The Irish Constitution. Figgis Darrell
the experience of the nation, without seeking to shackle that experience by provisions that time may not commend. Otherwise, a convulsion may be necessary to get done what ordinary legislation could have accomplished without affecting the stability of the State.
This, then, is the first definition of a Constitution, that it contains the Fundamental Law of a State, and only the Fundamental Law. In England there is no such thing as a Fundamental Law. It is claimed by English constitutional lawyers that this is because Parliament is sovereign; but the historical truth is that in England Parliament exercises a sovereignty in fact which the King is supposed to exercise in theory; and any attempt to make the theory square with the fact by the writing of a Fundamental Law would lead, perhaps, to a surprising situation.
Yet in England certain fundamental rights are recognised, with which Parliament would not lightly tamper; and these amount in effect to a Fundamental Law, holding a higher rank than ordinary laws. In practically all other countries such rights are set forth in a document, different from all other legal documents, inasmuch as unless these other documents observe the conditions required in the first, and do not conflict with its provisions, they are null and void. In both sets of documents the laws of the realm are to be found; but the two sets of laws are of different sorts. One is fundamental and permanent; the other is by contrast casual and changeable.
This, then, is the second definition of a Constitution, not only that it contains the fundamental law of a State, but that it prescribes the manner in which all other laws must be made, and put limits and restrictions on all other law-making. In the American phrase, it is a “Frame of Government.”
In English the words Constitution and Legislation do not carry on their face the relation of one to the other, and the distinction between them. In Irish the case is different. In Irish the word for Legislation is Reacht, and the word for Constitution is Bunreacht– fixed and foundation legislation. But even the distinction so simply carried on the face of these words does not complete the relation of one to the other. For that relation is precise; and consists in the fact that all laws comprising the Reacht must be built upon the foundation of the Bunreacht, and must be contained within the fixed limits of the Bunreacht. The moment they attempt to build elsewhere, or go outside those limits, that moment they cease to be binding on any citizen; and all citizens may claim the protection of the courts of law against them.
From this follows the third definition of a Constitution, which is that it contains the highest and completest sovereign act of a nation. A nation may confer a Constitution on itself, and that Constitution may contain no declaration that the people are sovereign; but the fact that the nation did so make their own Constitution is itself a declaration of sovereignty. Declarations of sovereignty in the body of a Constitution may be very wise; and they are always pleasant; but they are not necessary.
Similarly, a nation may make a Constitution for itself, and in that Constitution confer the chief executive authority on a person to be known as a king; and that person may be known in name as a sovereign; but the fact that he derives his power from the Constitution is evidence that, not he, but the people, are sovereign. His is only a sovereign name; theirs is the sovereign reality.
Such Constitutions were made in 1814 by Norway, in 1830 by Belgium, and only last year by “Jugo-Slavia.” In the last case the kingly line already existed before the Constitution was framed, and an oath was prescribed in it, according to which the King swore “to maintain the Constitution intact.” In the first two cases the kingly lines were not chosen until the Constitutions had been framed, when the chosen dynasties stepped into the places appointed for them, and carried out the functions defined for them. In each case, however, the authority of the king sprang, not from the divine right of kings, but from the divine right of the people, as set forth in the sovereign act of giving themselves a Constitution.
How different the power of kings such as these from the power of the French monarch who in the 18th century declared, “L’Etat, c’est moi” – “I am the State.” He was right. He was sovereign. Sovereignty had to reside somewhere; and until the people arose and declared that it resided in them, and expressed that declaration in a formal Constitution, it continued to reside in the ruler who claimed it.
When, however, in 1787, the thirteen American States “ordained and established a Constitution” for their Union, then in the modern world the people came by their own. France quickly followed the example, but as a result of the wars which followed the world was thrown back into reaction. Throughout the 19th century, however, the statement of democratic sovereignty as a fundamental law of the State found expression in Constitution after Constitution; with the result that now, in modern practice, the existence of a Constitution is practically identical with a statement of national sovereignty.
There has hitherto been one chief exception; and that exception is of striking interest at the present time. For within the British Empire the theory has been that there is only one sovereign assembly, the Parliament at Westminster. It is true that the Constitutions of Canada, Australia and South Africa were each drawn up by Constituent Conventions in the countries themselves; but by the prevalent theory none of these peoples were competent to confer these Constitutions upon themselves. They were not, that is to say, sovereign; and before the Constitutions they devised therefore could come of effect they had to be passed as Imperial Acts by the Parliament at Westminster.
Yet that also has now changed. Ireland has wrought the change; and the deep influence of that change cannot be foretold. For the Dail elected to pass the Constitution will act, not as a Constituent Convention, but as a Constituent Assembly. It will not only devise the Constitution, with the present Constitution before it as a Bill for discussion, but, having devised it, will prescribe it; and thus, through their elected representatives, the people of Ireland will have conferred it on themselves as their Fundamental Law.
That is a sovereign act; and that act will differ in no degree from a similar act by any other sovereign people. From this, however, one last consideration follows; and, though it is simple, it is not usually remembered. For if the passing of a Constitution is an act of full sovereignty, and if that Constitution, being a Fundamental Law, restricts and limits all future law-making, then the assemblies to come which will pass those future laws will not be sovereign.
They will not be able to do what they will, and they will not be able to act as they will, for they must obey the requirements and act within the limits of the Constitution, as prescribed by the first Assembly, which alone was of full sovereignty. For this reason every nation has gone to great care to choose persons of special competence for the body which is to act as a Constituent Assembly – the body, indeed, which is to act as the first, and, so long as that Constitution shall remain, the last Sovereign Assembly of the nation. The act of prescribing a Constitution being the highest act that a nation can make, care has always been taken to make it the fullest and the freest. For, once done, it cannot be undone, except at great trouble, and perhaps as the result of great convulsion.
II.
THE PLAN OF THE CONSTITUTION
To draw up a plan is almost inevitably to express a philosophy. In shaping the sequence and proportion of the parts which are to comprise the whole, the trick of the mind will out; and it is in that trick of the mind that, ultimately, all philosophies are contained. Perhaps there are few who, after consideration, would deny this in all the ordinary (greater or lesser) concerns of life; but many will think it strange in a matter so dry as the drafting of a Constitution. Yet even in the drafting of a Constitution it will be found equally true.
A Constitution may be likened to a pyramid, the apex of which is the Executive Authority, and the base the People. The first question that therefore at once arises is, where shall one begin first with this pyramid? But before this question can be answered, another must first be met; and it is, whether the base is hung from the apex, or whether the apex rests on the base? What relation has the Executive Authority (whether kingly, presidential or consular) to the People, and the People to the Executive Authority; and which, names and titles apart, is ultimately the Sovereign? These are ripe questions; and only in the making of the plan can they be answered.
I have already shewn that the writing of a Constitution is itself evidence that the people are sovereign, even though no statement to that effect is included in