As for the constituency, it is clear that this cannot be the same as for the first chamber, otherwise the two Houses are simply repetitions. That is one consideration to be remembered. There is another. For from earliest times mankind has desired to call into its special councils those who have distinguished themselves in the conduct of its affairs. Folk may disagree with such persons, but they defer to them and hear them. What may be called the Senatorial Person is a recognised factor in the history of all nations. In the push and jostle of entry to the First House—where special and local interests are represented—such a Senatorial Person is most likely to be thrust aside, even if he or she be inclined to mingle in the fray. He is consequently lost to the councils of the nation. How shall a place be found for him or for her; and when the place is found, what shall be the measure of his or her counsel?
Other nations have answered these problems in divers ways. None has answered them as they are answered in the Constitution of Saorstat Eireann. For it is clear that if there is to be a Second Chamber, the right place for such a Senatorial Person is in that Second Chamber, since only thus is it possible to avoid making one chamber a mere copy of the other. In some countries, therefore, the Second Chamber is composed of persons on whom a title has been conferred—and on their children who succeed to that title. In other countries the Second Chamber is created by nomination—with at least the ostensible wish that only Senatorial Persons will be appointed. Both these methods have led to corruption. Both, moreover, have led to one fatal fault. For Second Chambers are mainly of value at times when the First Chamber is likely to rush to a mistake; and at such times no people are inclined to give careful heed to the counsel of persons whom they have not themselves chosen to give that counsel. They may be exactly such persons as they themselves would have chosen; but the fact that they did not choose them, the fact that they came there by the accident of birth, or the power of money, robs them of authority just when their authority is most required.
For this reason, the people’s own choice of Senators is necessary to their efficiency and authority. In countries formed out of a Confederation this difficulty is evaded by the creation of the Senate from the Federated States, while creating the First Chamber directly from the whole people. But where there are no Federated States the people’s direct bestowal of authority cannot be evaded if friction and loss of strength are to be avoided. Thus one returns to the original problem, which is, how the people shall choose a Senate which will not be a copy of the Chamber of Deputies, and how the Senatorial Person will find his way to the councils of the nation, bringing with him an unanswerable authority.
Our Constitution meets this by making the whole country one constituency for the election of the Senate. The Deputies are elected from localities where they are known, and the special interests of which they are qualified to represent. Over those interests the major interest of the whole nation stands guard. It would be possible for persons to enter the Chamber of Deputies who are not known outside their own localities, but who are qualified to represent those localities. But by making the entire country one constituency for the election of the Senate, no merely local interest will have power to secure election. And thus it will be possible to find a place for the Senatorial Person from, as the Constitution reads, “citizens who have done honour to the nation by reason of useful public service, or who, because of special qualifications or attainments, represent important aspects of the nation’s life.” These persons are to be elected by Proportional Representation; and in order that the business of election shall not prove too cumbersome it is appointed that one-fourth of the Senate shall retire every three years, and that before each election a list shall be prepared by both Houses consisting of at least three times as many persons as there are vacancies to be filled.
Such form the two Houses of the Oireachtas. Their relation to one another is carefully defined. The Seanad is created as an advisory and delaying body, and the ultimate responsibility is given to the Dail. But endowed, as it is, with so strong an authority, vested in it by the entire nation voting as a whole, it is unlikely that its criticisms and advice can be neglected. For such criticisms will be furnished in the course of debates that will be read by the whole people; and behind them there will always be the possibility of appeal to the whole nation by Referendum, which the Senate can compel by a three-fifths vote. The Senate and the people, therefore, are placed in a watchful alliance over the acts and proceedings of the Dail. Indeed, it is not unlikely that in the future the Senate and the people (by Referendum) will often be found in practical alliance against any attempt of the Dail to arrogate power to itself. The Senate has the power to make it so—a power of greater worth to it, and to the nation, than any constitutional right arbitrarily to obstruct legislation or to make legislation abortive.
IV.
THE PEOPLE AS LAW-MAKERS.
More is spoken of the two instruments of the Referendum and the Initiative (particularly the former) than is known about them; for in the countries where they have been adopted, folk use them and do not talk about them, and where they have not been adopted folk talk about them with ardour or with fear but without knowledge. Briefly they may be described as a retention by the sovereign people of sovereign authority over the making of laws.
The case is not without an historical parallel. In earlier times in other states the sovereign was the king, who said, “L’Etat, c’est moi.” He was therefore the law-maker, by supreme right. He might summon the estates of his realm—Lords and Commons—to advise and counsel him; and he might, normally, allow their acts without his interference; but, being sovereign, he reserved the right to cause those acts to be referred to him for the final act of his will; and he at all times reserved the right to send a message to them instructing them to make laws on matters that seemed to him to require attention. This he did, being the sovereign. His parliament was the legislature of the State, but he preserved the Referendum and the Initiative, and held them as his sovereign authority over the authority deputed to the legislature.