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Constitutional Change Outside the Courts: Citizen Deliberation and Constitutional Narrative(s) in Ireland’s Abortion Referendum

Published online by Cambridge University Press:  01 January 2025

Eoin Carolan Open the ORCID record for Eoin Carolan [Opens in a new window]
Eoin Carolan*
Affiliation:
UCD Centre for Constitutional Studies, University College Dublin, Ireland
*
The author may be contacted at eoin.carolan@ucd.ie.
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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.

Type
Articles
Information
Federal Law Review , Volume 48 , Issue 4 , December 2020 , pp. 497 - 510
Copyright
Copyright © 2020 The Author(s)

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References

1. Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press, 1999).

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.

6. On the social and institutional significance of this reduction to writing, see Cameron Maxwell, Strong Constitutions: Social-Cognitive Origins of the Separation of Powers (Oxford University Press, 2013).

7. Article 47.1.

8. Article 46.2.

9. Peter Mair, Ruling the Void: The Hollowing of Western Democracy (Verso, 2009).

10. Patrick Chalmers, ‘How 99 Strangers in a Dublin Hotel Broke Ireland’s Abortion Deadlock’, The Guardian (online), 8 March 2018 <https://www.theguardian.com/world/2018/mar/08/how-99-strangers-in-a-dublin-hotel-broke-irelands-abortion-deadlock>.

11. Emma Graham-Harrison, ‘Ireland Votes to Oust “Medieval” Blasphemy Law’, The Guardian (online), 27 October 2018 <https://www.theguardian.com/world/2018/oct/27/ireland-votes-to-oust-blasphemy-ban-from-constitution>.

12. See the discussions in Stephen Elstub and Oliver Escobar (eds), Handbook of Democratic Innovation and Governance (Edward Elgar, 2019).

13. The Convention on the Constitution (2012–14) and the Citizens’ Assembly (2016–18). This article is primarily concerned with the latter.

14. Participants were selected by a polling company in order to provide a broadly representative sample. The company reported significant difficulty in recruitment which raises separate issues regarding whether the Assembly may also have had an over-representation of people with a pre-existing interest in political or constitutional affairs, or pre-existing views on the specific issues to be discussed. See Sinead Mooney and Ciara Clarke, Red C Internal Audit (Report of audit conducted 6–20 February 2018) <https://www.citizensassembly.ie/en/news-publications/red-c-internal-audit.pdf>.

15. Whether an obligation to accept and hold a referendum on the recommendations of an unelected assembly would be normatively appropriate in a system of representative democracy is a separate question.

16. Eoin Carolan, ‘Ireland’s Constitutional Convention: Behind the Hype About Citizen-Led Constitutional Change’ (2015) 13(3) International Journal of Constitutional Law 733.

17. David Farrell, Eoin O’Malley and Jane Suiter, ‘Deliberative Democracy in Action Irish-Style: The 2011 We the Citizens Pilot Citizens’ Assembly’ (2013) 28(1) Irish Political Studies 99; Siobhan O’Sullivan, Amy Erbe Healy and Michael J Breen, ‘Political Legitimacy in Ireland During Economic Crisis: Insights from the European Social Survey’ (2014) 29(4) Irish Political Studies 547.

18. Thirtieth Amendment of the Constitution (Houses of the Oireachtas Inquiries) Bill 2011 (Ireland) No 47 of 2011.

19. Chalmers (n 10).

20. See, eg, Rebecca McKee has argued for Involve, a UK public participation group that: ‘When the Irish parliament started the current Citizens’ Assembly in 2016, the idea of a referendum on abortion was barely imaginable’: Rebecca McKee, ‘The Citizens’ Assembly Behind the Irish Abortion Referendum’ (Blog Post, 30 May 2018) <https://www.involve.org.uk/resources/blog/opinion/citizens-assembly-behind-irish-abortion-referendum>; Annie Portoff has suggested for the Jefferson Center that the ‘Assembly spark a long-awaited public discussion on abortion rights’ that had a ‘history-changing impact’: Annie Pottorff, ‘Lessons from the Irish Citizens’ Assembly: Deliberate, Even When it’s Difficult’ (Blog Post, 21 June 2018) <https://jefferson-center.org/lessons-from-the-irish-citizens-assembly-deliberate-even-when-its-difficult/>.

21. While claims in the academic literature are more cautious, these are most likely to be viewed by a specialist audience. This cause-and-effect narrative appears more common in more accessible accounts, which may have a broader impact on public and political perceptions of the process, especially internationally.

22. In the general election prior to the establishment of the Assembly, several smaller political parties committed to a referendum in their manifestos while Fine Gael (which became the largest party) had proposed the Citizens’ Assembly.

23. Behaviour and Attitudes, Thirty-Sixth Amendment to the Constitutional Exit Poll (RTE and Behaviour and Attitudes Exit Poll, 25 May 2018) 52 <https://static.rasset.ie/documents/news/2018/05/rte-exit-poll-final-11pm.pdf>.

24. Portoff (n 20).

25. Johan Elkink et al, ‘Understanding the 2015 Marriage Referendum in Ireland: Context, Campaign, and Conservative Ireland’ (2016) 32(3) Irish Political Studies 361.

