Constitution a restraint on power – O’Donnell
Comparative constitutionalism is more important now than ever, since the fundamental idea of a constitution as a significant constraint upon the power of the State is itself under threat, Chief Justice Donal O’Donnell has said.
The Chief Justice made this statement to a packed O’Reilly Hall in UCD at the opening ceremony of the three-day ICON-S conference (29 June-1 July), which had a record 2,088 participants of 78 different nationalities and 601 panels.
The International Society of Public Law (ICON-S) is the world’s largest and leading learned society for all areas of public law – including administrative law, constitutional law, and international law.
O’Donnell endorsed a point made in a New York Times article on some recent decisions of the US Supreme Court, which invalidated measures adopted by the executive branch of the federal government.
Resist substantial changes
“The writer said it was foolish to look to courts alone to resist substantial changes.
“Courts are like the rear guard of a retreating army.
“A valiant delaying action can give the army a chance to reinforce, reorganise and strike back, but courts cannot save the people from themselves,” O’Donnell said.
“That echoes something Thomas Jefferson wrote more than 200 years ago. He said: ‘Though written constitutions may be violated in moments of passion or delusion, yet they furnish a text to which those who are watchful may again rally and recall the people.’
“So, this may be a time, and this [conference] might be a place to rally the army of those who believe in the post-war constitutional order to state the truths that we believe are immutable and worth defending.
“And it's worth remembering that the rear guard is the place for the bravest and the best,” he said.
Ireland has a tradition of constitutionalism that is more than a century old and, in the common-law world, only the US constitution is older.
Key event
While the adoption of a written constitution in 1922 was obviously a key event in Irish history and Irish law, Chief Justice O’Donnell noted that it was also an exercise in comparative constitutionalism.
When the drafting committee completed its work, the Government ordered the publication of a booklet containing the 18 constitutions of the world, which the committee had consulted in its work, with the new constitution of the Irish Free State prominent at the front.
“The purpose of this publication was not so much law as propaganda – to show that the State, which was emerging, was not merely a component of the British Empire, but a new and independent State entitled to take its place on the world stage,” O’Donnell said.
“But this action also had the unintended benefit of providing a unique snapshot of constitutions across the world at a key time shortly after the First World War, which made it something of a minor classic.
“Of the European constitutions surveyed, I think it can be said that only the Irish constitutional system remained fully intact and effective over the following century."
Paradox
“That's the paradox of constitutions. They’re meant to signal permanence and immutability, but their history is fragility and failure – although until now failure and subsequent rebirth.
“Comparative constitutional law is more important than ever today, because the borrowing is not always beneficial.
“We can see examples of significant changes being adopted in one country and then copied in others, and that illustrates the fact that constitutionalism is not a theoretical dispute among lawyers.
“It is something that arises when a particular constitutional settlement is being challenged by actors with strong public and therefore, whether we like it or not, democratic support,” he concluded.