Towards a Coherent Conception of Popular Sovereignty in the Irish Constitutional Order

Abstract

This paper considers the ideal of popular sovereignty, and the means of its institutional realisation, in the Irish constitutional order. It identifies a tendency on the part of judges to associate the ideal almost exclusively with the referendum process, arguing that such an understanding is problematic both as a matter of interpretation of the text of the Constitution overall, and as a matter of normative political theory. The suggestion is that this tendency may be explained more by happenstance than by constitutional principle, however – although it may also have to do with an incongruous image of a “people” sharing a thick, value-laden identity that renders that “people” antecedent and superior to the Constitution. The paper argues that the basic features of the Irish Constitution imply a much broader account of the ideal of popular sovereignty as well as a more sophisticated set of institutional mechanisms through which it is to be realised in practice. It also argues for an understanding of the people as immanent within, rather than as antecedent to, the democratic constitutional system. Drawing on republican theory to elaborate that account of popular sovereignty, the paper suggests that something approximating to it might be emerging in recent jurisprudence. The paper is in four parts. Part I introduces popular sovereignty as it has been understood in Irish constitutional law and practice. Part II considers this broader account of popular sovereignty in political theory. Part III looks at relevant aspects of the constitutional text. Part IV turns to the Crotty v An Taoiseach and Pringle v Government of Ireland cases, identifying nascent shifts towards a judicial endorsement of this broader account of popular sovereignty.