Diarmaid Ferriter: Irish Constitution stands the test of time

De Valera and his team created a robust, adaptable and sophisticated document

Éamon de Valera with members of the cabinet during the inauguration of the Constitution in 1937. Photograph: Hulton Archive

Éamon de Valera with members of the cabinet during the inauguration of the Constitution in 1937. Photograph: Hulton Archive

 

How stands the Constitution 80 years after the Irish electorate approved it? Éamon de Valera saw it as a crucial document in the quest for increased sovereignty in the 1930s and closely supervised its drafting by appointing a committee of civil servants that reported directly to him, consisting of the principal drafter, barrister John Hearne, Maurice Moynihan, Philip O’Donoghue and Michael McDunphy.

It was put to a vote of the people in July 1937 with no guarantee of success; the electorate voted in favour by the narrow margin of 685,000 to 527,000

The debates on the draft constitution in the Dáil reflected Civil War enmities and international developments and frequently involved the use of the word “dictator” in relation to the proposed office of president.

De Valera had resisted the pressure to have Ireland declared a Catholic state

The provision that “subject to this constitution, additional powers and functions may be conferred on the president by law” generated deep suspicion and alarm and was amended in light of what the Irish Independent referred to as “the seed of dictatorship in the Nazi-like powers to be conferred on the president”.

But the Constitution was not just the creation of de Valera. A biography of John Hearne by Eugene Broderick published last week underlines Hearne’s indispensable contribution, a reminder of the scholarship of recent years that has shed much light on a more complex process than was often maintained.

Weimar constitution

European constitutional thinking and especially the Weimar constitution of 1919 also influenced Hearne. Broderick dismisses the idea that John Charles McQuaid, headmaster of Blackrock College and soon to be Catholic archbishop of Dublin, was the Constitution’s “co-author”.

McQuaid and a number of Jesuit advisers undoubtedly influenced de Valera with regard to clauses on family, education and private property and de Valera clearly valued their advice, but also had reservations about their more extreme views.

McQuaid wrote to de Valera that he had concerns about the reference to “other Christians . . . I have been thinking much about it. Of course, they claim the title, but as so very many in all these churches deny the divinity of Christ . . . they have truly ceased to be Christian. Very often they are only ethical. But you may have already settled the question.”

De Valera had indeed settled that question, by resisting the pressure to have Ireland declared a Catholic state. Judge Gerard Hogan has suggested what was “more remarkable” than the influence of Catholic social teaching was “the extent to which that document also reflected secular – one might almost say “Protestant” – values of liberal democracy, respect for individual rights and the separation of the church and State.”

There were also objections to the assertion “The State recognises that by her life within the home, a woman gives to the State a support without which the common good cannot be achieved”.

A London-based feminist group wrote to de Valera insisting: “These clauses are based on a fascist and slave conception of woman.”

Centralised State

It was also apparent from the Constitution that its drafters were happy with an excessively centralised State, and articles allowing for the creation of a new senate made it clear it would not impinge on parliamentary decision-making, as the taoiseach would nominate 11 members to ensure control.

These assessments need to be balanced with the recognition that, given the provisions for referendums, and an independent Supreme Court, the Constitution created a framework for the dispersal of power across a number of independent institutions.

The passage of time inevitably exposed weaknesses and ambiguities in the Constitution and will continue to do so

It also established limits to the exercise of executive power. At the time of its drafting there were Civil Service objections to judicial review of legislation and guarantee of fundamental rights, which were overridden by de Valera. With the passage of time, it came to be seen as a significant human rights document.

In 1965 Supreme Court Judge Cearbhall Ó Dálaigh declared: “It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizens that these rights should be set at naught or circumvented. The intention was that rights of substance were being assured to the individual and that the courts were the custodians of these rights.”

Gerard Hogan and Gerry Whyte have drawn attention to the ever-increasing significance of the courts in constitutional adjudication over the decades, because so many issues of political controversy provided the spur for legal challenges, while in terms of personal rights, the more cases that were taken, the more the general clauses concerning “fundamental concepts” were given depth and meaning.

Nonetheless, it is clear that over the decades, the courts, while more widely defining and protecting fundamental rights, also connived in the State’s abuse of its power, particularly in relation to the incarceration in institutions of so many vulnerable people whose rights were not afforded constitutional protection.

The passage of time inevitably exposed weaknesses and ambiguities in the Constitution and will continue to do so, but its robustness and adaptability and the sophisticated legal thinking of its drafters have also been apparent.

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