Last Friday week, apparently, was a great day for Irish democracy. This is debatable. It was yet another example of basic human rights being decided by majority opinion. This is the fundamental problem of rule by referendum and we need to question whether it is an appropriate mechanism to make political decisions.
Most democracies rarely use referendums. Since 1945 there have been none at the national level in Germany, India, Israel, Japan or the US. Between them, Belgium, Canada, the Czech Republic, Finland, Luxembourg, Norway, the Netherlands and the UK have held just 10 national referendums. Only two countries – Switzerland and Italy – have had considerably more than Ireland.
It was somewhat strange then to see the level of self-congratulation that took place over Ireland being the first country to approve of same-sex marriage by a popular vote.
Rather than celebrate our uniqueness, we should instead be questioning it. It is not as if the referendum stemmed from Ireland being a bastion of liberalism and a world leader for the cause of marriage equality. Same-sex marriage has already been legalised in 18 countries. Why did none of these states put this issue to a referendum?
One answer is because of the majoritarian nature of the referendum, which can be used to ride roughshod over the wishes of the minority.
What if a majority had decided to vote No and deny the LGBT community of the right to marry? (And it is important to note that only 36 per cent of the electorate voted Yes). Would this have legitimised the denial of rights to this minority?
It would not have done so because equality is one of a number of basic human rights that are fundamental in nature, such as freedom of speech and assembly, and cannot be voted away by a majority.
Deciding on what rights to enshrine in society via a popular vote is a questionable strategy. It is likely, for example, that it would have taken decades longer for women and ethnic minorities to be granted the right to vote if it had been put to a referendum.
Construction of minarets
Religious freedoms could also have been curbed, as happened in Switzerland in 2009 when a referendum to ban the construction of minarets was passed (there were just four minarets in the country at the time of the vote).
Referendums reinforce the idea that might is right and that we should be governed by the wishes of the majority, whatever they might be.
However, to paraphrase the architect of the Irish Constitution, Éamon de Valera, “the majority has no right to do wrong”.
Indeed the very value that we seem to place on majority rule is fraught with difficulties. Is democracy really about enforcing whatever happens to be the latest political trend?
Many would argue that the Government is right to now legislate for marriage equality because this is what the electorate want.
However, applying this logic, 30 years ago the right thing was to ban abortion, divorce and same-sex marriage because this is what the electorate wanted then. Are the right policies simply the preferences of the majority?
This is one problem with resolving political conflict by referendum. But it is not the only problem. Another is that it is difficult for voters to know precisely on what they are voting. We were told that the most recent vote was about marriage equality, plain and simple. However, the meaning of any clause in the Constitution is dependent on the interpretation of the judiciary.
So whenever a case concerning the 35th amendment and marriage equality comes up before the courts it will be they who decide on its meaning. To quote a former chief justice of the US Supreme Court, "the constitution is what the judges say it is".
The case of abortion is a perfect example of this dilemma. In 1983 an overwhelming majority in Ireland voted by referendum to ban abortion.
Nine years later the Supreme Court interpreted the wording of this same amendment as allowing for abortion. Three further referenums and 32 years later this issue has still not been resolved.
This constitutional and legal mess came about because of the Fine Gael-Labour government’s decision to hold the original abortion referendum in 1983. By doing so they effectively handed power from the legislature to the judiciary.
The debate has now come full circle and moves are under way to campaign for a repeal of the eighth amendment that banned abortion. In other words, the Constitution should never have been tampered with by referendum in the first place.
The other main problem with referendums is that they reduce a complex issue to a simple yes/no option. This can result in an oversimplification and a level of confusion. Few political issues are binary matters, abortion being an obvious example.
The consequence of this is that referendums do not necessarily reveal the public’s position on an issue.
We do not know what motivated their vote, whether it was on the issue, to punish the government or was based on a trivial matter, irrelevant to the proposed amendment.
In the case of Irish referendums, the proposed text of a constitutional amendment is not even mentioned on the ballot paper. In an era when political knowledge and interest are in decline, this can only encourage trivial or irrational voting.
Perhaps the time has come to have a referendum on referendums.
Dr Liam Weeks lectures in the Department of Government, University College Cork