs, Duke University Press 2008). authority from this unitary people. In the second arm the people are conceived of more as a constituted authority. They enjoy a certain authority not prior to, but rather in virtue of, the Constitution.5 They get to designate the rulers of the State, and they get to decide all questions of national policy, and in both cases because of the Constitution. It is quite understandable that those provisions would be associated with popular sovereignty. Whatever they might mean in practice – and however they might suggest different conceptions of the people – they clearly have to do with some kind of ultimate popular authority in what is envisaged by the Constitution as a ‘sovereign, independent, democratic State’.6 The other provisions most commonly associated with popular sovereignty in the law and discourse are those in Articles 46 and 47.7 These are dry and technical provisions, without any of the high-mindedness or rhetoric of those earlier provisions, or of other early provisions that actually mention sovereignty – or indeed of the rights provisions, for example.8 They are concerned with the quite specific matter of amending the Constitution. They open by saying that ‘any’ provision of the Constitution can be amended and go on to set out the procedure for doing so. In short, proposals for amendment ‘shall be initiated in Dáil Éireann as a Bill’ and, having passed through both Houses of the Oireachtas, shall be ‘submitted by Referendum to the decision of the people’. Any such proposal will be taken to have been approved by the people if ‘a majority of the votes cast at such Referendum have been cast in favour of its enactment into law’.9 The first major case in which popular sovereignty was forthrightly addressed in the lifetime of the 1937 Constitution was Byrne v Ireland.10 Kathleen Byrne sought to sue the State for injuries arising from negligence on the part of county council workers laying phone cables near her home in County Wicklow. It was these provisions – the Preamble, Article 6.1 and Articles 46 and 47 – that Walsh J relied upon to form the basis of his characterisation of popular sovereignty as a cornerstone value of the Irish Constitution (which in turn was taken to mean that the State’s claim that it was immune from tortuous liability was not sustainable). What is notable about Walsh J’s judgment for present purposes, though, is the degree of attention given to the amendment provision in the context of such a characterisation of popular sovereignty (along with his frequent use of the capital ‘P’ for people, perhaps).11 After setting out the text of the provisions mentioned, he asserted: It appears to me abundantly clear from those provisions that 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 5 See Eoin Daly, ‘Irish Popular Sovereignty in Historical and Theoretical Perspective’ (2016) 39(2) DULJ 349. 6 Constitution of Ireland, Article 5. 7 See, for example, Oran Doyle, Constitutional Law: Texts, Cases, Materials (Clarus Press 2007) 5. 8 The sovereignty mentioned in Articles 1 and 5 refers to external sovereignty rather than internal or popular sovereignty. 9 The other provision that is often discussed in the context of popular sovereignty is Article 27. See (n 68) below. 10 [1972] IR 241. 11 See (n 1). amended by the People only, and that in the last analysis the sovereign authority is the People.12 Other than Byrne, the main cases in which popular sovereignty has taken centre stage have happened to involve various kinds of challenges to constitutional referendums.13 In Finn v Attorney General the plaintiff argued that the Eighth Amendment of the Constitution Bill 1983 (recognising the equal right to life of the unborn with that of the mother) was invalid on the grounds that the right it claimed to recognise was already implicit in the Constitution.14 Slattery v An Taoiseach involved an attempt to halt the holding of the referendum on the Maastricht treaty. In Riordan v An Taoiseach (No 1) the plaintiff argued that the 1995 amendment permitting divorce was invalid because the Constitution had recognised the position and status of the family as a matter of natural law.15 Most famously, in the 1995 Abortion Information Case, lawyers representing the rights of the unborn argued that an amendment approved by the people allowing for the provision of information regarding abortion services abroad was itself unconstitutional insofar as it clashed with the ‘natural rights’ of the unborn.16 It is of course understandable that lawyers representing the party resisting these claims would have drawn heavily on popular sovereignty in their arguments. The ‘let the people speak’ line – or the equivalent ‘the people have spoken’ – has considerable rhetorical bite. It is not easily defeated in the real world of litigation or indeed in public discourse.17 Also, the legal principle inspiring the applicants in these cases had worrying connotations for democracy, however democracy might be understood. Lawyers representing the unborn in Abortion Information relied on Walsh J’s famous rhetoric in McGee: that certain imprescriptible and antecedent rights were ‘beyond the authority of the State’ and that it was up to judges ‘in light of their training and experience’ to identify them and act by way of judicial review to protect them.18 The argument was that such rights were in jeopardy in virtue of the decision of the people to approve insertion into the Constitution of a right of access to information about abortion services abroad, and that it was up to the judges to step in and do the right thing by these pre-political ideals. 19 It is hardly surprising then that the judges deployed the popular sovereignty norm in their judgments rejecting these claims: how 12 [1972] IR 241, 262. See Daly (n 5). 14 [1983] IR 154. 15 [1999] 4 IR 321. 16 Re Article 26 and the Regulation of Information (Services Outside the State for the Termination of Pregnancies) Bill 1995 [1995] 1 IR 1. Strictly speaking, the Court was considering the validity of the Bill which had been brought through on foot of the approval of the right to information in a popular referendum. 17 See Richard Bellamy’s example of the reactions to the UK government’s defeat in the House of Commons in December 2017 in which Parliament insisted on a vote on the Brexit deal. The Foreign Secretary Boris Johnson tells the Press the vote will not ‘frustrate the will of the British people’. Richard Bellamy, ‘Was the Brexit Referendum Legitimate, and Would a Second One Be So?’ <https://www.academia.edu/35880378/was_the_Brexit_referendum_legitimate_and_would_a_second_ one_be_so> accessed February 2018. 18 McGee v Attorney General [1974] IR 284. 19 There is a notable abruptness and lack of theoretical sophistication in the reasoning in the Abortion Information judgment and in other such cases: the tension is summarily determined in favour of popular sovereignty with question-begging assertions such as ‘the Constitution… is the fundamental and supreme law of the State representing… the will of the People’. 