Ius & Iustitium is happy to present this guest post by Conor Casey. Mr. Casey is a Max Weber Fellow, European University Institute.
Fascination with American culture tends to manifest in similar ways in many countries: conspicuous consumption of Hollywood and Silicon Valley’s latest outputs, keen interest in the op-eds of its leading media outlets, and avid following of the pageantry and personalities of apex federal politics.
This fascination also finds expression in the close interest paid by foreign lawyers to the ebb and flow of long-running battles over the United States’ 231-year-old Constitution and its interpretation, an interest which often metastasizes into influence. In Ireland, for one, a very clear line can be drawn between the activism of the Warren-era Supreme Court and how it inspired leading judges of the Irish Supreme Court to consciously increase their engagement and experimentation with the 1937 Constitution. This fascination with all things American ensures renewed that debate among self-identified legal and political conservatives—about the best method to interpret the Constitution—will be intently followed by public lawyers beyond its borders.
As one of those self-confessed foreign public lawyers, I want to use this post to flip the script of cultural import a little bit, and to contribute in a modest way to this burgeoning debate. Instead of observing its unfolding and entertaining clashes from afar, I want to offer a short contribution in the form of two insights gleaned from the Irish legal system, which has a long tradition of engagement with common-good constitutionalism. One insight is to offer encouragement to proponents, through offering successful examples of common-good constitutionalism in action. The second is to caution proponents to be careful when thinking about how best to give it concrete institutional expression and not to put too much faith in the judiciary.
- An encouragement: common-good constitutionalism in action
Common-good constitutionalism is an approach to constitutional politics and interpretation based on the principle that the purpose of governmental institutions is to help ‘direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.’ Aspects of this tradition are discernible throughout the text of the 1937 Irish Constitution. For a start, the preamble of the Irish Constitution makes explicit reference to the common good and true social order:
In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,
We, the people of Éire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,
Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,
And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,
Do hereby adopt, enact, and give to ourselves this Constitution.
Moving beyond the preamble, emphasis on securing the common good as the ultimate end of government is repeatedly stressed in its substantive provisions, with due respect for subsidiarity and the legitimate role of non-state actors in promoting this same end. Article 40.6.1, for example, provides for liberty of free expression of opinions, the right to assemble peaceably without arms, and to form unions and associations; but the same cannot be used to ‘undermine public order or morality or the authority of the State.’ Article 41 acknowledges the married family as the necessary basis of social order and as indispensable to the welfare of the nation, and thus charges the State with protecting its authority. But the same Article also provides that the State can step in when the safety of children is threatened through failure of parental duty. Article 41 also recognizes the family as the primary and natural educator of children and guarantees not to oblige parents to send their children to schools designated by the State to violate of their conscience. However, as guardian of the common good, the State can require that all children receive a certain ‘minimum education, moral, intellectual and social.’ With respect to property, Article 43 provides that the State will not attempt to abolish the rights of private ownership of property but acknowledges that they must be regulated by the principles of social justice and that to this end the State may delimit them with a ‘view to reconciling their exercise with the exigencies of the common good.’
So much for the dedication of the written text to common-good constitutionalism, but how have constitutional actors engaged with the tradition in practice? Two of the leading operative principles of common-good constitutionalism include sanguinity about interpreting texts so as to conform to the substantive moral good, and belief that public authorities should enjoy capacious discretion when making determinations about how best to promote the common good–the proper end of political authority. When measured against these core principles, I suggest the Irish constitutional order has performed reasonably well.
Substantive moral readings of the Constitution
When it comes to making concrete determinations of what the Constitution demands, common-good constitutionalism demands that officials, across all branches of government, approach interpretation by reading “substantive moral principles that conduce to the common good…into the majestic generalities and ambiguities” common to written constitutional text. This is in contradistinction, therefore, to interpretive methods agnostic to substantive moral principles like originalism. It is also distinct from interpretive methods which are comfortable engaging with substantive moral principles, but where those principles are oriented to a master-value like individual autonomy or securing the conditions needed for self-actualization, instead of the common good.
Ireland offers a good case-study for common-good constitutional interpretation in action. Unlike the cramped approach by jurists in interpreting the US Constitution’s preamble, the Irish Courts have drawn prolifically on the preamble to the 1937 Constitution—especially its reference to the ‘dignity of the individual’—to pour substantive moral content into rights interpretation. This has helped ensure provisions are often interpreted in a manner more conducive to protecting the weak and vulnerable – a clear component of upholding the common good—than if they were shorn of this moral content.
