The Irish Constitution. Figgis Darrell
the Constitutions of the world it is curious to note the persistence with which that truth is overlooked. The Canadian Constitution, for example, having provided for the Union of Provinces by which the Federation was created, begins at once with the statement that “the Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen.” Nothing has been said about a Legislature – nothing about the people of Canada. The Constitution begins at once with an Executive Authority which nothing has brought into being, and which therefore exists of its own right, original and indefeasible, all things else in the Constitution depending from it. The pyramid is hung from heaven, for the philosophy of the plan is to be found in the mediaeval myth of the Divine Right of Kings.
The Constitution of Canada consequently proceeds downwards from that apex to the Legislature; and in that Legislature, according to the philosophy, the Senate comes before the Commons. “There shall,” it says, “be one Parliament for Canada, consisting of the Queen, an Upper House, styled the Senate, and the House of Commons.” As for the base, it is found nowhere at all. The interest is exhausted before it is reached; and the People are not mentioned.
I have taken the Canadian Constitution because it is specially mentioned in the present draft of the Constitution of Saorstat Eireann; but the same supposition is found in many other constitutions, such as those of Denmark, Sweden, South Africa. In them are to be found the relics of the mediaeval theory of government, of a divine authority conferred on a family, which therefore ruled of its own right; and of its own grace summoned the subjects of that authority for counsel and advice. Therefore in these constitutions it is assumed that the sovereignty is above and the subjection below – even though no one to-day supposes that the practical facts are what they assume them to be.
In the Irish Constitution, as in most modern constitutions, this order is inverted. The sovereignty is below, and the subjection is above. Never once throughout the Irish Constitution (either in its original or its present form) are the people once considered as subjects, but always as sovereign citizens. The pyramid is based on the broad earth, in the divine right of the people; and a beginning is therefore made with the base, proceeding upward to the apex. The plan in fact is reversed because the philosophy is different.
The Constitution of Saorstat Eireann begins with the people, and with a statement of the sovereignty of the people. “All powers of Government,” it says in Article 2, “and all authority, legislative, executive and judicial, are derived from the people and the same shall be exercised in Saorstat Eireann through the organisations established by or under, and in accord with, this Constitution.” In this Constitution, therefore, the people of Ireland establish their own right, original and indefeasible, and all things and persons and institutions named or created by or under it depend from them. That is in the present, as it was in the original, draft. Whatever institution or organisation is established to act on their behalf, acts under an authority conferred by them; and in accord with the specific bestowal of that authority; and not otherwise. Whatever person or power is named, is named to act on their behalf; acts under the same authority; in accord with the specific bestowal of that authority; and not otherwise. The people confer of their own right; and what they may confer they may withdraw. If the authority they confer be abused or transgressed, it ceases thereupon to have any sanction or reverence, and possesses no binding effect. That is to say, in the terms of my figure, the apex of the pyramid rests on the base, is hung from no mythical divine right of kings, and has no support outside the people of Ireland.
The people, consequently, are citizens of a free state, not the subjects of authority. It is necessary, therefore, at once to state who are the citizens of this state, and what constitutes their citizenship. This the next article proceeds to define. In this article the whole question of future citizenship is referred to legislation. It properly belongs to legislation, since it includes a number of complex matters and details quite unsuited to a Constitution. Yet there must be an original citizenship, otherwise the service of the state could not begin. Article 3, therefore, states what constitutes the original citizenship of Saorstat Eireann; and leaves all matters “governing the future acquisition and termination of citizenship” to be “determined by law,” making it a constitutional provision, however, that “men and women have equal rights as citizens.” And Article 4 provides that the official language of that citizenship shall be the Irish language.
From these original citizens, and from whomever shall be admitted to citizenship in the future, all the authority of the State derives under the Constitution. They are the base of the pyramid, and it is they who in the Constitution (according to the plan on which it is framed) confer on certain persons and organisations definite powers of Government in Ireland. But the authority which can confer, can also withhold; and from the powers which they grant, certain matters are withheld. For there are matters which comprise the fundamental rights of their sovereignty, with which no Government created by them can interfere. If the Government had existed, or had claimed to have existed, of its own original right, it could, being itself sovereign, have acted as it pleased; and in past times it did so. But since Government under the Constitution exists only by reason of an authority conferred by a sovereign people, these Fundamental Rights of their sovereignty are kept apart; and no authority – legislative, executive or judicial – and no power of Government is conceded the right to touch them.
Therefore in the first section of the Constitution, where the original authority of the people is stated, certain matters are withheld. They are described as Fundamental Rights. The liberty of the Person, the Inviolability of the Dwelling, Freedom of Conscience and the Free Practice and Profession of Religion, the Free Expression of Opinion, Free Assembly, Free Association, Free Elementary Education, and the Inalienability of Natural Resources, are each dealt with in successive articles as forming the essentials of these rights. Before any powers are conferred, before any organisations or institutions of Government are created, these matters are put to one side and reserved. They belong to the people. None shall interfere with them. The people are sovereign, and they so decide.
Such is the plan, for such is the philosophy. The first section of the Constitution, therefore, includes what may be described as the base of the pyramid, resting on the soil of Ireland and established in the right of the People of Ireland. From that base the pyramid is built up toward the Executive Authority, in section by section, giving the logical order in which power is derived. Each section is based on that which precedes it; for the order is the same as in the original draft, and therefore the plan is preserved.
III.
THE MAKING OF LAWS
All powers of Government may derive from the people, but the people cannot of themselves govern themselves. In simple small communities the people may gather together and frame the manner of their government from meeting to meeting (and only then when ancient custom has given them the practice and expectation of such assemblies); but among nations for a people to discipline and rule themselves it is necessary that they bestow recognised and definite powers of government on representatives of their choice. Such representatives, to be sure, have a habit of conceiving that they are rulers of their own right. Cases have even been known where they have endeavoured to obstruct the right of the people to depose them. But the truth is that such representatives are merely a convenience. They are a people’s instruments, and no more. Without them the achievement of a common agreement, and the formulation of laws based on that common agreement, would prove so cumbersome as to be impossible. A people must therefore tolerate them with good humour; and keep them under proper control. And when such representatives have been chosen, they together form an organised body for the making of laws, and for the supervision and control of the execution of such laws.
Obviously, then, once a Constitution has stated the sovereign source of all authority, and defined the fundamental rights of that sovereignty, it is essential that it should prescribe the manner in which laws shall be made for the peace, order and good government of the whole people. The second section of the Constitution, therefore, deals with the Legislative Provisions of the State. The most important of these, manifestly, is the creation of an organisation of representatives; but, owing to the tendency of representatives to arrogate powers to themselves, of late years the peoples of many States have insisted on a direct voice in the checking, and even in the making, of laws. This direct voice has been exerted by means of two instruments