The Constitution: Nationality, Identity and the Language

The Constitution: Nationality, Identity and the Language

Sunday 5th May 2013
Constitutional models throughout the world vary not only in their content but also in their structure. Sometimes everything is included in a single document. Sometimes there are separate fundamental laws dealing with, for example, political structures on the one hand and human rights on the other. However, in general terms almost all fundamental laws address, in one way or another, three main areas. In this regard the Irish Constitution is no different.

The three main areas are, first, a definition of the fundamental nature of the State including, typically, an assertion as to where its sovereignty is said to emanate from. Second, provisions which set out in greater or less detail the fundamental power structure of the State identifying the persons or bodies who can, in accordance with the relevant constitutional document, exercise power. Third, either in the Constitution itself or in some form of Bill of Rights, the fundamental rights of citizens are typically set out. Each of those areas says something about how the constitution views the State, the nature and identity of its people, its values and the like and I propose looking at each of those aspects of the Irish Constitution to see what might be gleaned from them as to what the Constitution says about us, our nationality and our identity.

There are, perhaps, two additional features of the Irish constitutional regime which are also worth touching on. The first is our relationship with the European Union and the way in which that is treated in the Constitution. Whatever views individuals hold about our position in the European Union, it would, I think, be difficult to argue that our relationship with Europe now forms a material part of our identity. That must, it seems to me, be true even of those who would either oppose our continued membership of the EU or would seek to have our relationship with the EU significantly altered. That which you are against can define you as much is that which you are for.

The second additional feature on which I think it is important to focus is the method, i.e. by plebiscite of all of the people, by which we change the Constitution itself. That is, I think, in itself an aspect of our identity. However, some consideration of the many issues which have arisen over the years in the various attempts (successful and unsuccessful) to amend the Constitution, can cast light on how we see ourselves and how that view might be said to have changed. I will address such changes and attempted changes as I go along.

I will go back to start at the beginning. Both the beginning of the text of the Constitution itself and the first area identified with which constitutions typically deal. That is the definition of the State and the source from which the Constitution purports to derive power. It is in such areas that constitutions most typically set out explicitly what the Constitution says about the identity and nature of the body politic to which the Constitution applies.

In passing I should say that there will, of course, be persons who do not agree with the way in which the Constitution addresses these matters. Furthermore, there may well be instances where many may question whether the text of the Constitution fully and accurately reflects the situation on the ground as it actually is. However, the purpose of this paper is to take the Constitution on its face value and to see what it may suggest about Irish identity and nationality. Whether the Constitution accurately reflects what it is to be Irish is a debate for another time.

I, therefore, turn to what the Constitution says both in the preamble and in those early articles which address "the nation" and "the State". There are a number of important features of those provisions which tell us quite a lot about how the Irish people had come to see themselves by 1937. First the heavy religious content of the preamble is worth noting as is the specific reference to the "heroic and unremitting struggle" for independence. However, perhaps the most significant aspect of the preamble, insofar as it says something about the fundamental view of the people, is that it is structured in a way which suggests that it is the people themselves who are sovereign. Shorn of some intermediate language the Constitution starts by "the people of Éire" giving "to ourselves this Constitution". That provision was in significant contrast to the underlying and fundamental basis of the 1922 Free State Constitution. The earlier Constitution was described as having been passed by Dáil Éireann "sitting as a constituent assembly". The early case law of the Free State Courts acknowledged that fact and the root of title of the Free State Constitution as being derived from a constituent assembly.

However, doubtless for historical reasons not least the War of Independence and the Civil War, the early parts of the 1937 Constitution (including the preamble and the provisions of the first three Articles under the title "The Nation") are at pains to define the Irish people as being the sovereign entity who adopt the Constitution and thus define the manner in which constitutionally permissible power is to be exercised.

Next, in the text of the Constitution come Articles 2 and 3 which, of course, have undergone significant amendment in the wake of the Good Friday Agreement. In their original form those Articles undoubtedly made a claim to the territory of Northern Ireland and gave rise to what was interpreted in the case law as an "imperative" on the Government to seek to pursue reunification. The post-Good Friday Agreement Articles 2 and 3 are significantly more soft-edged expressing a firm desire for reunification but acknowledging that a united Ireland is only to be brought about by peaceful means "with the consent of a majority of the people, democratically expressed, in both jurisdictions". There can be little doubt but that those amendments reflect one of the changes in the predominant view of Irish identity over, perhaps, the last 30 to 40 years.

