From these original citizens, and from whomever shall be admitted to citizenship in the future, all the authority of the State derives under the Constitution. They are the base of the pyramid, and it is they who in the Constitution (according to the plan on which it is framed) confer on certain persons and organisations definite powers of Government in Ireland. But the authority which can confer, can also withhold; and from the powers which they grant, certain matters are withheld. For there are matters which comprise the fundamental rights of their sovereignty, with which no Government created by them can interfere. If the Government had existed, or had claimed to have existed, of its own original right, it could, being itself sovereign, have acted as it pleased; and in past times it did so. But since Government under the Constitution exists only by reason of an authority conferred by a sovereign people, these Fundamental Rights of their sovereignty are kept apart; and no authority—legislative, executive or judicial—and no power of Government is conceded the right to touch them.
Therefore in the first section of the Constitution, where the original authority of the people is stated, certain matters are withheld. They are described as Fundamental Rights. The liberty of the Person, the Inviolability of the Dwelling, Freedom of Conscience and the Free Practice and Profession of Religion, the Free Expression of Opinion, Free Assembly, Free Association, Free Elementary Education, and the Inalienability of Natural Resources, are each dealt with in successive articles as forming the essentials of these rights. Before any powers are conferred, before any organisations or institutions of Government are created, these matters are put to one side and reserved. They belong to the people. None shall interfere with them. The people are sovereign, and they so decide.
Such is the plan, for such is the philosophy. The first section of the Constitution, therefore, includes what may be described as the base of the pyramid, resting on the soil of Ireland and established in the right of the People of Ireland. From that base the pyramid is built up toward the Executive Authority, in section by section, giving the logical order in which power is derived. Each section is based on that which precedes it; for the order is the same as in the original draft, and therefore the plan is preserved.
III.
THE MAKING OF LAWS.
All powers of Government may derive from the people, but the people cannot of themselves govern themselves. In simple small communities the people may gather together and frame the manner of their government from meeting to meeting (and only then when ancient custom has given them the practice and expectation of such assemblies); but among nations for a people to discipline and rule themselves it is necessary that they bestow recognised and definite powers of government on representatives of their choice. Such representatives, to be sure, have a habit of conceiving that they are rulers of their own right. Cases have even been known where they have endeavoured to obstruct the right of the people to depose them. But the truth is that such representatives are merely a convenience. They are a people’s instruments, and no more. Without them the achievement of a common agreement, and the formulation of laws based on that common agreement, would prove so cumbersome as to be impossible. A people must therefore tolerate them with good humour; and keep them under proper control. And when such representatives have been chosen, they together form an organised body for the making of laws, and for the supervision and control of the execution of such laws.
Obviously, then, once a Constitution has stated the sovereign source of all authority, and defined the fundamental rights of that sovereignty, it is essential that it should prescribe the manner in which laws shall be made for the peace, order and good government of the whole people. The second section of the Constitution, therefore, deals with the Legislative Provisions of the State. The most important of these, manifestly, is the creation of an organisation of representatives; but, owing to the tendency of representatives to arrogate powers to themselves, of late years the peoples of many States have insisted on a direct voice in the checking, and even in the making, of laws. This direct voice has been exerted by means of two instruments known generally as the Referendum and the Initiative. Wherever these prevail, the Assembly of Representatives is given only a limited power in the making of laws, the sovereign authority reserving to itself a constant and continuous control over its action. And in our Constitution both these instruments are given a place. For it is a sound rule that the people are generally better than their representatives—wiser of counsel, more disinterested of judgment—and it is therefore provided in the Constitution that there shall be an Assembly of Representatives, but that the people may require of that Assembly that laws be referred to them for final decision, or that laws be made to suit their desire.
The most important part of these legislative provisions, however, is the setting up of a National Assembly, or Synod, to be known as the Oireachtas. This is to be formed of two Houses, Dail Eireann and Seanad Eireann. There are many powerful arguments against the two-chamber system. In the end they all resolve themselves into a question of ultimate responsibility. In a simple illustration, if there be one thimble and one pea, it is easy enough to know where the pea is. But directly a second thimble is brought up beside the first, the difficulty of placing the pea becomes at once a problem. On the other hand, the arguments in favour of a second-chamber system also resolve themselves into a question of responsibility. For if there is only one chamber, without a second to check it and act together with it, there is, it is argued, a greater likelihood of its acting in an irresponsible manner, and of its running into hasty, ill-advised legislation. Its members, having acquired the habit of concerted action, may moreover strike a bargain behind the people’s back, even while preserving all the forms of opposition and discussion. With the two instruments of the Referendum and the Initiative in operation this danger is less likely, provided that the people be sufficiently alert. Yet it exists. In most countries, therefore, two chambers are the rule; and in our Constitution it is provided that there shall be two chambers, care being taken to fix responsibility ultimately in the first in case of doubt or delay.
Given two chambers, the difficulty is the creation of the Second Chamber. The First Chamber causes little difficulty, and is mainly a matter, not for the Constitution, but for an Electoral Law. The Second Chamber is a matter for the Constitution. Indeed, the question and creation of a Second Chamber, and the formation of the Executive Power, are the two foremost problems for the making of every Constitution. The first difficulty is to find for the Second Chamber a sufficient constituency, and the second difficulty is to find for it a proper function; and both these problems are essentially matters for the Constitution of a State. To answer both of them satisfactorily is the difficulty; and an examination of the constitutions of other countries reveals that in few cases have they been answered even to general satisfaction.