Maria C Cahill | University College Cork (original) (raw)

Papers by Maria C Cahill

This article lays out how the right to freedom of association is protected by the European Court ... more This article lays out how the right to freedom of association is protected by the European Court of Human Rights interpreting Article 11 of the European Convention on Human Rights. Part I considers how the Court defines "associations" and how it has developed three component aspects of the right: the right to form associations, the right not to be forced to join an association, and the right of the association to organisational autonomy. Part II outlines the volume and types of disputes that arise, as well as the relationship between freedom of association and other fundamental rights, such as freedom of expression. Part III reflects on the rationales that the European Court of Human Rights offers for why the right to freedom of association is important, focusing in particular, on its insistence that the right to freedom of association is essential to the proper functioning of democracy.

International Journal of Constitutional Law

Although our attraction to subsidiarity may often be little more than skin deep, this article pro... more Although our attraction to subsidiarity may often be little more than skin deep, this article proposes that there is a hidden intelligibility to the phenomenon of its gaining increasing attention and prestige. That intelligibility can be discerned through a consideration of the archetype of authority that subsidiarity proposes: embedded authority, which acknowledges the existence of and mandates engagement with groups as groups. This archetype of embedded authority originally acted as a counterweight to the model of disembedded authority proposed by early theories of sovereignty, and in a similar way, subsidiarity's consistent proposal of embedded authority currently operates as a counterweight to liberalism, with its individualistic emphasis. Against the backdrop of these diverging archetypes of authority, it becomes clearer that subsidiarity cannot be reduced to the status of a charming trinket to embellish liberalism's public sphere. In fact, coming from an " alien " tradition, subsidiarity offers deep solutions to problems that liberalism itself cannot address.

It might seem counter-intuitive to suggest that the chasm between Europe and her citizens is part... more It might seem counter-intuitive to suggest that the chasm between Europe and her citizens is partially caused by the weakening of constituent power at the national level. Nonetheless, this article contends that the strength of ever closer union depends partly on the resilience of national constituent power. An insight recovered from French constitutional theory – that respect for constituent power is closely related to respect for limits on the power of amendment – is used as a measure of this resilience. Upon examination of judicial decisions in Germany and Spain in which enumerated substantive limits on the power of amendment have not been satisfactorily enforced, and others in Ireland and France in which the existence of essential limits on the power of amendment has been flatly denied, this article concludes that by debilitating national constituent power, treaty ratifications are ironically creating ever closer remoteness between the peoples of Europe.

Sovereignty’s lingering commitment to voluntarism and the limitations of the voluntarist approach... more Sovereignty’s lingering commitment to voluntarism and the limitations of the voluntarist approach are exposed by the crisis of authority represented by contradictory claims to ultimate authority on the part of the Court of Justice and national courts. Whilst it is uncontroversial to assert that both pluralism and subsidiarity pose significant challenges to state sovereignty, this chapter argues that pluralism and subsidiarity not only threaten sovereignty because they allow for the re-allocation of authority to institutions other than those of the nation state but also because they call into question sovereignty’s fundamental assumption that authority is dominated by will to the neglect of countervailing considerations. They offer solutions to this crisis of authority which finally tackle the problem of voluntarism, by deflecting focus away from the will and towards the good (higher moral principles), towards reasoned dialogue and towards a spirit of co-operation.

The two terms, European integration and European constitutionalism, are widely used as labelling ... more The two terms, European integration and European constitutionalism, are widely used as labelling and organising concepts in this not-easily-described project-process of possible/putative-polity-formation on the continent of Europe since the end of the Second World War. On the one hand, both concepts seem not to be incapable of broadly corresponding to the sentiment of the ever-vague and oft-repeated mission phrase of the European treaties; ‘ever closer union among the peoples of Europe’, and certainly both are frequently employed in its support. On the other hand, it is not clear, first, that these concepts have a whole lot in common with each other, and second, that either of these concepts, for different reasons, is capable of providing the normative foundations that the European project so badly needs if it is ever to be able to provide good answers to the questions of how to ensure respect for the principles of representation, democracy, self-determination, and what kind of polity it is supposed (eventually) to be. This chapter purports to examine the consonances and dissonances between European integration and European constitutionalism with the hope of clarifying their usefulness to us as we search for these answers.