Apart from sovereignty, an issue to which it will be necessary to return in the context of the EU, the other main expressions to be found in the early provisions of the Constitution are the definition of the State, in Article 5, as independent and democratic, the commitment in the preamble to "the dignity and freedom of the individual" and the desire to attain "true social order" as well as provision for the national flag and language. An examination of the form of democracy which the Irish people sought to give themselves really requires analysing the more detailed provisions which follow concerning the institutions of state. The constitutional position of the Irish language does, however, bear analysis.

First, it is interesting to note the way in which the Constitution places the position of the language. Article 8.1 not only describes the Irish language as "the first official language" but also specifies it as having that position because it is "the national language". English is given the status of "a" second official language.

Views may, of course, differ on whether the constitutional statement as to the status of the language either reflects the true view of the people today (and indeed, if so, whether that view is more aspirational than real) but also whether adequate recognition is given by government and, indeed, other organs of the State, to the Irish language. As some aspects of these matters are in current controversy before the courts I should refrain from making any further comment on them.

I would like, however, to draw attention to the third provision of Article 8 which has received only very limited consideration. Article 8.3 allows for legislation in respect of "the exclusive use of either of the said languages for any one or more official purposes". Some commentators (such as Kohn) have suggested that the purpose behind the inclusion of Article 8.3 was to facilitate what the Constitution described as the "reintegration of the national territory". Viewed in that way Article 8.3 might be seen as an acknowledgement that it would be necessary, in the event of reunification, to give appropriate protection to purely English speaking northerners. The Article has not been the subject of extensive judicial consideration. However, at least on its face it seems to be wider in ambit than purely facilitatory of a different language regime north and south. It seems to me that the Article, perhaps, also reflects an acknowledgement that while Irish is the national and first official language it may not be practical or possible to allow for the conduct of official business in many areas other than in English. It is, perhaps, therefore, possible to characterise the provisions of the Constitution on the Irish language as involving a clear recognition that Irish is our language but also, equally perhaps, a practical acknowledgement that its use may have to be limited unless and until a significantly larger number of persons come to use it as their everyday tongue.

The final aspect of the early provisions of the Constitution which says something very direct about what it means to be Irish is, of course, to be found in Article 9 which deals with citizenship. This too is an area which has undergone significant recent change perhaps reflecting an underlying change in conditions on the ground. The amendment introduced to exclude any constitutional entitlement to citizenship to persons who, while born in Ireland, did not have at least one Irish citizen-entitled parent stemmed from perceived problems associated with the growth of immigration over the last fifteen or so years. Ireland was, of course, more or less unique in conferring citizenship simply on the basis of a person happening to be born within the territory without any other significant connection. However, the amendment to Article 9 brings into focus the very real changes which have occurred in the country by the arrival of the so-called "new Irish" not all of whom, of course, ultimately become Irish citizens. Many are entitled to live and work here by virtue of a common EU citizenship. Others have been afforded refugee or other protection status which may, or may not, ultimately lead to citizenship. It is, perhaps, instructive that the only change which has taken place in Irish citizenship law at the constitutional level was designed to exclude rather than include. It might, I think, fairly be said that the Constitution does not as yet say much about the increasing diversification of the population of Ireland. This is, perhaps, an issue for the future.

I now turn to the structure of power under the Constitution at least to the extent that it may cast some light on how we view ourselves. The Presidency was, of course, a new creation in the 1937 Constitution in part replacing the position of the Governor General. The Office of President has, I feel, come to represent a significant part of the national identity. Whatever may be the swings and roundabouts of ordinary political popularity for governments and TDs, Presidents have come to occupy a significant symbolic role as something of an embodiment of the national identity. While often imprecise, the national conversation which takes place whenever there is a presidential election does, in its own way, seem to involve a search for the right type of person to embody what we want at that particular time. The constitutional structure providing for a president elected directly by the people but with very limited actual power seems to me to contribute significantly to that status. The President is our President, elected by us, but is not responsible for whatever aspects of government or parliament we may currently be unhappy with. The vesting of significant formal constitutional functions on the President such as the formal appointment of most senior office holders (government and judges for example), the summoning and dissolution of parliament, the signing of Bills into law, the notional supreme command of the Defence Forces and the like, also places the President in an important symbolic position whereby those functions are exercised on the people's behalf.

