Informing our Constitutional Imagination

Given Fine Gael’s proposal for a ‘constitution day’ within a year of taking office should they succeed in the next general election and the various reforms proposed (which we have considered here, here and here) I have been thinking a lot lately about the extent to which, as a people, we feel a real connection to our constitutional tradition. The Preamble to Bunreacht na hÉireann, after quite some veneration of “Our Divine Lord Jesus Christ” and so on, provides that “we, the people of Éire….adopt, enact and give to ourselves this Constitution”. Of course, this phrase of the Preamble is connected to the idea that the Constitution was enacted following a Plebiscite of ‘the people’. Furthermore, as is well known, the Irish Constitution can be amended only by referendum of the people (although this was not always the case). All of this suggests that, in some way at least, the Irish people have some kind of deep connection to the Constitution; that we have a relatively developed sense of “constitutional imagination”. I harbour a real concern, however, that our constitutional imagination is in many ways impaired by lack of constitutional education and the creation of political footballs out of constitutional controversies and uncertainties.

Although the constitutional imagination is a pretty frequently bandied about phrase in constitutional law scholarship, its scope goes well beyond the text of an actual constitution itself and rather encapsulates what a constitution says about the people or, rather, what the people imagine the text to say about themselves and what limits it places on how the state can act. So a liberal democratic constitution like ours in Ireland might say that we as a people imagine ourselves as living in a system of limited and accountable power, with fundamental rights guarantees but limited capacity to make enforceable demands on the government to equalise or enable adequate standards of living. All of this would be correct, but it seems to me that part of the popular constitutional imagination is also populated by myth or inaccuracies (such as, for example, that as a constitutional matter we are a neutral state).

In addition, there are spaces of muddied water in the constitutional imagination that to me are a cause of considerable concern especially since those muddied waters can be taken advantage of in political debate to present as constitutionally impossible that which is not, or to present areas of constitutional uncertainty as certain. Most worrying to me within those muddied waters are the representations, implicit as they may be, that the advice of the Attorney General is determinative of constitutional questions instead of the views of the Supreme Court, or that judicial interpretations of the Constitution are set in stone and not subject to change. Political activity within those areas of constitutional controversy greatly dictates the views of ‘the people’ as to the meaning, scope and content of the Constitution that we apparently give to ourselves through our engagement in the constitutionalised political processes of this state.

I think it is correct to say that the constitutional imagination is a potent element in Irish life; our constitution is something that we are engaged with and which arises in debates and conversations around questions of progressive liberalisation of the state on a frequent basis. However my concern is that it so often seems like most of that debate and engagement takes place in those muddied spaces and therefore on unsound or inaccurate conceptions of what the constitution says and requires. To me, this calls seriously into question the value and utility of that constitutional imagination and of our role, as a people, in the constitutional evolution of this country.

So my proposal is that instead of focusing political capital on immediately reforming the constitutional system in the dramatic manner that Fine Gael proposes, we ought instead to say that Step No. 1 should be informing the constitutional imagination. Here are a few ideas to start:

1. Send a copy of the Constitution to every house in Ireland together with a short, easy-to-understand guide (perhaps something like an accompanying article-by-article explanation)
2. Teach the Constitution in school. As far as I know it is not taught as a matter of course in secondary school. The Junior Certification curriculum presents the perfect opportunity to do this in the CSPE (i.e. Civic, Social and Political Education) module. The Department of Education’s syllabus for this subject says, in paragraph 1, that CSPE “aims to prepare students for active participatory citizenship”. What better place, then, to make sure that students receive some grounding in constitutional culture and the ideas, structures and doctrines of the constitution?
3. Teach the Constitution to politicians. Our legislature has a constitutional responsibility to enact laws that are constitutionally valid, but as far as I know there is no programme of constitutional education for new TDs. If I am wrong about this I would be delighted to find out more about it.
4. Hold a series of public lectures about the Constitution. I know I–and I am sure many many other constitutional scholars–would do it for free. Video tape them. Web cast them. Put the text online. Let people see what the constitution does and doesn’t say and where the controversies are.

These are nothing more than starter ideas. There is lots more that we could do to inform the constitutional imagination but instead political capital seems always to be focused on constitutional change and constitutional conflict. I do not mean here to suggest that constitutional change is not necessary in at least some areas, but how can we as a people be expected to assess the need for change and the merits and demerits of proposed change in the absence of a well informed constitutional imagination? That is where our focus should be; otherwise enormous rafts of proposed constitutional change simply can not be sensibly debated.