13 better to escape from such far-reaching implications of their earlier rulings than to appeal to a norm carrying such apparent weight as a matter of political morality? They did not give the ideal particularly comprehensive attention in these judgments, presumably in part because they didn’t really need to. The opening words of Article 46 did almost all of the work that was needed in the circumstances: ‘any provision’ could be amended, and so none was so sacrosanct as to be immune. The difficulty, I argue, is that this line of cases – combined with the McKenna, Coughlan and Doherty v Referendum Commission judgments which similarly had to do with referendums – prompted a broader narrative in Irish constitutional law and discourse around the notion that it is specifically through the referendum provisions in Articles 46 and 47 that popular sovereignty is to be institutionally realised; that this is how the Constitution envisages ‘We, the people of Éire’ executing their ultimate will.20 The judges used strong rhetoric in this case law too, in keeping with the idea that this was a cornerstone ideal of the constitutional order. Notwithstanding Hogan J’s lines in Doherty,21 the rhetoric generally pertained to the supposedly unfettered nature of the power of the people to amend. They were not blocked from amending ‘any’ provision by the wording of Article 46, and appropriately so, in the minds of the judges, such was the importance of the ideal underlying the provision.22 This is a difficulty first of all because, as Eoin Daly, among others, has emphasised, the power of the people under Articles 46 and 47 is not at all unfettered.23 The referendum may conjure up the image of the people as a unitary whole willing a particular outcome into being: that they come together as collective authors on some foundational question, commanding the constituted authorities to make it so. But Articles 46 and 47 have the constituted political actors (ie members of the Oireachtas) in the driving seat, enjoying the exclusive power to bring about a referendum in the first place, but also to determine the general area of constitutional content that is to be considered by the people, the precise wording (which is often decisive in determining the outcome of a referendum), the timing, and so on. Also, such referendums are often not concerned with questions of general policy anyway – with the pivotal social 20 See in particular Hogan J in his judgment in Doherty v Referendum Commission. He says: ‘The Constitution envisages a plebiscitary as well as a parliamentary democracy and, in doing so, it has created a state which can demonstrate – in both word and deed – that it is a true democracy worthy of the name. By providing in Article 6.1 for popular sovereignty in which the People would “in final appeal… decide all questions of national policy”, it envisaged a society in which all citizens would be called upon from time to time to make critical decisions regarding their future, the future of their neighbourhood and, ultimately, the future of their country… At the heart… of the Constitution, there are three core principles… The first of these is the concept of popular sovereignty… which is reflected in Articles 5, 6, 46 and 47 of the Constitution’: [2012] IR 594, 603–04. See also the judgment of Hamilton CJ in McKenna v An Taoiseach [1995] 2 IR 10, 41–42. Even Barrington J in Coughlan v Broadcasting Complaints Commission [2000] 3 IR 1, 46 refers to the referendum context as ‘the people… performing the ultimate act of sovereignty…’. 21 ibid. 22 In Riordan v An Taoiseach (No 2) [1999] 4 IR 321, 330 Barrington J insisted that ‘there can be no question of a constitutional amendment properly before the people and approved by them being itself unconstitutional’. Similarly in Finn v Attorney General the Supreme Court, nodding in two ways at popular sovereignty (initial intention in the 1936 plebiscite and powers of amendment), held that ‘the people intended to give themselves full power to amend any provision of the Constitution’: [1983] IR 154, 163 (emphasis added). 23 See, in particular, Daly (n 5). justice matters of the day, for instance. They are concerned with changes to the wording of constitutional text. It is true that some changes brought about through referendums have had policy implications in important areas, including on questions pertaining to social justice.24 But they often don’t, as the ‘presidential age’ referendum reminds us perhaps most dramatically. To take the example of the ‘judicial pay’ referendum in 2011, even if the changes brought about might have been somewhat significant as a matter of constitutional law, the implications were quite limited in the overall scheme of public policy. If the decision of the people in that instance was an ‘ultimate act of sovereignty’, as Barrington J characterised the constitutional referendum in Coughlan – or if it was a ‘critical decision regarding their future, the future of their neighbourhood and, ultimately, the future of their country,’ as Hogan J put it in Doherty v Referendum Commission 25 – why couldn’t they have issued their commands in this way in respect of the payment of teachers, nurses, HSE workers, prison officers and the gardaí? What about on other important questions concerning distributive justice and the common good – questions pertaining to revision of the tax code and social welfare priorities, for instance: the taxing of corporations and of goods that damage the environment, the funding of special needs education, and so on? There are very good reasons why not, of course – why having those kinds of decisions determined by plebiscitary vote would run counter to the ideal of equally shared popular control in a community of citizens.26 But the point is that to think of the constitutional referendums that have taken place over the decades, or indeed the constitutional referendum in principle, as facilitative of foundational acts of sovereignty on the part of the people is just not plausible. Why is it then that popular sovereignty has come to be conflated with referendums to the extent that it has in Irish constitutional law and discourse? It may have to do with the fact that the Constitution came into being in the first place following a referendum in 1937. Indeed de Valera saw that fact as important in overcoming the problems around formal legal transition from the 1922 to the 1937 constitutions: he relied on that approval by the people to claim legitimacy for the new constitutional order, as though the unitary people (defined by that thick, value-laden and pre-constitutional identity) somehow spontaneously resurfaced to propose and then approve not only the idea but each aspect of the text.27 It may also be that general image conjured up the ideal referenced earlier: that the plebiscitary referendum corresponds with the 24 Even these referendums don’t normally get to the heart of the matter, or deal in a comprehensive way with the causes and effects of the form of injustice in question. 25 See (n 20). 26 The fact that referendums touching on issues of ordinary policy tend to isolate those issues from related issues is one reason why some democratic theorists question their democratic value – particularly when compared to the processes around general elections: see Bellamy (n 17). But there are several others: see, for example, Stephen Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberation (OUP 2012). 27 Dáil Deb 11 May 1937, vol 67, cols 74–76. During the Oireachtas debates on the draft Constitution de Valera 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 the 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.’ imaginary notion of a people expressing a corporate will.28 But it must in some part have to do with the fact that it just so happened that cases of this kind came before the courts. The Abortion Information claim in particular presented an apparent clash between these two nebulous ideas: natural rights on the one hand, and popular will on the other. In the circumstances, the ‘popular will’ just had to prevail. The facts and context meant that popular will, and thus popular sovereignty, came to be understood in terms of the outcomes of constitutional referendums, however plausible the idea might be as a matter of political theory. Judges of course do not have the luxury of considering the meaning of these cornerstone constitutional ideals in the abstract. They are constrained, at least to some extent, by the facts of particular cases (and appropriately so). Thus it may be that had they been interpreting the idea of popular sovereignty from a blank canvas (or even, as I will argue later in the paper, from the text of the Constitution but independently of particular cases) that they might have elaborated better accounts of the modes of its institutional realisation. In the section that follows, I turn to consider what I regard as a more compelling understanding of popular sovereignty, drawing from republican theory (one that runs counter to the identity-oriented account associated with Schmitt). I go on to give a broad sketch of the institutional implications of that understanding of the ideal – how it might be more effectively realised in a real-world constitutional democracy. In the final section I suggest that this account corresponds with popular sovereignty as it is envisaged by the text of the Irish Constitution, when considered independently of particular cases. I