Take O’Donnell v. South Dublin County Council [2015] IESC 28, which concerned a suit taken by a family of Travellers[1] against a local government authority. The family of 9 were living in a small very cramped caravan without access to a functioning toilet or shower. They based their challenge on the grounds that the local government’s failure to help alleviate exceptional overcrowding and to provide basic sanitation facilities, constituted an infringement of their constitutional right to bodily integrity and person protected by Article 40.3. Particular emphasis was placed by the challengers on the plight of one of their daughters, whose cerebral palsy was severely compounded by her accommodation.
The Supreme Court could have ruled that the protection of bodily integrity and one’s person was only a negative freedom from government interference but did not compel the State to affirmatively protect the family from inhumane and degrading circumstances brought about by dire poverty. Instead, the Court drew on the preamble’s invocation of dignity to infuse its understanding of what legal obligations local government officials owed to the family; which they concluded involved using their statutory powers and resources, as far as practicable, to alleviate the inhumane and degrading over-crowded and unsanitary conditions in which the family was languishing.
Similar use of dignity to guide constitutional adjudication was on display in Kinsella v. Governor of Mountjoy Prisoner [2011] IEHC 235, which concerned the compatibility of complete sensory solitary confinement of prisoners with the Constitution’s protection of bodily integrity. The Court found that complete sensory deprivation—such as placing the prisoner in a padded cell with no access to any facilities whatsoever or to any natural light—for anything beyond a very short period would compromise the essence of the right to person and bodily integrity. Justice Hogan recognized that to prevent a complete crushing of human flourishing and the integrity of the human personality, at a minimum, every detained person had to be “permitted some meaningful interaction with his human faculties of sight, sound and speech.” The High Court’s interpretation of the right to person drew heavily on the preamble’s commitment to the dignity of the individual, and found that this commitment demanded prisoners be treated by the “State in a manner like any other citizen by which their essential dignity as human beings may be assured.” Indeed, Justice Hogan added that the obligation to ensure that the “dignity of the individual is maintained and the guarantees in respect of the protection of the person upheld is, perhaps, even more acute in the case of those who are vulnerable, marginalised and stigmatised” like prisoners.
The Court’s reliance on dignity has also been used to reject a challenge designed to overturn Ireland’s ban on assisted suicide anchored on appeals to personal autonomy and self-determination. In Fleming v. Ireland [2013] IESC 19 the Supreme Court invoked the preamble’s reference to dignity to disarm arguments made by both the applicant and the Irish Human Rights and Equality Commission (an Irish public body dedicated to promoting human rights, which acted as amicus curiae) that the right to life and person protected by the Constitution extended to a right to determine the timing of one’s life, including ending it via assisted suicide. Chief Justice Denham noted that on a bare reading of text it might be possible to construct a “libertarian argument” that the State is prima facie not “entitled to interfere with the decisions made by a person in respect of his or her own life up to and including a decision to terminate it.” While the Chief Justice did not explicitly mention natural law or its background influence on the Constitution, she went on to implicitly acknowledge its relevance to the Constitution’s understanding of what dignity meant, as she concluded its moral understanding of the concept ensured that it was not possible to support a libertarian approach to the right to life “without imposing upon it a philosophy and values not detectable from it.” The Court concluded by rejecting the claim that the right to life encompassed a right either to commit suicide, or to arrange for the termination of one’s life at a time and manner of one’s choosing.
This is a small snapshot of common-good constitutional interpretation in action and how the generalities of constitutional text—like the right to bodily integrity or person—can be infused with substantive moral principles to better protect the vulnerable and promote the common good.
Primacy of common good as end of political authority
In the vein of the natural law tradition, which influenced its drafting, the text of the Irish Constitution sees the ‘common good’ and ‘true social order’ as the proper ends of political authority. It does not, therefore, proceed on the basis that freedom is the proper end of Government, that freedom can be defined first and foremost negatively and by an absence of the State, or that Government can only get involved in directing individual life for exceptional reasons. The proper role of the State is not to maximize individual autonomy by minimizing its power over social and economic life, nor to maximize its powers over social and economic life to minimize fetters on individual autonomy; but to promote the social, economic, and moral conditions required for the human flourishing of individuals, their families, and the political community as a whole.
