HUMAN RIGHTS IN IRELAND

DEMOCRACY, CITIZENSHIP AND THE MARRIAGE

REFERENDUM
July 8, 2013 | Eoin Daly

Recently a video circulated on YouTube featuring an

weddingrings
earnest young man, besuited and bearing owers,
knocking on every door in Ireland requesting permission
to marry his beloved. It neatly illustrated the absurdity of
holding a referendum to decide whether same-sex
couples may be allowed marry: how would you feel, it
asks if you had to ask 4 million people permission to get
married?

There has been an extraordinary momentum in Ireland

as well as in neighbouring states towards recognising
equal marriage rights for gay couples. This was reected
in the Constitutional Conventions overwhelming
endorsement (79%) of the proposal. In France and the
UK, bills have passed or are passing through parliament giving eect to similar (although less
pronounced) shifts in public opinion. In Ireland, public support for reform is apparently even higher
than in both of the neighbouring jurisdictions. However, it has been assumed no similar legislation
can be passed here, because, it is thought, it would be inconsistent with the implicitly heterosexual
conception of marriage supposedly contained in our Constitution.

As a constitutional argument this has already been debunked. Marriage is not dened in the
Constitution, and the courts have emphasised that the meaning of constitutional terms can evolve
over time along with social change. We are not, thankfully, stuck in the permafrost of 1937 in
interpreting our basic law.

What I am concerned with here, however, is not so much the intricacies of this particular
constitutional debate, but rather, the implications of a broader tendency to understand greater
areas of political argument as being governed by constitutional principle. Our politics, I argue, is
over-constitutionalised and this is harmful for our democracy and our citizenship.

Constitutional and political argument

Constitutional provisions are often drafted in vague, abstract and open-textured language for
example, in the high-minded phraseologies of equality and human dignity. Everybody can endorse
these pious generalities in the abstract, as they are exible enough to be interpreted consistently
enough with ones own politics. Yet every alert rst year student realises that when applied to real-
life problems, such principles can be manipulated to support a plethora of contradictory
arguments. Consequently, in systems where constitutions can be used to strike down parliamentary
legislation, a broad swathe of policy and political arguments can, and tend to be presented in
constitutional terms. This is a notable and longstanding phenomenon of American politics, but
itextended to most of Europe following the Second World War. Thus despite the historical aversion
to judicial power in republican France, for example, the Constitutional Council is now eectively
seen as an important political agent. In Ireland much of our legislation will implicate constitutional
rights, say of equality or property, in some way, and what would otherwise be plainly political or
moral questions are easily constitutionalised. In turn, insofar as public norms are constitutionally
codied, the question of what these norms mean in practice will increasingly be treated as discrete
legal question divested to trained experts.

There is a surprisingly tenacious belief in our culture that constitutional interpretation is somehow
an exercise in abstract legal logic a specialist skill separable from political, moral and ideological
considerations external to the law. Of course, this is the product of wishful thinking combined with
a robust lawyerly conceit. Any perceptive citizen who reads the Constitution will appreciate that
open-textured constitutional principles cannot be interpreted and applied, like maths or physics, in
a purely rational spirit of scientic disinterestedness. Yet there persists in our public sphere
precisely such a false and harmful understanding of constitutional interpretation.

To summarise then, in Ireland there is a worrying degree of public buy-in to three insidious ideas:
rst, that the constitution, if interpreted properly, provides a set of determinate and legally true
propositions about how political and social life should be organised, second, that these
propositions can be derived through a specically legal method of reasoning, and third, that a
system in which these meanings are divested to legal experts can operate in a positive way as a
progressive non-political check on the excesses and abuses of the political domain.

One of the innovations of the 1937 Constitution was that it could be used to strike down laws which
judges interpreted as undermining constitutional rights an idea which was then a novelty in
European terms. Obviously this has the advantage of giving individual citizens some security against
abuses of political power. However, it also has a generally unacknowledged cost for our democracy
and its sense of citizenship. It means that political argument the domain of the citizen is
increasingly divested to the legal sphere, and thus the domain of the expert. Intuitively we are all
familiar with the ways in which constitutional ideas tend to be used as a trump in political
argument. Correspondingly constitutional argument tends to de-politicise our public life. Now we
even tend to argue for a humane abortion regime not because it is humane, but because the
constitution requires it. Indeed t is commonplace to argue that that a whole swathe of proposed
policies or reforms for example, gender quotas in politics, or even abolishing the subsidy for fee-
charging schools are unconstitutional.[i] Certainly, it is quite rare for legislation to be struck down
on constitutional grounds, but this rarely-exercised power does not fully reect the
constitutionalisation of our politics; it does not capture the reforms or ideas that are quietly buried
on foot of legal advice about constitutional barriers or those, such as equal marriage rights, which
are consigned to the promise of a future referendum.
Citizenship, symbolic power and constitutional argument

Possibly the most common objection to judicial review and legal constitutionalism is that it
undermines representative and majoritiarian democracy or that it vests arbitrary political power in
an unaccountable judiciary (see especially Bellamys Political Constitutionalism). However, in arguing
that our politics is over-constitutionalised, I am not concerned primarily by the threat posed by
judicial review to the vitality and autonomy of representative institutions. Instead I am concerned
with the implications for deliberative citizenship which are raised by the salience of constitutional
argument in our public discourse. To the extent that the interpretation of our public norms is
treated as a matter of legal knowledge, constitutional argument can be seen as one of the many
forms of symbolic violence that are exercised via expertist discourses. I use symbolic violence
specically in the sense understood by Pierre Bourdieu. In Language and Symbolic Power, Bourdieu
eectively argues that the main problem with deliberative democracy is not that deliberative
competences are unequally distributed, but rather that these competences and techniques have an
essentially arbitrary value. Deliberative techniques rather than simply enabling rational
communication serve primarily to produce encoded forms of distinction or symbolic capital for a
eld of inducted, specialised practitioners. Symbolic domination occurs where these linguistic and
bodily techniques become assimilated by those both within and outside this eld to a sense of
natural legitimacy and authority.