further suggest that traces of such an account of popular sovereignty are emerging in the jurisprudence, drawing in particular on the judgment of O’Donnell J in Pringle v Government of Ireland.29 II. Popular Sovereignty in Republican Theory In the recently published The Political Theory of the Irish Constitution: Republicanism and the Basic Law, Eoin Daly and I made the case for a republican reading of the Irish Constitution.30 Our claim was not that the document itself was republican in all of its aspects, or that republicanism had the most authoritative claim as an interpretive source. As a historical matter, classical natural rights theory had more of a hold on the minds of the drafters, for instance. Rather, we argued that constitutions have to be interpreted in light of broader ideals, and that no single school of philosophical thought has a monopoly claim on constitutional interpretation, whether in respect of the Irish Constitution or otherwise. We further argued that republican theory is both plausible and compelling as an interpretive source. It is plausible insofar as the cornerstone ideals of the Irish Constitution correspond with those that have been most intimately associated with republican law, politics and theory through the centuries: the separation of powers, democracy, the rule of law (an ‘empire of laws rather than of men’), liberty and individual rights, popular sovereignty, and so on.31 And it is compelling insofar as it works from a basic image of freedom understood in terms of non-domination, where domination is understood as arbitrary power of the kind enjoyed by a master over his slave. That is, as the neo28 See Daly (n 5). [2012] 3 IR 1. 30 Eoin Daly and Tom Hickey, The Political Theory of the Irish Constitution: Republicanism and the Basic Law (Manchester University Press 2015). 31 Philip Pettit, Republicanism: A Theory of Freedom and Government (Clarendon Press 1997). 29 republican thinker Philip Pettit in particular has argued, that republican theory takes the basic goal of the state to be the securing of individual citizens against such domination.32 And that it sees such domination as potentially emerging to various degrees and in various forms across all spheres of an individual’s life – in social and personal spheres, for instance, but also in civic spaces and in the context of the power of the state itself. Pettit has more recently elaborated a theory of democracy based on this underlying ideal of freedom as non-domination and, although he doesn’t place much emphasis on the term as such, I suggest that it can be understood essentially as a neo-republican understanding of popular sovereignty.33 The ideas are complex and I don’t propose to set them out comprehensively here. Rather I consider some basic aspects and then relate them to the overall text and indeed character of the Irish Constitution. Pettit’s main concern in this work is with how a state that enjoys coercive authority over its citizens might count as legitimate: how can a state impose a social order on its citizens consistent with those citizens’ continuing enjoyment of freedom as nondomination, particularly when some or many of them will see aspects of such a social order as unjust. The main luminaries of enlightenment political theory approached this conundrum mainly through the lens of the notion of consent. The classical liberalism of John Locke, and indeed Hobbes’ absolutist line of thinking, each theorised legitimacy from the image of the state of nature, with individuals consenting to political authority subject to certain conditions – in Locke’s case, on condition that their natural rights remain sacrosanct in the political world.34 (Indeed it should be acknowledged that the rights provisions of the Irish Constitution – superficially at least – correspond with this line of thinking; with their designation as ‘antecedent,’ in the sense of coming prior to the Constitution, and as ‘inviolable’ and ‘imprescriptible’).35 One of the distinctive features of the neo-republican approach to this old conundrum of political theory is to conceive of it not in terms of consent, but in terms of control. 36 Because domination is the ill in the republican lens – and because domination amounts to uncontrolled control as per that of a master over a slave – republicans work from the notion that the vast power enjoyed by the state is suitably controlled such that those agents of the state that exercise it are more or less bound to do so in the public interest, or on the people’s terms. While the idea is broad and subject to all kinds of interpretations, it nevertheless inclines us away from certain institutional implications and towards others. It runs counter to de Valera’s image of the legitimacy of the Irish Constitution as resting on the consent of citizens understood with reference to its initial approval by voters in the 1937 plebiscite, for instance.37 It is similarly hard to reconcile with the conception of the-people-votingin-referendum as the ultimate act of sovereignty – as per Barrington or arguably 32 ibid ch 1. Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012). 34 ibid 152–60. 35 On these ideas as they relate to the Irish Constitution, see Eoin Daly and Tom Hickey, ‘The Constitution and Judicial Power: Theoretical Perspectives’ in Eoin Carolan (ed), Judicial Power in Ireland (Institute of Public Administration 2018). 36 Pettit (n 33) 152–60. 37 They cast doubt on the inclination of judges over the years to interpret particular provisions in light of ideas around ‘what the people intended’ to approve in casting their vote in favour of the overall text in that plebiscite: see Daly (n 5). 33 Hogan JJ’s characterisations, referred to earlier – particularly where that is understood as the people consenting to particular social and political arrangements.38 Indeed it is in tension with any conception of sovereignty as realised in or through momentary events. It suggests instead a conception of the ideal that is oriented around control that is resilient but also enduring or ongoing. If this control-rather-than-consent account of sovereignty is persuasive, the next question is what form popular control might take in a republican democracy. The overriding point on this front is that non-domination requires that it be equally shared among citizens; otherwise there is the concern of control by a majority faction subjecting those outside the faction to some form of domination.39 This suggests first of all that citizens are to be considered severally rather than as a unitary whole – again running counter to the image of the people as a single agent, with a collective will. It means also that government must be subject to such a form and degree of popular influence that the body of law and policy outcomes generated will be, in Pettit’s phrase, ‘equally acceptable’ to all citizens.40 This should not be taken to mean that all laws and policies are equally congenial to all – that is impossible, given the extent of disagreement on basic questions of justice and the good in contemporary polities. The idea is rather that in an institutional structure that adequately accounts for the voice and interests of all, those who see themselves as having been defeated in particular instances of law or policy formation will be inclined to see those defeats as frustrating but non-arbitrary interferences rather than as dominating impositions attributable to an alien will at play against them. Thus this equal acceptability of outcomes is a relatively low threshold – it is consistent with great exasperation on the part of citizens at the acts and omissions of what they see as an incompetent or ill-advised government. They can have those feelings about laws and policies to which they are subject, yet still understand themselves as sharing equally in a system of joint control over government. This can be contrasted with the resentment that a minority ethnic group might feel towards a state and society that cuts them off from basic liberties and social goods, which counts as subjection to arbitrary will.41 The question then is what kind of institutional structure is likely to bring about that kind of equally shared popular control. We have already seen that the ideas tend to point away from direct, plebiscitary democracy. Suppose that a population were to vote on whether a particular privilege would extend to a historically entrenched religious group – say on whether the public schooling system would be dedicated to promoting their preferred religious ethos. It is true that each citizen would have an equal vote in that scenario, but could they really be said to be exercising a form of popular control that is equally shared? Or, taking a more familiar example, imagine a Yes/No plebiscite on whether homosexuals should enjoy access to a particular social good like marriage. How might ‘victory for homosexuals’ through such a process be understood – as an exercise of equally shared popular sovereignty, or as an act of mercy on the part of kindly masters? The thought is that such processes tend to have a winner-takes-all orientation, with individual or minority interests sometimes overlooked or swept aside. It is arguable that they also have a kind of all-or-nothing quality that tends on the whole to diminish the scope for nuanced, deliberative 38 See (n 20). Pettit (n 33) 170–77. 