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A Sound Constitution

Paul Daly

The Making of the Irish Constitution, 1937, by Dermot Keogh and Andrew McCarthy, Mercier Press, 511 pp, €30, ISBN: 978-1856355612

True to the clichéd view of Irish politics, the media reaction to the plebiscite on the 1937 constitution split along predictable lines. The Irish Press, Irish News and Derry Journal were laudatory, the Irish Independent, Irish Times and Telegraph condemnatory. It fell to the Manchester Guardian to inject some common sense into the historical record: “Actually, Mr de Valera’s Constitution is a conservative rather than a radical document”. The Guardian’s leader writer was almost correct. The constitution was not a partisan power grab and was conservative in its preservation of the status quo. However, the very fact that it was not a partisan power grab, and that de Valera took the opportunity to entrench democracy and fundamental rights, made it radical indeed.

The Guardian editorial is one of the many useful snippets in Dermot Keogh and Andrew McCarthy’s new book. It is surprising that theirs is the first book-length treatment of the construction and drafting of the constitution, at least until one considers that those fixated on fighting other battles largely ignored the drafting process in favour of concentration on the content of the final version. Keogh is a notable exception: for many years, his lengthy and erudite 1987 article in Administration was the leading account of the drafting of the Constitution.(1) Now, with Andrew McCarthy, he has produced a remarkable book. The authors’ account of the drafting process occupies around 200 pages of a 511-page volume, preceded by a penetrating foreword by Gerard Hogan, one of the country’s pre-eminent constitutional law scholars, and eleven appendices of documentation produced during the drafting process.

Perhaps the central theme to emerge from this authoritative and detailed work is reflected in the authors’ question:

… how did a document so protective of citizens’ rights emerge from a decade so heavily influenced by anti-democratic ideas rooted in Catholic authoritarianism, vocationalism, corporatism, fascism and Nazism. Perhaps, or indeed, de Valera was far more complex a political thinker and constitutionalist than may have yet been realised.

Some historians, the authors write,

might ponder why de Valera felt the need to go any further than the Executive Authority (External Relations) Act of 1936, which after all achieved his main policy goal of external association, involving an affirmation of Irish sovereignty and the voluntary as distinct from obligatory association of the Free State with the British Commonwealth. De Valera might easily have called matters to a halt having reached this stage by Christmas 1936.

Though the country could well have muddled along with the 1922 constitution of Saorstát Éireann, it had become clear by the mid-1930s that at least some constitutional reform was necessary. The 1922 document contained a clause allowing for its amendment during the first eight years of its existence by a simple majority in parliament. Subsequently parliament simply amended the relevant clause to extend the time period for another eight years. A decade after its adoption, the 1922 document was a constitution in name only, a flimsy paper barrier that could not prevent the government of the day from infringing civil liberties with impunity and generally doing as it pleased. Thus was de Valera able to use the Dáil majority he gained in 1932 and 1933 to remove the offending provisions of the Treaty from Irish law and finally achieve external association.

Though Keogh and McCarthy cannot identify the point at which de Valera fastened upon writing an entirely new constitution, the wish was in the air long before it fathered the thought. It was the de facto non-constitutional status of the 1922 constitution that prompted the establishment in 1934 of a committee on the constitution: the committee’s express remit was to select certain provisions which ought to be entrenched and immunised from parliamentary amendment. Nonetheless, entrenchment could have been accomplished without a complete rewrite, never mind the adoption of an entirely new constitution. De Valera’s concern was removing the association with the Treaty which tainted the existing document: “Having been conceived under duress and enacted through a series of threats, de Valera considered the Free State constitution an imposition rather than a document worthy of a free and proud people”. A complementary practical consideration was that the office of governor-general, the holder of which had previously exercised the ceremonial functions of head of state as the Crown’s representative in Ireland, was abolished during the abdication crisis of 1936. Presumably de Valera and the country could have soldiered on without a replacement, but that would hardly have befitted a young state anxious to play a part on the world stage; at the time, it was one more reason for de Valera to take a more ambitious path.