Thus deliberative and discursive competences tend to have a mystifying and befuddling eect, with
authority and legitimacy insinuated in the apparently most innocuous bodily techniques (such as
accent and intonation). Knowledge of authorised techniques bestows a form of deliberative capital.
Eectively this is a more complex (and insidious) version of the intuitively familiar phenomenon
whereby rened mannerisms are associated with legitimacy and social prestige. Bourdieu is
sceptical about the possibilities of a deliberative republican citizenship, because in dierentiated
complex societies, debate on the common good will likely become enveloped within elaborate
encoded terminologies which have a potent (but insidious) exclusionary force. Thus seemingly
rational discourse will help to reproduce social hierarchies, gently and inconspicuously. While
Arendt teaches us the value of recognition and self-expression achieved through political discourse,
Bourdieu warns of the insidious and inconspicuous forms of violence encoded in political language
itself.

A similar analysis can be applied to constitutional interpretation as well as legal discourse generally.
In The Force of Law, Bourdieu applies his theory of language and symbolic power to the eld of law.
Like other critical theorists, he does not accept that legal (or constitutional) argument is directed at
discerning determinate, true, legal propositions. Rather, he interprets legal argument as a highly
encoded site of competition for symbolic capital, in which specialised practitioners vie for forms of
distinction that are conferred through authorised languages and discourses. While we are often
duped into believing that legal discourse is directed towards discerning propositions of law, it is in
fact oriented around an arbitrary linguistic market which governs what is accepted as legitimate
legal argument. Extrapolating from Bourdieus legal thought, it seems that in the same way that
deliberation on the common good will eectively be monopolised by those possessing legitimate
(but essentially arbitrary) deliberative competences, a similar phenomenon will occur in
constitutional debate.
The symbolic power embedded in specialised language and terminologies is of course a feature of
all complex societies. But my argument is that the symbolic power exercised in the context of our
highly constitutionalised politics has peculiar implications for participative and deliberative
citizenship. Although I do not have scope to fully develop the argument here, the salience of
constitutional argument in political discourse cannot be viewed apart from a wider problem the
domination of the public sphere by expertist and technocratic discourses. This phenomenon is
inimical to the possibility of a republican politics, and we must see the constitutionalisation of
politics as part of this. In the US, the striking down of the discriminatory Defence of Marriage Act
gives cause for celebration. Yet it is possible to celebrate this outcome while experiencing a sense of
discomfort at the progressive fawning towards the institution of the Court itself the tiresome,
speculative court-watching which rarely pauses to examines the basis and wider political eects of
the courts power. The dominating, mystifying majesty of the Constitutional Court is insinuated and
expressed in much of our constitutional scholarship.

Democracy and the marriage referendum

Returning to the marriage referendum, it is often argued that the fact of the people having the
nal say on important social questions, such as the meaning of marriage, is a sign of democratic
vitality. Yet the reluctance of our parliament to independently appraise equal marriage rights in
marked contrast to our neighbours is, at one level, simply a further sign of dysfunction in our
parliamentary democracy, a negation of political choice and possibility. In one sense, the
Constitution is used simply to deect political responsibility. Consequently, instead of a legislative
process of the sort witnessed in France and the UK we will probably be treated to the ludicrous
spectre of a referendum on whether or not gay couples in fact deserve equal treatment under the
law. We never had a referendum on whether women were entitled to equal pay, and it would be
absurd to argue it would have been more democratic if we had. The prospective referendum will
see right-wing pseudo-intellectuals clothe crass bigotry in the careful terminologies of science and
reason. But we should not be so naive so imagine that the demands of democratic participation are
vindicated simply because the people are given the opportunity to passively acquiesce or veto
whatever constitutional amendment government deigns to submit. Too often, popular sovereignty
in the Irish constitutional context is unreectively conated with the peoples nominal right to
amend their constitution (at the Governments prodding). Instead, we should be concerned about
the implications for our citizenship of a broader tendency to constrain political possibilities using
constitutional propositions that, almost by denition, are supposed to be unfathomable to the lay
mind. There can be no objection to the requirement of referendum for constitutional change, but
when combined with the sort of constitutional inationism I have discussed, this ends up having a
stultifying eect on an already sclerotic politics. We must reect on the consequences of over-
constitutionalisation both for parliamentary responsibility and our sense of citizenship generally.

[i] Michael McDowell, Dil Gender Law Unconstitutional, Sunday Independent, 20 November 2011.

 Penal Law, Abolitionism and Anarchism: High Court Refuses Provisional Arrest
Conference April 2014 Warrant for Edward Snowden: What
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