In practice constitutional rights have been insidiously ideological and, latterly, a conservative, money-driven distortion.
By Eoin Daly
Far from guaranteeing citizens those rights we instinctively think of as basic – the shelter, healthcare and education that give us dignity and autonomy – our Constitution has more often been used to resist state intervention in the established social order.
For example, the outspoken Master of the High Court, Edmund Honohan, recently argued that the Constitution has served as a pretext for political inaction during the housing crisis. And whatever about the detail of constitutional property rights, it is worth reflecting on the distorting effects constitutional rights have had in our political life generally – and on why our constitutional law has had such a conservative orientation.
In liberal politics it has become an article of faith that our aspirations towards equality, freedom and social justice can and should be expressed as a set of individual rights that are fixed and immutable, and that somehow transcend the vagaries of politics.
To demand ‘rights’ is a quintessentially political act, but in our contemporary politics, rights-discourse is depoliticising; it claims to set the limits of politics. The very point of having constitutional rights is to put certain political choices off the table – to put rights beyond the reach of politics. And many progressives intuitively think this is a good thing, because we believe that politicians, in thrall to powerful interests, will inevitably be prone to neglecting the rights of the marginalised and powerless.
From this perspective, constitutional rights inject some measure of principle into the rough-and-tumble of Machiavellian politics. And certainly, the Irish Constitution has sometimes been used to advance the rights of marginalised people in the face of political indifference. In the 1960s and 1970s, judges used it creatively to establish rights to use contraception – albeit within marriage – and to free legal aid on criminal charges.
Yet the idea that constitutional rights transcend politics – or that they draw the limits of political power – is naïve at least, and arguably positively counterproductive for progressive and radical politics.
It is fine, in the abstract, to say that political authority cannot transgress fundamental human rights, and that these limits are sacrosanct. But this takes rights as a given – it ignores both the intractability of conflict about rights, and the political nature of rights themselves. Rights are political because they form part of the conflict that politics exists to address. In the metaphors they use to describe political thought, liberal thinkers imagine that rights are agreed upon as a set of boundaries within which politics are conducted – as rules of the game that are non-negotiable, and certainly not part of the game itself.
They imagine that reasonable people somehow agree, at the outset, about moral fundamentals, and that any subsequent political struggle over interests and power is subordinate to an imagined social contract in which this moral consensus is enshrined. The American thinker, John Rawls, claimed that democracies had to accommodate intractable disagreement as to the “good” – the kind of life we should lead – but that questions of “rights” were a part of the social contract itself, and so not part of the ordinary circumstances of politics.
But this is a dangerously misleading picture of our real political condition, and of the conflicts that define it. The idea that rights can be put beyond politics, or form the basis of a social contract, wrongly imagines that we can broadly agree on what rights are. We might, were we to deliberate, agree on some platitudinous textual formation of rights. We all have the right to liberty, equality and fraternity and the pursuit of happiness. But the moral consensus this represents is illusory. When it comes to how rights are concretised in conditions of social conflict or scarcity, we profoundly disagree as to what ‘rights’ we have, how they should be guaranteed and at what cost, and most importantly, how our conflicting claims of ‘right’ are reconciled.
Liberals like to understand rights as a kind of outer boundary on politics, but in reality, ‘rights’ infuse the whole of our political discourse, in matters fundamental and mundane. ‘Rights’ cannot provide the objective rules by which politics is carried out, because claims of ‘right’ simply reproduce the whole spectrum of political and moral opinion.
We have become used to the idea that the meaning and scope of constitutional rights is a matter of legal expertise, or that it is discovered through some specialised, albeit slightly mysterious methods of legal reasoning. When it’s said the Constitution prohibits greater restrictions on school-admissions discrimination, or certain kinds of interference in the private housing market, many assume this is the product of some kind of technical lawyerly knowledge. But it is easy to overestimate the intellectual sophistication that constitutional reasoning involves. Underneath the careful legal language, what constitutional rights mean – when applied in concrete practical situations like school admissions law, or family property, or whatever – depends to a very large extent on the ideology of the interpreter.
It is little surprise, then, that what constitutional rights mean, in practice, tracks with reasonable predictability, the worldview of those who are entrusted to interpret and enforce them. The social and class perspective that dominates the Bar and the Bench inevitably inform the way in which the Constitution’s vague language is interpreted. Indeed historically, constitutional rights have been used as much to defend entrenched interests and privileges as to protect vulnerable minorities and individuals.
