Continual referenda: are we in danger of diluting the Constitution?

Last Friday, Ireland went to the polls to decide on two important Constitutional issues. First and foremost, the electorate decided to retain Michael D. Higgins as President of the Republic and chief custodian of Bunreacht na hÉireann.

While the presidential election was initially seen as a foregone conclusion, the polling gap closed considerably in the weeks leading up to the vote thanks in no small part to the explosion of a seemingly-innocuous expenses scandal coupled with the willingness of the chasing dragons to engage in an Americanised style of debate – culminating in a surprise showing for Peter Casey who received 23% of first preference votes.

Pomp and circumstance of the campaign trail aside, the role of the President as guardian of the Constitution under Article 26 will remain intact and will continue to be carried out in conjunction with the Council of State and the Supreme Court.

Secondly and perhaps more crucially, a referendum was put before the people on the 37th amendment to lift the constitutional ban on the publication of blasphemous material, a provision which spawned the now-infamous offence of blasphemy under S 36 of the Defamation Act 2009.

In recent years, the referendum has become an ever-present fixture of Irish political life – referenda on long-running issues like marriage equality and the Eighth Amendment have been met with unprecedented levels of public enthusiasm and engagement.

Four proposals to amend the Constitution have now been put before the electorate in just three years. By way of comparison, the US Constitution has been amended just 27 times since its inception in 1789.

With votes promised on the clause pertaining to the controversial role of women in the family home as well as the prospect of having directly-elected mayors á la London amongst a host of other proposals, the public can be forgiven for feeling a modicum of “referendum fatigue”.

The increasing frequency with which amendment proposals are being tabled might give the impression that the Constitution is being diluted, reducing its importance to something more akin to general legislation. This may in turn decrease the level of seriousness the general public attaches to what was intended to be a solemn process.

There are aspects of Bunreacht na hÉireann which are antithetical to modern Irish society, of that there can be no doubt. However, it remains to be seen whether the process of dragging citizens to the ballot box every couple of months is the best way to harmonise the values espoused by the Constitution with those commonly-held today.

Moreover, having a less burdensome process of amending the Constitution seems to undermine the role of the “living document” approach to constitutional interpretation. The historical justification for this method is entrenched in the need to update the more antiquated provisions of the Constitution to bring them in line with modern ideals. Since we now seemingly have a system of going to the polls every few months to do precisely that, it is likely that this particular method of constitutional interpretation may fade into obscurity.

It remains to be seen whether the frequent invocation of the amendment process is indicative of a resurgent commitment to the brand of direct democracy envisioned by the Free State Constitution, or is simply unwarranted meddling into the most sacred of Irish legal documents.

That said, voting by simple majority can also lead to what Rousseau famously termed the “tyranny of the majority”, whereby consequential decisions which are binding on all quarters of society are carried by relatively slim margins. This has the potential to sow acrimony between artificially-created factions, as typified by the ongoing Brexit fallout.

When coupled with the “voter fatigue” outlined above, this newfound commitment to majoritarianism may in time pose somewhat of a democratic dilemma if the growing frequency of national plebiscites leads to voter disengagement. Last Friday’s low turnout might indeed be an early indicator of this, however it is too early to tell just yet.

Bloomsbury Professional’s long-awaited fifth edition of Kelly: The Irish Constitution is out now, order your copy for an authoritative consideration of Ireland’s most fundamental legal document against the backdrop of a rapidly-evolving society.

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