This is something that I’d been wondering about. What, exactly, was in the Lisbon Treaty that so changed Ireland’s constitutional status quo that it required a referendum? Ruth Barrington wonders in today’s Irish Times:

Although the conventional wisdom holds that a referendum is required to ratify all EU treaties in Ireland, this is not the case. The treaties enlarging the EU, with the exception of our own in 1972, have been ratified through the Oireachtas. It is ironic that radical treaties that have expanded democracy to formerly totalitarian states can be ratified by the Oireachtas but rules of procedure treaties, such as Nice and Lisbon, which update and regulate our relationships within the union, are ratified by referendum.

Hmmm…

Unfortunately, Barrington - a member of the Irish Times trust and on the paper’s board - skittles away from answering the shagging question she poses and goes on to argue, with creepy Orwellian logic, that the majority who voted against the Treaty are actually a minority:

A referendum provides anti-European groups with a platform to campaign repeatedly against the European Union, even though these groups have less than 10 per cent of the seats in the Dáil and can currently call on the support of no more than six TDs.

While in a democracy one should never discount minority views, the outcome of the Lisbon referendum does raise questions about Ireland’s constitutional status as a representative democracy.

Got that? The *outcome* of the referendum is what raises questions. Everything would be fine if only the bog-ignorant hicks had voted the right way. She goes on:

Éamon de Valera, the prime architect of our Constitution, had a healthy scepticism of special interests and was a strong believer in representative democracy. The Constitution he designed limits the use of referendums. It is hard to envisage that the Supreme Court intended through its judgments to transform Ireland into a plebiscitory democracy on the model of Switzerland.

So, to recap. The Supreme Court, in a judgement about the vote on the Single European Act specifying that the agreement to forge a common EU foreign policy did not rise to the level of constitutional change that would trigger a referendum - other stuff in the SEA did that. So the Supreme Court - unwittingly - triggered a radical reinterpretation of the Irish constitution that leaves the political system vulnerable to “special interests” who do well in referendums.

Excellent. So the Oireachtas can pass a bill ratifying Lisbon and send it to the President for signature. She’ll refer it to the Supreme Court to make sure that’s cool, constitutionally, and thus get Ireland back in the good books with Paris and Berlin as well as put a stop to these endless referendums.

This would be a perfectly coherent argument. If that’s where it went. But, ah, no:

Any referral would have to be on the basis that, were the Supreme Court to find that the Lisbon Treaty did not require a constitutional amendment, a second referendum would be held.

It would be so refreshing if this, the distilled essence of the thinking of the Irish establishment, was capable of rising to the simplest candour and argued for the abolition of referendums. Sure, it would be retro, but Athenian/Swiss plebiscitory democracy was anathema to most Enlightenment political theorists on both sides of the Atlantic. So there’s a rich vein of arguments to be mined.

It would be equally refreshing if the EU had written into Lisbon that it was take it or leave it. They didn’t.

For all the sturm und drang, you would have though that by now what became clear at 10.20 on the morning of June 12 would be accepted. Lisbon is dead. The 2009 elections will be on the basis of Nice. Get over it. Next time you want to come up with a constitution, write it up, and make the rules for ratification the same as those that saw the United States abandon the creaky, EU-like Articles of Confederation in favour of the Constitution in 1787-1789 - 75%+1 of member states ratify and the document is in force. If you don’t want into the new club, you don’t have to join. But once 75% join you’ll probably give in. The American ratification process is something that really should have been looked at by now in a serious way in the present circumstances. Not just the majoritarian mechanics but the meta-process. The Federalists arguing for the Constitution published hundreds of articles making their case to the electors about why a central government was needed, what it would be like, what it would do and not do - the Federalist Papers are still relied upon for the American Supreme Court to better understand what “the framers” meant by various provisions. Pretty useful stuff, really.

But the unsung heroes of the American ratification process were the Anti-Federalists. The ratification process nearly came off the rails entirely in Massachusetts - the Constitution’s Ireland referendum moment. In order to save the Constitution, a deal was brokered. Opponents said that the lack of guarantees for individual rights, and the rights of the member states, were not sufficiently safeguarded. Opponents wanted to change the text of the constitution, but came to accept that Massachusetts couldn’t ratify a different version of the text from everyone else. But they passed a resolution saying that Massachusetts was ratifying with the understanding that the first act of the new central government would be to pass a Bill of Rights. When New York and Virginia ratified, they included very similar language.

Those Anti-Federalists would be exactly the sort of “special interest” that so vex the Ruth Barringtons and Nicholas Sarkozy - curmudgeonly, unpleasant, sometimes illiberal, pedantic, potentially violent, resentful and distrusting of both innovation and authority; and accommodating them ensured that the world’s oldest functioning constitutional democracy has (or had until recently) a bullwark protecting individual freedoms against the state that has become, in some respects, the operating software for liberal democracies ever since.

What does it say that the arguments and process around the US ratification 220 years ago are considered the vital and legitimate Enlightenment project that led to a remarkable result, and the present European process seems alternatively revolted and terrified of writing a simple deal, openly making the case for it and treating opponents as legitimate interlocutors?