Most dramatically, perhaps, the US Supreme Court protects the influence of money in politics under the guise of ‘free speech’. Irish as well as American liberals exalt the activist, mid-century Supreme Court as exemplifying the emancipatory potential of judicial power, citing its stand against racial segregation. Yet the enduring impact of judicial activism is overstated and in the longer trajectory it seems historically anomalous, in a Court which, despite isolated liberal victories, seems persistently protective of elite interests.
Of course, there is no way of proving whether or not the political victories of judicial activism are outweighed by its costs. But the distorting effects of constitutional rights are not experienced primarily in judicial rulings – in the conservative interpretations judges might hand down – but rather in the realm of political debate itself. The entire edifice of constitutional rights subtly changes the way we understand and discuss politics, potentially transforming the parameters of political debate. Irrespective of judicial interference in the political sphere, the amorphous, mysterious character of constitutional rights has given lawyers an outsized influence in political and social conflicts. The question of how private property should be balanced against social justice, or how equality law must accommodate religious freedom, are best understood as political rather than legal questions – there simply is no legal ‘right answer’. But one of the effects of having an enforceable bill of rights is that ordinary political disputes are constitutionalised. It becomes understood that the parameters of political choice depend on expert interpretations of constitutional rights that are themselves insidiously political. Properly political questions are divested to an esoteric lawyerly domain in which the citizen is reduced to an interloper.
Since ultimately the Constitution has whatever meaning lawyers and judges give to it, the constitutional narrative will tend to be captured by the most powerful social and economic interests. And so to understand the culture of constitutional rights in Ireland, we must look not only at constitutional judgments themselves, but also at the ways the Constitution has been invoked within the political process itself – sometimes by politicians who use it as a convenient pretext for inaction, and sometimes by powerful interest groups who invoke dubious interpretations of vague constitutional rights to resist unwelcome legislation. Insofar as our political discourse has been infused with the language of constitutional rights, this has not made it more moral or more principled. Rather, it has helped to shore up the status quo.
Property rights are a good example. In the 1970s, the Kenny report on land prices suggested local authorities should be empowered to acquire land for housing at its agricultural value plus twenty-five per cent, to control speculation. This was shelved on the pretext of constitutional property rights, despite Article 43 of the Constitution itself placing strong emphasis on considerations of “social justice”.
Similarly, religious denominations have proven extraordinary skilful in marshalling constitutional rights to resist any dilution of their considerable institutional privileges. For example, they have successfully established a right for schools under religious management to discriminate on religious grounds in enrolment. One might have thought that the right to religious freedom would preclude any situation where publicly funded schools could demand baptismal certificates as a condition of enrolment, but somehow, religious lobbies convinced an Oireachtas committee that the reverse was true.
In theory, constitutional rights could have been invoked in support of the more egalitarian position, and so in this spirit, most Irish progressives support the institution of constitutional rights, simply hoping for better interpretations or formulations of the text. But this is wishful thinking. Once we depoliticise rights, we entrust their interpretation to a social elite that is unlikely to unsettle dominant interests. Radical politics should resist the lure of the constitutional domain: the rarefied discourse of constitutional rights is no substitute for political struggle.
Eoin Daly is a lecturer at the School of Law, NUI Galway and author (with Tom Hickey) of The Political Theory of the Irish Constitution (2015).
The right to equality grounds all other rights and should trump others’ unequal actions.
By Michael Smith
“Once we depoliticise rights, we entrust their interpretation to a social elite that is unlikely to unsettle dominant interests. Radical politics should resist the lure of the constitutional domain: the rarefied discourse of constitutional rights is no substitute for political struggle”
Eoin Daly (above) concisely expresses a perceived dilemma with rights. They’re nebulous, confusing and there are as many views of them as there are people, so cross-purposes lead to their uselessness. Worse, they deflect from politics where at least democracy keeps the public from serious harm.
I think rights are trumps (definitive limits) over politics. They’re way more powerful than politics. Politics leads us to nonsense like the FF-FG-Independents ‘Confidence and Supply’ arrangement, indeed to nonsense like FF, FG (and ‘Alliances’ of Independents). And to our opposition. To Donald Trump. To the elitism Eoin Daly recognises. To, well… politics as we know it.
