Are the people the masters? Constitutional Referendums in Ireland

Abstract

According to some, we are now living in the ‘Age of the Referendum’. But the rise of the referendum is fraught with worry it will usher in a crude populism which will obliterate constitutional constraints and lead – ironically - to executive dominance, authoritarianism and deep forms of democratic decay. Therefore, whilst referendums hold out the promise of constitutional self-government, we need to be mindful of the pitfalls and problems they bring in their wake. In exploring the potential—and the pitfalls—of a democratic constitutionalist vision, Ireland offers a promising testing ground. On the surface, one might think that Ireland’s referendum process would fall victim to many of the common concerns about referendums. In initiation and formulation, the process is open to elite capture because the government gets to propose and formulate the referendum proposal which is put to the people. The process is purely majoritarian; 50% plus one of the voters on referendum day can approve any change. Any change can be proposed, however radical. Minority rights have been put to referendum vote. Ireland’s rules and regulation of campaign advertising and debate are loose and scant and seem unlikely to combat disinformation. Yet, when examined closely, Ireland stands as a counterpoint to many of the criticisms and fears which surround referendums. Elite dominance, though formally prevalent, is offset by a substantial role for civil society in initiation and campaigning. Bare majority vote is supplemented by widespread participation and deliberation, which appears to be nuanced and robust, whilst minority rights have been vindicated when voted on. The process has not been subject to political exploitation for sweeping or abusive constitutional change. Though the record is far from perfect, referendums work reasonably well in Ireland, commanding high levels of popular participation and engagement, which go well beyond the mere act of ratifying or rejecting a referendum proposal at the ballot box and extend to widespread, relatively well-informed and committed popular deliberation. During a constitutional referendum in Ireland, a national conversation takes place about what people want their Constitution to mean. As such, Ireland is a crucial case-study in exploring the promise - and perils - of constitutional referendums.