Against this backdrop, the initial draft heads prepared in 1935 “upon verbal instructions” from de Valera, assume critical historical importance. Revealingly, they were concerned with four points: the protection of fundamental rights; making provision for states of public emergency; the establishment of an office of president; and retaining the king for foreign relations purposes. Of similar importance is a note prepared shortly afterwards by de Valera, which emphasised that the people should be designated as the source of sovereign power. This point is especially important: if power resided with the people then, by definition, it could not reside with a self-appointed coterie of hard-core nationalists. The documentary evidence strongly suggests that de Valera wished to ensure that sovereignty became a key component of the constitution, thereby marginalising undemocratic elements within nationalism.

One of the leading collections of essays on the constitution, produced to mark the fiftieth year of its adoption, is entitled De Valera’s Constitution and Ours.(2) The constitution has been considered synonymous with “the Long Fellow”. While Keogh and McCarthy leave us in no doubt that de Valera was, to borrow a phrase, “a brooding omnipresence in the sky” during the drafting process, they are rightly anxious to stress the influence of a group of brilliant civil servants: John Hearne, Maurice Moynihan, Michael McDunphy, Philip O’Donoghue and Stephen Roche.

The process was not a secret but, it is worth emphasising, was secretive. In the course of the Dáil debate on the 1936 constitutional amendment abolishing the Senate, de Valera expressed the hope that a draft document would be ready by the following autumn; he had previously publicly expressed his wish for a new constitution and the cabinet was aware of developments, but the drafting itself took place almost entirely behind closed doors. The genesis of the constitution perhaps was the publication of the report of the 1934 Committee on the Constitution (composed of Roche, McDunphy, Hearne and O’Donoghue). This was followed by the draft heads, prepared by Hearne. Hearne and O’Donoghue, overseen by Moynihan, were then charged with management of the project. The final draft was circulated for comment to the cabinet and government departments, before being debated in the Dáil and submitted to the people. The plebiscite was held on the same day as a general election and the constitution was approved by 57 percent of the electorate, the vote splitting largely, though not entirely, along political lines. It came into force on December 29th, 1937.

A final, minor point on the drafting process is that a number of amendments were made to the constitution in the first three years of its operation, under a temporary power to make amendments by ordinary legislation. The amendments were almost exclusively technical in character and, especially because they were introduced by a de Valera-led government, can fairly be considered as forming part of the whole of the constitution. Unlike in 1922, the transitional provision could not itself be amended.

According to popular legend (subscribed to, like most Irish popular legends, by half the populace), de Valera was a hidebound sexist and nationalist who took orders from the Catholic hierarchy when he wasn’t too busy plotting to roll back universal suffrage and reclaim Hibernia Irredenta. Exposing the shallowness of the popular legend is an important task, because, as Hogan’s foreword makes clear, it has had an extraordinary influence on the views of historians, lawyers and the public.

The popular legend is largely an invention of modernisers and revisionists who wished to discredit de Valera. Elements of the legend were certainly conspicuous by their absence from the partisan pre-plebiscite public debates. Religion and nationalism were not on the political radar and the feminists of 1937 had different preoccupations from those of a more recent vintage. This is perhaps not surprising: what later generations have found objectionable was not found objectionable in the Ireland of 1937. But it is the thinking of the later generations, with all its misconceptions, that most concerns us here.

The constitution of course provides some support for those who read history backwards. At the very beginning of the document, the preamble heaps Catholic content upon Catholic tone: “In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred…Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial…” Article 6 states that “all powers of government … derive, under God, from the people …” Later provisions refer toinalienable and imprescriptible rights, antecedent and superior to all positive law”. Others incorporate Catholic teaching on social policy. The former Article 44 recognised the “special position” of the Catholic Church.

As to nationalism, the charge sheet is headed by the former Articles 2 and 3, in the form of a territorial claim to Northern Ireland, with later references to Irish sovereignty, the national flag and the establishment of Irish as the official language of the state joining an impressive supporting cast. The charge sheet on sexism need only be filled by Article 41.2:

1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2° The State shall, therefore, 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.