40 Pettit (n 33) 176. 41 Pettit (n 33) 177. 39 engagement (albeit that the so-called “Repeal the Eighth” referendum in 2018 might challenge this characterisation to some extent)42 The suggestion, therefore, is that representative, parliamentary democracy does better on these fronts, with its moderating, compromising tendencies and its more fluid, iterative processes of law and policy formation. But the idea calls for more than parliamentary democracy. Pettit suggests that it calls above all for a model of democracy comprising both authorial and editorial institutional mechanisms.43 That is, it calls for mechanisms through which citizens and their representatives can initiate law and policy – say through electoral, vote-based processes. But it equally calls for channels through which individual citizens can contest such law and policy outcomes. Domination is, after all, incontestable power. This suggests judicial review of some form as a means of preventing electoral actors from riding roughshod over individual rights – indeed it calls for recognition and constitutional protection of individual rights in the first place.44 It calls for all kinds of analogous institutions and agencies through which the exercise of public power can be scrutinised, constrained, challenged: ombudsman-type bodies, regulatory agencies; electoral and public standards commissions (guarding against gerrymandering and corrupt donations, for instance) and so on.45 Indeed it calls in the first place for government accountability to parliament. That is, while parliament can be understood as a law-making, authorial institution, it also has that contestation-oriented, accountability function. Government’s day-by-day answerability to the people’s representatives in parliament guards against the temptation to act on the basis of alien interests.46 It encourages government towards laws and policies promoting common interests rather than those of its own supporters. The point ultimately is that it makes little sense to think of popular sovereignty in terms of momentary events. ‘The people’ are too vast to ever come together as one in any concrete sense, however useful such a myth might be as a legitimating tool. Even if they could, they are too diverse in their outlook to ever agree to any one policy to the extent that any such decision could come to carry the kind of unimpeachable authority that supposed exercises of popular sovereignty are often said to carry.47 Indeed it makes little sense to think of the people as having a collective ‘will’ at all. It 42 See Tierney (n 26). This is a general argument, and might not be borne out in all cases. The campaign around the Thirty-sixth Amendment of the Constitution Bill 2018 (the so-called Repeal the Eighth Amendment) was proclaimed afterwards as nuanced and deliberative on the whole, and – writing as I am in its immediate aftermath – it certainly seemed to engage and energise the citizenry. See for example Fintan O’Toole, “Abortion result shows democracy can rise above hysteria and hate,” Irish Times, Saturday May 26, available at https://www.irishtimes.com/opinion/fintan-o-toole-abortionresult-shows-democracy-can-rise-above-hysteria-and-hate-1.3510030 (accessed May 2018). However not all of the campaigning was entirely honest, and – perhaps predictably – each side accused the other of propagating misinformation during the campaign. Also, the fact that the referendum took place following a dedicated Citizen’s Assembly and Oireachtas committee hearings certainly helped on this front, as did the fact that the deliberative process took place over a few years culminating in the referendum in May 2018. 43 Pettit (n 33) ch 3. 44 On this idea, see Tom Hickey, ‘The Republican Core of the Case for Judicial Review,’ International Journal of Constitutional Law, forthcoming, 2019. 45 Pettit (n 33). 46 Richard Bellamy, ‘Democracy as Public Law: The Case of Constitutional Rights’ (2013) 14(8) German Law Journal 1017, 1029. 47 See Daly (n 5). makes more sense to think of popular sovereignty in terms of some kind of shared popular control that operates iteratively and over time. It can never be realised in any pure sense. But it is nevertheless best facilitated through a multi-institutional and inter-checking set of policy-making and policy-revising mechanisms through which the people get to act as both authors and editors of law and policy outcomes. This republican conception of popular sovereignty chimes with what Lars Vinx refers to as ‘weak popular sovereignty’ – an understanding of the ideal that presents it as ‘immanent in a framework of constitutional rules that makes political leadership elective and gives equal rights of democratic participation to all citizens...’48 Vinx points out that this is ‘simply another name for well-ordered democratic government, since the will of the people is identified with the outcomes of a democratic process governed by constitutional law’, and that in this conception ‘there can be no people prior to or apart from constitutional law, and all talk of the people as the historical author of the constitution is taken to be a fiction without normative relevance’.49 Indeed the conception of popular sovereignty prevailing in Irish constitutional law and discourse might be said to chime in certain ways with Carl Schmitt’s ‘strong popular sovereignty’ as that is understood by Vinx and critiqued by him with reference to the German Federal Constitutional Court’s 2009 Lisbon Treaty decision (which might be said to be the German equivalent of the Irish cases considered below).50 Vinx describes Schmitt’s conception as ‘incoherent’ insofar as it basically rejects the idea of constitutionalism as concerned with establishing process through which political and moral disagreement can be legitimately resolved; that is, such that those who disagree with particular outcomes can at least accept them. It prefers instead an understanding whereby constitutions (and laws) are legitimate ‘only so long as they faithfully express an antecedent shared identity’. 51 In other words, Schmitt’s conception of constitutionalism overlooks or ignores the fact of reasonable disagreement on questions of rights and justice; it sees the constituent people as sharing such a thick identity that non-trivial disagreements just don’t emerge – or if they do, they damage the self-determination of that constituent people (ie suggesting the need for decisive action ‘against internal enemies who undermine a people’s capacity to fight for its autonomy, by weakening the basis for its collective identity’.52) Thus – notably, with the Lisbon Treaty and Crotty/Pringle judgments in mind – there ‘can be no legitimate coexistence of different nations with different political identities under equal but binding terms of supranational law created by mutual accord’.53 Indeed any domestic constitution understood as ‘the product of a compromise among different groups – groups that have their own political identity – and not the product of an exercise of strong popular sovereignty, can be nothing more than a veiled form of subjection of one group to another’.54 48 Vinx (n 4) 102. ibid. 50 BVerfG, 2 BvE 2/08, 30.6.2009 (hereafter Lisbon Treaty decision). 