De Valera's 1937 Constitution successfully stood test of time

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The Constitution came into force 70 years ago today. Gerard Hoganassesses its impact and concludes that it has, on the whole, been a success. The man behind it, Éamon de Valera, should be given his due.

One of the key objectives of the drafters of the Constitution was to ensure that there would be a stability in our basic law after the constitutional turmoil of the 1920s and the 1930s. By the end of its existence, the short-lived (1922-1937) Constitution of the Irish Free State had been reduced to a things of shreds and tatters and it had been frequently amended by ordinary legislation without a referendum almost to the point whereby it was no longer recognisable.

Few, however, could have foreseen with the coming into force of the Constitution on December 29th, 1937, that this document would survive, more or less intact, into the very different Ireland of 2007.

There have, in fact, been only 23 amendments to date and many of these amendments have involved the same basic topic (European treaties (5), abortion (3); voting rights (2); citizenship/Belfast Agreement (2)). It could fairly be said that the special cases of the European Union and abortion apart, the only significant changes have been to delete those controversial provisions of the Constitution which reflected traditional Catholic and nationalistic views: the claim on Northern Ireland contained in the old Articles 2 and 3, the provisions of Article 44 dealing with the "special position" of the Catholic Church and the ban on divorce.

The stability and relative success of the Constitution is, of course, a testament to its drafters and to those who interpreted it. The creator of the Constitution, president of the executive council (as the cabinet then was) and later taoiseach Éamon de Valera was, of course, lucky with his civil servants and his judges. He had, of course, the foresight to choose a talented drafting team, led by the remarkable John Hearne, then legal adviser at the Department of Foreign Affairs. As well as being a skilled drafter, Hearne had an unrivalled knowledge of comparative constitutional law and international law.

As the important new book, The Making of the Constitution, by Prof Dermot Keogh and Dr Andrew McCarthy makes clear, Hearne was the principal drafter and most of the legal and constitutional innovations brought about by the Constitution may fairly be attributed to him. As Keogh and McCarthy note, the drafting team transcended the limitations of their own times and they helped to infuse the document with a balance and basic humanism.

While the Constitution still reflects in places (most notably the preamble) the narrow vision of Catholic nationalism then fashionable, if others less skilled and far-sighted had been chosen as drafters, it is more likely that the content and design of the Constitution would have suffered accordingly.

Indeed, in the hands of others, it is likely that the Constitution would have proved to have been a far more ephemeral document, fatally damaged (in the long term) through the influence of the confessional, reactionary and authoritarian thinking which was fashionable in certain influential circles in the Ireland of the 1930s.

De Valera was also subsequently lucky with his judges. He was, in fact, unhappy with the Supreme Court of this period and, under Hearne's influence, briefly toyed with the idea of establishing a special constitutional court which, he thought, might take a broader interpretation of the new Constitution.

Although this would have been a revolutionary step for a common law country such as Ireland and even though he was ultimately persuaded to leave the power of judicial review of legislation with the High Court and the Supreme Court, this is further internal evidence of the fact that de Valera intended the power of judicial review to be taken seriously.

Why else would he have considered the establishment of a special constitutional court? Why else would de Valera have resisted the considerable hostility of the various government departments to the new fangled ideas contained in the draft Constitution?

By mid-April 1937 the Department of Justice was pleading with the drafting team to think again, since they disliked "the whole idea of tying up the Dáil and government with all sorts of restrictions and putting the Supreme Court like a watchdog over them for fear that they may run wild and do all sorts of indefensible things".

If, as is frequently stated, de Valera did not anticipate the degree of judicial activism which subsequently transpired, he could not have complained that he did not receive adequate warning.

While the emergence of the judicial activism of the Ó Dálaigh/Walsh era of the 1960s has frequently been noted, it sometimes overlooked that the first 10 years of the Constitution saw the invalidation of key provisions of some four Acts of the Oireachtas. By the end of 2007 this figure had climbed close to 90.

While the courts have made definite wrong turnings - the decisions in Nicolaou (1966) (holding that unmarried fathers have no constitutional rights vis-à-vis their children); Norris (1983) (upholding legislation criminalising male homosexual acts) and Heaney (1996) (insufficiently safeguarding the right to silence) - it is still, broadly speaking, as true to say today, as Prof John Kelly had said in 1980, that the overall record of the courts in constitutional matters had been "beneficial, rational, progressive and fair".

The noted historian, Diarmuid Ferriter, dissented from that view, citing abortion and property rights as examples. The issue of abortion was, however, ultimately foisted on the courts by an unwilling Oireachtas and popular votes at various referendums and there could be no winners in that scenario.

