Does Popular Sovereignty Create Immunity to Populism?

Maria Cahill

University College, Cork

Can the lived experience of a strong commitment to popular sovereignty make a people prima facie immune to the pressures of populism? Drawing on Irish constitutionalism, I want to suggest that an affirmative answer may be warranted.

Article 6 of the 1937 Constitution of Ireland recognises, as an aspirational principle, that “[a]ll powers of government derive, under God, from the people, whose right it is … in final appeal, to decide all questions of national policy, according to the requirements of the common good”. Popular sovereignty is made concrete in Article 46, which requires that popular referendums must be held on every single amendment of the Constitution.

As a result, important questions of principle and policy in this jurisdiction are routinely determined by direct democracy. Although the Irish Constitution is less than ninety years old, there have been 41 referendums on proposed constitutional amendments and 30 successful amendments by referendum. The rate at which referendums have taken place has been increasing in recent years.

The commitment to popular sovereignty is a point of pride. Several times, judges have referred to this part of the constitutional architecture in venerable terms. Chief Justice Hamilton stated in 1995 that “[t]he role of the People in amending the Constitution cannot be over-emphasised”. A few months later he noted that “[t]he will of the people as expressed in a referendum providing for the amendment of the Constitution is sacrosanct and if freely given, cannot be interfered with. The decision is theirs and theirs alone,” a dictum which has been cited with approval since. More recently, in a memorable passage, Mr. Justice Hogan elaborated on the importance of the commitment to popular sovereignty as direct democracy within Irish constitutional architecture:

“The Constitution envisaged a plebiscitary as well as a parliamentary democracy and, in doing so, it has created a State which can demonstrate – in both word and deed – that it is a true democracy worthy of the name”.

Although there have been proposals and successful amendments made in respect of many areas of the Constitution, the two biggest categories are fundamental rights and international treaties.

Writing Rights Democratically

There have been fourteen referendums and eleven successful amendments in Ireland on a range of rights that have been controversial in other legal systems. Topics have included the death penalty, the rights of children, the definition of marriage, blasphemy, the availability of divorce (on which there have been three referendums) and the right to life of the unborn and the provision of abortion and abortion-related services (on which there have been six referendums). In many other countries, these kinds of changes might have come about through the activity of courts or parliaments or as a result of having ratified international agreements. In Ireland, the Irish electorate ultimately made each of these decisions through their participation in referendums. The content of our fundamental rights provisions, then, is not finally determined by international treaties, or international courts, or even national courts, but by the people themselves.

Democratic Globalisation

There have been eleven referendums and nine successful amendments to mandate the ratification of international treaties. Most of these have been concerned with the ratification of the series of treaties agreed to by Member States of the European Union in the effort to bring about ever closer union (the others enabled ratification of the Good Friday Agreement and the Rome Statute of the International Criminal Court). This democratic approach to European integration is the result of a 1987 Supreme Court decision, which held that if, and when, the treaties incidentally entail an amendment to the Irish Constitution, that amendment must be approved in the same way that any amendment would be: by a vote of the people. Again, this is unusual in comparative constitutional terms and, within the EU, it has become a characteristically Irish phenomenon, at times to the chagrin of those driving European integration.

I want to raise the idea that, among other explanations, this lived commitment to popular sovereignty and the consequent commitments to writing rights democratically and engaging in democratic globalisation may explain the apparent resistance of the Irish constitutional order to the pressures of populism. In particular, I want to argue that the Irish constitutional commitment to popular sovereignty enjoys three strengths:

1. Meaningful Participation and Decisional Ownership

The first strength is that our commitment to popular sovereignty generates meaningful participation which creates popular ownership of the decisions that are made. Constitutional amendment by popular referendum means that each voter has a chance to meaningfully and decisively participate in the most important decisions on the key strategic questions within our constitutional legal order. The referendum is not consultative or advisory, but the decisive moment, the last word, the final outcome of the process, creating a strong sense of ownership over the decisions made. Instead of having social change and globalisation apparently foisted upon us by elected or unelected agents in the legislative, executive or judicial branches of government, either at the national or international level, the lived experience is that those decisions have come about as a direct result of our decisive democratic participation. As a result, it is not easy for a would-be populist to convincingly make the case that the government is neglecting or discounting the voice of the people.

