The Virtues of Unprincipled Constitutional Compromises: Church and State in the Irish Constitution

European Constitutional Law Review (Forthcoming)

24 Pages Posted: 4 Nov 2020

See all articles by David Kenny

David Kenny

Trinity College Dublin School of Law

Date Written: March 25, 2020

Abstract

Constitutions present the opportunity to set out, in a clear and lasting way, social compromises that attempt to mediate between conflicting social groups and political goals. It is my case in this paper that, when making constitution, we should be willing to be unprincipled: that the compromises made in constitutions should be made purely pragmatically, not guided by any set of general or generalisable theories or principles, but by local, contingent, functional considerations. Their merit lies in their practical ability to temper and defuse disagreement, rather than in any abstract or principled assessment of their quality or conceptual consistency. The best approaches in practice may be inconsistent and unprincipled.

Part I argues against principled accounts of constitutionalism. Far from this being a problem, unprincipled inconsistency is a strength in allowing flexibility and adaptability. Accommodating deep disagreement may require recognising divergent values, and obfuscating (and thus deferring decision about) how they will interact. Church-state arrangements are one good example of this.

Part II explores the inconsistencies of the Irish constitutional position on religion. Despite a common view that it is either bad or incoherent, I argue that that the Irish Constitution was in fact a good and successful pragmatic compromise to mediate between two deeply divided religious groups: an overwhelmingly Catholic and very pious population would not ratify any constitution that gave insufficient respect to religion and would obstruct the pursuit of Catholic values; and a population of Protestants, north and south of the Irish-UK border, that would threaten religious peace and cooperation in the new state and frustrate unification of the island if they felt the Constitution did not protect them to some degree from Catholic majoritarianism.

The paper concludes with a call to embrace unprincipled compromises in constitutions to mediate disagreement, and write, apply, judge and reform constitutions on this basis.

Keywords: Constitution making, Disagreement, Principled Constitutionalism versus unprincipled bargaining, Pragmatism, Church and State, Maintaining religious peace, Drafting of the Irish Constitution of 1937

Suggested Citation

Kenny, David, The Virtues of Unprincipled Constitutional Compromises: Church and State in the Irish Constitution (March 25, 2020). European Constitutional Law Review (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3692388

David Kenny (Contact Author)

Trinity College Dublin School of Law ( email )

College Green
Dublin 2
Ireland

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