While historians and political commentators have been keen to stress that the courts have given disproportionate weight to the protection of property rights, this is scarcely borne out by the case-law. The comparative constitutional lawyer would, for example, find very close parallels between the Supreme Court's decision invalidation of an arbitrary and anomalous rent restriction scheme in 1981 - a particular bete noir of those commentators - and subsequent decisions of the European Court of Human Rights dealing with aspects of Swedish planning laws and the Polish rent restrictions legislation.

De Valera has, indeed, been unlucky with his historians who, with some noted exceptions, have been at pains to compare the present Constitution unfavourably with its Free State predecessor.

Few of the commentaries, however, see fit to mention the uncomfortable fact that the 1922 Constitution ended in almost total failure or that there was no declarations of substantive unconstitutionality during this period. Thus, for example, A New History of Ireland (OUP, 2002) continues this vein of criticism by stating that "the new Constitution did not compare well with its predecessors" and that "Article 40, concerned with personal rights, did not fundamentally extend the rights contained in the 1922 Constitution".

But Article 40 included the new rights of equality, life, person, good name and property rights, in addition to containing a general duty on the State "as far as practicable" to defend and vindicate the personal rights of the citizen. It is hard to see how this could be classified as anything other than a significant extension of the constitutional rights expressly enumerated in the 1922 Constitution.

Disproportionate attention has also been given in the historical commentaries to those provisions of the Constitution which reflected the Catholic ethos of the State, the chief culprit here being the "special position" clause of the church in Article 44 as originally enacted.

No one denies that the Constitution was influenced to some extent by Catholic teaching and doctrine. That, however, the Constitution was influenced by Catholic social teaching is surely unremarkable given the historical context of 1937.

What is more remarkable, however, is the extent to which that document also reflected secular - one might almost say Protestant values - values of liberal democracy, respect for individual rights and the separation of the church and State and the extent to which it does not reflect Catholic teaching.

In many ways, however, it is very difficult to see why the "special position" clause gave rise to so much fuss. It must be recalled that the express recognition of the minority religions such as the Church of Ireland and the Jewish congregation gave rise to some controversy at the time. But this was as nothing compared to the situation in most other European countries in 1937 (France here being the notable exception), many of whom provided for some form of an established religion in one shape or another.

Thus, for example, prior to changes effected in 1956 under pressure from the Council of Europe, the Norwegian constitution had stated baldly that "Jesuits are not tolerated".

In the UK itself, section 2 of the Act of Settlement 1701 still provides that the monarch and his or her spouse were all required by law to be members of the established church. The monarch is further required to take an oath of office to uphold the supremacy of Protestantism, bishops from the established church sat in the House of Lords and up to 1975 both the equivalent of the chief justice and the minister for justice were required to be members of the Church of England.

One can imagine the fuss which would have been made had, for example, our Constitution required the President to be Catholic and to subscribe an oath upholding Catholicism; if Catholic bishops sat in the Seanad and if for good measure the Chief Justice was required to be a Catholic. There is, of course, no doubt but that the Constitution had a baneful effect on relations with Unionists. It was also a document which, in its own curious way, reinforced partitionism by stressing the association of "Ireland" and "Irish" with this State.

If one were starting from scratch today, there is, perhaps, much that would be redrafted and, following the lead of the EU Charter of Fundamental Rights, important new rights would be included.

Despite these evident failings, the Constitution has, on the whole, been a success to date, even though it is possible that its relevance to contemporary Irish society may yet be rivalled (or even eclipsed) over the longer term by decisions of the European Court of Justice in respect of the EU Charter of Fundamental Rights if (as may reasonably be expected) the electorate vote Yes at the forthcoming referendum on the Lisbon treaty.

All of this is for the future. For the moment, however, it is sufficient to say that de Valera's achievement was to find a drafting team who transcended the limitations of their age; to have the courage to put the Constitution to the people for our first ever referendum in July 1937, where the end product was a Constitution which brought much needed stability after the hectic constitutional changes of 1922-1937; a Constitution which, on the whole, has operated as a salutary check on the other branches of government and which has promoted the protection of individual rights and which has proved to be sufficiently durable and adaptable that it has not only survived, but which is also - if the volume of constitutional litigation is anything to go by - thriving in the very different Ireland of 2007.

These are considerable achievements which considerably outweigh the negatives. Is it asking too much to give de Valera some credit where credit is due?

Gerard Hogan SC lectures in constitutional law at Trinity College, Dublin. He is chairman of the Law Reporting Council of Ireland and is a former member of the Constitution Review Group. He is the co-author (with Prof Gerry Whyte) of the fourth edition ofJM Kelly: The Irish Constitution (Dublin, 2004)

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