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.

These came mainly from Fr Edward Cahill, the driving force behind a Jesuit team put together with the specific task of advising de Valera on the Constitution. Fr Cahill was a personal friend of de Valera and the Jesuit document was influential, though even here European influence was apparent, as this document drew heavily on the 1921 Polish constitution.

Hogan argues that the article on the special position of the Catholic Church has its origins in the Napoleonic concordat of 1801, recognising the position of the Catholic Church as that of the great majority of the French people, which was largely transcribed into the Polish constitution.

Nor did Cahill get it all his own way. In the end the failure of the Constitution to give greater recognition to the Catholic Church led to a breach between him and de Valera. Its guarantee of religious freedom has provided the constitutional basis for jurisprudence protecting the practice of the Jewish religion and rejecting an attempted private prosecution for blasphemy.

The book is also highly informative on the Civil Service objections – overridden by de Valera – to the judicial review of legislation and the guarantees of fundamental rights. If today Government departments complain about the role of the courts in reviewing legislation and upholding citizens’ rights, as they sometimes do, the drafters of the Constitution were well aware of what they were doing when they inserted these provisions.

If we are to have a serious reconsideration of the Constitution – and it is by no means certain that the proposed constitutional convention will provide a forum to do so – this book provides a framework for understanding it, and in particular for seeing it within the context of the European democratic tradition.

Constitutions do matter, though perhaps not as much as constitutional lawyers, and indeed many political and social campaigners, think they do. They provide continuity with the past in incorporating its best traditions and projecting them into the future; they permit a range of democratic activities; they can be both descriptive and prescriptive of the checks and balances in the organs of government of the state; they provide parliaments with a framework of principles within which they legislate; they provide judges with a philosophical and legal framework for the administration of justice; they provide political parties and civic organisations with a political framework in which to couch their policies – in short, they define a political culture and offer individual citizens a bulwark of protection against excessive power of the state.

For all these reasons, reviewing our Constitution should be seen not as drawing up a shopping list of items we might like to see changed, to be added to if the time and the will exist, but rather as an occasion to consider what our fundamental values are and what mechanisms we need to ensure that they can be upheld.

The Royal Irish Academy is making the entire 900 pages of The Origins of the Irish Constitution 1928-1941 freely available online until the end of September. Visit ria.ieand click on the link to browse the book chapter by chapter