Dr Maria Cahill
The Irish Constitution has been amended 31 times in 82 years, and 8 times in the last 10 years. In total, there have been 43 proposals to amend the Constitution, 12 of which have been put forward in the last 10 years. The proposed referendum on 24th May 2019 already creates history for being the third referendum polling day within 365 days.
This post is not concerned with the substance of any of those amendments or proposals. In fact, it will work on the assumption that all of those proposals – even those that were rejected by a majority of voters – would have improved the quality of our constitutional bargain.
The argument here is that even if the proposals are solid and would advance the common good, there are dangers as well as advantages inherent in frequent constitutional amendment.
The advantages of having a constitutional amendment procedure which can be activated relatively easily are well-canvassed: they allow that constitutional provisions that are no longer fit-for-purpose can be adapted, they prevent the constitution from becoming delegitimised, they allow constitutional change to happen lawfully through established and orderly processes rather than requiring revolution and replacement, and, in our unusual system where popular referenda are held every time we seek to amend the constitution, the amendment procedure allows the people to feel a sense of ownership over the enterprise of constitutional self-government.
Those advantages accrue even if the particular proposal is a particularly bad idea.
But just as there are advantages to proposing constitutional amendments, even if the proposals aren’t good in themselves, so too there are dangers to proposing constitutional amendments even if the proposals aren’t bad in themselves. Those dangers are not so frequently considered.
The biggest danger is simply that we forget what the purpose of a constitution is. Identifying the purpose(s) of constitutions admittedly is a difficult job even for constitutional scholars, but when we do engage in such discussions, those conversations almost always include a reference to a particular part of Homer’s Odyssey. On his journey home after long adventures, Captain Odysseus, aka Ulysses, knows that his course takes the ship past a famous island. The beautiful goddess Circe has warned Ulysses that many ships have been lured to this particular island by the beguiling sounds of the sirens coming from the island and that all the sailors who follow the music to the island meet their deaths. To help Ulysses avoid this disastrous fate, Circe advises him to put wax in the ears of the sailors so that they do not hear the music and, if Odysseus himself wants to listen, to have them bind his hands and feet with ropes so that he cannot direct them to the island. Odysseus first makes the sailors to swear an oath that they will not unbind him no matter how much, under the influence of the music, he implores. Then he deafens their ears with the wax and they tie him to the mast. And they all sail safely past the island.
The moral traditionally taken from the story is that, in order to be truly free, we must be prepared to sacrifice instant gratification for the fulfilment of a bigger purpose. It is also a blunt reminder that the desire for instant gratification can be so overwhelming that mutual accountability mechanisms are a very smart way to proceed.
For constitutional theorists (for example, Jon Elster, Stephen Holmes and Philip Pettit), this story is also a metaphor for constitutionalism: Odysseus cannot make the choice that he wants to make in the instant that he hears the music because he had previously consciously chosen not to retain that irresponsible choice as one of his available options. In the same way, so the analogy goes, a political community that sets the course of the nation’s destiny by adopting a written constitution which establishes certain specific institutions endowed with certain specific powers and governed by certain specific rules necessarily constrains its capacity to gratify immediate desires, knowingly and willingly limiting its freedom-in-the-moment for a deeper freedom-through-time.
Constitutions, they say, aren’t supposed to be a mirror image of everything we would like to do in any given moment, or even everything we think we should be able to do in any given moment. They are supposed to be the rules that sometimes require us to sacrifice now in order to retain the possibility of achieving a higher goal. They are supposed to be the rules that we sometimes rail against, that we sometimes long to be released from, but that deep down we know speak to us of what’s best in us as well as what’s best for us. (That’s not to say that constitutional rules always do fulfil this purpose, but that that’s the idea of a constitution.)
Frequent constitutional amendment gives the contrary impression that if there is anything in the constitution that we don’t like right now, we just change it. In this view, a constitution is less a foundational agreement that holds the hopes and dreams of a nation and more a temporary contract which can be revised and re-negotiated every few months or years, a bit like an EU treaty that concretises certain rules but doesn’t grab anyone’s heart.
If anything and everything about the basic bargain of a nation can be changed on a whim – and in the Irish constitutional order, unusually, there are no restrictions whatsoever on what can be amended – there is at least the risk that this creates a deep instability in the legal system, because this attitude to constitutionalism defeats the purpose of having a constitution in the first place. It therefore undermines not only the particular constitution being amended, but the legitimacy of this and any future constitution as a foundational agreement, and eventually even the rule of law itself in that political community. Allied to the instability created in the legal system, it can also create insecurity in the political community: frequent disagreements about the content of the basic commitment unsettle any relationship. This danger, however, can be mitigated if the changes are not terribly significant and/or there is near consensus in favour of or against the proposal.
A lot about constitutions is rhetorical: we mythologise ‘constitutional moments’, ‘founding fathers’ and the apparently-infallible ‘People’; we selectively remember the circumstances in which the constitution was forged; and we celebrate anniversaries with pomp and circumstance. All this rhetoric can seem quite empty, especially to someone who has expert knowledge of the historical events, but it is nonetheless important because it constitutes the founding myth of the nation, and acts as a focal point for the generation and deepening of political community. Retelling the founding myth has some value therefore even when we haven’t got all the facts straight. For the same reason, maintaining the Constitution as a foundational agreement is important even if some of the provisions are imperfect, and changing the rules too often, even if all the changes are beneficial, carries inherent risks that we cannot simply ignore.
With all of this in mind, justifications of amendment proposals should be unsatisfactory to us if they purport to offer only (minor) improvements to the constitutional settlement without counting the wider constitutional cost. And questions can legitimately be raised of any proposal which does not purport to substantially improve the constitutional settlement and/or which is unreflective about the risk that too-frequent amendment proposals compromise the project of constitutionalism and the integrity of the political community.
Dr Maria Cahill lectures in constitutional law at the School of Law at University College Cork.