A constitution and the rights it enshrines is no nonsense.
A right is something that cannot be beaten. As I say a Trump, like the ace of spades. Not Donald Trump.
I agree with Eoin Daly that the conception of a right is often mired in inconsistency.
Here’s a way to avoid it: take more care in defining it in the first place.
Rights that are not rights
Let’s start with the US Declaration of Independence and its allegedly “unalienable” rights.
Pursuit of Happiness
Not a right. What if your happiness tends to come from serial-killing, shop-lifting or smoking in hospital wards?
Not a right. Your freedom may have to be compromised if it cuts across someone else’s safety. You can’t shout ‘fire’ in a theatre. Liberty tempered by any contrary imperative loses its very essence – decontextualisation from others.
Close but not close enough. Not a right, in countries with the death penalty. Probably not a right generally since most people would kill Hitler or Isis operatives, peremptorily. And if the state had to decide that one person had to be sacrificed to guarantee the survival of a hundred others most people would consider the right trumpable.
Not even close. It’s not even a pursuit. It’s extraneous matter on which the weird and gratuitous notion of ownership can be imposed, to no obvious necessary benefit. The trumps over property are clear and manifold. It is meaningless to describe it as something over which there is a right. Property has its duties as well as its entitlements. Property entitlements, since they carry with them duties, may be subject to restrictions, provided that these are duly required in the public interest. Such restrictions may relate to the raising of taxation and revenue, land-use and planning controls, protection of the environment, consumer protection etc. Property rights are not recognised in the South African or Scandinavian constitutions.
Our own Constitution’s provision on property should be amended, as the existing one has allowed conservative interpretations of the common good and public interest. Egregious examples include local authorities which fail to exercise compulsory purchase orders in the common good, and the 1985 Oireachtas Report on Building Land, which undermined any chance of implementing the Kenny report which had proposed that local authorities should buy land at its existing use value plus 25% (and obtain appropriate planning permissions on it).
If even life isn’t a right that trumps all comers, what does?
For a start, since even something as comprehensive to the individual as life must give way in certain circumstance, it’s clear it’s not about the agency of any individual.
Space is short here so I’m going to suggest it must be something mutual not self-referential.
We could probably all agree there is a right to equal treatment before the law.
But what does that mean outside the law? It implies that people who are similarly situated are treated the same. And that people not similarly situated are treated so they become similar.
For me that constitutes ‘equality of condition’ or ‘equality of outcome in terms of those conditions’.
John Baker, a political philosopher who used to work in UCD, favours equality of condition because: “For example, suppose you think that everyone has certain very basic human rights, which is itself an egalitarian idea. Once you start thinking about how inequalities of condition contribute to the violation of those rights, you are on the path to equality of condition”.
Equality is with others; freedom is from others. Equality is substantive; the exercise of freedom depends on external conditions. Equality is the ultimate in mutuality; and equality of condition is the most penetrating version of equality. It takes equality as far as it can go, bearing in mind the separateness of humans, while recognising their salient features.
Relevant conditions include everything that conduces to enabling and empowering individuals: not just incomes and other material things, but also respect, love, information and wisdom, and power. Equalising power embraces most of the liberal civil and political rights except property. It is not a stretch to say that free equality amounts to the same thing as equal freedom, but all conditions must be embraced. If someone is genocidal, their condition is so dangerous that their rights will be comprehensively reduced. Equality of opportunity is very different from, for example, equality of opportunity which depends on the opportunities that present themselves (which are themselves a function of background and luck – and therefore arbitrary, and for that reason not a solid or fair basis on which to anchor something important like rights.
To see how equality of condition works let’s take the Isis example. The condition of Isis activists is genocidal. Unfortunately (for them) they have no right to freedom because their effect on equality of outcome is so deleterious – they treat people who disagree with them as if they were not just not equal to them but valueless, and they are apocalyptic. Even depriving them of life will usually be shown proportionate to the scale of the catastrophe avoided and promotes equality of condition.
Philosophical and psychological arguments for equality do not depend on the practical arguments for it – which are themselves becoming compelling.
