The Irish Constitution, a United Ireland, and the Ship of Theseus: Radical Constitutional Change as Constitutional Replacement

Abstract

This paper considers the prospect of using the Constitution of Ireland as the basis for a iunited Ireland Constitution. It is perhaps assumed by some political commentators in the South that this approach – similar to the German unification experience – is an obvious starting point. But it is far from clear that this is a workable model. It might have an advantage in giving us a default, a starting point and some sense of continuity that might make agreement on a constitutional arrangement less likely to break down. But at the same time, defaulting to the Irish Constitution’s positions could itself be so divisive as to cause such a breakdown in consensus.

If the Irish Constitution could fill this role, it would have to be overhauled in a major way, leaving a document that might look almost unrecognisable. The practicality of this should be carefully considered, but so too should the risk that unwritten or conventional aspects of the original constitutional order might remain in spite of radical change. This raises the philosophical quandary of the ship of Theseus: is a ship, with all its planks gradually replaced, still the same ship? The paper considers whether the protean nature of this radically amended constitution’s identity – simultaneously the same and vastly different – could offer a road to a successful compromise.

Keywords: Northern Ireland, Constitutional Law, Constitution Making, Constitutional Change, Ireland, Brexit, UK, Consociationalism, Constitutional Design