1 This view was put forward most directly by the Italian President, Giorgio Napolitano, and Foreign Minister, Franco Frattini. See, Il no dell’ Irlanda gela l'Europa bocciato il Trattato, l'UE nel caos, LA REPUBBLICA, 14 June 2008; La Lega esulta e imbarazza il Governo, LA REPUBBLICA, 14 June 2008; L'Irlanda non può fermare l'Europa, LA REPUBBLICA, 17 June 2008; Europe's Reaction, IRISH TIMES, 14 June 2008; Paddy Agnew, Mixed Response from Political Elite to Irish Rejection of Treaty, IRISH TIMES, 16 June 2008.Google Scholar

2 Fanning, Rossa, Lisbon Vote is not Democracy but an Exercise in Buck-Passing, IRISH TIMES, 22 April 2008; Joe Humphreys, Ancient Ideas could rejuvenate our Sickly Democracy, IRISH TIMES, 30 August 2008.Google Scholar

3 The reaction of the Irish government to the ‘no’ vote was to commission a report by the consultancy company, Millward Brown. The report was released on 10 September 2008 and is available at: http://www.dfa.ie/home/index.aspx.Google Scholar

4 Flash Eurobaromter Polls No. 245, available at http://ec.europa.eu/public_opinion/archives/flash_arch_en.htm, last accessed 25 September 2008. The figure in the flash poll are corroborated by those in the standard Eurobarometer Poll No. 69 on Public Opinion in the European Union, conducted in spring 2008, according to which, Ireland consistently scored either highest or second highest on the questions which deal with support for membership (Q.7), the extent to which the Member State has benefited from membership (Q.8), and whether or not the EU conjures up a positive image (Q. 13). Available at http://ec.europa.eu/public_opinion/standard_en.htm, last accessed 25 September 2008.Google Scholar

5 98% of ‘yes’ voters and 80% of ‘no’ voters.Google Scholar

6 89% ‘yes’ voters and 88.5% ‘no’ voters.Google Scholar

7 Neil Walker, Europe's Constitutional Momentum and the Search for Polity Legitimacy, (2005) 4 (2) International Journal of Constitutional Law 211, at 215.Google Scholar

8 See Mogens Hansen, The Athenian Democracy in the Age of Demosthenes: Structure, Principles and Ideology (1998); Kurt Raaflaub, Josiah Ober, & Robert Wallace, Origins of Democracy in Ancient Greece (2008).Google Scholar

9 The studies of the E-Democracy Centre on the theory and practice of e-democracy are available at http://edc.unige.ch/index.php, last accessed 25 September 2008.Google Scholar

10 David Butler, & Austin Ramney, Referendums around the World: The Growing Use of Direct Democracy (1994).Google Scholar

11 Id., Chapter 2; Thomas Cronin, Direct Democracy: the Politics of Initiative, Referendum, and Recall (1999).Google Scholar

12 Loren Samons, What's Wrong with Democracy? From Athenian Practice to American Worship (2004); Nadia Urbinati, Representative Democracy: Principles and Genealogy (2008); Nadia Urbinati, Mill on Democracy: From the Athenian Polis to Representative Government (2008).Google Scholar

13 In the Federalist Papers, James Madison specifically argued that representative democracy was a better option than direct democracy or pure democracy, because, as he concluded that “a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole … and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths”. Federalist No. 10, on the Union as a Safeguard against Domestic Faction and Insurrection, available at http://www.foundingfathers.info/federalistpapers/fed10.htm, last accessed 25 September 2008.Google Scholar

14 In this sense, as Stanford Levinson puts it, the constitutional amendability procedures ‘respond’ to the ‘imperfection’ that is inherent in the constitution. Stanford Levinson (ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (1995).Google Scholar

15 Christopher Eisgruber, Constitutional Self-Government (2001), 14. “They might search for some medium degree of unamendability, in which constitutional amendment is more difficult than ordinary law-making but not so difficult as to frustrate reform. Or, alternatively, constitution-makers might make amendment arduously difficult, but constitutionalise a minimal number of decisions. The constitution-makers might hope that the constitution's unamendability would ensure a stable institutional foundation for democratic politics and also hope that most reforms and adjustments could be made through non-constitutional channels.”Google Scholar

16 Eisgruber, supra, note 15, 16–7.Google Scholar

17 Eisgruber, supra, note 15, 18.Google Scholar

18 Eisgruber, supra, note 18–9.Google Scholar

19 Eisgruber, supra, note 15, 20. “If so, then any increase in democratic freedom brought about by more flexible amendment rules would be nullified by the destabilisation and corruption of other institutions that make democracy possible”.Google Scholar