However, The Making of the Irish Constitution, in particular,Gerard Hogan’s foreword, adapted from an earlier article(3) gives a robust answer to each of these claims. Any sensible observer must accept that the constitution is suffused with Catholicism and that John Charles McQuaid – a close friend of de Valera –had significant input in the drafting process, but Hogan’s wide-ranging comparative study of the constitution’s contemporaries reveals some interesting data. For example, the Polish constitution of 1921 made a reference to Catholicism being “the religion of the preponderant majority of the nation …” Moreover, it was de rigueur for the constitutions of Protestant states of the time to provide for an established church, which the constitution pointedly did not.

Keogh and McCarthy’s account should also shatter a few pieties about the “special position” of the Catholic Church. However objectionable the “special position” wording, it pales in comparison to an earlier formulation, which stated crisply “that the Church of Christ is the Catholic Church”. In fact, Cardinal MacRory, the head of the church in Ireland, thought that the “special position” was not enough and McQuaid apparently lost his temper over the reduced status accorded it in later drafts. A series of frantic diplomatic shuttle runs was required before an acceptable formula was finally reached. De Valera was forced to send an emissary to Rome to break the logjam, but when papal blessings were sought they were not forthcoming. Indeed it was made clear by Rome that anything other than a reference to the “one true Church of Christ” was, strictly speaking, heretical. Nonetheless, the Pope’s canny political decision neither to “approve nor … disapprove” gave de Valera enough cover to maintain his hardening stance. Despite the protestations of MacRory and McQuaid, de Valera would not yield from his “special position”, with papal neutrality enough to avoid a divisive pre-plebiscite intervention by the Catholic hierarchy.

The religious influence on the remainder of the Constitution has also been overstated. A 1936 summary of the work done by that point is described by Keogh and McCarthy as “a document reflecting the ideas of Hearne and O’Donoghue. Both men preferred a short concise document: their legal training and tradition favoured brevity. But they were to witness the inclusion of other forces in the drafting process and they were, much to their deep regret, unable to control or contain that challenge”. The other forces were those of religion. Keogh and McCarthy devote successive chapters to the attempts of McQuaid and the Jesuits – led by Fr Edward Cahill – to influence the final document. They also record that de Valera met Presbyterian, Methodist and Protestant representatives and though he did not meet leaders of the Jewish congregation, it was unnecessary to do so, because he had been a close friend of the previous Chief Rabbi in Ireland.

However, little of the contact with the religious orders steered the project off course. Admittedly, it had some effect on the language used in seeing the constitution home, in particular on Article 44; by leafing through the appendices, one can ascertain a shift in the wording employed after Hearne and O’Donoghue ceased to be the sole proprietors of the project. But we would do well to avoid exaggerating the religious orders’ influence. On the one hand, as to the Jesuits and Fr Cahill, Keogh and McCarthy comment, “neither Cahill as an individual nor the Jesuits as an order had nearly as much influence on de Valera as the small core of civil servants who bore the brunt of the drafting process”. On the other hand, “even if the case is overstated, McQuaid did exercise a strong influence over de Valera”, particularly in the drafting of Article 44. On the whole however, any claim that the contents of the constitution were dictated by religious orders “has little foundation in fact”. Indeed, even earlier drafts of the preamble were more heavily saturated with religious references than the final version.

A more serious charge of bending the knee to the bishops could have been made out if part of an earlier draft had survived the drafting process. A draft Article 37 might have provided the state with a crosier with which to beat the citizenry into moral submission: “The State undertakes to take measures to prevent the corruption of public morals…” But apart from stating that the freedoms of expression, association, assembly and religion are subject to “public order and morality”, the constitution goes no further down the road of being a censor’s charter. The press reaction to the publication of the constitution was critical of the “public order and morality” provision, but qualification of the right to free expression is common in constitutional documents. The qualification contained in the constitution is nowhere near as sweeping that in the European Convention on Human Rights, which permits limitations to be imposed

in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Although in the 1930s corporatism, “diluted by Catholic social thought and known as vocationalism, had a fashionable following”, the influence of Catholic teaching too is less than it might seem at first sight. Sops to corporatism are contained in the provisions establishing the Seanad – not an especially powerful legislative body – and the statement of Directive Principles of Social Policy – largely a legal nullity, as they are not cognisable by the courts. The extent to which the language of papal encyclicals is laid over the fundamental rights provisions of the constitution can also be overblown, as Hogan pithily remarks:

I think you will find that the average litigant could not give two straws as to whether the constitutional right in question was inspired by the writings of Thomas Aquinas on the one hand or by Thomas Paine on the other. They are only concerned with whether these guarantees are likely to be of practical assistance to them.

