Published on Reviews in History (http://www.history.ac.

uk/reviews)

New Beginnings: Constitutionalism & Democracy in Modern

Ireland
Review Number:
1263
Publish date:
Thursday, 31 May, 2012
Author:
Bill Kissane
ISBN:
9781906359515
Date of Publication:
2011
Price:
£20.00
Pages:
208pp.
Publisher:
University College Dublin Press
Place of Publication:
Dublin
Reviewer:
Michael Kerr
Bill Kissane's third book on the origins of democracy and the state in modern Ireland offers a challenging
vision to constitutionalists in Ireland, one which will no doubt spark much debate, criticism and serious
reflection amongst Irish historians, political scientists and constitutional lawyers. The title of the book is
New Beginnings, but Kissane?s argument that the nodal points in Irish constitutional history are the
consequence of Irish nationalist state-building failures, as well as the legacy of partition, is consistently and
convincingly made throughout. He takes the position that Irish nationalism is not a value system that
pervades all of Irish constitutionalism, but that Irish constitutionalism is an autonomous part of Irish political
culture, where a blend of constitutionalist and nationalist values produced a distinct form of
constitutionalism in the 20th century. He argues that while constitutions are ?external? to the political system
in the sense that the issues from which they derive their authority, such as revolution, independence and set
of values broadly representative of society, are outside of the political spectrum, they are 'internal' in the
sense that they shape the distribution of power across government institutions. In the case of modern Ireland,
as the religious, nationalist and patriarchal values that gave Irish constitutions their ?external? authority
came unstuck, the ways in which the constitution distributed power across those institutions is fundamental
to our understanding of how it was challenged at different points in contemporary Irish history, and the
outcome of those challenges.

Kissane addresses the question of why Irish politicians have seen constitutions as a device for making the
state more manageable, as opposed to furthering, underpinning and consolidating democracy. By this he
means that despite the consistent influence of the Westminster model and British democracy on Irish
constitutionalism, Ireland?s constitutional trajectory illustrates that, out of the party system that emerges
from the civil war, Fianna Fáil used constitutionalism to consolidate its hegemonic position within the Free
State and subsequently the Republic of Ireland. In doing so, he focuses on five turning points in the Irish
state-building venture. These points are attempts at ?new beginnings?, but they actually represent the
?incompleteness? of Irish state-building and the absence, to date, of any constitutional formula for
consolidating the state by addressing and managing the ethno-national divisions that led to partition and
created a polity in the south that became constitutionally premised on its own disestablishment at some
future point. Public consciousness of ?a revolution incomplete? is reflected in both the Gaelic, nationalist
and Catholic nature of constitutionalism and change in modern Ireland, and the irredentist obligation placed
upon successive Irish governments by Éamon de Valera?s 1937 constitution, which rejected the 1920?1
settlement and institutionalised the state?s claim to Northern Ireland. So Irish constitutionalism revolved
around Fianna Fáil?s struggle to consolidate the state, and the task of squaring the circle of past state-
building failures was largely ignored.

The first ?new beginning? is the revolutionary period of 1916?23, which saw British rule forcibly challenged
in Ireland, 26 counties of Ireland ceasing to be an integral part of the UK, the partitioning of Ireland through
the Government of Ireland Act 1920, and civil war between pro-treaty and anti-treaty forces in the south.
These are the formative years of Irish constitutionalism and democracy, ?from home rule to Sinn Féin?,
when the ideals of revolutionary republicanism clashed with the reality of the deeply-divided society that
was Ireland at the beginning of the 20th century, and the Hobson?s choice the British government faced in
attempting to settle rival claims to self determination in Ireland. The second period deals with the 1922
constitution, which continued the Home Rule tradition of viewing minority rights as integral to democracy.
But this constitution was born out of the legacy of the Government of Ireland Act. As Kissane puts it, the
1916 republic (and Sinn Féin) found its nemesis in partition. This document suffered from the tension
between its ambition to mark a ?new beginning? and its subordination to the Anglo-Irish Treaty, yet the
objective of its drafters was to engage in a form of constitutionalism that delivered a degree of independence
with the aspiration that nationalist objectives would be achieved when the Irish could move ?from treaty to
constitution?. This was anathema to anti-treatyites, therefore the Free State emerged from a contested
constitution with rival claims of monarch and republic clashing, and a ?winner takes all? mentality gestated
at the heart of the Irish political system and prevailed.