Irish Judges have largely facilitated this understanding of the State’s role. On paper, Ireland has a very powerful judiciary, with express authority to invalidate legislation repugnant to the Constitution. Irish Courts also consider themselves guardians of the Constitution and the body whose interpretation of the Constitution is supreme. However, Irish Courts have also long accepted that the Constitution’s injunction to promote the common good is not addressed to their work alone, but institutionally dispersed among all officials. To this end, the Courts have consistently held that the Constitution affords the democratically elected legislature—the Oireachtas—ample room to make concrete determinationes of how to best instantiate the common good through its political directives.
The Courts have thus insisted, in case after case, that public authorities have ample authority and leeway when promulgating laws to secure the common good, even if individual entitlements or interests must give way. In the landmark case of Ryan v. Attorney General [1965] IR 294, the High Court heard a constitutional challenge to the fluoridation of public water, which the plaintiff claimed breached her right to bodily integrity from State interference. The State, in turn, argued that the measure was for the public health of the entire community. In rejecting the challenge, the High Court acknowledged it had jurisdiction to invalidate legislation, but that this authority was one which had to be exercised with caution as none of the:
“personal rights of the citizen are unlimited: their exercise may be regulated by the Oireachtas when the common good requires this. When dealing with controversial social, economic and medical matters on which it is notorious views change from generation to generation, the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen.”
The Court’s attitude to regulation of individual property rights in the name of social justice also leaves capacious scope for State action. In Shirley v. O’Gorman [2006] IEHC 27, for example, the High Court rejected the contention that individual property rights could only be altered or regulated by the State pursuant to Article 43 in situations where doing so was an ‘absolute necessity’ for the common good. Peart J. felt that this would be unduly burdensome on the political branches and that:
“[A] meaning far short of absolute necessity would be adequate, since otherwise the legislature would be under such a strict requirement of proof of absolute necessity in every instance where they wish to amend the law in relation to delimiting property rights that the situation would become impossible. Of course the Courts enjoy an ultimate supervisory role in ensuring that legislation passed by the Oireachtas is constitutional, but the Courts should be slow to in any way to substitute its own view of what may or may not be required in order to reconcile the exercise of property rights with the exigencies of the common good. Until some point of absolute extremity is reached where legislation is patently and manifestly not in pursuit of any possible common good exigency, the Court should abstain from interfering with the role of the legislature in deciding what measures are needed.”
Similarly, when it comes to legislation that tries to reconcile conflicting principles of justice or constitutional rights and values, Courts also recognize the need for the widest leeway for political branch determination. Finlay CJ in Tuohy v. Courtney [1994] 3 I.R. 1 stated that:
“in a challenge to the constitutional validity of any statute in the enactment of which the Oireachtas has been engaged in such a balancing function, the role of the courts is not to impose their view of the correct or desirable balance in substitution for the view of the legislature as displayed in their legislation but rather to determine from an objective stance whether the balance contained in the impugned legislation is so contrary to reason and fairness as to constitute an unjust attack on some individual’s constitutional rights.”
These examples, in their banal glory, are also examples of common-good constitutionalism in action: recognition that the proper end of political power is not securing autonomy or individual rights, but securing conditions necessary for the common good and human flourishing, and that the State should have ample power when doing so. Even as Ireland has become increasingly secularized and dominated by economic, social and political liberalism, these principles still retain vitality in its constitutional culture.
While undoubtedly cursory, even this snapshot case-study should offer food for thought for those weighing the validity of the reactions to Vermeule’s recent case for common-good constitutionalism. To recapitulate, some critics claimed, inter alia, that this interpretive tradition had little merit beyond being a Trojan horse for extreme authoritarianism and theocracy. Whatever the above snapshot shows about the merits of common-good constitutionalism, it is not that it represents a useful segue into either of these ends. Ireland’s example instead highlights that it is perfectly possible to have a legal system dedicated to central elements of common-good constitutionalism within a constitutional democracy, complete with checks and balances and high levels of democratic accountability. The hostility of some of the commentary, from this outsider’s perspective, instead reveals how seemingly deeply anti-statist elements of the American constitutional tradition have become, and how their deep concern for potential abuse of public power seems to eclipse concerns about other forms of abuse just as insidious to the common good. Whether in the form of concentrated private power or abuse in the form of State inaction in the face of gross social and economic injustice.
- A Caution: small-c constitutionalism will overwhelm a written Constitution
Now for the caution, which is this: Ireland also offers an example of how written Constitutions will inevitably be informed by prevailing judicial ideology, and the ‘amorphous and ever-changing body of constitutional norms, customs, and traditions’ making up the small-c constitution. Judicial ideology is itself shaped by a background socio-political order which influences the background assumptions, beliefs, and values of judges about the purpose of a Constitution and the appropriate ends of political authority. Perhaps more importantly, it also influences the officials who vet and appoint them. These beliefs will eventually suffuse and overwhelm the written Constitution and how its commitments are interpreted and given life. Moreover, shifts in the small-c constitution are likely to accelerate when a judiciary is highly homogenous in terms of professional experience, geographical situation, and educational background like in Ireland.
