Carolan: Ireland’s Constitutional Convention: Behind the hype about citizen-led constitutional change

A 2015 paper by Eoin Carolan, Professor and Director of the Centre for Constitutional Studies at University College Dublin, takes a skeptical look at the conventional claims around Ireland’s Constitutional Convention which led to the legalization of same-sex marriage. (Note that later there was also a different allotted body constituted in 2016 which was called a “Citizens’ Assembly” and which led to the legalization of abortion.)

The article suffers from the standard pro-status-quo bias of showing no recognition of the urgency of the need to address the problems with the existing system. As usual, recognition of problems with the established system is phrased in terms of “public perception”, “disenchantment”, “disillusionment” and a “crisis of confidence”, rather than in terms of the facts of ongoing consistent systemic atrocious policy. Thus, while the paper rightly subjects the Convention process to a series of critical examinations, it seems to assume that the status quo is a legitimate default alternative. That said, I find that the article asks good questions, makes good observations and is generally very useful.

Abstract

Ireland’s Constitutional Convention is one of a number of recent examples of ordinary citizens becoming involved in constitution-making processes. These participatory experiments are often praised by democratic scholars. That has been the case with the Convention, which has already been cited as an example for any future process of constitutional change in Britain. This article argues that the Irish experience has been oversold. The process in fact suffered from a number of serious limitations that undermine its claims to either representative or deliberative legitimacy. The approach taken to its composition, agenda, expert advice and evidence was problematic in several respects: opaque, apparently ad hoc and with inadequate attention to the risks of bias and manipulation by elite actors. The Irish experience provides a warning about how the symbolic value of the ordinary citizen can be exploited for political purposes.

16 Responses

  1. Yoram:> the facts of ongoing consistent systemic atrocious policy

    A claim like that would normally be classified as opinion rather than a statement of fact. If standards were available to evaluate the “correctness” of policies there would be no need for what we call politics. Sadly no such criteria exist, so epistemic democrats like Estlund and Landemore have to rely on minimal standards such as “better than random”, or the avoidance of famine (the last famine in Ireland took place between 1845-49). Was it C.S. Pierce who suggested there were objective solutions to political issues that were open to computation? As a data scientist, perhaps you find this approach appealing. And you won’t find the answer in Bentham, as how to achieve the greatest good for the greatest number is the question that cannot be begged.

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  2. Keith,

    It seems to me that there is no special epistemic obstacle to assessing the qualities of present systems of government. The gross inadequacy of present governments’ climate change response, for instance, is a matter of scientific fact. One may remain an epistemic democrat about the details without denying the transparency of states’ overall performance to the informed observer.

    Yoram, of course, with his peculiar brand of epistemic democracy, may not be able to make this concession…

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  3. >The gross inadequacy of present governments’ climate change response, for instance, is a matter of scientific fact.

    Yes, but government is all about trade-offs. Depending on which factors you deem more important — short-term morbidity, the economy, education liberty (inter alia) — one could argue that the Covid-19 lockdown is either excessive or insufficiently draconian. The judgment is political, not epistemic (especially as the damage to the economy may well increase morbidity in the long term). And democratic governments have to deal with inconvenient things like public opinion — voters want to at the same time reduce anthropogenic warming and continue to enjoy their current lifestyles (including Continental holidays made affordable by untaxed aviation fuel).

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  4. > “…voters want to at the same time reduce anthropogenic warming and continue to enjoy their current lifestyles”

    Part of the problem with current institutions is public ignorance and unwillingness to make those tradeoffs! A trusted and trustworthy system of media and government could say to the public, ‘look, we need to make long-term sacrifices to protect ourselves from catastrophe’ and people would believe them and accept the imposition of the required measures. This would be partly due to their knowledge that they were being decided upon and administered fairly and transparently, but also because there is an unavoidable problem of the _public’s_ epistemic standing which a well-functioning system would address better than actual systems do. This is why I’m not a Gattite total epistemic democrat: the public can just be wrong about things, their priorities can be off, and systems of institutions can address that better or worse. So we can’t defend present systems’ failures by appeal to the recalcitrancy of the public – the public’s poor judgement on these matters is a product of systemic failings too.