The doctrine of implied amendment allows that amendments to the Constitution be adopted outside o... more The doctrine of implied amendment allows that amendments to the Constitution be adopted outside of the constraints of the formal constitutional amendability procedure. Having endorsed the doctrine during the lifetime of the 1922 Constitution, the Irish courts after 1937 had unambiguously rejected it, for the 'scant respect' it showed for the Constitution as superior law as well as the 'practical disadvantage' that it made the Constitution unknowable. Nevertheless, this article argues that the doctrine of implied amendment has been enjoying an unremarked revival in the context of the ratification of European and international treaties, the beginnings of which can be seen in the Crotty decision, then traced through McGimpsey, and are now magnified by the sweeping Pringle decision. In Crotty, the Supreme Court judges not only measured the Single European Act for compatibility with the Constitution – employing a test of constitutional consistency – but they also endorsed the 'essential scope and objectives' test – a test of treaty comparison – which compared the SEA for how different it was from the Treaties of Rome. The basic feature of a test of treaty comparison is, simply, that it examines the treaty in question by reference to another treaty in order to assess whether or not it requires a constitutional amendment. Tests of treaty comparison have since been deployed in both the McGimpsey and Pringle decisions, although the indices of comparison vary widely between judgments. In Pringle, for example, the majority judges seemed to recognise no less than nine new indices by which the test of treaty comparison can be applied. These range from whether future policy-making power of the State is involved to whether foreign policy as a whole is affected; from whether the treaty is abstract or concrete to whether it has a single purpose or multiple purposes. Consideration of the consistency and congruence of these indices is for another paper; here, the point is that the test of treaty comparison, in principle, allows that amendments to the Constitution can slip through the net because treaties are being measured for the similitude with other treaties without regard to their impact on constitutional provisions. This current application of the doctrine of implied amendment in the context of treaty ratification is, it is suggested, certainly no less troubling than its historical use. The more legally defensible option, which avoids the known dangers of the doctrine of implied amendment, is, as the dissentient in Pringle has done, to assess any treaty by reference to the provisions of the Constitution using the test of constitutional consistency.

For some of those who support the Lisbon Treaty, it is difficult to accept that a 53% majority of... more For some of those who support the Lisbon Treaty, it is difficult to accept that a 53% majority of the 53% voting electorate of a country of a population of 4.4 million should, by voting to reject ratification of the Treaty, single-handedly bring to a halt a process which involves 27 countries with a combined population of almost 500 million. Fundamentally, this objection misses the distinction between the use of direct democracy or popular referendum as a stand-alone procedure for political decision-making, and the use of direct democracy or popular referendum as a constitutional amendability procedure in a functioning constitutional democracy. This blindness to the significance of the referendum is perhaps most obvious after the treaty rejection, when the political emphasis is firmly focussed on the reasons for the ‘no’ vote and on what can be done to satisfy or to mitigate the concerns raised by those reasons in order to solve the political crisis that the referendum rejection has created. This analysis often seems to miss the fact that this is not just a political crisis, but rather a constitutional crisis in which both the constitutional credibility of the Irish constitutional order and the constitutional credibility of the (putative) European constitutional order are at stake. What is needed, instead, is a deeper understanding not only of the reasons for and the significance of the ‘no’ vote, but a deeper understanding of the reasons for and the significance of the referendum itself. It is the decision to hold the referendum, rather than the decision to reject the Treaty, which needs to be defended and vindicated with greater urgency because when we truly get to grips with the constitutional significance of the referendum itself we realise that the implications of this latest ‘referendum rejection crisis’ will endure long after something is done to ‘fix’ the Irish result.

This short chapter will discuss in some detail the conceptions of sovereignty that have been arti... more This short chapter will discuss in some detail the conceptions of sovereignty that have been articulated in the Irish courts in the key decisions that have shaped our understanding of sovereignty over the seventy-five year history of the Irish Constitution. It turns out to be a fascinating area of study, since it becomes clear very quickly that, just as there are evolutions in the definitions of sovereignty that have been advanced in theory – the normative conception of sovereignty, the abstract conception of sovereignty and the speech act conception of sovereignty – so too the definitions of sovereignty that have been espoused in the Irish courts during this period have not always been entirely overlapping, and in their differences and tensions they reveal something of the richness, but also the complexity, of the subject. My purpose is to try to harvest, through this examination, the answers provided by the courts to the questions of (1) whether or not sovereignty contains essential ingredients such that the absence of those ingredients would be contra-indicators for sovereignty and (2) if there are – and if so what are – the tolerable limitations on sovereignty. This chapter focuses particularly on the Supreme Court judgments in the cases of Byrne v. Ireland, Webb v. Ireland and Crotty v. Ireland.

