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Challenging the Convention convention

Constitutional Conventions don’t work so beware kicking the 8th to one

One of the side deals done in the attempts to form a government was to send the issue of the 8th amendment of the Constitution to a Constitutional Convention. The issue was raised by Labour, though just 2% of voters said it was the main determinant of their vote. Convening a convention is a good and practical idea, but not for the reasons we usually think.

The Constitutional Convention – to which I was an academic adviser – has been much hyped, particularly by those directly involved. It was established in 2012 to discuss proposed amendments to the Constitution and was mandated to consider eight specific issues and selected two additional matters. The government was not obliged to proceed with any proposed amendment but had, at least, to ensure parliamentary debate on each.

Normally such reviews of the constitution involve academic experts and elder statesmen. This one involved 100 people: 66 randomly chosen from the population, 33 representatives from parties and a government-appointed chairman. The mechanism through which it was to work to be by deliberation, currently fashionable among democratic theorists.

Deliberative mini-publics or citizen juries are thought superior because a representative sample of the population considers arguments in a reasoned way. If representative democracy (electing a parliament) does not allow citizens to decide on issues, and direct democracy (referendums) asks citizens to decide without proper consideration, deliberative mini-publics ask a small number of citizens to consider an issue, the arguments and the evidence in some detail.

By using deliberative mini-publics it derived a special form of legitimacy that according to one proponent, James Fishkin, delivers a representation based on political equality. It’s what we would choose if we gave each issue the time, evidence, reason and respect it deserved and where no special interests were prioritised.

The idea sounds laudable, and for many involved in the Constitutional Convention the experience of deliberation was a positive one. But we should remember that the decision in 2011 to create one was rooted in political expediency – to defer a decision on issues that the parties agreeing a programme for government could not agree. This is again the case in 2016 as divided opinion within Fine Gael make it expedient to send the ultimate divisive issue, abortion, to a Constitutional Convention. It is a practical way to insulate the parties from the hordes.

It also appears to give legitimacy to any subsequent referendum on the 8th.

Quite why gathering randomly-chosen people and asking them to discuss something for a weekend is perceived as more legitimate than asking our elected representatives to make that decision is moot. It says more about the low esteem in which party politics is held than it does about the merits of a Constitutional Convention.

Moreover, the actual process used by the Irish Constitutional Convention I was a part of in 2011 was often flawed, and the idea that a deliberative mini-public will make some objectively ‘good’ decision is unsound.

It is of course impossible to say what the ‘right’ answer is for an issue such as abortion. Reasonable people starting with different, and largely untestable, beliefs will come to different conclusions. We cannot deny the right of another to hold these beliefs.

Even in the much less controversial area of what is the best electoral system reasonable people can disagree. The ‘best’ system depends on what your priorities are. And even if we agree on priorities we cannot be certain how an electoral system will work, in practice. It isn’t as predictable as planetary movements. If the ‘right’ answer is not something we can definitively judge on the basis of outcome, we are left depending on its democratic and procedural legitimacy.

The claim that deliberative mini-publics choose what the rest of us would if we were to think about the issue properly is empirically uncertain. Some research shows that the act of deliberating with others has an impact beyond exposure to arguments or evidence. That is, people given the evidence and arguments don’t move as much as those who are asked to discuss that evidence and arguments with others.

This sounds like something positive for deliberative mini-publics. But it might not be.

Usually we ask more than just one person to make decisions because we assume that a large number of people coming to the same conclusion is more likely to be right. That’s the logic behind juries. If 12 people independently think you’re guilty, the likelihood that you’re actually guilty is high. But independence is key. A problem with juries, including citizens’ juries such as constitutional conventions, is that the logic assumes that the people form their opinion independently whereas they actually characteristically collaborate to come to conclusions.

Because they are not independent, problems of the same flawed thinking and arguments can be magnified. For instance we could see the citizens in the mini-publics engage in groupthink. Some opinions might be aired, but can be effectively suppressed by the atmosphere in the room. There is significant evidence in social psychology that groups can push opinion to extremes and silence minority opinion. To prevent this, great care has to be taken that all views are respected.

While the Irish Constitutional Convention tried to ensure that deliberation was respectful, open and comprehensive, it wasn’t always possible. The financial and time constraints meant that far less time was given to issues than should have been. The Convention was chaired by Tom Arnold, a charming and remarkably well-connected political insider. He ensured the Convention was well-managed and didn’t produce any politically challenging decisions. Even reasonable issues and objections were closed down in order to keep within time restrictions.

For example on the issue of marriage equality, a minority conceded that they had lost the argument but were concerned that a redefinition in the constitution might oblige teachers and religious schools to teach any new constitutional definition and not the one they believed in. They requested a vote on a motion that would state that the Convention wished to respect dissenters’ objections and protect them from state sanction. The issue was closed down without debate in a manner that appeared to me utterly at odds with the supposed spirit of the exercise.

I don’t think anyone involved intentionally tried to manipulate the process, but it was clear that most of us had clear views as to what we considered the ‘right’ outcome. It would have been easy for the chair or his team to manipulate the outcome. This would have in the first instance been possible by choosing the ‘right’ wording to the questions put to the Convention. Practical considerations and the need for timely outcomes meant there wasn’t time for ‘talks about talks’; we just had to get on with it, giving the agenda-setters greater power.

The choice of experts was highly significant. In an earlier experiment I did with others we found that, when experts agreed, the members of a citizens’ jury tended to follow that expert pronouncement. While we did not deliberately set out to produce a result, the fact that our experts all agreed with the retention of the Irish electoral system meant there was less debate on its potential flaws than there should have been.

Another problem is that the 66 so-called ‘citizen members’ were not randomly chosen. Aside from the problem in identifying ‘random’ citizens, anyone who agreed to spend multiple weekends discussing sometimes arcane constitutional provisions had to be unusually interested in politics. There was a strong selfselection bias driving the composition of the Convention, and they may not have had representative views. Practical matters also got in the way. Few (if any) mothers of young children were there, presumably because of the onerous time impositions. If the members are not representative, it is questionable what claims to legitimacy the Convention can have. The unwillingness to use the representative institutions of the state is unfortunate; it further feeds the sense of distrust in those institutions. It’s unfortunate also because I suspect the Oireachtas Committee’s discussion on legislating for the X judgment was far more comprehensive than a Constitutional Convention’s could ever have been.

Too many of those involved in the Convention act as uncritical cheerleaders of the process. With any new convention we should aim to iron out deliberative flaws and take a good look at its claim to representative legitimacy.