    My point is not that there are _no_ decisions where the clash of values isn’t outweighed by epistemic concerns, but I do maintain that on many of the most crucial issues, there is one small family of right answers. On Covid, for example, it’s pretty clear that very aggressive anti-virus measures also have the best economic outcomes – Taiwan’s economy has actually grown this year. So while it might be a good rhetorical move for Landemore, Estlund, et al. to demur about what constitutes good government, in order to persuade people from across the political spectrum, it is not an epistemically virtuous form of self-denial.

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  5. Oliver,

    I claim no expertise in comparative political systems but, to the best of my knowledge, Taiwan has a directly-elected president and operates general elections for the parties in the legislature, so it is not so different from western presidential systems. If so then we must look elsewhere for the high levels of trust that you are referring to — presumably a mixture of cultural and historical factors (the country was under martial law until 1987). In addition to this, Asian countries were better prepared for a coronavirus outbreak as a consequence of the SARS epidemic, whereas western countries were preparing for influenza. Are you suggesting that a randomly-selected legislature would have been better prepared for the crisis or that it would be more trusted? The Asian countries that have done well are by and large under authoritarian leadership — I know that Yoram likes to view such systems as a variant of democracy, but I didn’t think you went along with that.

    >So while it might be a good rhetorical move for Landemore, Estlund, et al. to demur about what constitutes good government.

    I think their reasons are substantive, rather than rhetorical.

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  6. Oliver,

    > I’m not a Gattite total epistemic democrat: the public can just be wrong about things, their priorities can be off, and systems of institutions can address that better or worse. So we can’t defend present systems’ failures by appeal to the recalcitrancy of the public – the public’s poor judgement on these matters is a product of systemic failings too.

    I hope you are not attributing to me the notion that “the public can’t be wrong”. That would be a silly idea.

    But what does this have to do with the current system? The current system is non-democratic and thus public policy does not reflect public sentiment in any meaningful way. There is therefore absolutely no need to assert that “the public is wrong” in order to assert that the current system’s outcomes are horrible. Quite the opposite: the public is very unhappy with the current system (“disillusioned”, “lost confidence”, etc.) because it is disgusted with its outcomes.

    And that is my point: the public loss of confidence with the current system is a problem, but it is merely a symptom of the real problem – the system’s horrible outcomes. (Some examples from the US: the deaths of tens of thousands every year due to denial of health care, incarceration of millions, economic stress and anxiety for tens if not hundreds of millions.) Propagating the notion that we should stick with the current system until some academics finish coming up with some “theory of representation” (or something) that would “justify” some meaningless changes is nothing short of complicity in those crimes. (But then again, intellectuals have always been complicit in the crimes of oligarchical regimes, so it would have been a surprise if mainstream academia did not engage in the type of status quo preserving rhetoric it does.)

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  7. Keith,

    Both South Korea and Taiwan are electoral democracies that have done well in the pandemic, and South Korea pre-pandemic was notable for its _lower_-than-average level of social trust. My point is not that they have great political systems, but that there are objectively better and worse policies for dealing with the pandemic, and they have enacted the better ones. The fact that Taiwan was under martial law years before I was born seems little more relevant here than Spain and Portugal’s authoritarian histories.

    Landemore and Estlund’s motives for their move are substantive – they’re just not grounds on which the move can be defended.

    Yoram,

    I’m glad you don’t subscribe to that position! But if we both treat each other’s hyperbole as hyperbole, we will still be left with a disagreement about the extent and subjects on which we should defer to public opinion. That is what I aimed to express with my casual slur against ‘Gattite total epistemic democracy’.