51 Vinx (n 4) 103. 52 Vinx (n 4) 110. Schmitt’s thought is thus that constitutions only bind the constituted actors; they can never bind the pre-constitutional and thus autonomous ‘people’. Any law or constitution that forces ‘a people to live under a normative framework that is not (or not fully) the result of its own choice or that denies its inalienable constituent power’ is thus a ‘brute denial of self-determination’: Vinx (n 4) 108 53 Vinx (n 4) 108. 54 ibid. 49 III. Popular Sovereignty in the Constitutional Text With the republican account of popular sovereignty in mind (or, in Vinx’s words, weak popular sovereignty as well-ordered democratic government), let us return to the text of the Irish Constitution. It is surely true that popular sovereignty is a cornerstone ideal of the Irish constitutional order but I argue that contra the image of the ideal in the case law and commentary, the text envisages it along broadly these republican lines – or at least that that is a very plausible, as well as an attractive, interpretation of the various provisions and the overall ethos. Leaving the Preamble and Article 6.1 aside momentarily, consider the general sweep of the document. Articles 15–19 establish a national parliament consisting of the President and two houses, the Dáil and the Seanad. The composition of each house is determined in quite different ways. Election to the Dáil is on the basis of popular vote in electoral constituencies but through proportional representation rather than the winner-takes-all ‘first past the post’ system. Citizens enjoy robust voting rights, including equal representation, and rights to stand for election. The Seanad is composed of members some of whom are nominated by the Taoiseach, with others elected from particular panels, including panels representing designated areas of civic and social life.55 This parliament has the sole authority to make laws for the State – it has that authorial function. But there is great scope for deliberative contestation in the law-making processes envisaged. There is a regional spread of representation, for instance. With multi-seat constituencies and the single-transferable vote, there is relatively good opportunity for small parties to win seats, thereby enhancing the voice of those holding non-mainstream political views and encouraging more widespread participation in political processes. The fact that legislation must generally go through two differently constituted houses enhances the time and scope for challenge. Whatever the recognised shortcomings of the Seanad in practice, in principle it represents a check on the lower house. Even on issues like removal of other constitutional office-holders such as the Comptroller and Auditor General or judges for ‘stated misbehaviour or incapacity’, the fact that the Seanad must also approve such removal counts as a check on government. Aside from the upper house element, the powers of the Dáil are constrained by the fact that it cannot pass laws that are ‘in any respect repugnant to [the] Constitution’.56 This brings the rights provisions in particular into focus. On one prominent line of thinking, these provisions are in tension with the notion of popular sovereignty – they protect the individual against the ‘will of the people’.57 I suggest that this must suggest misconceived understandings of both rights and popular sovereignty: that these two pivotal constitutional ideals complement rather than contradict one another.58 The rights provisions in fact help realise popular sovereignty, rather than 55 The fact that some members are elected by voters with degrees from particular universities sits uneasily with neo-republican theory. But the provision for election of members representing panels concerned with particular areas of social, civic and political life has certain parallels with the institutional picture emerging from Pettit’s ideas. As it happens, Pettit wrote in defence of the Seanad at the time of the referendum concerned with its abolition. See Philip Pettit, ‘Abolition of Seanad Would Be Significant Loss to Democracy’ The Irish Times (Dublin, 28 July 2012). 56 Article 15.4.1°. 57 On this idea, and its incoherence, see Daly and Hickey (n 35). 58 ibid. undermine it, when it is understood in terms of equally shared control. Under Article 40.6.1˚ each citizen enjoys basic political rights to free expression, assembly and association, supporting them in knowing what government is doing, in dissenting, either individually or as part of groups, and in forcing government either to publicly justify its actions or to back down.59 Then there are rights to equality before the law and the guarantee of the State ‘in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen’.60 Similarly, there are due process rights, rights to personal liberty, to habeas corpus and the dwelling, as well as family rights, education rights, rights to private ownership and to religion and conscience.61 These provisions mean that individual citizens can formally contest decisions of government or the legislature through the powers vested in an independent judiciary, which include power to determine that particular laws that have been passed by parliament are invalid having regard to the provisions of the Constitution.62 The idea that outright judicial power to invalidate legislation supports equally shared popular control should not be taken at face value. If there is reasonable disagreement about the meaning of rights in concrete cases, does such a power not vest excessive – arguably arbitrary – power in judges, for instance?63 But leaving those important questions aside, the suggestion is that if popular sovereignty is the cornerstone value of the Irish constitutional order, the emphasis that the Constitution places on individual rights and on judicial review suggests a conception of the ideal oriented around equally shared popular control rather than around the plebiscitary democracy. Then there is Article 28 and executive power. Certainly, that power is considerable under the Irish Constitution but it is by no means uncontrolled. First, under Article 28.2, it is to be exercised by the government but it is ‘subject to the provisions of [the] Constitution’. Article 28.4.1 is among the bluntest provisions in the document. It states simply that the government is ‘responsible to Dáil Éireann’. The Irish language version of the text expresses the idea in more obviously republican language: ‘Tá an Rialtas freagrach do Dháil Éireann.’ The government is answerable to the people’s representatives – the antithesis of the master/slave relationship. There are also elements in this field that suggest multi-levelled government. Article 28A (although inserted following a referendum in 2001) recognises the role of local government ‘in providing a forum for the democratic representations of local communities’. Aside for the various and hugely significant provisions relating to membership of the European Union (which were also inserted following referendums), Article 29 also provides for entry by the government into treaties or other such instruments adopted by any ‘group or legal of nations’. Although it envisages the entry into such arrangements as a matter of executive authority, it provides in Article 29.5.1 that every international agreement to which the State becomes party must be ‘laid before Dáil Éireann’ and that where being bound by such agreements involves ‘a charge upon public funds’ 59 For an account of free expression that I suggest resonates with this republican thinking, see Eoin Carolan, ‘Constitutionalising Discourse: Democracy, Freedom of Expression and the Future of Press Regulation’ (2014) IJ 51 1-27. 60 Article 40.3.1°. 61 Articles 38, 41, 42, 43, 44. 62 Article 34.3.2. Similarly Article 26 allows for the President, following consultation with the Council of State, to refer certain Bills to the Supreme Court for a decision on constitutional validity. 