THE IRISH CONSTITUTION

IV

THE PEOPLE AS LAW-MAKERS

From The Irish Constitution Explained by Darrell Figgis 1922

More is spoken of the two instruments of the Referendum and the Initiative (particularly the former) than is known about them; for in the countries where they have been adopted, folk use them and do not talk about them, and where they have not been adopted folk talk about them with ardour or with fear but without knowledge. Briefly they may be described as a retention by the sovereign people of sovereign authority over the making of laws.

The case is not without an historical parallel. In earlier times in other states the sovereign was the king, who said, "L'Etat, c'est moi." He was therefore the law-maker, by supreme right. He might summon the estates of his realm—Lords and Commons—to advise and counsel him; and he might, normally, allow their acts without his interference; but, being sovereign, he reserved the right to cause those acts to be referred to him for the final act of his will; and he at all times reserved the right to send a message to them instructing them to make laws on matters that seemed to him to require attention. This he did, being the sovereign. His parliament was the legislature of the State, but he preserved the Referendum and the Initiative, and held them as his sovereign authority over the authority deputed to the legislature.

When, however, sovereignty passed to the people, they assumed the attributes and the functions of that sovereignty. Where once the king's person and the king's dwelling, for example, had been declared to be inviolable, now (as in our Constitution) the people's persons and the people's dwellings are declared to be inviolable. And where once the king reserved the right to veto and to initiate legislation, so now (as again in our Constitution) the people reserve the right to veto and to initiate legislation. And this is the plain and simple meaning of the two instruments of the Referendum and the Initiative. Their effect is to shift sovereignty from the parliament to the people, where the revolutions of the 17th and 18th centuries shifted sovereignty from the king to the parliament.

It frequently happens that theories (for whatever they may be worth) are carried to their logical ends by practical people and not by theorists—for theory generally lags in the rear of practice. So it happened in this case. For it was the soberly practical and conservative people of Switzerland who in modern times first devised the Referendum, and then the Initiative. Since then they have been adopted in many countries, chief of which are Belgium, Australia, and many of the American States; and they appear in most of the constitutions recently adopted in Europe. But it is in Switzerland that they can most usefully be studied, for there they have a solid experience of ninety years continuous practice behind them.

The Referendum came first; and in its modern form was first adopted in the Constitution of the canton of St. Gall in 1831, the second and third articles of which read:

Art. 2.—The people of the canton are sovereign. Sovereignty, which is the sum of all political powers, resides in the whole body of citizens.

Art. 3.—It results from this that the people themselves exercise the legislative powers, and every law is submitted to their sanction. This sanction is the right of the people to refuse to recognise any law submitted to them, and to prevent its execution in virtue of their sovereign power.

From St. Gall it spread to each of the other twenty-two cantons, and to the legislation reserved to the Federal Assembly. Everywhere it is either compulsory for every law to be submitted to the people by Referendum, or for laws to be submitted when a given number of electors, within a limited period of time, have demanded that the Referendum be exercised, some of the cantons having adopted it in one form and some in another, the Confederation adopting it in the optional rather than in the obligatory form. Then, after the Referendum, followed the Initiative with quick pace, by which the people asserted the right, not merely that laws may be submitted to them for their approval or rejection, but that a given number of electors (in writing) may demand that the Legislature proceed without delay to legislate on any matter that they judge to be of sufficient importance.

At first sight measures such as these appear to be revolutionary and drastic. In practice they have proved to be conservative. The mere existence of the Referendum has proved to be a check on legislation that might otherwise have been carried by parliamentary manoeuvring for votes. The people, in actual fact, have proved to be both purer and more conservative than their representatives; and the tendency towards economy in the expenditure of public moneys has, in the main, been not the least benefit it has conferred. People are little inclined to study bills debated in the national assembly when they realise that they are powerless to change or check the measures it may pass. The power to throw out their representatives at the next general election is only a limited form of freedom, and it is illusory in face of the fact that those representatives are generally chosen by powerful political organisations which take care to select pliant and obedient tools. Only at times of great crisis does the wish of the people become vocal; and even then it is more usually neglected than not. But with the Referendum in their hands (especially with the Initiative added to it) the will of the people is always present. The people can hasten legislation where it moves slowly. They can retard it where it presses too fast ahead. They themselves can make the pace. And the effect on themselves is that, with this added responsibility, they take a quick interest in their own concerns. In the first place they break up the power of political organisations; and in the second place they themselves become alert and educated citizens, responsible and intelligent guiders of their own destinies.

Nor are these the imaginings of theory. They are the practical outcome in every country or state where the Referendum and Initiative have been adopted. They have especially been the result in Switzerland, where, by means of the Initiative, the people have insisted on measures being passed that no political party would have dared to undertake. For there are many questions that cut clean across all parties, which dare not offend a majority or a minority, and where therefore the unity of the party comes before the interest of the nation. But minorities from all parties may join, and in Switzerland have joined, together to press for their adoption, with the consequence that the National Assembly has had no alternative but to frame legislation to deal with them. And when such legislation has come before the people by the Referendum, the people have in many cases adopted them.

The presence, therefore, in our Constitution of both the Referendum and the Initiative is therefore a sign that the people of Ireland are to be rulers in their own house—not merely as against foreign control, but as against the dominance of political parties. It means more. It means that responsibility is now definitely reposed in them. There are provisions which, in the present draft of the Constitution, could with advantage be changed. For to require, in Article 43, that a petition from the people of not less than "one-twentieth of the voters then on the register" is necessary (in the alternative of a vote of three-fifths of the Senate), before a measure may be put to the Referendum, is to impose an almost impracticable, and certainly an extremely difficult, task. It reveals a fear of the exercise of the Referendum that experience in other countries does not justify. With the wide franchise allowed in the Constitution, the tendency will be to play into the hands of political parties, and one of the purposes of the Referendum is to destroy the power of political parties. Yet a slight change here may easily be made. And the essential fact is that the people of Ireland, having asserted the fact of their sovereignty, and defined its qualities, proceed to exercise its functions by holding over the Oireachtas the two instruments of the Referendum and the Initiative.

How will those functions be exercised? It is impossible to say, except that there is no education like the education of responsibility.

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