Constitutional Change Outside the Courts: Citizen Deliberation and Constitutional Narrative(s) in Ireland’s Abortion Referendum
| DOI | 10.1177/0067205X20955111 |
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
| Subject Matter | Articles |
Federal Law Review
2020, Vol. 48(4) 497–510
Constitutional Change Outside
ª The Author(s) 2020
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the Courts: Citizen Deliberation
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DOI: 10.1177/0067205X20955111
and Constitutional Narrative(s)
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in Ireland’s Abortion
Referendum
Eoin Carolan*
Abstract
This article considers how the use of referenda to enact constitutional change relates to the
concept of a ‘constitution outside the courts’. It argues that the referendum is a challenge to this
concept but that these challenges arise in a more complex manner than might first be assumed.
First, a referendum occurs within a legal framework which calls into question the notion of the
referendum as an extra-legal interruption to the constitutional order. Secondly, this suggests that
the referendum is more likely to be the end point of a process of constitutional change rather than
the vehicle or impetus for it. This means that the relevant developments may occur elsewhere in
society. Using Ireland as a case study, the article argues that there is a constitution outside the
courts which depends to a significant extent on the mediating influence of multiple actors—
including the courts.
I Introduction
Using Ireland’s recent referendum on abortion as a case study, this article considers how consti-
tutional change may be influenced by factors or forces outside the courts. This, it is argued,
includes not only formal structures for political or civic deliberation that may be appended to the
referendum itself but also—and arguably more importantly—the broader sociocultural processes
through which constitutional narrative and meaning are contested, communicated and understood.
The concept of a ‘constitution outside the courts’, which is the theme of this special issue, was
developed and directed in a US context to perceptions of judicial supremacy in that system. The
post-Warren Court interest in ‘taking the Constitution away from the courts’1 focused initially on
1. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999).
* UCD Centre for Constitutional Studies, University College Dublin, Ireland. The author may be contacted at eoin.
carolan@ucd.ie.
498
Federal Law Review 48(4)
the capacity for political institutions to contribute to, and shape, constitutional meaning or realities;
and later on the potential for a ‘popular’2 constitutional law outside the courts. In providing for
a majority popular vote on an amendment proposal initiated and approved by parliamentary,
Ireland’s system can be seen as engaging both dimensions of the ‘constitution outside the courts’
scholarship. Constitutional change can only occur via a formal process that offers opportunities for
both political and popular pronouncements on constitutional meaning. Moreover, a number of
recent referenda in Ireland have been preceded by a citizens’ assembly, thereby formalising an
additional opportunity for civic deliberation on constitutional questions.
In principle, therefore, these referenda might be regarded as a tangible manifestation of the
‘constitution outside the courts’ popular vision: a riposte to juriscentric accounts of constitutional
authority or meaning. The Irish experience ostensibly provides concrete evidence of the capacity
for citizens and political actors to together deliberate and decide upon their country’s constitutional
project.
Ireland, accordingly, provides a suitable case study for exploring a process of constitutional
change outside the courts. That is especially so given that Ireland’s system has attracted a degree of
scholarly attention as a putative ‘world leader in the linking of deliberative and direct democracy’3
since it introduced a civic deliberation component at the pre-initiation stage.4 While these delib-
erative mini-publics are interesting and, potentially, impactful, this article cautions against an over-
emphasis on institutions—even novel deliberative mechanisms—in explaining constitutional
change in Ireland.
First, there are grounds for reasonable circumspection about whether, and to what extent, these
bodies affect the decisions of individual voters.
Secondly, a focus on the referendum result may overlook the arguably more interesting phe-
nomenon whereby the outcome of the citizens’ deliberations seemed to exert more influence on
how elected politicians performed their role in the process of constitutional amendment. Whether
by rational persuasion, public agenda-setting or some other factors, the results of the deliberations
on both marriage equality and abortion seemed to bring about important differences in how
politicians framed and made their decisions on whether to initiate a referendum, and on their
preferred constitutional (and legislative) outcome.5 Space precludes a detailed analysis of the
relationship between civic deliberation and parliamentary decision-making in the Irish context
here but this is a dimension that calls for further consideration in future academic work.
Thirdly—and the primary focus of this article—an analysis of constitutional change that
focuses on the formal mechanisms by which it is brought about risks downplaying the wider
sociocultural factors that create the constitutional culture in which it becomes socially and polit-
ically plausible to engage the formal amendment process.
2. See, eg, Larry D Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University
Press, 2006); Bruce Ackerman, We the People: Vol 2 Transformations (Harvard University Press, 2000); Reva B. Siegel,
‘Dead or Alive: Originalism as Popular Constitutionalism in Heller’ (2008) 122 Harvard Law Review 191.
3. David Farrell, Jane Suiter and Clodagh Harris, ‘Systematising Constitutional Deliberation: The 2016–2018 Citizens’
Assembly in Ireland’ (2018) 34(1) Irish Political Studies 113.
4. This is not a constitutional requirement so has been used for some but not all recent referenda.
5. There is a plausible argument (which there is not the space to explore here) that the Assembly had an impact on how the
Oireachtas Committee on the Eight Amendment of the Constitution initially approached the issue (agenda-setting) and
on the content of its recommendations for legislation after a referendum.
Carolan
499
While a referendum—even with a civic deliberative component—provides an opportunity for
public discourse on constitutional questions, the referendum also remains a law-created and
law-bound process which may, depending on the system, be required to produce a legal result.
In Ireland, like in Australia, the People are only entitled to vote on a proposal once it has been
approved by Parliament; and that referendum proposal must be drafted with binding legal conse-
quences in mind. This means that the People are only entitled to choose from the legal wording
presented to them; and any decision to amend the text will ultimately be subject to future legal
interpretation by the courts. That is not to downplay the civic significance of the referendum
process. It does, however, draw attention to the fact that the referendum may provide a relatively
constrained vehicle for popular constitutional expression.
In fact, it is arguably more accurate to regard this kind of referendum mechanism not as an
example of popular, political or some other non-legal variant of constitutionalism but rather as a
bridge between the legal and the non-legal spheres. The referendum, on this view, is the means by
which the popular constitutional will is translated into written form. That the referendum reduces a
political debate to legal rules over which the courts exercise interpretive authority suggest that
characterisations of the process as a free-standing expression of the public’s constitutional views
are overstated.6 The referendum is arguably as much about disciplining any popular constitutional
impulses as it is about taking the constitution away from the courts.
This approach points to a number of considerations which must be factored into any discussion
of the relationship between the referendum and the ideas of popular constitutionalism that feature
in the existing US-based scholarship on the constitution outside the courts. First of all, the refer-
endum, in Ireland at least, is as much a legal as a political process. Secondly, and following from
this, conceptions of the referendum process must take account of the fact that it is time-limited,
subject-restricted and rule-bound—which means that its potential as a space for discussion or
contestation of constitutional values or meaning is inevitably and heavily circumscribed. Thirdly,
and perhaps most fundamentally, this suggests that the referendum may be an end point rather than
embodiment of such civic constitutional contestation. Here the referendum is the mechanism by
which an altered political or social consensus on constitutional questions is formally incorporated
into the constitution inside the courts. The formality of the process is, of course, part of its
constitutionalising purpose. Yet this formality necessarily—and perhaps deliberately—conceals
a range of questions about the dynamics and drivers of constitutional change: questions that go to
the heart of debates about the constitution outside the courts.
Viewed from this more socially rooted perspective, the referendum is what happens after
discussions, debates and disputes over constitutional meaning or practices reach the point where
it appears both appropriate and possible to...
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