What constitutes a nation's values?
POLITICS:The Origins of the Irish Constitution 1928-1941. By Gerard Hogan, Royal Irish Academy, 865pp. €50
THE CRISIS that engulfed the State in 2009 and 2010 gave rise to a renewed interest in how we were served by our political infrastructure, including the Constitution. Although the debate about this ranged widely in the spring of 2010, the political response has been more limited, resulting in a proposed constitutional convention to discuss a limited number of topics.
In July’s Dáil debate on the convention, Tánaiste and Labour Party leader Eamon Gilmore said: “There is much in the 1937 Constitution that has served us well, but we must also acknowledge that there are many whom it has served less well, particularly the nation’s children. Our Constitution is a document of the 1930s for the 1930s. It was a time when one church was considered to hold a special position and women were considered to be second-class citizens.”
This is a narrative that has dominated much of the debate on the Constitution in recent years, influenced to a large degree by the seminal work of JH Whyte, Church and State in Modern Ireland, published in 1980 at the height of the Troubles in Northern Ireland.
In The Origins of the Irish Constitution 1928-1941, the High Court judge and leading constitutional lawyer Gerard Hogan argues for a more nuanced understanding of the Constitution, pointing out that it owes much to the prewar European liberal democratic tradition.
The book draws together all the documents relating to the evolution of the Constitution, from the setting up of the Constitution committee in 1934 to early discussions of amendments in 1941, four years after its enactment. These are all knitted together into a coherent and compelling narrative by Hogan, who prefaces each chapter containing the relevant documents with his commentary.
Hogan argues that the main drafter of the Constitution, John Hearne, was largely influenced by European, and particularly German, constitutional thinking. Thus, as Hogan argued at the Burren Law School earlier this year, the German liberal democrat and Jew Hugo Preuss, the chief architect of the Weimar constitution of 1919, “quite possibly had as much influence on the drafting of our Constitution as anyone outside the drafting team and Mr de Valera himself”.
The Weimar constitution was hugely influential throughout Europe and provided the basis for the prewar constitutions of Poland and Czechoslovakia, and the postwar constitutions of Germany and Italy as well as, Hogan argues, influencing the Irish one.
He examines the provisions of the Weimar constitution and makes a convincing case that they formed the basis of a number of the articles in the Irish draft, notably those dealing with the presidency, provision for equality before the law, the guarantee of the protection of liberty and inviolability of the dwelling, the protection of marriage and motherhood, the recognition of parental autonomy over children, protection of the right of property, recognition of the right to form trade unions, and the protection of individual rights.
Of course, other influences did come to bear on the drafters. “Hearne’s draft was largely a secular one, in that it displayed none of the specifically Catholic influences to be found in the final version of the Constitution,” Hogan writes. But he argues that Hearne’s May 1935 draft remained the basic model upon which religiously inspired provisions were superimposed.