Constitutional Change Outside the Courts: Citizen Deliberation and Constitutional Narrative(s) in Ireland’s Abortion Referendum

Abstract

This article considers how the use of referenda to enact constitutional change relates to the concept of a ‘constitution outside the courts’. It argues that the referendum is a challenge to this concept but that these challenges arise in a more complex manner than might first be assumed. First, a referendum occurs within a legal framework which calls into question the notion of the referendum as an extra-legal interruption to the constitutional order. Secondly, this suggests that the referendum is more likely to be the end point of a process of constitutional change rather than the vehicle or impetus for it. This means that the relevant developments may occur elsewhere in society. Using Ireland as a case study, the article argues that there is a constitution outside the courts which depends to a significant extent on the mediating influence of multiple actors—including the courts.