Next we might ask what do the constitutional provisions concerning parliament and government say about our identity. Obviously much of what is provided for between Articles 15 and 29 set out the nuts and bolts of how the political system is to work. Much of the point of detail, while important in itself, does not necessarily say much about Irish identity. However, there are some aspects of that constitutional regime which, at a broad level, do say important things about the kind of country which the Constitution envisages. I mentioned earlier that Article 5 describes the State as democratic but that one needs to look at the detailed provisions for the exercise of political power to identify just what that means. A few aspects of that structure are worth noting.

Perhaps first I should touch on our electoral system. We have been very committed to the proportional representational single transferable vote system embodied in the Constitution. Two attempts to remove it by referendum failed. A further attempt to allow some tolerance from a close approximation to exact proportionality between constituencies also failed. Whatever the merits of the argument which suggests that our current electoral system provides for an ineffective parliament (because of issues such as clientalism) and government (because of what is said to be discouragement of the election of those with technical competence) the Constitution does seem to envisage a parliamentary form strongly based on local representation with a government being drawn from those locally selected in that way. Whether the political culture which has grown up in Ireland has led to the achievement of the type of model envisaged by the Constitution and, indeed, whether that model is ideal in modern circumstances is, of course, another question. The Constitution does seem, however, to suggest a relatively "grass roots" form of democracy. It might be said that the Constitution acknowledges the "all politics are local" school of thought.

Similar comments might be made about the interaction between parliament and government. There has been much debate, both at the practical and the academic level, about the separation of powers between the political organs of government on the one hand, and the judicial on the other. However, the constitution does seem to envisage a separate role for parliament (the legislative) even though, in practise, we know that the vast majority of legislation which is successfully introduced is formulated by government and within the departments of relevant Ministers. Again, it may well not be the case that this is precisely what was envisaged by the Constitution. Rather it may be a consequence of Irish political culture and, in particular, the strong power of political parties and parliamentary whips.

A further feature of the structure of the Irish Constitution which may say something about the kind of State which the Constitution envisages is the significant role given to the courts in reviewing legislation for its consistency with the Constitution. The fact that a decision by the Irish superior courts to declare a duly enacted piece of legislation as being inconsistent with the Constitution renders that law inoperative is a feature of our State with which all are familiar. What is, perhaps, less familiar is that such a feature is by no means universal and particularly so, at least until recent times, in the context of many countries which share the same historical English lineage to their legal systems. Indeed, viewed from the perspective of 1937 (or indeed, 1922) there was, outside of the United States, very little tradition of countries in the common law world having courts which had the power to strike down legislation as being unconstitutional.

But there is, perhaps, a more general point at play. It must, I think, be recalled that the Irish State that was envisaged both in the Free State Constitution and the 1937 Constitution had to be seen against the backdrop of a newly independent country where, understandably, prior to independence there was a mistrust of authority which was frequently seen as alien. It might, indeed, be said that it took quite some time for the Irish to recognise and acknowledge their ownership of their own State and its institutions. Against that backdrop it is, perhaps, not surprising that the Constitution is structured in a way which might be said to dissipate power through various institutions.

I have already commented that the separation of powers between the government or executive, on the one hand, and parliament, on the other, has perhaps not turned out to be quite as extensive as the theory in-built in the Constitution might have suggested. It might equally be said that the separation of powers between political institutions and the judicial has created a true separate source of decision-making frequently resorted to by citizens who are unhappy with decisions made in the political sphere (and, increasingly, in respect of decisions made by government agencies and the like). Whether that frequent resource to the courts is a good thing or not I leave to others to debate. But there can be little doubt but that the creation of what was, certainly for the common law world, an unusually strong role for the courts in the Constitution has assisted in our view of a country where there may be multiple sources of power.