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  8. Oliver,

    On the question of “deferring to the people” regarding which countries are democratic, we first have to consider whether the concept of democracy can even be defined independently from the subjective judgement of the people. But let’s put this issue aside for now and assume for the sake of the argument that the concept of democracy can indeed be defined without reference to people’s subjective judgement and that we are therefore talking merely about reliable measurement of an objective concept.

    I think the situation we are discussing now – the complacency of academics regarding the atrocious outcomes of the Western system – indicates that preferring the judgement of experts over the judgement of the people on any matter where the interests of the experts may diverge from those of the people is a thoroughly questionable practice.

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  9. Oliver:> there are objectively better and worse policies for dealing with the pandemic, and they have enacted the better ones.

    With the benefit of hindsight most policy makers would probably agree. But, as I mentioned before, Asian countries were better prepared for corona viruses (on account of the SARS experience) and most political decisions involve a trade-off between a myriad conflicting priorities and there are too many unknown unknowns to enable a simple cost/benefit analysis. And, as your reflections on South Korea show, trust doesn’t really come in to it.

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  10. Yoram:> the complacency of academics regarding the atrocious outcomes of the Western system

    Whew, that’s a relief! Neither Alex nor myself are academics (I’m a printer and Alex is an unemployed computer programmer), so I guess we are not the targets of this anathema. And presumably the “Eastern system” (whatever that is) doesn’t have “atrocious outcomes”.

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  11. Keith,

    You are quite right when you point out that there are all sorts of reasons why governments may underperform and make the wrong choices. But there is no reason for us to artificially bind ourselves by the same constraints when we judge their performance. Our aim is not to say of individual politicians whether they did the best they could in the circumstances, but to assess the quality of the final policies that emerge from the system on various subjects. To be able to make that judgement is really a basic requirement of a political worldview, and the evidence is no more obscure or problematic than in any other field of inquiry. As a result, Estlund and Landemore’s refusal to do so save by reference to the bare minima you described in your first comment is not a case of scholarly virtue, whatever else may be said for it.

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  12. Estlund characterises himself as an epistemic democratic proceduralist, with most of the emphasis on the latter. I’m just not sure what point you are trying to make. You emphasise the need for trust, yet South Korea scores high on the epistemic scale (at least with regard to the pandemic) but has low levels of trust. All the regimes that Yoram has lionised (Russia, China etc) would be characterised by political science as undemocratic, and none of them involve sortition. So what has any of this got to do with EbL?

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  13. It all goes back to Yoram’s (accurate) remark about ‘the facts of ongoing consistent systemic atrocious policy’. I’ve simply been arguing against your response to it! That current systems of government produce bad outcomes is one of the most important arguments for replacing them with sortitional systems, which we reasonably expect to do better.

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  14. OK, I guess you’re focusing on the epistemic, whereas I’m more interested in democratic proceduralism. There is a good procedural argument for the introduction of sortition irrespective of outcomes. Unfortunately in the latter case all one can do is hope, especially on account of the unknown unknowns. As for ‘the facts of ongoing consistent systemic atrocious policy’ this is an odd claim, given the contrast between the policies of (say) Obama and Trump. Whether or not either or both are atrocious, they are certainly not ongoing and consistent.

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  15. That sounds about right concerning our respective interests here. As for the oddness of the claim, I guess it depends on the scope of ‘consistent’ – the charitable reading is that it refers to the atrociousness and not the individual policies.

    I think we can go a little further than hope for good outcomes from sortitional systems – this is what the epistemic democrats are all about, after all. We have good reason to believe a well-designed sortitional system will be epistemically better and less corrupt than the electoral systems we have today.

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  16. > We have good reason to believe a well-designed sortitional system will be epistemically better and less corrupt than the electoral systems we have today.

    Not if you see sortition is an alternative to “electoralism”. A well-designed hybrid system is likely to be an improvement, a replacement is likely to be far far worse, for reasons that we have gone over at length on this blog.

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