Constitutional Bootstrapping: the Irish Nation
by Desmond Clarke
If anyone were to object that the Constitution is merely the law of one state and that it applies to no one else, one could invoke the political philosophy which was assumed in the bootstrapping strategy. According to this, the rights of nations are more fundamental than the constitutional rights conferred by domestic, basic law. By linking the written Constitution with an unwritten natural law, one incorporates into Irish constitutional law all the unenumerated rights that result from the concept of a nation. In the same process, the core nation is transformed from being merely one among different cultural communities into a nation with natural rights, which a happens to be burdened by a dissident community that fails to recognise those rights (because these rights have also been transformed, in the process, from disputed moral or political rights into constitutional rights)
It goes without saying that those who disagree with the way in which 'the Irish nation' is identified and demarcated, and with the theory of natural rights that is built into this concept of a nation, are likely to remain unimpressed with the resulting constitutional interpretation and with the apparent justification for any political decisions that it supports.
In summary bootstrapping 'the nation' into the Constitution involves the introduction into the text, without due regard for its semantic density, of a concept that is acknowledged to be fundamentally contested in current political philosophy. Even the extension of the term is not agreed, since it includes many more people than those who are currently alive or who reside in an identifiable geographical region. If 'the Irish nation' appeared in the Constitution only in the Preamble, it might provide the transitional discourse that is often used in the emergence of a new state (the ultimate justification of which depends on consent) But if the Constitution acknowledges 'the Irish nation' has rights which are inalienable, indefeasible, and superior to positive law, it thereby embeds in the text a very pregnant concept from which unforeseeable and possibly inconsistent implications may be extracted by future court decisions. Whether this comes to pass or not depends on the creativity of its interpreters and an already established pattern of understanding 'the Irish Nation'.
2. (1990) I.R. 294
3. Cf. McGee v Attorney General (1974) I>R> 284, at p. 310. For some of the paradoxes that result see Clarke, 'Natural Law and Constitutional Consistency' in G Quinn et al eds Justice and Legal Theory in Ireland (Oak Tree Press 1995) 22
4. The problem about being underdetermined here arises from the fruitfulness of Article 40.3.1 once the courts realised that 'the personal rights of the citizen' were not exhausted by the rights identified 'in particular' in 2 or elsewhere in the Constitution.
5. M> Guibermau, Nations without States (Polity Press 1999) p 13
6. 'Nationalism and Modernity' in J>A? Hall ed The State of the Nation (Cambridge Univ. Press 1998) p 198
7. See Allen Buchanan, Secession (Westview Press 1991)
8. As in Article 1 of the UN International Covenant on Civil and Political Rights 'All peoples have the right to self determination'. The exact same sentence occurs in Article 1 of the UN International Covenant on Economic, Social and Cultural Rights.
9. E> Gellner. Nations and Nationalism (Blackwell 1983)
10. See, for example, A. D. Smith National Identity (Penguin 1991), W Kymlickea, Multicultural Citizenship (Oxford 1995) T. Nairn, Faces of Nationalism (Verso 1997), R. Beiner, ed Theorizing Nationalism (SUNY Press 1999); D. Clarke and C> Jones, eds. The Rights of Nations (Cork University Press, 1999)
11. Rogers Brubaker, Nationalism Reframed (Cambridge Univ. Press 1996)
12. ibid. p 226
13. (1972) I.R. 241
14. (1990) I.R. 110, at p. 119
15. These are listed in Clarke, 'Nation, State and Nationality in the Irish
Constitution' (1998) 16 ILT 252 |
