Constitutional Bootstrapping: the Irish Nation
by Desmond Clarke
Bootstrapping nationalism
One of the key issues in the jurisprudence of the former Articles 2 and 3 beginning with Byrne v Ireland, 13, was whether the Constitution contains expressions of political objectives which are not legally binding. As is well known, McGimpsey decided that the former Articles 2 and 3 did not merely express a political objective, but a 'claim of legal right' about the jurisdiction of the Oireachtas over the whole national territory. 14. The revised Articles 2 and 3 are likely to raise comparable difficulties for future constitutional interpretation, and to bootstrap a new or revised kind of nationalism into the Constitution - though the very concept of bootstrapping implies that it is impossible to know in advance what meaning may be read into the texts by future court decisions. Bootstrapping ' the nation' occurs as follows.
The electorate in Saorstat Eireann (in 1937) and in the Republic of Ireland (in 1998) claimed to speak not only on behalf of the state but also on behalf of the Irish Nation' were merely an alternative, less technical, name for the state which is governed by the Constitution - as in other cases in the Constitution, where the terms 'nation' and 'national' are used simply as synonyms for 'state' and 'what pertains to the state' - then there would be little reason to object, apart from the confusion that might result. 15.But if the electorate of a particular state (such as Saorsat Eireann) claims to speak on behalf of a nation that is explicitly acknowledged as not identical with itself and if they enact a constitution which appeals to the nation's existence and its inalienable indefeasible rights, then the constitution that results is likely to be mired in logical paradoxes.
It is widely accepted that, following Locke, the ultimate authority to which people appeal in adjudicating the validity of a legislature is the consent of the people who established it. This includes their ongoing consent, and not simply their initial consent when it was first established. The main problem then is to decide who ' the people' are, ie who are the relevant people for a such a collective decision. It is difficult to find any geographical place on earth where 'the people' are so homogeneous, and so separated from others, that there is no problem about linguistic, cultural, ethnic, religious or political divisions. One way around this difficulty, a way of apparently short circuiting it, is to appeal over the heads of actual people, in all their awkward diversity, to the unity of a nation and to entrust the decision about sovereignty to 'the nation'. This can be further assisted by assuming that nations have natural rights, antecedent to positive law, so that in articulating the decision of a nation the electorate is merely implementing the demands in justice of a higher law. But how can one discover what the nation wants? In practice, by getting someone to speak on its behalf.
In the case of the Irish Constitution, it begins with 'We, the people of Eire............' But as the Constitution itself makes plain in Article 4 'Eire' is the new legal name for what was formerly known as Saorstat Eireann. Thus a majority of the people of what had been the Irish Free State purported to speak on behalf of 'the Nation' likewise, in the referendum following the Good Friday Agreement, an even greater majority of the people in the Republic of Ireland claimed to speak on behalf of the Irish Nation, of its rights and aspirations.
Bootstrapping is then completed as follows. Those who share similar cultural, religious, linguistic and/or political aspirations claim to speak on behalf of a nation that is defined narrowly enough to demarcate a relatively homogeneous political community. In a sense, they realise the ideal of a decision by a 'general will' by limiting sufficiently the number of those who are consulted. They also adopt a political theory to the effect that nations have the equivalent of natural rights, including the right to self-determination. They include this claim in the constitution of a state in which members of the nation in question constitute a majority of its citizens and thereby grant it constitutional validity. Once thus endorsed, they can then consult the Constitution to decide disputed questions about the national language and culture and even, following Good Friday .the birthright and entitlement of Northern Unionists.
Once the concept of the nation and its rights are constitutionally established,
there may be unforeseen implications which will emerge, in time, from the
interpretation of the text. Without being too fanciful, nationalists may
even claim, consistently with one of the core beliefs of nationalism, that
each nation has a right to its own national territory, and that their reading
of history identifies what that territory is. Thus, it may be argued that
the mere fact that such a ''national territory'' is no longer mentioned
in the text of the Constitution could not override the ''inalienable indefeasible''
rights of nations. |
