THE IRISH CONSTITUTION

III

THE MAKING OF LAWS

From The Irish Constitution Explained by Darrell Figgis 1922

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 known generally as the Referendum and the Initiative. Wherever these prevail, the Assembly of Representatives is given only a limited power in the making of laws, the sovereign authority reserving to itself a constant and continuous control over its action. And in our Constitution both these instruments are given a place. For it is a sound rule that the people are generally better than their representatives—wiser of counsel, more disinterested of judgment—and it is therefore provided in the Constitution that there shall be an Assembly of Representatives, but that the people may require of that Assembly that laws be referred to them for final decision, or that laws be made to suit their desire.

The most important part of these legislative provisions, however, is the setting up of a National Assembly, or Synod, to be known as the Oireachtas. This is to be formed of two Houses, Dail Eireann and Seanad Eireann. There are many powerful arguments against the two-chamber system. In the end they all resolve themselves into a question of ultimate responsibility. In a simple illustration, if there be one thimble and one pea, it is easy enough to know where the pea is. But directly a second thimble is brought up beside the first, the difficulty of placing the pea becomes at once a problem. On the other hand, the arguments in favour of a second-chamber system also resolve themselves into a question of responsibility. For if there is only one chamber, without a second to check it and act together with it, there is, it is argued, a greater likelihood of its acting in an irresponsible manner, and of its running into hasty, ill-advised legislation. Its members, having acquired the habit of concerted action, may moreover strike a bargain behind the people's back, even while preserving all the forms of opposition and discussion. With the two instruments of the Referendum and the Initiative in operation this danger is less likely, provided that the people be sufficiently alert. Yet it exists. In most countries, therefore, two chambers are the rule; and in our Constitution it is provided that there shall be two chambers, care being taken to fix responsibility ultimately in the first in case of doubt or delay.

Given two chambers, the difficulty is the creation of the Second Chamber. The First Chamber causes little difficulty, and is mainly a matter, not for the Constitution, but for an Electoral Law. The Second Chamber is a matter for the Constitution. Indeed, the question and creation of a Second Chamber, and the formation of the Executive Power, are the two foremost problems for the making of every Constitution. The first difficulty is to find for the Second Chamber a sufficient constituency, and the second difficulty is to find for it a proper function; and both these problems are essentially matters for the Constitution of a State. To answer both of them satisfactorily is the difficulty; and an examination of the constitutions of other countries reveals that in few cases have they been answered even to general satisfaction.

As for the constituency, it is clear that this cannot be the same as for the first chamber, otherwise the two Houses are simply repetitions. That is one consideration to be remembered. There is another. For from earliest times mankind has desired to call into its special councils those who have distinguished themselves in the conduct of its affairs. Folk may disagree with such persons, but they defer to them and hear them. What may be called the Senatorial Person is a recognised factor in the history of all nations. In the push and jostle of entry to the First House—where special and local interests are represented— such a Senatorial Person is most likely to be thrust aside, even if he or she be inclined to mingle in the fray. He is consequently lost to the councils of the nation. How shall a place be found for him or for her; and when the place is found, what shall be the measure of his or her counsel?

Other nations have answered these problems in divers ways. None has answered them as they are answered in the Constitution of Saorstat Eireann. For it is clear that if there is to be a Second Chamber, the right place for such a Senatorial Person is in that Second Chamber, since only thus is it possible to avoid making one chamber a mere copy of the other. In some countries, therefore, the Second Chamber is composed of persons on whom a title has been conferred—and on their children who succeed to that title. In other countries the Second Chamber is created by nomination—with at least the ostensible wish that only Senatorial Persons will be appointed. Both these methods have led to corruption. Both, moveover, have led to one fatal fault. For Second Chambers are mainly of value at times when the First Chamber is likely to rush to a mistake; and at such times no people are inclined to give careful heed to the counsel of persons whom they have not themselves chosen to give that counsel. They may be exactly such persons as they themselves would have chosen; but the fact that they did not choose them, the fact that they came there by the accident of birth, or the power of money, robs them of authority just when their authority is most required.

For this reason, the people's own choice of Senators is necessary to their efficiency and authority. In countries formed out of a Confederation this difficulty is evaded by the creation of the Senate from the Federated States, while creating the First Chamber directly from the whole people. But where there are no Federated States the people's direct bestowal of authority cannot be evaded if friction and loss of strength are to be avoided. Thus one returns to the original problem, which is, how the people shall choose a Senate which will not be a copy of the Chamber of Deputies, and how the Senatorial Person will find his way to the councils of the nation, bringing with him an unanswerable authority.

Our Constitution meets this by making the whole country one constituency for the election of the Senate. The Deputies are elected from localities where they are known, and the special interests of which they are qualified to represent. Over those interests the major interest of the whole nation stands guard. It would be possible for persons to enter the Chamber of Deputies who are not known outside their own localities, but who are qualified to represent those localities. But by making the entire country one constituency for the election of the Senate, no merely local interest will have power to secure election. And thus it will be possible to find a place for the Senatorial Person from, as the Constitution reads, "citizens who have done honour to the nation by reason of useful public service, or who, because of special qualifications or attainments, represent important aspects of the nation's life." These persons are to be elected by Proportional Representation; and in order that the business of election shall not prove too cumbersome it is appointed that one-fourth of the Senate shall retire every three years, and that before each election a list shall be prepared by both Houses consisting of at least three times as many persons as there are vacancies to be filled.

Such form the two Houses of the Oireachtas. Their relation to one another is carefully defined. The Seanad is created as an advisory and delaying body, and the ultimate responsibility is given to the Dail. But endowed, as it is, with so strong an authority, vested in it by the entire nation voting as a whole, it is unlikely that its criticisms and advice can be neglected. For such criticisms will be furnished in the course of debates that will be read by the whole people; and behind them there will always be the possibility of appeal to the whole nation by Referendum, which the Senate can compel by a three-fifths vote. The Senate and the people, therefore, are placed in a watchful alliance over the acts and proceedings of the Dail. Indeed, it is not unlikely that in the future the Senate and the people (by Referendum) will often be found in practical alliance against any attempt of the Dail to arrogate power to itself. The Senate has the power to make it so—a power of greater worth to it, and to the nation, than any constitutional right arbitrarily to obstruct legislation or to make legislation abortive.

« The Plan of the Constitution | Contents | The People as Law-makers »


Library Ireland Facebook