2. The Civilisation of Disagreement

The second strength is that our commitment to popular sovereignty routinely surfaces and civilises disagreement. It makes manifest to voters the reality of what it is to live in a community: issues come up for decision, both sides are heard, a vote is taken, and there are winners and losers. The frequency of the referendums and the shifting majorities almost guarantee that everyone will find themselves on the winning side at least once and the losing side at least once. The losses sting more when the margin is narrow, and the wins mean more when there has been a period of anticipation beforehand. Although the referendums intentionally shine a spotlight on the tensions that would otherwise remain hidden, and although these moments are often uncomfortable and stressful and emotional, at the end of the campaign, a decision is made, and life goes on. Those who voted in favour of the result accept the decision because it accords with their first order preferences, so they are not the heroes of the story. The success of the enterprise depends on the minority accepting the decision even though it does not accord with their first order preferences – however strongly held. This consent, in the words of Mr Justice O’Donnell, “is based on acceptance of, and trust in, the process by which the result has been arrived at”. The pattern of routinely surfacing a point of trenchant disagreement, publicly airing contested and conflicting claims, and eventually reaching a decision, all the while protecting the minority’s trust in the process to a level sufficient that they too can experience a sense of ownership over the decision constitutes the real victory of popular sovereignty. So long as the disagreement is surfaced and civilised and so long as that trust subsists and continues to be cultivated over time, it is more difficult for a would-be populist to prey on the insecurities and resentments and disappointments that minorities otherwise inevitably feel.  

3. The Temporalisation of Disagreement

The third strength of our commitment to popular sovereignty is that it temporalises disagreement within an intergenerational constitutional dialogue. The decision made by the people on referendum polling day is the last word on the question, but it does not hold for all time. The same amendment procedure can be used again at a later date to reach a different decision, and so while each referendum outcome is the last word, it is also revisable. The Irish people voted ‘no’ to both the Treaty of Nice and the Treaty of Lisbon, before voting again and voting ‘yes’ less than eighteen months later. In 1986, they voted ‘no’ to divorce, in 1995, they voted ‘yes’ to divorce if it followed a period of separation and in 2019, they voted ‘yes’ to removing the requirement of a period of separation. They have voted six times on the right to life of the unborn and the provision of abortion services, including voting ‘yes’ to recognising the right to life of the unborn in 1983 and then ‘yes’ to removing that right in 2018. This experience of shifting majorities over time showcases the temporality of disagreement and the intertemporal context within which decisions are made and revised. More importantly, this experience of disagreement-within-an-intergenerational-dialogue reinforces the difficulty for a would-be populist to make a convincing case that existing minorities should not continue to participate constructively in the system of popular sovereignty over time.

These three strengths of Ireland’s lived commitment to popular sovereignty are mutually reinforcing. In concatenation, they make manifest a sense of ‘the people’ which sharply contrasts with a populist vision of ‘the people’ as neglected and downtrodden by elites only to awaken and congeal as an artificially rigid, instrumentalised construct which, in a moment of reified perfect enlightenment, makes one supposedly immutable decision. Here, the people are participating members of a community in which there is a routine and deliberate surfacing of disagreement about key strategic questions of principle and policy in a context of intergenerational dialogue and which results in ownership of the decisions made by the people as the final but revisable word.

That is not to say that our system is perfect; we also have our points of vulnerability for which we need to watch out. And it is not to be naïve: there is every possibility that our lived commitment to popular sovereignty can become a conduit for a kind of domesticated populism, which uses the rules of constitutional amendment to undermine fundamental rights, the rule of law, democracy and constitutionalism itself. But it is to say that, fully aware that majoritarian democracy is an imperfect system which is routinely capable of producing dismaying results, the civilising experience of a lived commitment to popular sovereignty may create some immunity to populism.

Maria Cahill is Professor of Law at University College Cork.

Suggested citation: Maria Cahill, ‘Does Popular Sovereignty Create Immunity to Populism?’ IACL-IADC Blog (26 November 2020) https://blog-iacl-aidc.org/2020-posts/2020/11/26/does-popular-sovereignty-create-immunity-to-populism