Elements of Irish constitutionalism remain robustly influenced by the common-good constitutional tradition – particularly the capacious discretion afforded to political branches when acting in the name of the common good. However, Ireland’s eager embrace of social and economic liberalism means there is no guarantee that the 1937 Constitution’s broad guarantees of ‘prudence, justice and charity’ and ‘dignity’ will not be eagerly press-ganged into the service of causes antithetical to common-good constitutionalism. The emergence of economic and social liberalism came roughly around the same time judicial references to natural law began to vanish and a more “secular conception of human dignity effectively supplanted Natural Law as the philosophical foundation underpinning the fundamental rights provisions of the Irish Constitution.”
It is very likely the Irish legal community will eventually fill the vacuum left by natural law by approaching the ‘majestic generalities’ of the Irish Constitution with appeals to understandings based on sources of authority more conducive to the prevailing liberal socio-political order, like international human rights law as articulated by UN human rights committees, cosmopolitan transnational courts or, suitably liberal apex constitutional courts. Where the overarching animating moral values of these kinds of bodies is something like the promotion of individual autonomy or self-determination, then the substantive moral commitments infusing Irish constitutional interpretation—its understanding of the moral demands of human dignity for example—are likely to go in a similar direction too. Put in a more concrete way: if a case analogous to Fleming were to be reargued in the years to come, I’m doubtful that the Supreme Court would reach the same result or have the same understanding of human dignity.
Vermeule highlights how common-good constitutionalism is methodologically Dworkinian in its sanguinity about interpretation explicitly informed by principles of political morality, but that it advocates a “very different set of substantive moral commitments and priorities from Dworkin’s, which were of a conventionally left-liberal bent.” Ireland’s experience, however, will likely prove a real-time demonstration of how a methodologically Dworkinian common-good constitutionalism can facilitate a slide into the substantively Dworkinian, through shifts in judicial ideology and the core animating values of the predominant socio-political order.
- Conclusion: common-good constitutionalism and the importance of institutional design
What to make of this encouragement and caution? One relevant take-away is that alarmist reactions to common-good constitutionalism are misplaced. Depending on one’s ideological commitments, there will of course be pressing reasons to disagree with it as an interpretive method and legal tradition. But to suggest that encouraging judges to read substantive moral principles of the natural law tradition into rights provisions, or to interpret constitutional structure to provide public authorities capacious authority to protect the weak and act for the common good—is a slippery road to authoritarian extremism—seems fevered to say the least.
The second take away is that Ireland shows that the question of how to best institutionalize common-good constitutionalism is a difficult one requiring serious reflection. The malleability of text to judicial interpretation cuts both ways for the proponent of common-good constitutionalism, as it means judicial commitment to the tradition risks becoming institutionally unstable and collapsing into whatever political ideology is ascendant in the legal community. It therefore seems obvious that common-good constitutionalism should not, for prudential reasons, be equated with judicial supremacy over interpretation. Instead, avoiding backsliding in this respect might make it wiser to promote doctrines which help ensure common-good constitutionalism is not hostage to bench composition; like Thayerian-style deference to another political branch’s determination of what is required for the common good, or robust forms of departmentalism over constitutional interpretation. In other words, there may be wisdom in adhering to the constitutional design equivalent of not putting all one’s eggs in a single, precarious, basket.
A third and final point is that promoting and maintaining a tradition of common-good constitutionalism will inevitably be a multi-front engagement, which demands its proponents make several inroads into influential institutions of the background socio-political order. This could fruitfully include ensuring that the common-good constitutional tradition is advocated for in the scholarly arena, in policy debates, promoted in political and bureaucratic channels as a legitimate and compelling form of legal interpretation, taught in law schools, and that it eventually becomes the orienting vision of leading legal actors like executive lawyers and judges. These battles must be fought because, if common-good constitutionalism fails to make such inroads, it simply risks being swallowed up and replaced by something worse.
Conor Casey
Max Weber Fellow, European University Institute.
- Travellers are a distinct ethnic group in Ireland characterized by a nomadic way of life. They suffer considerably worse health and economic outcomes than the rest of the population and are frequently subject to discrimination. ↑