20 Eisgruber, supra, note 15, 20.Google Scholar

21 Article V of the US Constitution reads as follows: “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”Google Scholar

22 Eisgruber, supra, note 15, 22.Google Scholar

23 Eisgruber, supra, note 15, 22. Eisgruber's principal target is Stephen Griffin and his contribution to the Constitutional Stupidities volume: Stephen Griffin, “The Nominee is … Article V”, in Eskridge, William and Levinson, Sanford, eds, Constitutional Stupidities, Constitutional Tragedies (New York University Press, 1998).Google Scholar

24 Eisgruber supra, note 15, 10.Google Scholar

25 Sager, Lawrence, The Incorrigible Constitution, 65 New York University Law Review 893 (1990), 959–60.Google Scholar

26 Sager, supra, note 25, 895.Google Scholar

27 Eisgruber, supra, note 15, 22.Google Scholar

28 Sager, supra, note 25, 960.Google Scholar

29 Article 50 of the 1922 Constitution provided that: “Amendments of this constitution within the terms of the Scheduled Treaty may be made by the Oireachtas, but no such amendment, passed by both Houses of the Oireachtas, after the expiration of a period of eight years from the date of the coming into operation of this Constitution, shall become law, unless the same shall, after it has been passed or deemed to have been passed by the said two Houses of the Oireachtas, have been submitted to a Referendum of the people, and unless a majority of the voters on the register shall have recorded their votes on such Referendum, and either the votes of a majority of the voters on the register, or two thirds of the votes recorded, shall have been cast in favour of such amendment…”Google Scholar

30 Appendix, Constitution (Amendment No. 17) Act, 1931.Google Scholar

31 The State (Ryan) v. Lennon [1935] IR 170.Google Scholar

32 Id., 178. ('Oireachtas’ is the Irish word for Legislature.)Google Scholar

33 The State (Ryan) v. Lennon, supra note 31, 237.Google Scholar

34 The State (Ryan) v. Lennon, supra note 31, 200–2. Mr. Justice Kennedy used canons of natural law to declare the provisions of Article 2A void and inoperative.Google Scholar

35 Constitution (Removal of Oath) Act, 1933.Google Scholar

36 Constitution (Amendment No. 22) Act, 1933.Google Scholar

37 Constitution (Amendment No. 27) Act, 1936.Google Scholar

38 Dáil Éireann is the lower House of Parliament. Dáil Debate of 4 June 1937. Available at http://historical-debates.oireachtas.ie/D/0067/D.0067.193706040007.html, last accessed 25 September 2008.Google Scholar

39 Article 6 (1) of the Constitution.Google Scholar

40 Hanafin v. Minister for the Environment [1996] 2 IR 321.Google Scholar

41 Re Article 26 and the Information (Termination of Pregnancies) Bill 1995 [1995] 1 IR 1.Google Scholar

42 Id., 43.Google Scholar

43 See, supra, note 40.Google Scholar

44 McKenna v. An Taoiseach (No. 2) [1995] 2 IR 10.Google Scholar

45 Id., 42.Google Scholar

46 Referendum Commission, Report on the Eighteenth Amendment of the Constitution – Consequential on the Amsterdam Treaty 1998, Dublin.Google Scholar

47 Coughlan v. The Broadcasting Complaints Commission [2000] 3 IR 1.Google Scholar

48 Roberts-Thomson, Patricia, EU Treaty Referendums and the European Union, 23 Journal of European Integration 105 (2001), 119.Google Scholar

49 Roberts-Thomson, supra note 48, 125.Google Scholar

50 Roberts-Thomson, supra note 48, 122.Google Scholar

51 Roberts-Thomson, supra note 48, 125.Google Scholar

52 Min, Shu, Referendums and the Political Constitution of the EU, 14 European Law Journal 423 (2008), 441.Google Scholar

53 Shu, supra note 52, 441.Google Scholar

54 Crotty v. An Taoiseach [1987] IR 713.Google Scholar

55 Article 29.4.3 was inserted into the Constitution by the Third Amendment of the Constitution Bill, 1971 the purpose of which was to allow the State to become a member of the European Communities. Article 29.4.3 read as follows: “The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on the 18th day of April, 1951), the European Economic Community (established by Treaty signed at Rome on the 25th day of March, 1957) and the European Atomic Energy Community (established by Treaty signed at Rome on 25th day of March, 1957). No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State”.Google Scholar