63 See Hickey (n 44). See also Tom Hickey, ‘The Republican Virtues of the “New Commonwealth Model of Constitutionalism”’ (2016) 14(4) International Journal of Constitutional Law 794. such agreements must be approved in the first place by the Dáil – consistent with the authority of the Dáil with respect to public money. Similarly such agreements cannot become part of the domestic law of the State unless they have been approved by the Oireachtas as the law-making authority. Then there are elements of the constitutional order that provide particular channels through which the actions of power-wielders can be scrutinised. Article 34 establishes the office of the Comptroller and Auditor General who is tasked with ‘audit[ing] all accounts of moneys administered by or under the authority of the Oireachtas’. The office operates in tandem with the Dáil Public Accounts Committee – which is probably the best-known of the parliamentary committees that are concerned with scrutinising the conduct of government across the various domains of government responsibility. These parliamentary committees may not be expressly provided for in the text of the Constitution, but they correspond with the answerability of government to parliament under Article 28.4.1°.64 Most are ‘joint’ committees, meaning they comprise both TDs and senators, and are set up to correspond with individual government departments (eg the Committee on Health ‘marks’ the Department of Health). Each one is then tasked with monitoring the activities of its corresponding department, discussing its estimates, and engaging in pre-legislative and committeestage scrutiny of bills relevant to the department. These – and related agencies such as the Office of the Ombudsman – can be understood as essentially constitutional in nature, and also as concerned with facilitating the kind of contestation that goes with the idea of equally shared popular control. That brings us back then to the provisions more typically associated with popular sovereignty: the Preamble, Article 6.1 and Articles 46 and 47.65 It is true that, as mentioned earlier, certain phrases in the Preamble and Article 6.1 suggest a unitary and constituent people – and Schmitt-like strong popular sovereignty. But there is an element of rhetoric and myth in all constitutions.66 The Constitution hardly came from the people. Neither was it imposed upon them. It was something in between.67 The emphasis that the Preamble and Article 6.1 place on the people implies a general theme of ultimate popular authority. But there is no express connection between Article 6.1 and Articles 46 and 47; there is nothing in these (arguably dry and technical) referendum provisions that presents them as concerned in any fundamental sense with popular sovereignty as such. They are concerned with amending the Constitution; with setting out the process to be gone through to effect such amendments. Read in broad lens, Article 6.1 points to the basic idea that government be of the people, by the people and for the people – all outcomes must be aimed at serving ‘the requirements of the common good’ rather than any alien will. The phrase ‘in final appeal’ may conjure up the image of the referendum. But the final appeal in question refers to ‘decid[ing] all questions of national policy’. The amendment 64 The republican scholar Adam Tomkins described as ‘beautiful’ this feature of the British Constitution: the fact that ‘parliament is the institution that controls the government’s purse strings… and [is] the institution that will continuously inquire into the expenditure, administration and policy of every government department’: Adam Tomkins, Our Republican Constitution (Hart Publishing 2005) 2–3. 65 I should also mention Article 27 in this context. See (n 70) below. 66 See Daly (n 5). 67 A political elite apparently desired a new constitutional dispensation, finally shedding the Free State Constitution that had been dreaded by nationalists. Thus a drafting process was set in motion, and a majority of the people approved the new text in a plebiscite. See Daly (n 5). procedure is not concerned with questions of national policy; it is concerned with changes to the text of the Constitution. 68 Thus ‘final appeal’ might be better understood in this context as ‘ultimate’ (as may have some support based on the Irish text of Article 6.1), 69 suggesting that the powers of government are controlled, ultimately, by the people, with such control to be exercised through that multiinstitutional and inter-checking set of mechanisms. And that those powers are to be exercised for the ultimate purpose of the people’s shared, common interests. IV. The Republican Virtues of O’Donnell J’s Judgment in Pringle I close this article with reference to jurisprudence that I argue suggests that this broader conception of popular sovereignty is seen by at least some judges both as normatively attractive and as faithful to the constitutional text overall. Pringle v Government of Ireland concerned the constitutionality of the ratification by the Irish government of the European Stability Mechanism (ESM) Treaty without recourse to the people by way of referendum.70 The plaintiff’s argument was that the provisions of the Treaty were such that ratifying it would amount to an unconstitutional fettering of Irish national sovereignty: that the provisions in the Treaty concerning qualified majority voting meant that Ireland could potentially be liable for up to €11 billion in circumstances where the government of the day would not agree. The claim was thus that following the decision in Crotty v An Taoiseach, ratifying it required approval by the people in a referendum. 71 The relevant part of the Crotty ruling was that concerning Title III of the Single European Act (SEA) which obliged Ireland to cooperate with other members of the European Union in its foreign policy. Ratifying the SEA was not, in the view of the majority judges in Crotty, an exercise by government of its authority under Article 29 to decide matters of foreign policy. It was an abdication by government of that freedom such that it was in breach of Article 29 and indeed other constitutional provisions: thus approval by the people in a referendum was deemed by the judges to be required. These cases were thus concerned in the first instance with questions around national (or ‘external’) rather than popular sovereignty. They also concerned the nature and extent of executive power – how far it could go under Article 29 in respect of entering 68 It may relate to Article 27 alright – a provision that has never been used. This provides that where a majority of the Seanad and not less than one-third of the Dáil by a joint petition addressed to the President object to a proposed Bill, that the President, after consultation with the Council of State, can put the Bill to the people in a Referendum ‘so that the will of the people thereon… can be ascertained’. However, even that provision is heavily constrained, with certain constituted actors – members of the Dáil and Seanad, of the Council of State, and the President – holding the initial power. And the role of the people there would be similarly constraining rather than authorial. They can vote to object in those limited circumstances to a particular Bill. Thus Article 27 is at most a part of the overall architecture in the constitutional scheme through which popular sovereignty is realised. And it also fits with the understanding of popular sovereignty as equally shared popular control. 69 Mícheál Ó Cearbhúil points out in A Study of the Irish Text that the Irish text uses ‘faoi dheoigh’ whereas the phrase used for ‘Court of Final Appeal’ in Article 34.2 is the more literal translation of ‘Cúirt Achomhairc Dheiridh’: Mícheál Ó Cearbhúil, Bunreacht na hÉireann: A Study of the Irish Text (Government of Ireland 1999) 73–74. My thanks to Dr Seán Ó Conaill of UCC for his assistance on this point. Thank you also to Gearóidín McEvoy of DCU. There is no suggestion that the Irish text is any more or less supportive of my broader argument in this article. 70 [2012] 3 IR 1. 