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Where we are

Thomas Murray

New Beginnings: Constitutionalism and Democracy in Modern Ireland, by Bill Kissane, UCD Press, 200 pp, £20.00, ISBN: 978-1906359515.

We are where we are, apparently. Post-crisis, a cottage industry has sprung up in Ireland looking at where we are, how we got here and what is to be done. Of the resulting analyses, few have examined the state’s constitution or legal system. This is surprising. In all manner of political contestations in Ireland, from rent restrictions to abortion rights, from European treaty referendums to the proposed abolition of the Seanad, all players on the stage know that the constitution, much like the ghost of Hamlet’s father, is hovering somewhere in the wings. This absence of inquiry owes something to the fact that political studies of the Irish constitution occupy a remarkably small shelf space. In recent years, we have witnessed two legal-historical reconstructions of the constitution-making process, Dermot Keogh and Andrew McCarthy’s The Making of the Irish Constitution, 1937 and Gerard Hogan’s Origins of the Irish Constitution: 1928-41, but little by way of a holistic analysis, assessing the wider power relations at stake in constitutional development or, indeed, its relationship to and significance for our contemporary situation. Enter Bill Kissane’s New Beginnings.

In this ambitious book, Kissane sets out to analyse constitutionalism and democracy in Ireland from Home Rule to the Good Friday Agreement through the detailed examination of “turning points” when constitutional change was discussed, attempted or implemented. Each of the five central chapters focuses on a specific turning point: the making of the 1919, 1922, and 1937 constitutions, debates on constitutional change since 1969, and the 1998 Belfast peace agreement. Would-be constitution-makers, he argues, faced a number of recurring, foundational decisions centring on the nature of an essentially contested concept, sovereignty. The basic sovereignty problem involved choosing between popular sovereignty as popular ownership of the new state and a realpolitik of adhering to inherited structures of government, specifically the Westminster model of executive and party dominance. The latter triumphed: Irish constitutionalism had minimal popular or direct democratic involvement. Instead, representative party politics was to exercise a decisive influence over each turning point in the constitution’s history. Irish politicians, Kissane argues, have typically viewed constitution-making not as an opportunity for “genuine democratic transformation” but rather as a means of making democracy more manageable.

Meanwhile, Kissane suggests, a majority of people in Ireland proved willing to be managed and accepted the constitution. This was so for two key reasons. Firstly, Daniel Corkery’s triumvirate of land, religion and nationalism, deemed central to national identity, proved enduring. A majority accepted the 1937 Constitution because it registered this social order in legal form, presenting it as a fait accompli. The constitution’s longevity, seventy-six years and counting, is thus a function of the shared hegemony of Fianna Fáil, the Catholic Church and the Land Commission, the dominant institutions in Ireland for much of the last century. Secondly, the constitution’s durability owed to its design. When traditional hegemonic values began to change from the 1960s onwards, political elites and citizens could use referendum or judicial review procedures to amend the constitution, thereby ensuring its adaptability. While Kissane thus broadly adheres to Basil Chubb’s earlier, standard thesis on the role of changing societal values in provoking constitutional change, he extends his analysis to incorporate and more fully explore moments of decision post-1968. Constitutional development, Kissane argues, owed primarily to political elites’ gradually organising the state more effectively, ensuring stability and consensus while gradually accommodating the liberalisation of social mores and integration into the European Union, as well as regulating conflict in Northern Ireland.

New Beginnings is an engaging read, bringing a range of archival sources and insights from political theory to the reader’s attention without sacrificing clarity of argument in the process. The opening chapter, “Ideals”, provides a particularly good example of this combination. Here Kissane incorporates a number of unfamiliar British pamphlets and periodicals to trace the connections between the particular constitutional ideals of the early Sinn Féin movement and the wider cultural ferment occasioned by industrial society and “the first crisis of liberalism” in the early twentieth century. Thus, Sinn Féin and the Irish Republican Brotherhood emerge as part of a wider constellation of “radical liberals” responding to a “corrupt” party system, dominated by “special interests”, by asserting “popular sovereignty”, a mix of socio-economic reform and direct democratic mechanisms such as the referendum or initiative. The point is well made. Kissane’s extensive use of the archive underlines the liberal, forward-looking currents of pre-independence nationalist thought. Pace Tom Garvin, John Kelly and Chubb, republicanism was not the conservative, Gaelic revivalist antithesis to constitutional nationalism. Irish constitutionalism contained elements of both.