As for the rhetorical flourishes in the preamble, they remain strictly rhetorical. In sum, though it contained enough to prompt fulsome praise from the Irish Catholic, taken as a whole the constitution is not as Catholic as it appears to be.

The claim of hidebound nationalism is the weakest of the three conventional criticisms. Happily, an early draft which referred portentously to Ireland as the “Motherland” was astutely dropped from the final document, but even had it remained it would not have been the main point of criticism. That distinction goes to the former Articles 2 and 3, which have provided plenty of ammunition for attacks on de Valera. They have had little legal effect however: challenges to the Sunningdale and Hillsborough agreements, for example, foundered even in the presence of the offending provisions. Both agreements were held by the Supreme Court to be statements of policy rather than binding law and hence the alleged breach of Articles 2 and 3 was judged to be legally irrelevant. The Boland and McGimpsey judgments did not, strictly speaking, approve the compatibility of the agreements with Articles 2 and 3, but they indicated that Articles 2 and 3 were, in a legal sense, marginal when viewed in the light of the constitution as a whole.

In fact, de Valera deserves credit for using the constitution to marginalise radical nationalists. Previously he had been of their number, as evidenced by his outburst that “the people have no right to do wrong”. By the late 1930s he had turned full circle: he was prepared to use the full force of the reviled military courts on his former comrades. Then he turned the constitution on them. While Article 6 is superficially deistic, when read in full its sting is very much in its tail: “All powers, legislative, executive and judicial derive, under God, from the people.” The font of authority in the state was to be the people, not some soi-disant group of “keepers of the flame”. A constitution adopted by popular vote cut the legs from under hardcore nationalists.

So too did Article 29.2’s affirmation of Ireland’s “adherence to the principle of the pacific settlement of international disputes by international arbitration or judicial determination”. The ever astute former Supreme Court judge Dónal Barrington explained the true importance of this subtle provision. Under the League of Nations charter, all member states agreed to accept binding arbitration in disagreements between them: “In view of the fact that the 1925 Boundary Agreement was a treaty registered with the League of Nations, it is not difficult to predict the outcome of … an international arbitration.” In Barrington’s analysis, the Boundary Agreement ascended under the constitution to the status of a binding international obligation on the state. Any attempt to repudiate it would therefore have been a breach of international law.

In general then,

not only does the Constitution forbid the Oireachtas to attempt to legislate for Northern Ireland until such time as Ireland has been reunited, but it also commits the state to seek a peaceful method of reunification. There is no mandate in the Constitution for even the Government to attempt to resolve the partition problem by violence. A fortiori, there is no mandate for the Provisional IRA or any other organisation to attempt to do so.(4)

Hogan’s foreword also takes on the more modern claim of sexism. Some constitutional provisions may be paternalistic, but as Hogan points out, their legal effect has been relatively small. When it comes to Article 41.2 one could say that the volume of rhetoric is often inversely proportionate to legal effect. Later on, Keogh and McCarthy deliver the coup de grâce when they dust down a gem first revealed by Finola Kennedy, in the form of an Irish Times editorial from the era: “Some day, please Heaven! The nation will be so organised that work will be available for every man, so that he may marry and assume the burdens of a home, and for every woman who embarks upon her proper profession – which is marriage." That de Valera chose to incorporate some contemporary mores that subsequently became outdated is hardly grounds for robust condemnation.