56 Crotty v. An Taoiseach, supra note 54, 767.Google Scholar

57 Crotty v. An Taoiseach, supra note 54, 768.Google Scholar

58 Crotty v. An Taoiseach, supra note 54, 778.Google Scholar

59 Crotty v. An Taoiseach, supra note 54, 783–4. Here Mr. Justice Walsh is quoting from Article 6 of the Constitution, mentioned supra note 39.Google Scholar

60 Crotty v. An Taoiseach, supra note 54, 794.Google Scholar

61 See a recent article by Benoît Keane which discusses the question of whether the ratification of the Lisbon Treaty required a referendum and concludes that it did. Keane, Benoît, The Lisbon Treaty: Does Ireland need a Referendum?, 26 (7) Irish Law Times 108 (2008).Google Scholar

62 Crotty v. An Taoiseach, supra note 54, 769.Google Scholar

63 On the question of whether or not Europe has a constitution see inter alia Paul Craig, Constitutions, Constitutionalism, and the European Union, 7 (2) European Law Journal 125 (2002); Erik Oddvar Erikson, John Erik Fossum, & Augustín José Meníndez, Developing a Constitution for Europe (2004); Dieter Grimm, Does Europe Need a Constitution?, 1 European Law Journal 282 (1995); Jürgen Habermas, Why Europe Needs a Constitution, 11 New Left Review 5 (2001); Jürgen Habermas, Comment on the Paper by Dieter Grimm: ‘Does Europe Need a Constitution,’ 1 European Law Journal 303 (1995); Joseph Weiler, & Marlene Wind, European Constitutionalism Beyond the State (2003); Neil Walker, Big ‘C’ or Small ‘c'?, 12 European Law Journal 12 (2006); Neil Walker, Europe's Constitutional Engagement, 18 Ratio Juris 387 (2005); Neil Walker, Europe's Constitutional Momentum and the Search for Polity Legitimacy, 4 (2) International Journal of Constitutional Law 211 (2005).Google Scholar

64 As, for example, in the case of the elections in Zimbabwe in June 2008. See statement of Javier Solana, EU High Representative for the Common Foreign and Security Policy, on the run-off presidential election in Zimbabwe, available at: http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressdata/EN/declarations/101547.pdf, last accessed 25 September 2008.Google Scholar

65 Evidenced by the reaction, in 2000, to Jörg Haider's far right Freedom Party becoming part of the government in Austria, and by the stringent requirements imposed on acceding countries that they meet the requirements of the acquis communautaire. Google Scholar

66 Article 1a of the Treaty on the European Union as proposed to be amended by the Treaty of Lisbon.Google Scholar

67 See, supra, note 15.Google Scholar

68 Eisgruber, supra note 15, 23.Google Scholar

69 Eisgruber, supra note 15, 24.Google Scholar

70 Cases 2 BvR 2134/92 & 2159/92, Brunner v. the European Union Treaty [1994] 1 CMLR 57.Google Scholar

71 Kirchhof, Paul, The Balance of Powers Between National and European Institutions, 5 European Law Journal 225 (1999), 226.Google Scholar

72 Declaration 1/2004, Case 6603–2004, Re the EU Constitutional Treaty and the Spanish Constitution, 13 December 2004, reported in [2005] 1 CMLR 981.Google Scholar

73 Article 93 of the Spanish Constitution reads: “By means of an organic law, authorisation may be granted for concluding treaties by which the exercise of powers derived from the Constitution shall be vested in an international organisation or institution”.Google Scholar

74 Declaration 1/2004, Case 6603–2004, Re the EU Constitutional Treaty and the Spanish Constitution, 13 December 2004, reported in [2005] 1 CMLR 981, 993; para. 34Google Scholar

75 Judgement of 11 May 2005 r. in the case K 18/04.Google Scholar

76 Article 8(1) of the Polish Constitution.Google Scholar

77 Judgement of 11 May 2005 r. in the case K 18/04, para. 14 of the official summary. Emphasis added.Google Scholar

78 Available at http://www.open-europe.org.uk/media-centre/pressrelease.aspx?pressreleaseid=81, last accessed 25 September 2008.Google Scholar

79 Cathryn Costello, Ireland's Nice Referenda, 1 EuConst 357 (2005); Katy Hayward, 'If at first you don't succeed…’ The Second Referendum on the Treaty of Nice, 2002, 18(1) Irish Political Studies 120 (2003); Hogan, Gerard, The Nice Treaty and the Irish Constitution, 7 (4) European Public Law 565 (2001).Google Scholar