Maria Cahill, Colm O’Cinneide, Seán Ó Conaill and Conor O’Mahony, Constitutional Change and Popular Sovereignty: Populism, Politics and the Law in Ireland, 2020
Populisms come in different forms, but all involve a political rhetoric that invokes the will of ... more Populisms come in different forms, but all involve a political rhetoric that invokes the will of a unitary people to combat perceived constraints, whether economic, legal, or technocratic. In this chapter, our focus is democratic backsliding aided by populist rhetoric. Some have suggested deliberative democracy as a means to combat this form of populism. Deliberative democracy encourages and facilitates both consultation and contestation, emphasising plurality of voices, the legitimacy of disagreement, and the imperative of reasoned persuasion. Its participatory and inclusive character has the potential to undermine the credibility of populists’ claims to speak for a unitary people.
Ireland has been widely referenced in constitutionalism’s deliberative turn, given its recent integration of deliberative mini-publics into the constitutional amendment process. Reviewing the Irish experience, we suggest that deliberative mini-publics are unlikely to reverse democratic backsliding. Populist rhetoric is fuelled by the very measures intended to combat democratic backsliding: enhanced constitutional constraints merely illustrate how the will of the people is being thwarted. The virtues of Ireland’s experiment in deliberative democracy—citizen participation, integration with representative democracy, deliberation, balanced information, expertise—have all been criticised in ways that are at least consistent with populist narratives. The failure of such narratives to take hold in Ireland, we suggest, may be due to a political system that is already resistant to populist rhetoric, as well as a tradition of participatory constitutionalism. The experiment with deliberative mini-publics may have strengthened Ireland’s constitutional culture by reinforcing anti-populist features. But it cannot be assumed that this experience would be replicated in larger countries polarised along political, ethnic, or religious lines.
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Papers by Oran Doyle
In this chapter, I suggest a different approach. Four cross-cutting distinctions establish a typology of ways in which the power of constitutional amendment can be constrained. This typology focuses attention on how constraints disempower contemporary majorities in favour of past generations or judicial elites, thus providing a baseline against which we can assess whether those constraints are justified. Constraints that seek to serve majoritarian values pose the relatively simple question of whether the detriment to majoritarian values in the here and now is justified by the protection of majoritarian culture over the medium to long term. Constraints that prevent change to the fundamental features of the polity are unjustified: there can be no objection to the current generation using constitutional processes to transform its polity. Constraints that seek to preserve counter-majoritarian values are the most difficult to assess, raising as they do a competition between the incommensurable values of majoritarian democracy and the protection of minorities from unjust laws.
Third, in some circumstances, it may be more effective to change constitutional law by changing how we select judges than by formally amending the text of the Constitution.
This Article seeks to explore the limitations on human rights protection effected by the 2003 Act. It takes issue with a number of the more restrictive approaches adopted by the courts. Ultimately, the current situation may be thought to bear out the prediction of Keane CJ, writing extra-judicially, that the substantive rights issues presented for the judiciary by the 2003 Act might be less daunting than a casual acquaintance with the legislation would suggest. That this situation has been realised partly through contestable judicial interpretations is a matter of some regret.
Directive into national law and in the submission of sites to the Commission for adoption as SCIs. Ireland only transposed the Directive in 1997 through SI 94/1997 European Communities (Natural Habitats) Regulations 1997. The legal jigsaw of
what the Habitats Directive requires is slowly being put together.
One new piece of that jigsaw is the European Communities (Natural Habitats) (Amendment) Regulations 2005, signed into law in July 2005.9 This legislation tidies up a number of anomalies in the Habitats Regulations and introduces a number of significant provisions, largely in an apparent effort to make Irish law consistent with the requirements of the Habitats Directive. The
purpose of this note is to analyse the changes made by the Habitats Amendment Regulations and to assess whether full transposition of the Directive has now been completed.