Opponents of equality have long argued that inequality is good for society as a whole, primarily because it fosters economic growth that benefits everyone. Fashionable egalitarians like Thomas Piketty, author of ‘Capital’, and Wilkinson and Pickett, authors of ‘The Spirit Level’, undermine the argument. Piketty shows that inequality is inefficient economically. Wilkinson and Pickett purport to show the pernicious effects that inequality has on societies: eroding trust, increasing anxiety and illness, (and) encouraging excessive consumption. They show that for each of eleven different health and social problems: physical health, mental health, drug abuse, education, imprisonment, obesity, social mobility, trust and community life, violence, teenage pregnancies, and child well-being, outcomes are significantly worse in more unequal rich countries.
It seems to me that the best system would look to what people would decide if they knew everything possible within the constraints of humanity and the material world. It seems to me that humans can be as happy as they can be if others are equal to them. Humans can suppress their personal selfishness in the interests of the common good. On a small scale people do this all the time with their friends, and particularly their families. If this maximises the aggregate welfare, the aggregate good, a system should be grounded on the assumption that all people have this optimal psychology. In other words human psychology is treated as malleable for purposes of deriving the best system. Once the system were in place it is to be hoped people’s psychologies would change to facilitate it. Any other psychology and any other system delivers a sub-optimal result. It is important to maximise the pool of goods available for distribution by politics but it turns out also to be important to also optimise the attitudes of people to division of those goods, even if only hypothetically as part of an exercise to determine the optimal common good.
A premise is therefore posited that through education all see and pursue the appeal of loving their neighbours as much as themselves (though no more – that would be altruism). The transition to this nirvana is beyond the scope of this short article but perhaps particular campaigns are part of the makeup. At the other extreme, if all pursue their own selfish immediate interest, you have libertarianism or capitalism which are necessarily to the detriment of the weak, or of those who choose not to be selfish.
A famous variation of this was promoted by the philosopher John Rawls.
Using the device of a ‘veil of ignorance’ whereby people would choose a vision of society based on suppression of awareness of their actual circumstances, Rawls, in his ‘A Theory of Justice’ (1971), developed a “principle of justice” that economic and social inequalities can only be justified if they benefit the most disadvantaged members of society.
He argued that all economically and socially privileged positions should be open to all people equally and for example that the inequality between the salary of a factory-worker and a doctor is only acceptable if this is the only way to encourage the training of sufficient numbers of doctors, preventing an unacceptable decline in the availability of medical care (which would therefore disadvantage everyone).
Rawls’ concept is widely respected but it seems to me that it is a mistake to derive a theory from suppression of actual knowledge of actual circumstances. Being American, he cannot entertain the possibility of “strong and lasting benevolent impulses”. That weakens the potential of his conclusions. It all leads to his dead-end assumption that maximising the good will inevitably be to the detriment of some (as well as to the advantage of others).
If we accept that equality is the key right, it may be that it spawns other rights but they go no further than it and are really just iterations. Depending on definition and terminology there is a right to justice and fairness (ie there is a right to them when they are defined to mean equality of condition). It may also generate certain subsidiary prima facie entitlements in particular circumstances subject to the common good. In societies where resources allow it individuals, certainly almost all of them, will have an entitlement to shelter, healthcare, food, clothing, a living wage. Individuals have entitlements to these things to the extent that they are necessary to ensure equality of condition. The entitlements will not apply in some of the extraordinary circumstances outlined above – where public safety or the lives of many others are at stake etc. Anything necessary for human functioning or the absence of which is an absolute impediment to the full-blown right of equality. There is certainly no right to broadband, to bear arms, to Kimberley Mikados, etc.
Sustainability is an important agent of equality since it requires that the earth’s resources be handed on to the next generation. Equally.
An amendment to the Constitution could usefully include explicit inclusion of the concept of sustainability and inter-generational equity.
According to UNEP in 2014, 177 countries recognised the right to a sustainable environment.
Beyond this, rights should be enforceable by the courts against the majority. Eoin Daly misses the point where he points to ‘depoliticising’ rights. Depoliticising them is the whole point. The fact a majority doesn’t recognise a right doesn’t undermine it, it strengthens it. That’s why the courts, and their independence from government, are so important: and why they are the best arbiters of rights.
Michael Smith is editor of Village Magazine.