26. Jane Suiter and Theresa Reidy, ‘Does Deliberation Help Deliver Informed Electorates: Evidence from Irish Referendum Votes’ (2019) Journal of Representative Democracy 1, 12.

27. See the Pro-Life Campaign press release of 6 February 2017, on ‘Entirely one-sided focus of Assembly cannot be overlooked’: Pro-life Campaign, ‘Justice Laffoy’s Remarks Do Not Allay Concerns Says PLC’ (Press Release, 6 February 2017).

28. For example, an October 2014 Irish Times/Ipsos MRBI poll found 68% in favour of a referendum to liberalise Ireland’s abortion laws; an October 2016 poll by the same bodies found 75% in favour of a referendum to repeal or liberalise the constitutional position. See ‘The Irish Times Poll’, The Irish Times (online) <https://www.irishtimes.com/news/politics/poll>.

29. Ibid.

30. Behaviour and Attitudes (n 23).

31. Ibid.

32. Three and a half years on, most of the short videos of expert evidence available on the Citizen Assembly website have been viewed between 1000 and 2000 times: Citizens Assembly, YouTube (Video Channel) <https://www.youtube.com/channel/UC2DgyetL9aUTMry_F9B9yUw/featured>.

33. Of the 450 articles referring to the referendum itself identified by Alan Renwick and Michela Palese, somewhere between 2% and 4% referred to an ‘assembly’: Alan Renwick and Michela Palese, UCL, Doing Democracy Better: How Can Information and Discourse in Election and Referendum Campaigns in the UK be Improved (Report, March 2019) 194.

34. For an insightful discussion of other aspects of Ireland’s institutional structures, together with deliberative mini-publics, that may facilitate a responsive form of ‘supplemented democracy’, see Simon Hix, ‘Remaking Democracy: Ireland as a Role Model the 2019 Peter Mair Lecture’ (2020) Irish Political Studies 1.

35. G v An Bord Uchtála [1980] IR 32, 69.

36. [1992] 1 IR 1.

37. Protection of Life During Pregnancy Act 2013 (Ireland) No 35 of 2013.

38. For a more detailed account, see Luke Field, ‘The Abortion Referendum of 2018 and a Timeline of Abortion Politics in Ireland to Date’ (2018) 33(4) Irish Political Studies 608; Fiona de Londras and Máiréad Enright, Repealing the 8th: Reforming Irish Abortion Law (Policy Press, 2018).

39. See, eg, Jack Balkin, ‘How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure’ (2005) 39(1) Suffolk University Law Review 27; Reva Siegel, ‘Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the De Facto ERA’ (2006) 94(5) California Law Review 1323; Douglas NeJaime, ‘Constitutional Change, Courts, and Social Movements’ (2013) 111(6) Michigan Law Review 877.

40. Fiona de Londras, ‘The Citizens’ Assembly and the Disciplining of Activist Demands’, IACL-AIDC Blog (Blog Post, 26 November 2018) <https://blog-iacl-aidc.org/blog/2018/11/26/the-citizens-assembly-and-the-disciplining-of-activist-demands>.

41. Brian Girvin, ‘Social Change and Moral Politics: the Irish Constitutional Referendum 1983’ (1986) 34(1) Political Studies 61.

42. Linda Connolly, ‘Explaining Repeal: A Long-Term View’ in Kath Browne and Sydney Calkin (eds), After Repeal: Rethinking Abortion Politics (Zed Books, 2020), 36–52.

43. Sean Beienburg and Paul Fryer, ‘The People Against Themselves: Rethinking Popular Constitutionalism’ (2016) 41(1) Law & Social Inquiry 242.

44. Jeff King, ‘Constitutions as Mission Statements’ in Denis Galligan and Mila Versteeg (eds), Social and Political Foundations of Constitutions (Cambridge University Press, 2013) 73.

45. Jack Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011).

46. Martin Loughlin, ‘The Constitutional Imagination’ (2015) 78 (1) Modern Law Review 1, 3.

47. As with the Citizens’ Assembly, only 1% of respondents identified the recommendations of the Oireachtas committee on the issue as the point at which they decided how to vote.

48. [2014] IEHC 622.

49. Sabaratnam Arulkumaran (Health Service Executive), Investigation of Incident 50278 from Time of Patient’s Self Referral to Hospital on the 21st of October 2012 to the Patient’s Death on the 28th of October, 2012 (Final Report, June 2013).

50. Kitty Holland and Paul Cullen, ‘Woman “Denied a Termination” Dies in Hospital’, The Irish Times (online), 14 November 2012 <https://www.irishtimes.com/news/woman-denied-a-termination-dies-in-hospital-1.551412>.

51. Kitty Holland, ‘Savita Halappanavar’s Death May Stir Ireland to Change over Abortion’, The Guardian (online), 17 November 2012 <https://www.theguardian.com/commentisfree/2012/nov/18/savita-halappanavar-death-abortion-ireland-change>.

52. It is worth noting that this was the same question to which 1% identified the much more temporally proximate Citizens’ Assembly and Oireachtas Committee as the point of decision-making.

53. The case featured prominently in Irish and international media outlets, including the Irish Times, Irish Independent, Irish Examiner, RTE, BBC, CNN and others.