Turning to the question of rights there can be little doubt that the Irish Constitution was quite advanced for its time in specifying an array of rights guaranteed and in giving the courts a significant role in ensuring the enforcement of those rights. Whether the rights provisions of the Constitution might benefit from some modernisation is a debateable point. There are undoubtedly areas of controversy such as the extent to which property rights are guaranteed and the particularly topical issues concerning the right to life both of mothers and the unborn. It is, perhaps, striking that a primary focus of that controversy and other related issues such as divorce, which have been to the forefront over the last 30 or so years, was in the constitutional domain with hotly contested referendums and significant subsequent litigation. I think it can safely be said that there is little doubt but that we see the Constitution as a place where our position (whatever it may be) on those important issues is likely to be defined.

That leads on to a point to which I touched on earlier. The very fact that the Irish Constitution can only be amended by referendum has led to many controversial issues becoming the subject of a specific vote and, what inevitably goes with it, detailed public debate. I think that too has come to be part of our identity. The fact that people see a degree of ownership in the Constitution by their regular involvement in voting on its contents seems to me to be an important part of the current Irish identity.

That leads finally to the area where there has, perhaps, been the largest number of referendums in recent years being that of our relationship with the European Union.

I know that there have been other contributions at this school which have analysed Ireland's relationship with the EU. That is not ground to be travelled over again. However, there are some constitutional aspects of that relationship which say something about the way in which we interact with the EU and in which, it might be said, at least part of that aspect of our identity, which is defined by our relationship with the EU, can be gleaned. The precise constitutional way in which Ireland's membership of the evolving European institutions has been defined bears some brief recording. To go back to the beginning it must be recalled that membership of the then EEC would not have been possible without some form of constitutional amendment. For example, the Constitution specifies that the sole power to legislate in Ireland is given to the Oireachtas. Likewise, the only courts which can have jurisdiction are those established under the Irish Constitution. It would not have been possible for Ireland to commit to its obligations to obey European legislation and enforce binding judgments of the European Court without some form of amendment.

The method chosen was one which specified that nothing in the Constitution was to be taken as rendering invalid measures "necessitated" by membership. Since the Supreme Court decision in Crotty the Constitution has been interpreted as meaning that any major change in the competence of the European Union involving the transfer of significant further sovereignty to Europe is not captured by that constitutional formula. It follows that where there is a change in the European Treaties, one of the questions which has to be asked in Ireland is as to whether that change is sufficiently significant to warrant a further amendment to the Constitution or whether the existing terms of the Constitution are enough to allow Ireland to sign up to the proposed changes. Indeed, one of the difficulties with which government is confronted in such circumstances is in obtaining a definitive answer to that question without taking the risk of going ahead and signing up to the Treaty changes without a referendum and risking a legal challenge. It was, I suspect, particularly in that context that one of the possible amendments to the Constitution floated by the Minister for Justice in recent times was a measure which would allow the Government to obtain from the courts (presumably in a method similar to the way in which a Bill which has passed through both Houses can be referred by the President) a definitive view on whether Ireland's accession to an international treaty would in any way infringe the existing constitutional framework.

What does this say about Irish identity? First, and perhaps most obviously, the successive amendments to the Constitution recognising each stage of European integration (even though not easily passed and increasingly frequently not passed at the first attempt) nonetheless do recognise that there is a significant European dimension to the modern notion of Irish identity as acknowledged in the Constitution. Second, however, it might be said that there is an ambivalence about that aspect of our identity and in particular a reluctance to give anything resembling a blank cheque to either the Oireachtas, the Government or to Europe concerning further changes to the European Treaties. There would be no formal legal difficulty in crafting a constitutional amendment which would not require the Government to go back to the people every time there is a change in the European Treaties or at least one which involved the transfer of sovereignty. The suspicion must be that any government would have very great difficulty in persuading the people to accept such an amendment. If that be so then it looks like we will, for the foreseeable future, have a constitutional regime which recognises the European aspect of our identity but keeps the extent of our ceding of sovereignty to European institutions under the control of the people. In that regard it is, perhaps, yet another example of that aspect of the Constitution which suggests that the people are not overly keen on giving away the power which they hold under the constitution to any institutions be they Irish or European. That, perhaps, is the most striking thing that the Constitution says about Irish identity.


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