It should be noted, however, that feminist displeasure with the constitution is not a strictly modern phenomenon. In the public debates prior to the plebiscite, women’s groups accused de Valera of being a “reactionary”. The accusation referred to the exclusion of an article of the 1922 Constitution which guaranteed equality for women and the possibility that Article 40 would permit sex discrimination: Article 40.1 guarantees equality before the law; but its “proviso” permits the state to “have due regard to differences of capacity, physical and moral, and of social function”. De Valera’s convincing riposte was that female suffrage having been entrenched the need for the guarantee was gone. Women were now equal citizens, the response went, and to devote a specific provision of the constitution to securing their equality would have been perverse. Furthermore, it is notable that Article 41.2, which caused such gnashing and moaning later on, met with general approval in 1937: “de Valera’s views on women’s issues were not unusual and indeed were widely shared”.

Thus Keogh and McCarthy, and Hogan in his foreword, commit us to a more catholic understanding of the nominally Catholic constitution. Tones which are religious, sexist and nationalist to our ears must be understood in the context of the times. Provisions which later caused great angst did not even feature in the pre-plebiscite discourse. Partisan bickering focused on the issue of an alleged power grab by de Valera, a concern which, as we shall now see, could not have been more misplaced. The constitutional glass was, at the very least, half-full.

In the wrong hands Ireland could have gone the way of other European states in the dangerous Europe of the mid-1930s. De Valera by now had abolished the Senate, had an overall majority in the Dáil and a totally flexible Constitution with neither effective judicial review nor the requirements of a popular referendum to restrain his will. He could, by simple act of the single parliamentary chamber dominated by his party, make whatever constitutional changes he wished. It was a classic opportunity to establish a dictatorship. Instead his mind had already turned to writing a new constitution for modern Ireland.(5)

The conventional critique of the constitution is wrong. In fact, the most accurate analysis is that the entrenchment of the separation of powers, judicial review and fundamental rights makes it a paradigmatic liberal democratic charter. With its generous rights provisions, guarantees of fair play in the electoral process, a president positioned to put a brake on abuses of power and courts vested with a strong power of judicial review, the constitution resembles the document that might emerge from a conclave of academic experts today, never mind 1937. In particular, the document confounds modern political science theory in two key ways.

In the first place, constitutional design theorists emphasise the importance of the diffusion of constitutional theory and the likelihood of constitutions being adopted in “waves”. The constitution did not coincide with any wave of constitution-making (although its 1922 predecessor did), and in many ways was positively immune to contemporary outside influences. Take the position of the Jewish religion: across Europe fascism was on the march; the Cumann na nGaedhal partly succumbed to the fascist fashions of the day; and the Limerick boycott of 1904 is an ample reminder that anti-Semitism was by no means alien to twentieth century Ireland. Nonetheless, the constitution gave explicit recognition to the Jewish religion (whatever one might think of de Valera’s answers to the Jewish question during the Second World War). Moreover, taken as a whole, it is a liberal democrat’s charter. It is not as if it is free from fascist echoes: the Seanad is partly composed of members elected on corporatist principles, even if practice has not followed theory. But this nod towards the Continent – in any event probably influenced more by contemporary Catholic social teaching – is easily outweighed by the provisions granting fundamental rights to individual citizens: there is an express guarantee of equal treatment; an obligation to provide free primary education is imposed on the state; the state is obliged to “protect and vindicate” the personal rights of the citizen; private property is protected not once but twice; due process is guaranteed; all citizens have a substantive right to habeas corpus, with the additional protection of a clearly outlined procedure for petitioning the High Court; elections are to be conducted by secret ballot; and the rights of association, assembly and expression are guaranteed. The provisions are safeguarded by a robust power of judicial review, which allows the High Court to strike down legislation that is found to be inconsistent with the Constitution, and indeed to identify and enforce other, unenumerated rights. The contrast with the great mass of 1930s Europe could not be starker.

