The first constitution of the new Irish state was innovative: it asserted the sovereignty of the people; it included a bill of rights, a guarantee of free elementary education, trial by jury and direct democracy (on the say-so of 75,000 electors). And it contained a provision allowing judicial review of legislation, which broke with the then orthodoxy of the sovereignty of parliament.
But there was a fundamental flaw. It provided, in Article 50, that for a period of eight years after it came into effect it could be amended by the Oireachtas, without reference to the people. This Article 50 was itself amended by the Oireachtas, extending the time-frame within which the constitution could be amended and a referendum could be circumvented. In the fifteen years of its existence the 1922 constitution was amended by way of ordinary legislation on 27 occasions, and of the 72 original articles only 31 remained intact. Many of these amendments negated the fundamental rights that the constitution promised.
Nobody, it seems, thought of devising a new constitution to replace the flawed 1922 one, but events unfolded that made this inevitable. The first step in that direction came about when Eamon de Valera moved to abolish the Senate in 1934. This was perceived as a breach of guarantees given in 1922 to Southern unionists. In a Dáil debate concerning this, de Valera said that he favoured an arrangement whereby constitutional provisions on fundamental rights be protected from amendment other than by a referendum or by some special requirement for a specified Dáil majority.
This led to the establishment of a constitution committee in 1934 to consider what amendments might be made to the 1922 constitution and how certain provisions could be rendered immune from change by a simple Dáil majority. At just the second meeting of the committee they agreed that their report should take the form of an entirely new constitution, but two days afterwards Eamon de Valera made it clear to them that he did not want a new constitution, merely amendments to the 1922 one. The committee completed its report within two months, but within a further two months the 1922 constitution effectively collapsed.
Gerard Hogan, the author of this enormous but absorbing chronicle of how the 1937 constitution came about, has often written and spoken about a famous 1934 supreme court judgement, the State (Ryan) v. Lennon, and his lengthy treatment of this here is hardly surprising. His fascination with that case is primarily with the minority judgement of the then chief justice, Hugh Kennedy, who wanted to invalidate a constitutional amendment on the basis of natural law or higher law principles. His two colleagues on the supreme court, Gerard Fitzgibbon and James Murnaghan, were having none of this.
There was a further dimension to the State (Ryan) v. Lennon case. The 1922 constitution had required compliance with the terms of the Anglo-Irish Treaty, and the supreme court also held that the Oireachtas had no power to amend any article based on that Treaty. The Fianna Fáil government had done just that by abolishing the requirement that members of the Dáil had to swear an oath of fidelity to the British monarch, but the supreme court simply ignored that infraction.
Another contemporaneous development further complicated the constitutional situation: the British privy council held in another case that the Statute of Westminster of 1931 gave the power to ‘Dominion parliaments’ to abrogate enactments of the imperial parliament, which meant that the Oireachtas was no longer constrained by the terms of the Treaty, which itself had a foundation in an act of the British parliament. It was the confluence of all these developments that gave rise to the drafting of a new constitution.
In this book Gerard Hogan deftly takes us through all of its drafts, the memoranda exchanged between the drafters and the submissions made by outside interests. What I found surprising was the clarity of Eamon de Valera’s own submissions and the pivotal role he played in the process. Photographs of the handwritten notes, written on yellow squared paper, are reproduced here and convey his clearly formulated conception of a constitutional framework. I don’t think any other taoiseach, with the possible exceptions of John A. Costello and Garret FitzGerald, would have had the capacity or even the interest to make such a contribution.
I want to focus on just a few areas that I find of particular interest: the pressures exerted by the Catholic Church on the drafting process; the framing of the sections specifically relevant to women; and the section dealing with private property. The Jesuits, notably Fr Edward Cahill, were particularly influential in drafting the 1937 constitution. It was the Jesuits who drafted the very Catholic preamble, modelled largely on the 1921 Polish constitution. It was the Jesuits also who influenced the wording of Article 41 on the family and Article 43 on private property. Gerard Hogan writes:
‘That . . . 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 of liberal democracy, respect for individual rights and the separation of the Church and State and the extent to which it did not reflect Catholic teaching.’
