LEGAL UPDATE:TO MARK THE 75th anniversary of the 1937 Constitution, the Royal Irish Academy has published The Origins of the Irish Constitution, a comprehensive selection of key documents relating to its development and drafting.
The documents have been collected from a variety of archival holdings from 1921 to 1940, many of them not previously published. Many, such as the contributions from the Jesuit advisory committee, along with those of Archbishop McQuaid, are fascinating.
However, the most interesting aspect of the book is the extensive commentary and annotation by former TCD law lecturer and now High Court judge Gerard Hogan, who stresses the origins of the Irish Constitution in the German Weimar Constitution drawn up by liberal Jewish lawyer Hugo Preuss.
He points to the many parallels between the documents, including a preamble; the prescription of the colours of the national flag; the assertion of popular sovereignty; a popularly elected president with a seven-year term and open to every citizen over the age of 35, and who had similar powers in both constitutions; guarantees of the protection of liberty and dwelling in similar terms; and an invocation of the rules of international law, which was a new element to common-law constitutions.
Other common provisions were the protection for marriage and motherhood; parental autonomy over children, but with the proviso for state intervention in exceptional cases; recognition of the right to property and the right to inherit; while also acknowledging the right to form unions and the state’s duty to protect workers from exploitation.
Fr Edward Cahill, a Jesuit and friend of de Valera, did attempt to ensure the Constitution reflected Catholic religious and moral teaching and enlisted the aid of the Jesuit committee. Some of this influence is apparent, Hogan acknowledges, though he points out that much of what made its way into the Irish Constitution came from the Polish Constitution, from which the Jesuit committee drew heavily.
However, he points out that Fr Cahill was deeply offended over the inclusion of reference to the Church of Ireland, objecting to its description as a “church”.
He also points out that there was nothing specifically Catholic about many of the provisions, especially those Articles dealing with fundamental rights. While some of the tone of the Articles dealing with the family drew on Catholic social teaching, pledging to protect the family was a feature of most continental constitutions, and exists today in the European Convention on Human Rights. Specific reference to marriage and motherhood existed in the Weimar constitution.
Some of the proposed provisions met sustained opposition from senior civil servants, notably the provisions for judicial review, but their objections were swept aside by de Valera.
This book is published in hardback by the Royal Irish Academy at what is the modest price of €50 for a law book, though it will be of equal interest to historians and indeed members of the public with an interest in law or history. For those not satisfied with its 865 pages, additional material is published on the RIA website.