71 [1987] IR 713. treaties that would bind the State subsequently. And they concerned judicial power – the extent of the authority of judges to interfere with the exercise by government of its executive powers under Article 29.72 Indeed the most decisive factor in each judgment across the two cases was probably the particular judge’s understanding of the content, scope and implications of the treaty in question. Those that understood them to be on the more severe end of the scale saw ratification of them by government as an abdication rather than an exercise of its executive power under Article 29; those that understood them on the milder end of that scale saw them as an exercise rather than an abdication. But it is not as though the content, scope and implications of Title III, or of the ESM Treaty, were precise and rigid beyond interpretive disagreement. They were fuzzy, fluid and subject to interpretation – otherwise the judges would not have disagreed so deeply about them. So while I don’t suggest these cases were concerned in the first instance with popular sovereignty, I argue that that ideal played a significant role not only as a substantive theme along with those others mentioned, but also as a background, pre-interpretive value in the judgments. That is, I suggest that those judges who ruled against the applicants did so in some part because they understood popular sovereignty in the Irish constitutional context as realised through a multilayered, multi-institutional and inter-checking set of mechanisms – or on the basis of what Vinx would think of as weak popular sovereignty. And those that ruled in favour of the applicant in each instance were moved by a prior conception of popular sovereignty oriented around the referendum mechanism – and arguably on the basis of something approximating to the Schmittian strong popular sovereignty that, in Vinx’s analysis, similarly informs the German Federal Constitutional Court judges in their laying out of a general theory on the (German) constitutional limits of the permissible deepening of European integration.73 The contrast is probably most marked in the judgments of O’Donnell and Hardiman JJ in Pringle. In ruling that government ratification without a referendum would be unconstitutional, Hardiman J not only approves Walsh J’s comment in Crotty that the ‘essential nature of sovereignty is the right to say yes or to say no’, but deems it to be ‘a fair epitome of the ratio of Crotty’.74 Indeed he describes it as a ‘statement of the obvious’ despite the apparent implications that it drains the authority of the government under Article 29 to enter into binding treaties at all (ie insofar as entering into such a treaty inevitably constrains the right to say no in some contexts).75 He gives careful attention to the meaning of particular words in the provisions he deems of central importance, consulting the Oxford English Dictionary, as well as Ó Dónaill’s dictionary on the Irish language version, for help on the meaning of ‘inalienable’ and ‘sovereign’ in the context of Ireland’s affirmation of its own national sovereignty in Article 1. But he is less careful in his treatment of that second arm of Article 6.1 mentioned earlier. As Walsh J had done in Crotty, he simply takes for granted that the ‘in final appeal’ element refers to the constitutional referendum, 72 I consider these dimensions of Crotty, Pringle and other cases in Tom Hickey, “The Separation of Powers in Irish Constitutional Law” in David Farrell and Niamh Hardiman eds., The Oxford Handbook of Irish Politics (Oxford University Press, forthcoming 2019). 73 Vinx (n 4) 114–24. 74 [2012] 3 IR 1, 72. 75 [2012] 3 IR 1, 72. ignoring the fact that that provision refers to questions of national policy generally rather than the constitutional amendment provisions.76 It is Hardiman J’s frequent references to ‘the People’ (he also tends to use the capital ‘P’ in this context), and his apparent conception of the people as a unitary, preconstitutional agent, however, that are most striking in the present context. He regards Articles 1, 5 and 6 as the ‘fundamentally important provisions’ in the case, elevating the pre-constitutional people, while simultaneously downplaying the significance of Articles 28 and 29 (which concern how government is accountable in respect of international affairs in the Irish constitutional system, and which – on any plausible analysis – are central to the case).77 He refers to the idea that in ratifying the ESM Treaty the Irish government would be transferring power which is vested in it under the Constitution, in the exercise of which it is accountable to Dáil Éireann and ultimately to the People of Ireland, to an institution which exists outside the constitutional framework and which is responsible neither to Dáil Éireann nor to the People of Ireland.78 He closes out this main section of his judgment by repeating something like that mantra: Finally, I wish to emphasise that the right of the People (as opposed, for example, to the Government, the Oireachtas, or the European Union) in final appeal to decide all questions of national policy is enshrined in the Constitution and must be respected and upheld by the courts. That right can of course be changed, qualified, or even abolished by the procedures laid down in the Constitution, but it is the People, and not the Government or the bureaucracy of the European Union who must do this.79 Again the approach chimes with Vinx’s reading of the German judges in the Lisbon Treaty case. The gist of that reading is that the logic of the judgment holds that so long as the German Basic Law is in force, European integration ‘can only proceed by transfer of individual and clearly delimited competences through international treaty…’ and that that ‘transfer… is restricted by the principle that the national political level must retain decisive influence over core areas of policy’.80 While the judges could have relied on the provisions relating to democracy designated as unamendable in the Article 79 ‘eternity clause’, they didn’t, instead drawing on a 76 At [2012] 3 IR 1, 60 Hardiman J says: ‘The plaintiff does not deny that the power in question might lawfully be transferred to the ESM. But he says that that cannot be done by the Government or by the Oireachtas alone; it requires a decision of the People, i.e. a referendum. That is how the People exercise their right to decide in final appeal all questions of national policy, a right acknowledged in Article 6.1 of the Constitution.’ He later approvingly quotes Walsh J’s discussion in Crotty of the supposed fettering by government of its own powers to conduct foreign relations, when he (Walsh J) says: ‘… To acquire the power to do so would, in my opinion, require recourse to the people ‘whose right it is’ in the words of Article 6 ‘… in final appeal, to decide all questions of national policy, according to the requirements of the common good’: Walsh J, Crotty v An Taoiseach [1987] IR 713, 783, quoted by Hardiman J in [2012] 3 IR 1, 71. 77 [2012] 3 IR 1, 58. 78 [2012] 3 IR 1, 60. 79 [2012] 3 IR 1, 79. 80 Vinx (n 4) 115 (emphasis added). deeper theory of democracy.81 This was a theory resonating, I suggest, with Hardiman J’s thinking – that democracy necessarily requires uncompromised external sovereignty; that any relinquishing of the latter involves an intolerable diminishing of the self-determination of the constituent German (or Irish) people. The Court’s position was thus that: … the German people’s political existence implies that the German people, if it so chooses, can give itself a new constitution that overturns the [Basic Law] and all the decisions derived from it. Constituted powers acting under the [Basic Law], by contrast, cannot have a mandate to deprive the German people of its preconstitutional power to decide for itself on its own form of political life. Any attempt by the constituted powers to turn Germany into a part of a European federal state that has the power to determine its own competences, and from which unilateral exit is no longer possible, would therefore be illegitimate, as it would have the effect, if successful, of depriving the German people of its constituent power, that is, of the power to determine its own form of political life for itself…82 This for Vinx means that ‘the conclusion that democracy requires full external sovereignty trivially follows’.83 If Hardiman J’s position in Pringle is evocative of this strong popular sovereignty, O’Donnell J’s is anything but, instead evoking the republican thought advanced earlier in this article, or indeed that weak popular sovereignty understood as ‘immanent