PANEL SESSIONS III TUESDAY JUNE 26 2018 11.00 AM – 12.30 PM

Room: CPD-LG.36

  • CONSTITUTIONAL CHANGE: FOUNDATIONS AND BALANCE OF POWER
    Constitutional change is fundamental to understanding a constitutional order. On the one hand, constitutional change involves the foundational questions of a political community. Should we create a new constitution? Should we change our constitution? What is the relationship between constitution, state and people? On the other hand, the mechanisms for constitutional change are highly relevant to an assessment of where power lies within the constitutional order. Constitutional actors are enhanced or diminished with reference to their ability to secure constitutional change. This panel relates these two dimensions of constitutional change through a series of papers. Li-kung Chen and Oran Doyle explore foundational moments of constitutional change. Mikolaj Barczentewicz takes an analytical approach to the concept of a legal power to change the Constitution. David Kenny explores how political actors interact with the formal rules for constitutional change.
  • The Temporal Dimension of the State
    In the paper I will seek to identify and consider some distinct qualities of the state’s temporal dimension. The main focus will be on the state being a temporally infinite object. I will investigate in particular how, if at all, permanence is intended or effected by the persons whose actions collectively constitute or maintain the state, and how this quality can indeed be given a place in a general theory on the nature of the state. I will also consider cases where states are plainly not temporally infinite, especially those which are expressly and deliberately not so. My reflection upon these cases will seek to show how far the lack of an intention to persist should count as a defect to a political entity’s statehood.
  • Constitutional Beginnings
    A significant strand within constitutional thought treats constitutions as foundational events, marking the point at which a new state and/or constitutional order comes into existence. For Schmitt, a constitution is valid because it derives from the will of a constitution-making power or authority; the word ‘will’ denotes an actually existing power as the origin of a command. In this paper, I challenge the dominance of this revolutionary account of constitutional creation. I argue that the existence of states and constitutional orders depends on acceptance. Specifically, they depend on an acceptance that a particular group has the right to create a state and/or constitutional order with a specific geographic extension. I explore these ideas with reference to Ireland, Canada and Taiwan. In light of this, I suggest that we are better to view constitutions as diachronic mechanisms that facilitate self-government rather than as foundational events.
  • Legal powers and constitutional change
    My object is to analyse the concept of a legal power to change a constitution (and more broadly, to change constitutional law). I will look at how the notions of constitution-making (constitution-changing) powers used in constitutional change literature map onto debates specifically on legal powers (in public law and in private law). For instance, I will look at the relationship between primary constituent power and legal powers. I will also discuss what are the conditions for a legal power to change a constitution to exist, and in particular, what sort of agent can hold it (could it be the people?) and how broad the concept of a legal power is. Within the last theme, I will ask whether we should distinguish some other category of legal capacity for constitutional change (specifically legal influence over it), without having a legal power.
    • Media balance in referendum campaigns
      Referendums, in the aftermath of Brexit and with the rise of populist movements worldwide, are viewed with a renewed scepticism. An acute concern is the promulgation of misinformation and alternative facts, as voters struggle to distinguish the signal from the noise in the face of new media. In Ireland, where referendums to change the constitution are very regularly held, there has been for many years constitutional and legal rules attempting to regulate debate in referendum campaigns. But even with more traditional media, these rules struggle with concepts like balance, impartiality, neutrality, and limiting the influence of government on campaigns. New media – a topic largely unaddressed in Ireland’s rules – will exacerbate all of these challenges and add new ones. In this paper, I wish to discuss the difficulties that have emerged with Ireland’s rules over time, and how this bodes ill for the prospect of combating future problems.