Secondly, constitutional designers predict that personal and factional interests will usually trump a reasoned analysis of what is best for the polity. A political scientist asked to examine the key institutional actors in 1937 Ireland and predict the likely form of the new constitution would say something like the following: “The key players are de Valera, Fianna Fáil and the Catholic Church and they will look to further their own interests. De Valera and Fianna Fáil will seek to strengthen their electoral position and, at the same time, strengthen the executive power. They will reduce judicial oversight and remove any impediments to unfettered power. A referendum, with the risk of an embarrassing defeat, is unlikely, so expect the document to emerge from a smoke-filled room. The only fetter on increased power for de Valera and Fianna Fáil is the Catholic Church. I expect it to gain a number of important concessions in the final document”.(6)

Not only would our hypothetical political scientist be wrong, but his analysis would be confounded at every turn. We have already seen how the marginalisation of the Jesuits and the irritation of MacRory outweighed the slight influence of McQuaid. The Catholic Church held plenty of sway over the populace, but little over the drafting process.

The evidence against the prediction that de Valera and Fianna Fáil would grasp with both hands the opportunity for self-aggrandisement is compelling, even though they were in the optimum position to influence the outcome of the drafting process. To begin with, the constitution provides that elections shall be determined by proportional representation. De Valera later saw this as an error: when he successfully ran for president in 1959, he campaigned in tandem with a rejected constitutional amendment to change the electoral system.(7) As it is, Fianna Fáil has dominated Irish politics, but had de Valera insisted on a first-past-the-post method in 1937, the party would, all other things being equal, have been guaranteed a parliamentary majority in perpetuity. Another conundrum for the self-aggrandisement thesis is that the powers of the Irish executive are no greater than those one finds in traditional parliamentary systems. During the Dáil debates on the constitution, John A Costello did accuse de Valera of strengthening the executive to an unconscionable degree, but his criticism was overblown: any increase of power in de Valera’s favour was minimal. Furthermore, during the debates Fine Gael speakers and the hostile sections of the media raised the spectre of de Valera ascending to the office of president and governing as a dictator. In fact, the powers of the presidency are extremely limited and make it the guardian of the political process rather than a central actor in it. Tellingly, the best Fine Gael could do to make its case was to allege that de Valera would amend the constitution to enhance presidential power before assuming the position himself. This was a fanciful notion, as de Valera could have accomplished the substance of such a feat without any subterfuge.

The power of judicial review given to the Irish courts is a strong one. Not only are they empowered to strike down legislation as repugnant to (a judicial interpretation of) the constitution, but the president is granted the power to refer any bill to the Supreme Court for a binding ruling on its constitutionality. Strong constitutional courts always have the potential to become a thorn in the side of a governing party: from a politician’s point of view, judges have a nasty habit of preferring constitutional principle to political pragmatism. Nonetheless, de Valera entrenched judicial review in the constitution, without knowing the extent to which his subsequent legislative designs would be hindered by judges.

The adoption of an amendment process that required a referendum to approve any constitutional change can be explained by de Valera’s need to establish the people as the font of all authority and thereby marginalise extreme nationalists. More troubling for our hypothetical political scientist is the odd – though never once invoked – Article 27 provision, which essentially allows the president to call a referendum or general election on a contentious issue. The procedure is as follows: if a particularly troublesome piece of legislation (which is not of doubtful constitutionality) is certified to the president by a certain number of members of the Oireachtas, the will of the people thereon must be ascertained, by election or referendum. There is absolutely no benefit to a governing party from this provision: it gives the opposition an oar to stick in; even if, in practice, the oar has never been wielded, this strange mechanism is further evidence of de Valera’s willingness to put democratic principle before party advantage.

Another mechanism that many consider strange is the Seanad. While establishing an upper house is unremarkable, re-establishing an upper house is curious. De Valera had in a fit of pique abolished the Senate, because it had hindered his campaign to dismantle the Treaty, but in 1937, the constitution gave it the kiss of life. Even though the Seanad was designed as a fairly weak institution, its revival is yet another example of an institutional actor not acting in its own favour. We have already seen how the bishops did not bark as loudly as might have been predicted and we can add the quiescence of de Valera and Fianna Fáil to the mystery.