Drafts by Oran Doyle
Ireland has been widely referenced in constitutionalism’s deliberative turn, given its recent integration of deliberative mini-publics into the constitutional amendment process. Reviewing the Irish experience, we suggest that deliberative mini-publics are unlikely to reverse democratic backsliding. Populist rhetoric is fuelled by the very measures intended to combat democratic backsliding: enhanced constitutional constraints merely illustrate how the will of the people is being thwarted. The virtues of Ireland’s experiment in deliberative democracy—citizen participation, integration with representative democracy, deliberation, balanced information, expertise—have all been criticised in ways that are at least consistent with populist narratives. The failure of such narratives to take hold in Ireland, we suggest, may be due to a political system that is already resistant to populist rhetoric, as well as a tradition of participatory constitutionalism. The experiment with deliberative mini-publics may have strengthened Ireland’s constitutional culture by reinforcing anti-populist features. But it cannot be assumed that this experience would be replicated in larger countries polarised along political, ethnic, or religious lines.
In this chapter, I suggest a different approach. Four cross-cutting distinctions establish a typology of ways in which the power of constitutional amendment can be constrained. This typology focuses attention on how constraints disempower contemporary majorities in favour of past generations or judicial elites, thus providing a baseline against which we can assess whether those constraints are justified. Constraints that seek to serve majoritarian values pose the relatively simple question of whether the detriment to majoritarian values in the here and now is justified by the protection of majoritarian culture over the medium to long term. Constraints that prevent change to the fundamental features of the polity are unjustified: there can be no objection to the current generation using constitutional processes to transform its polity. Constraints that seek to preserve counter-majoritarian values are the most difficult to assess, raising as they do a competition between the incommensurable values of majoritarian democracy and the protection of minorities from unjust laws.
Third, in some circumstances, it may be more effective to change constitutional law by changing how we select judges than by formally amending the text of the Constitution.
This Article seeks to explore the limitations on human rights protection effected by the 2003 Act. It takes issue with a number of the more restrictive approaches adopted by the courts. Ultimately, the current situation may be thought to bear out the prediction of Keane CJ, writing extra-judicially, that the substantive rights issues presented for the judiciary by the 2003 Act might be less daunting than a casual acquaintance with the legislation would suggest. That this situation has been realised partly through contestable judicial interpretations is a matter of some regret.
Directive into national law and in the submission of sites to the Commission for adoption as SCIs. Ireland only transposed the Directive in 1997 through SI 94/1997 European Communities (Natural Habitats) Regulations 1997. The legal jigsaw of
what the Habitats Directive requires is slowly being put together.
One new piece of that jigsaw is the European Communities (Natural Habitats) (Amendment) Regulations 2005, signed into law in July 2005.9 This legislation tidies up a number of anomalies in the Habitats Regulations and introduces a number of significant provisions, largely in an apparent effort to make Irish law consistent with the requirements of the Habitats Directive. The
purpose of this note is to analyse the changes made by the Habitats Amendment Regulations and to assess whether full transposition of the Directive has now been completed.
Ireland has been widely referenced in constitutionalism’s deliberative turn, given its recent integration of deliberative mini-publics into the constitutional amendment process. Reviewing the Irish experience, we suggest that deliberative mini-publics are unlikely to reverse democratic backsliding. Populist rhetoric is fuelled by the very measures intended to combat democratic backsliding: enhanced constitutional constraints merely illustrate how the will of the people is being thwarted. The virtues of Ireland’s experiment in deliberative democracy—citizen participation, integration with representative democracy, deliberation, balanced information, expertise—have all been criticised in ways that are at least consistent with populist narratives. The failure of such narratives to take hold in Ireland, we suggest, may be due to a political system that is already resistant to populist rhetoric, as well as a tradition of participatory constitutionalism. The experiment with deliberative mini-publics may have strengthened Ireland’s constitutional culture by reinforcing anti-populist features. But it cannot be assumed that this experience would be replicated in larger countries polarised along political, ethnic, or religious lines.
Irish unification must therefore involve, if it is to meet the three criteria identified above, concurrent referendums North and South followed by legislation approved by Westminster and the Oireachtas (Irish Parliament). We go further, however, and specify three desiderata against which unification processes can be assessed. First, that those voting in referendums should be able to have a reasonably clear idea of what the implications of their vote. Second, that the processes should reduce the risk of the UK and Ireland diverging over the final constitutional status of Northern Ireland. Third, that the processes should allow for a wide range of consultation and negotiation over the constitutional and political structure of a unified Ireland, including extensive attempts to engage with the views of northern unionists. We identify several models that fit the legal parameters. We suggest, however, that the model that best meets the desiderata is one in which the form of a united Ireland is settled through negotiations prior to the referendums. The required legislation in Westminster and the Oireachtas should then follow as a matter of course.