The third moment is the repeal of the 1922 constitution and its replacement with the 1937 constitution,
which was legitimised by plebiscite. Bunreacht na hÉireann attempted to deal with the past by renouncing
Ireland?s unionist past and the British constitutional legacy that came with it. Here Kissane argues that the
document was significant by the symbolic disjuncture it represented in Anglo-Irish relations and its rejection
of the 1922 ?from treaty to constitution? formula. Rather than heralding a new beginning, it represented an
ultra-conservative attempt to consolidate the state system by reflecting public consciousness over the failures
of the revolutionary period. It signified a break with the Free State?s home rule origins, representing
continuity rather than radical change or any sort of democratic constitutional experimentation. Articles two
and three set out the nationalist position of what became the Republic of Ireland, thus de Valera?s
constitution sought to secure domestic stability and provide a framework for Irish unification. Critics viewed
these articles as a constitutional time bomb; an impediment to bringing the six counties of Northern Ireland
into a future 32-county governmental framework. More so, the Gaelic, nationalist and Catholic nature of de
Valera?s new republic was confirmed through this inward-looking constitutional engineering, making the
south considerably less attractive to northern unionists than it had ever been. Kissane argues that this
moment represents a symbolic shifting away from things past, through an attempt to move the state away
from its revolutionary origins and consolidate central government. Critics labelled the constitution
?confessional?, and while unionists in Northern Ireland had done little to mask their attempts to establish a
Protestant state for a Protestant people, the 1937 constitution made it difficult to refute arguments that it had
created a mirror image of its northern counterpart. Dissenting voices did exist but they were only heard
during the next moment in Ireland?s constitutional history, when both partition and the Catholic nature of
the state began to unravel amidst internal and external challenges. Ireland had an identity crisis that the
constitution not only failed to regulate but actually provoked. Kissane argues that ?values once thought
harmonious became antagonistic, as people were forced to emphasise the secular or the religious
components of their identity, or the sub-national versus the national identity.

By 1972 the nationalist and Catholic social values reflected in the 1937 constitution were outdated. The
imposition of direct rule from Westminster, following the Northern Ireland government?s failure to
politically reform and redress the security crisis it faced after the outbreak of the troubles in 1969, and the
emergence of the Provisional Irish Republican Army presented the Irish government with a set of
constitutional dilemmas that it proved incapable of meeting within the short timeframe that the British
government had set for the establishment of a new political order in Northern Ireland. The 1973 Sunningdale
Agreement challenged the Irish government to address its constitutional obligation to unite Ireland, and at
the same time exposed the archaic and outmoded nature of the 1937 constitution, as it faltered on the issues
of consent, self determination and partition, not to mention the constitutional changes that would be
necessary to transform the republic into a state that moderate unionists might be tempted to join in the right
circumstances ? issues such as divorce, contraception and censorship. The Irish government?s discussions
over the idea of drafting a new constitution for a ?new 32-county beginning? were reactionary, and while
willing in theory, the government backtracked when faced with the challenge of the possibility of British
disengagement from Northern Ireland between 1974 and 1976. The fact that the 1937 constitution could only
be changed by referendum reinforced its authority, and that of Fianna Fáil, and undoubtedly sharpened the
Fine Gael-Labour coalition government?s sense of vulnerability as it entered the uncharted waters of the
Sunningdale Agreement, with the ambitious all-Ireland structures it envisaged. Against Conor Cruise
O?Brien?s advice, Minister for Foreign Affairs Garret FitzGerald overzealously pursued the 1937
constitution?s irredentist claim to Northern Ireland through the Sunningdale process, while fudging the
constitutional divisions over the conflicting conceptions of identity in both parts of Ireland that the peace
process threw up. Key to this debate, with respect to Kissane?s fifth new beginning, were articles two and
three which, as O?Brien argued at the outset of the troubles, had to be removed if Ireland was ever to be
unified by consent.

Finally, while the 1998 Belfast Agreement marked a new beginning for Northern Ireland and a new era in
Anglo-Irish relations, it marked a significant turning point in Irish constitutionalism too. This constitutional
moment signified a point of no return in Anglo-Irish relations when governments in both Westminster and
Dublin were able to address the constitutional issues that had undermined Northern Ireland?s first
consociational government. Kissane argues that the agreement promotes a ?treaty to constitution? process in
three ways: should a culture of power-sharing develop then this will strengthen Northern Ireland?s
constitutional identity within the UK or a united Ireland; the absence of violence and the changes made to
articles two and three frees the Republic of Ireland to consider less reactionary and more consensual
constitutional change; and should these positive developments continue and a vote for unification takes place
then the possibility of a new constitutional beginning could emerge.

Of course one could take many of Kissane?s arguments and apply them to Northern Ireland, as its existence
illustrates failures of British state building, constitutionalism and state consolidation. He raises the question
as to whether the Belfast Agreement can combine the treaty and constitution elements that may be required
to see it function as the equivalent of a constitution for Northern Ireland. There is no doubt that progress has
been made in Northern Ireland in this direction. The Belfast Agreement, in the constitutional context of
Kissane?s thinking, clearly reflects the rival national identities of the deeply divided society that Northern
Ireland remains today, and in doing so successfully regulates them within a consociational framework that
operates both internally and externally, with its all-Ireland and UK wide dimensions. Although he does not
explicitly say it, Kissane?s book shows that in constitutional terms both the Republic of Ireland and
Northern Ireland are for the first time not significantly out of step with each other, and that this has much to
do with the incremental revisionism that has taken place in Irish constitutionalism, moving from Bunreacht
na hÉireann to the Belfast Agreement, and reflecting the reality that the British and Irish governments are
partners in Europe, partners in Northern Ireland, and rather comfortable bedfellows in the Anglo-Irish
archipelago where they peaceably coexist.

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