in a framework of constitutional rules’ concerning electoral and contestatory democracy. Noting that ‘sovereignty… [was] asserted very deliberately by the Constitution’ in a new polity which was ‘in essence although not in name a republic’,84 he emphasises the ‘very carefully drafted, nuanced provisions’ in respect of control of the executive’s conduct in the exercise of its powers to conduct foreign relations under Article 29. He suggests that these are ‘clearly influenced by, and consistent with, other aspects of the architecture of the Constitution’,85 before setting them out: All international agreements must be laid before Dáil Éireann under Article 29.5… consistent with the Government’s answerability to that house under Article 28.4.1°. Any agreement which goes further and involves a charge on public funds… must be approved by the Dáil, again consistent with that body’s distinct role in financial matters reflected in Articles 17, 20, 21, 22, and 28.7… [N]o international agreement may become part of the law of the State save as may be determined by the Oireachtas as a whole pursuant to Article 29.6, a provision which is once again consistent with the vesting in the 81 This may be attributable to the notion that such a reliance may not have been enough to justify the conclusions about the limits of the authority of the constituted authorities under the Basic Law. That is, it may be that the rights and principles protected by the eternity clause would also be protected by any EU federal state: see Vinx (n 4) 116. 82 Vinx (n 4) 116–17. 83 Vinx (n 4) 117. 84 [2012] 3 IR 1, 109 (emphasis added). 85 [2012] 3 IR 1, 102. Oireachtas of the sole and exclusive power of making laws for the State under Article 15.2.1°. In the same vein, he later emphasises: … the specific requirement that war may not be declared save with the assent of Dáil Éireann (Article 28.3) [which he deems to be]… striking because it appears to be the single incidence in which the executive power in the field of foreign affairs is restricted by a requirement to obtain the prior agreement or concurrence of any other body, but equally significant for present purposes in that the assent of the Dáil alone is required.86 His follow-up line is telling: Not only is there not a requirement of approval by the Oireachtas generally, but there is clearly no requirement for direct approval by the People…87 And later, discussing the question of control of the actions of the executive in this domain: … While these explicit provisions are instructive, they very deliberately impose little by way of judicially enforceable restriction on the substantive exercise by the executive of its conduct of foreign relations. Article 29.4 of the Constitution makes it clear that it is the Government which shall conduct external relations and by its reference to Article 28 emphasises that in that respect, the Government is responsible to the Dáil. That is the method the Constitution envisages for review and control of the exercise of the executive power in the conduct of foreign relations.88 Towards the end of this main part of his judgment, he remarks: There is no doubt that the figures involved here are very substantial and the decision to ratify the ESM is one which may have significant consequences for the Irish economy, but the quantum of a decision does not alter the identity of the actor required by the Constitution to make the decision. As a matter of history, Irish governments have expended very considerable sums indeed in, for example, the education and health sectors, pursuant to departmental circulars, and without even the benefit of legislation still less the approval of the People in referenda. In more recent times, governments have made decisions involving both the expenditure and borrowing of enormous sums of money. In none of these cases has it been suggested that the approval of the People in a referendum is required. Under the Constitution, governments are expected, and required, to make decisions which on occasion may be momentous, including indeed the declaration of war, albeit in that case with the agreement of Dáil Éireann. In my view there is no reason to conclude that 86 [2012] 3 IR 1, 103. ibid. 88 [2012] 3 IR 1, 104. 87 the decision to join the ESM is not one within the executive power of the Government for which it is answerable to Dáil Éireann.89 It would be too much to argue that O’Donnell J (or indeed other judges in both Pringle and Crotty, and no doubt in other cases)90 was forthrightly engaging in a debate around how the Irish Constitution envisages the realisation of popular sovereignty; that he was taking sides against the referendum mechanism in that context. He was simply exercising judgement in respect of a particularly technical case concerning the content, scope and implications of the ESM Treaty. But the exercise of that judgement inevitably took him beyond the immediate facts to deeper principles, including principles concerning how the Irish Constitution envisaged popular control of government in that particular domain to be realised. Appropriately, he did not come to any one rigid conclusion on that question of principle. He certainly did not preclude the constitutional referendum as one such mode of control. While he had a considered (and restrained) sense of the role of judges on this front, he did not deem judges to have no contestatory power in the particular domain either.91 His overall position, though, moved from a sense of popular control exercised through various mechanisms, most obviously here, through that most basic mode of answerability in the Irish constitutional framework – that of government to the people’s representatives in parliament. It prompted him to consider a further principle as well – or at least an understanding of a further principle emerges from his judgment. This concerns how ‘the people’ are to be understood in the Irish constitutional order. It appears to clash with the notion of an antecedent people dancing at a pre-constitutional crossroads in celebration of a shared moral identity so thick that they never disagree about things like how public schools should be funded, or about whether or not euthanasia might be permitted in certain circumstances, or about any of those things about which reasonable people disagree in free democratic communities. It envisages instead a people existing in some sense through the democratic constitutional order – not with a corporate will, but with shared goals and interests as well as differences in worldview, and in ordinary political preferences. Conclusion This paper argues that the understanding of popular sovereignty in Irish constitutional jurisprudence is under-developed – that it radically underplays the vision of the ideal in the text itself. The suggestion is that this has to do with happenstance rather than constitutional principle. That is, that the judges have just happened to address the concept in cases concerning challenges to constitutional referendums. In that lens, the concept is not particularly vague: it is the ‘will of the people’ as uncovered through this momentary plebiscite. It thus tends to carry enormous authority – any questioning of such referendums suggests an attack on democracy itself. 89 [2012] 3 IR 1, 102, 112. I suggest that traces of this understanding of popular sovereignty are evident in, for example, Clarke J’s judgment in Pringle and also in Finlay CJ’s and Griffin J’s in Crotty. 91 He was essentially setting a particularly high threshold for recourse to a referendum, as an anonymous reviewer of this article suggests. 90 This republican idea of popular sovereignty is not so simple. The initial notion of equally shared popular control is appealing. But while it sets up a framework within which to consider institutional questions aimed at securing the ideal of equal nondomination, it does not provide neat and clear answers to such questions. Thus the paper is not aimed at influencing judges in their adjudication, as such. It is more to (hopefully) contribute to broader reflection on the ideal of popular sovereignty in the Irish constitutional order more generally, and indeed to reflection on other cornerstone ideals in that order, as well as to prompt further such reflection.