The supreme and constitutional courts of many Member States of the European Union – most notably,... more The supreme and constitutional courts of many Member States of the European Union – most notably, of course, the German Bundesverfassungsgericht – have consistently maintained that their role as final arbiter of all laws applicable in the national territory necessarily qualifies the claims made by the ECJ that European law is directly effective in the national legal order and supreme over national law. In contrast, the Irish Supreme Court, has in all but a single case, accepted the claims of ECJ and, in fact, effectively allowed the ECJ to control the terms of the legal relationship between Irish and European law. This has been understood as the inevitable consequence of the insertion of a ‘constitutional exclusion clause’, namely Article 29.4.6, in to the Irish Constitution. After examining the comparative examples of constitutional exclusion clauses, the historical context of Article 29.4.6, as well as the conflicting interpretations that have been pronounced in the courts in relation to Article 29.4.6, the article concludes that, far from allowing the Supreme Court to capitulate its responsibility to maintain a reviewing authority over the entry of European law into the Irish legal order, Article 29.4.6 actually provides the basis for the Irish Supreme Court to take the same strong stance as its European partners.

The story told by the constitutional conversation which anticipated the Constitutional Convention... more The story told by the constitutional conversation which anticipated the Constitutional Convention and by the Constitutional Treaty itself, is a story of defensive, under-ambitious constitutionalism: the declarative commitment produced by the process goes to painstaking lengths to portray itself as neither declaratory nor committed, but as a tentative construction which seeks on the one hand to entrench that to which there can be no constitutional commitment, and on the other hand to compromise on everything, including the very idea of constitutionalism. In this moment of failure, we have the chance to see that the constitutional vision which inspired the Constitutional Treaty was at once fantastical and self-effacing because it is a constructed and constructive project through which organic and trenchant positions of agreements and disagreements are moderated and appeased to the point of apathetic agonism. We need to be much more realistic than that and much more courageous than that if we are to engage in a process of European constitutionalism. If the crisis precipitated by the “ratification failure” helps us to see this, as I think it does, then that is an important kind of constitutional success. The constitutional vision proposed by this article is a constitutionalism which must be and see itself as being in an asymptotic relationship with the transcendent goals of the particular community. Because, I argue, it is only in this kind of “committed constitutionalism” that constitutional possibility can be harnessed: it is only then that the constitutional process can have direction or be transparent and democratic in very basic ways. And it is only then that organic agreements and disagreements can be finally, actually important. The essence of the “committed constitutionalism” concept is no more and no less than that the community which seeks self-consciously to make its common good the common ambition, must do so in a way that which displays its lack of indifference to the possibility that that common good has transcendent aspects: aspects which are beyond its creation, beyond its understanding, beyond its control.

Drafts by Maria C Cahill

In the context of definitional confusion, it might seem recklessly counter-productive to suggest ... more In the context of definitional confusion, it might seem recklessly counter-productive to suggest that what we agree on in relation to subsidiarity is perhaps more problematic than what we disagree on. Nonetheless, the purpose of this article is to challenge the uncontroversial starting-point of much subsidiarity analysis: that subsidiarity allocates functions between 'higher' and 'lower levels'. Recent scholarship on subsidiarity in political philosophy expresses a frank concern about a de-contextualized and dogmatic use of those terms and reminds us that subsidiarity is premised on a pre-existing social ontology. In order to recognize subsidiarity's ontological commitments, this paper proposes an ontology-sensitive approach to subsidiarity, and the use of the terms primary units (in place of 'lower levels') and subsidiary units (in place of 'higher levels'). Discussion of how the ontology-sensitive approach works in practice, through the fictional example of the Good Fight Club, reveals four precepts which direct the interaction between primary and subsidiary units. Finally, these four precepts are used as benchmarks against which to appraise the European principle of subsidiarity.

