Constitutional Bootstrapping: the Irish Nation
by Desmond Clarke
Irish Law No.5, 2000
The British-Irish Agreement 1998
Following the declaration by the Irish Government on December 2, 1999, the State has become bound by the British-Irish Agreement of 1998. The amended Articles 2 and 3 of the Constitution which had already been embedded conditionally in the text of Article 29 by the Nineteenth Amendment to the Constitution, have been moved from their holding position in Article 29 to replace Articles 2 and 3 of the original text of 1937. The most obvious implication of the amended articles is that references to the 'national territory' over which the Constitution formerly claimed that the Oireachtas had a 'right.....to exercise jurisdiction' have been deleted. The amended text acknowledges explicitly in Article 3 that a united Ireland 'shall be brought about only by peaceful means with the consent of a majority of people, democratically expressed, in both jurisdictions in the island'. Thus, much of the jurisprudence of the original Articles 2 and 3 concerning the jurisdiction of the Oireachtas over 'national territory', which culminated in the Supreme Court decision in McGimpsey v Ireland, has become moot.2
However, while omitting all references to 'the national territory', the amended Articles 2 and 3 contain three new references to 'the Irish nation'.
Article 2: It is the entitlement and birthright of every person born in the island of Ireland.....to be part of the Irish nation (naisun na hEireann)........Furthermore, the Irish nation cherishes its special affinity with people of Irish ancestry living abroad.....
Article 3: It is the firm wish of the Irish nation....to unite all the people who share the territory of the island of Ireland......(italics added throughout).
The fully revised Articles 2 and 3, together with Article 1, comprise the introductory section of the Constitution, which is entitled 'The Nation'. Article 1 continues to read, as it did before the Good Friday Agreement:
The Irish Nation hereby affirms its inalienable, indefeasible and sovereign right to choose its own form of Government, to determine its relations with other nations and to develops its life, political, economic and cultural in accordance with its own genius and traditions.
The language describing an 'inalienable, indefeasible and sovereign right' has obvious connotations of the natural law theory which has featured so prominently in Irish jurisprudence over the past four decades, and which provided a foundation for numerous judicial decisions about constitutional rights which are antecedent and superior to positive law. 3. This raises a question about the implications for the amended Articles 2 and 3 of appealing to such a morally and politically ambiguous term as the 'Irish nation' which, according to the Constitution has an inalienable, indefeasible and sovereign right to a range of rather open-ended or underdetermined projects. 4
The national as a pre-political reality
The literature on national identity and the ontology of nations is sufficiently contentious to warrant the following recent summary by M> Guibernau: 'The nation has become one of the most contested concepts of our times.5 Amid all the competing claims made on behalf of nations, however, one that is frequently made and widely recognised is that the term 'nation' refers to some kind of pre-political entity on which the moral or political justification of current political or constitutional arrangements are said to depend. For example, Charles Taylor, comments 'the idea is invoked that a people, or as it was also called at the time, a 'nation' can exist prior to and independently of its political constitution.'6
The plausibility of this claim, and the extent to which we can make sense
of it without begging the very questions that underly contemporary political
disputes, remains open. Without attempting to resolve that issue, one can
acknowledge that an already existing nation is often invoked at the transition
between an older constitutional dispensation and a new one which is allegedly
justified by the appeal. This is particularly true in the case of secession.7
Thus 'nations' are invoked to explain the identity of a community which
claims a collective moral right to self determination, or to establish the
political structures that reflect its choices for legislative structures.
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