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

Abstract

Using Ireland’s recent referendum on abortion as a case study, this article considers how constitutional 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 socio-cultural processes through which constitutional narrative and meaning is 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. This post-Warren Court interest in ‘taking the Constitution away from the courts’ focused initially on the capacity for political institutions to contribute to, and shape, constitutional meaning or realities; and later on the potential for a “popular” 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.