This chapter explores the concept of popular sovereignty as the distinguishing feature of Irish c... more This chapter explores the concept of popular sovereignty as the distinguishing feature of Irish constitutionalism, and a point of pride within the Irish legal order. It will be argued that popular sovereignty is the governing dynamic, in particular, in respect of Ireland’s engagement with fundamental rights and international treaties, which results in a situation in which the Irish people have a very different experience of social change and globalisation than the citizens of other nation states. Three key strengths of the lived commitment to popular sovereignty are identified and it is argued that these strengths may explain Ireland’s apparent resistance to populism, because they make it more difficult for a would-be populist leader to generate a compelling narrative of a downtrodden, disenfranchised and justifiably resentful populace. Thereafter, three points of vulnerability will be acknowledged, which could potentially become the basis for such a would-be populist leader’s narrative, although it will be argued that they can best be understood as icebergs on the horizon, since it is difficult to tell just how large and how threatening they are.

Recent technological advances have made clear that law needs to take a stance in relation to free... more Recent technological advances have made clear that law needs to take a stance in relation to freedom of thought. Although there is no formal recognition of freedom of thought in the text of the 1937 Constitution of Ireland, I will argue that such a right does exist in Irish law on the basis of both implicit and initial explicit recognition for freedom of thought in the decisions of the superior courts. Part 1 lays out the ways in which freedom of thought is implicitly recognised in the Irish legal system, both through the protection of other constitutional rights and through the place of international law in the Irish legal order. Part 2 takes the analysis a step further, using the doctrine of unenumerated rights (a peculiarity of Irish constitutional law) to spotlight an overlooked Supreme Court judgment in which the right to freedom of thought has been judicially recognised in the absence of a textual mandate in the Constitution. It then proceeds to shore up arguments in favour of such recognition, arguing that protecting freedom of thought is a good thing, because it honours human freedom and human dignity.

Oxford Handbook on Irish Politics, 2020

This chapter focuses on the interface between international law and Irish constitutionalism, draw... more This chapter focuses on the interface between international law and Irish constitutionalism, drawing attention to the ambivalence and ambiguity that have characterised that interface over the past hundred years. Part I examines how Ireland achieved constitutional self-determination first on the basis of and then in violation of an international treaty, the 1921 Anglo-Irish Treaty. The remainder of the chapter concentrates on the place of international law within the framework provided by the 1937 Constitution and introduces a distinction between self-determination as substantive constitutional integrity and self-determination as procedural constitutional integrity. Part II highlights how, generally speaking, constitutional law has required that the ratification of international treaties may neither displace the content of the Constitution nor curtail the competences of the legislature and the courts; that is, it seeks to preserve self-determination as substantive constitutional integrity. Part III focuses on the exceptional case of the European Union given the large-scale shifts of legislative, executive and judicial competence that membership thereof demands. The argument is that, in this case, the understanding of self-determination that is employed is consciously ambivalent about substantive constitutional integrity. Significant compromises to substantive constitutional integrity are acceptable so long as they are made using the correct procedure: in other words, self-determination is re-conceived as procedural constitutional integrity.

Despite the promulgation of the European Convention on Human Rights Act (ECHR Act) in 2003, the h... more Despite the promulgation of the European Convention on Human Rights Act (ECHR Act) in 2003, the highest courts in Ireland seem to still spend an inordinate amount of time grappling with misconceptions about the status of the European Convention on Human Rights (ECHR) in Irish law. From the presumption that the position of European Court of Human Rights (ECtHR) is basically similar to that of the Court of Justice of the European Union (CJEU), to the assumption that the Convention has direct effect; from the suggestion that s. 2 ECHR Act gives the judges the power to re-write legislation, to the argument that the organs of state must uphold Convention rights irrespective of Irish law, and the hypothesis that the courts can issue declarations that Irish law is inconsistent with the Convention outside of the terms of the 2003 Act. These five misconceptions are repudiated by the terms of the Constitution and the ECHR Act, and therefore the fact that the courts have dispelled these Convention myths is not unexpected – to endorse them would be to disregard both the Constitution and the position of the legislature. Nonetheless, these misconceptions persist because of a background presupposition that the rule of rights trumps the rule of law – that the rhetorical and political power supporting a legal claim for the protection of a fundamental right is sufficient to mandate a kind of high-minded imprecision or benign carelessness in relation to the interpretation of other rules. This short chapter will discuss each of these five misconceptions in turn, showing how the courts have consistently and convincingly refuted them, maintaining throughout that the rule of law is not disposable even in the context of fundamental rights’ protection.

International Journal of Constitutional Law

Oxford Handbook on Irish Politics, 2020