Through each constitutional turning point, Kissane consistently focuses on “elite level” deliberations and institutional reconfiguration. The book’s chapters are methodically structured, outlining a concise resume of each moment before explaining the primary changes or continuities at stake and discussing the implications of key findings. This accessible approach allows for interesting diachronic comparisons. Hence, the Belfast Agreement is situated in the broader history of Irish constitutionalism, emerging less as a Home Rule era “treaty to constitution” process than a “co-ordinating device” to ensure local parties’ mutual commitment to peace, power sharing and the devolution of institutions of government. Comparative perspectives, consistently invoked, generate important and often novel insights. Thus, conservative constitution-making in 1922 and 1937, specifically the triumph of the state tradition over popular sovereignty initiatives, is contextualised within a wider European politics of elite retrenchment in response to the spectre of mass politics. Similarly, de Valera appears as a constitution-maker of the eighteenth century Trans-Atlantic mould, combining the covenanting traditions of New England puritans with older Whig ideals of communitarian, virtuous citizenship. Overall, the book both underlines and benefits from its author’s thorough immersion in constitutional history and associated international literatures.

Notwithstanding these impressive qualities, the analysis is, at least in parts, problematic. A number of jarring assertions concerning what the 1937 constitution is or what its creators achieved pepper the text. Kissane emphasises the “outstanding” democratic credentials of the constitution “for 1937” and accepts Hogan’s argument that the symbolic or confessional aspects of Bunreacht na hÉireann obscured its “sound” institutional framework and clear articulation of fundamental rights. Similarly, he claims that “any enduring reconciliation of constitutionalism and democracy is worthy of respect”. Appeals to longevity seem a dubious basis for celebration, not least because one constitution’s longevity is another, potentially better one’s delay. By way of analogy, an irradiated apple will last much longer on the supermarket shelf than an organic one, nutrition and substance being sacrificed here for appearance and lifespan. When evaluating a constitution, it also seems necessary to take seriously the difficult task of assessing whether it has actually contributed to the substantive well-being of those “constitutionalised”, and whether any perceived societal-constitutional harmony is genuine or merely indicative of constellations of power capable of blocking calls for change. Kissane’s focus on political elites and institutional transformation prohibits this wider consideration of the Irish demos and its relationship to the constitution. In its absence, evaluative claims about “Irish democracy” seem premature, partial and incomplete. We might well conclude that the constitution has been successful, but for whom?

Arguably, actually-existing constitutionalism in twentieth and twenty-first century Ireland has had a much more mixed record than New Beginnings would suggest. This is partly owing to the elite-decided constitutional provisions themselves and partly to the judiciary’s interpretation of these provisions, but perhaps chiefly to Irish society’s unequal division of capacities to raise constitutional challenges or rights claims. Kissane’s claims to the contrary, the constitution has played some role in the devouring of public interests by private ones. Its property rights provisions have been used by political elites to justify preventing the control of speculation in land values, the results of which policy we live with still. Its trade union provisions have been interpreted to permit employers ready access to injunctions and to hinder workers’ involvement in closed shop agreements, industrial action and collective bargaining.  Moreover, one cannot now read the education rights provisions as simply expressing hegemonic Catholic values; their drafting and final wording further signify complicity in the church-state industrial school system and the systematic abuse of poorer and younger citizens. Similarly, while the patriarchal norms encoded in the constitution are identified, they are curiously not recognised as a challenge to the “liberal” or “democratic” nature of the constitutional order. Constitutional history “from below” certainly calls into question the more laudatory aspects of the analysis presented here.

On the whole, however, New Beginnings is a remarkable achievement. Kissane’s posing of the tension in Irish constitutionalism between manageability and genuine democratic transformation is useful and, in the present moment of crisis, timely. While the essentially positive contribution of Bunreacht na hÉireann remains open to question, it is hard to disagree with Kissane’s conclusion that contemporary debates on better “governance” should involve more than strategising how Ireland can become a more profitable hub in the chain of global capitalism; questions about the price to be paid in terms of self-government and democratic values also require public articulation. In sum, those looking for an accessible, engaging overview of the relationship between constitutionalism, nationalism and liberal democratic institutions in Ireland will be well satisfied. Moreover, the central thesis raised here is sure to generate substantive debates and reappraisals among historians, political scientists and legal scholars. Appropriately enough, Kissane has provided us with a provocative starting point for future inquiries, and all manner of new beginnings.
9/09/13

Thomas Murray teaches in the School of Politics and International Relations at University College, Dublin.

 

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