In this respect he takes issue with historians such as Roy Foster. Gerard Hogan notes how other constitutions of that era—notably those of the United Kingdom, Norway, Italy, Greece and Spain—were of a far more confessional character than the Irish one. Certainly, the final version was far less dominated by a Catholic ethos than were submissions from the Jesuits and John Charles McQuaid. The Vatican was less than pleased with the final draft. A copy of that final draft was bought to Rome by Joseph Walsh, later ambassador to the Holy See, then an official in the Department of External Affairs. He reported back to Dublin on 22 April 1937 that the Vatican secretary of state, Cardinal Pacelli (later Pope Pius XII), thought that the ‘special position’ accorded to the Catholic Church in Article 44 was ‘of no real value as there was not a formal acknowledgement of the RC Church as the Church founded by Christ’. The pope-to-be thought that Ireland, as the Catholic country of the world, should have made a very special effort to give the world a completely Catholic constitution. Joseph Walsh reported that the cardinal had told him, with a smile, that ‘according to the strict teaching of the Church we were heretics to recognise any church but the one true church of Christ’. Later the pope himself, Pius XI, was reported to have said in Italian of the draft constitution: ‘I do not approve, I do not disapprove—we shall maintain silence’.
The provisions on women were less controversial at the time than they later became, but even in 1937 many women found them objectionable. John Hearne thought that Article 40 should read simply: ‘All citizens shall be held equal before the law’, which was almost an exact copy of a provision in the Weimar constitution. But that simple idea was complicated by the addition of a further paragraph to Article 40: ‘This shall not be held to mean that the State shall not in its enactments have due regard to the differences of capacity, physical and moral, and social function’. In explaining why this addition was made, Eamon de Valera told the Dáil that without this addition this ‘would make all law impossible, because we have constantly to distinguish between classes . . . We have to distinguish in our laws between the functions in the community’.
What he meant by ‘classes’ or ‘social functions’ is not clear. But it is certainly open to the interpretation that he meant that some people, including women, were predestined to lowly social functions and others to higher social functions. And that the constitution, instead of attempting to subvert this inequality by an unqualified assertion of the equality of humankind, was acknowledging an existing inequality and was attempting to freeze that social arrangement. Article 41.2, understandably, has been the focus of most feminist ire—the article that refers to a woman’s ‘life’ within the home, and how the State shall endeavour to ensure ‘that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home’. Curiously, Gerard Hogan is defensive of Eamon de Valera’s stance on this. He writes: ‘But no matter how one can be justly critical of de Valera’s old-fashioned paternalism as reflected in Article 41.2, it does not justify some of the more tendentious criticism which has been levelled against both Article 40.1 in particular and Article 41 in general’. He offers this observation without citing what the tendentious criticism was.
Finally, on private property. The submission of the Jesuits to the constitutional drafting committee contained a section on promoting peace between the different social classes and the necessity to keep ‘in check’ the activities of agitators ‘who would sow disunion or discontent with the object of fermenting a destructive and unchristian class war’. It went on to suggest a (very) modest distribution of private property, an allowance for some property being held in public ownership, with a strong endorsement on ‘private ownership of productive property, as understood in Christian teaching’. There was hardly any doubt where the high priests of Clongowes, Belvedere and Gonzaga (or was Gonzaga a Jesuitical afterthought?) stood on property rights! The emphatic assertion of private property rights in Article 43 is reflective of how the privileged were able to secure their ‘entitlements’ (as they perceived them) in the new constitution, and the legacy of the Celtic Tiger is a tribute to those provisions.
This book on the origins of the Irish constitution by Gerard Hogan is a splendid publication, beautifully presented by the Royal Irish Academy. This is no surprise. Gerard Hogan, along with Gerry Whyte, has done several outstanding updates on John Kelly’s The Irish constitution. This book on the origins of the Irish constitution is merely the latest in a series of magnificent publications by the Royal Irish Academy on Irish historical subjects. This is required reading for every lawyer, politician, commentator and Jesuit in the country. HI
Vincent Browne is a journalist and broadcaster.