Why then, does the constitution confound expectations? It would be begrudgery not to give de Valera a large slice of credit. First though, we should heed Keogh and McCarthy’s admonition to focus on the civil servants who had such a bearing on the drafting process:

There is likely to have been a real tension between those like Hearne who wanted a relatively short document and McQuaid who wished to convert the constitution into a Catholic document rooted in the Papal encyclicals and in Thomistic philosophy. The future Archbishop of Dublin was determined to make Ireland a model Catholic state with a model constitution which would condition the development of the country. However, there is another discourse. That is the determination of the drafting team to rise to the task of writing a new constitution which would be based on universal principles and on the constitutional tradition as reflected in the 1922 document and the documents of Dáil Éireann, 1919. Moynihan, Hearne and other drafters … wanted a constitution for all citizens…[I]t did not matter to the drafting team if a clause was inspired by Catholic principles based on encyclicals. What concerned civil servants involved in the drafting process was that a citizen’s right was enshrined in, and protected by, the new constitution.

The early drafts of the constitution are strong support for Keogh and McCarthy’s view. The language is terse in a lawyerlike way, lacks the final document’s floridly Catholic embellishments and focuses on producing a document of democrats rather than a document of dreamers.

The extent to which the process of drafting was “two-way” is perhaps inevitably left a little unclear. Those with primary responsibility for the drafting of the text operated within parameters laid down by de Valera, and while they enjoyed some latitude and thus some influence over the constitution’s content, significant credit must go to de Valera. He emerges from the tale of the drafting of the constitution as a much more complex figure than he is often given credit for, even by serious analysts. It may be that the “Long Fellow” casts a long shadow over Irish history, but he bequeathed the state a document that has endured. The constitution has continued happily in force for seventy years. None of its substantive or structural provisions were emended for the first thirty-five years of its existence. Furthermore, the fact that de Valera changed so little when he could have changed so much is deeply significant:

In sum, and however we might seek to explain his actions in 1922, the de Valera of the 1930s – de Valera in power – emerges as a democrat. Moreover, he emerges as a democrat against the odds. This is something that, in hindsight, we should not take for granted. Moreover, given the often-tragic political history of twentieth-century Europe, the fact that the political leadership of the Republic rested for so long in democratic hands is something that should not now be undervalued. This has been by any standards a major achievement, and it should be recognised as such.(8)

It is not easy to resolve the mystery of the constitution. One can really only venture guesses as to why de Valera acted as he did in 1937. To say that de Valera was a democrat begs the question. Perhaps a more plausible explanation is patriotism, in the sense of wanting the best for Ireland. De Valera had a vision for the country, one which could only be fulfilled through a constitution and drafting process which stuck to tradition, which sidelined the extreme nationalists in his own movement and healed the wounds of the Civil War. In his St Patrick’s Day address in 1943, he said:

The Ireland which we have dreamed of would be the home of a people who valued material wealth only as a basis of right living, of a people who were satisfied with frugal comfort and devoted their leisure to things of the spirit; a land whose countryside would be bright with cosy homesteads, whose fields and villages would be joyous with the sounds of industry, with the romping of sturdy children, the contests of athletic youths, the laughter of comely* maidens; whose firesides would be forums for the wisdom of serene old age. It would, in a word, be the home of a people living the life that God desires that men should live.
(There is some uncertainty as to whether the word used was “comely” of “happy”.)

The speech is commonly derided and is undoubtedly quaint. But how could he have achieved that goal, painted that idyllic picture, without a grand compromise in 1937? If the vision was central – and it is generally taken to be an accurate expression of de Valera’s ideal – and we assume that he had it in mind, it helps to explain the lengths de Valera went to (or did not go to) in 1937. His patriotic vision explains the retention of traditional structures, like a popularly elected parliament, the resurrection of new-ish ones, like the Seanad, and the building of new ones, like the Supreme Court with its strong power of judicial review. Any attempt to tilt the scales in favour of de Valera and Fianna Fáil would probably have moved political conflict to the constitutional plane and prevented the emergence of a stable democracy. There would have been no possibility of the vision being achieved in the midst of such strife. Thus de Valera’s patriotism, his desire for a better Ireland, emerges as a plausible explanation of his commitment to democracy.

The Making of the Irish Constitution has contemporary relevance in at least two ways. First, by shedding light on the liberal democratic origins of the constitution, it raises the possibility that the originalist school of constitutional interpretation (associated for example with the prominent American Supreme Court justice Antonin Scalia) could gain a foothold here in years to come. When the constitution was understood as more akin to a demagogue’s charter than a democrat’s charter, lawyers were understandably reluctant to rely on historical interpretation. Constitutional interpretation in the United States, while by no means uniformly originalist, almost always now starts with the text and the historical background to the text. By contrast, Irish courts are generally wary of getting entangled in the constitution’s historical roots. However, if the constitution is appreciated as a progressive document, the orientation of interpreters might change. One should also note that originalism need by no means be a conservative creed: some leading American commentators describe themselves as liberal originalists and one of the most impressive works of recent Irish constitutional scholarship, Oran Doyle’s Constitutional Equality Law(9), builds a liberal theory of equality on a close historical analysis of the drafting of the constitution.

Secondly, it tells us something about constitution-drafting in general. A major – and obvious – caveat must be attached first of all: the didactic value of one process of constitutional design is severely limited. But in modern constitutional design theory, the role of leadership is often understated. This is understandable: leadership is an intangible, difficult to measure and even harder to replicate. Throwing such a wild variable into the mix makes the task of constructing a unified field theory of constitutional design even harder than it already is; and nobody wants to respond with a shrug of the shoulders to the problems of a world in which many developing countries are struggling to achieve lasting constitutional settlements

Unfortunately for those who favour science, the story of the making of the Irish constitution tilts the balance away from a grand algorithm and towards the infinite variability of individuals and circumstance. Undoubtedly, leadership was critical: even with the vital contributions from Moynihan, Hearne et al, it was de Valera’s constitution, from the first suggestion to popular ratification. But the true significance is not that he led, but that he led in the right direction. The story recounted by Keogh and McCarthy strongly suggests that the values of democracy must be internalised by a nation’s leaders if a process of liberal democratic constitutional design is to be successful. In many countries around the world this seems a pipe dream, but there is hope in Ireland’s story: de Valera was not a democrat in 1922, but by 1937, leavened with patriotism and conditioned by circumstance, he had recognised the importance of being one.

1. “The Irish Constitutional Revolution: an Analysis of the Making of the Constitution” in Frank Litton ed., The Constitution of Ireland: 1937-1987 (Institute of Public Administration, Dublin, 1988).

2. Brian Farrell ed. (Gill and Macmillan, Dublin, 1988).

3. “De Valera, the Constitution and the Historians” (2005) xxxxi Irish Jurist 291.

4. “The North and the Constitution” in Brian Farrell ed., De Valera’s Constitution and Ours (Gill and Macmillan, Dublin, 1988, pp.65-67.

5. Brian Farrell, ‘From First Dáil through Irish Free State’ in Brian Farrell ed., De Valera’s Constitution and Ours (Gill and Macmillan, Dublin, 1988) p.18.

6. Jon Elster, “Forces and Mechanisms in the Constitution-Making Process” (1995) 45 Duke Law Journal 364.

7. “The first-past-the-post system would have solved Fianna Fáil’s electoral worries in the medium term, guaranteeing an overall majority unrivalled by the other political parties. It was a smart move and it almost worked, 453,322 voting for abolition of PR and 486, 989 for retention. By contrast de Valera’s presidential election victory was much more convincing: he had a majority of over 120,000”. Dermot Keogh, Twentieth Century Ireland: Nation and State (Dublin, Gill and Macmillan, 1994), p.241.

8. Peter Mair, ‘De Valera and Democracy’ in Tom Garvin, Maurice Manning and Richard Sinnott eds., Dissecting Irish Politics: Essays in Honour of Brian Farrell (University College Dublin Press, Dublin 2004), p.45.

9. (Roundhall, Dublin, 2004).

Paul Daly holds a National University of Ireland Travelling Studentship at the Faculty of Law and Queens’ College, University of Cambridge and is researching in administrative law. He is a graduate of the University of Pennsylvania Law School and University College Cork.