81 years on: It’s time for a secular Constitution

Eamon de Valera pictured in his office at Government Buildings in 1937, the year that the Constitution was signed. Picture: General Photographic Agency/Getty

Rather than being a tract hostile to religion, a secular Constitution should guarantee freedom of conscience and religious liberty for all citizens, writes TP O’Mahony

Most Irish people are aware that, in addition to our present Constitution — Bunreacht na hÉireann — dating from 1937, there was an earlier one, the Irish Free State Constitution of 1922.

But not everyone knows there was an even earlier one than that, albeit a very cryptic one — the Constitution of Dáil Éireann adopted on January 21, 1919, at the meeting of the First Dáil.

The centenary of that first meeting in the Mansion House in Dublin — the real founding event of the State, the birth of our democracy — will be marked by big commemorations in a matter of weeks.

“The brilliance cast by the Easter Rising often obscures the reality that it was the First Dáil which originally established the authentic representative credentials of modern Irish democracy,” said Brian Farrell in a Thomas Davis Lecture on RTÉ in 1994 on the 75th anniversary of the meeting in the Mansion House.

The Constitution endorsed at that meeting, described as “provisional”, had just five sections, but it had one of the essential elements of constitutional law in embryonic form, a blueprint for government.

Three other documents were produced at that historic first meeting — a Declaration of Independence, a Message to the Free Nations of the World, and a Democratic Programme.

And whereas the provisional Constitution lacked any statement of rights, there is discernible in the other documents, especially the Democratic Programme (praised by President Michael D Higgins in his acceptance speech following his recent re-election) an outline framework of rights.

The Democratic Programme of the First Dáil (which was, sadly, quietly placed in cold storage) has, more than the others, enduring significance. The influence of the 1916 Proclamation is very evident.

And the architect of the Programme, Thomas Johnson, leader of the Labour Party, sought to reflect the insights of Padraig Pearse and James Connolly (thought to be the main drafters of the Easter Proclamation — no hand-written copy of which survives).

He did this to such an extent that his original version gave rise to controversy. The former professor of Modern History in UCC, Joe Lee, explained the background to this in his book Ireland 1912-1985: Politics and Society.

“The draft contained too much of Pearse, not to mention Connolly, for the socially conservative elements in the Dáil,” said Prof Lee.

The draft was an attempt to foist on the Dáil a programme that had never been presented to the electorate.

“The actual ‘Democratic Programme’, finally cobbled together by Sean T O’Kelly, did in fact continue to incorporate more of the social doctrine of the Proclamation of the Republic than the electorate could be considered to have sanctioned.”

Even after the editing by O’Kelly — at the insistence of, among others, Michael Collins (who wanted to suppress the document) — the adopted text still had a radical flavour.

Prof Farrell, in the aforementioned lecture, described it thus: “This was a radically egalitarian, socially advanced, economically focused statement of objectives. It consciously echoed the words of Pearse in the Easter Proclamation of 1916 and re-affirmed Connolly’s mix of nationalism and socialism.”

One of the key objectives declares that “we reaffirm that all rights to private property must be subordinated to the public right and welfare”.

Needless to say, when the drafting of the Free State Constitution got underway three years later in 1922 (a process overseen by Collins) this objective was ignored. Given the subsequent history of the Irish State, the obscene sums of money made from land and property speculation, and the scandals of the various tribunals of inquiry, it could have been a different society if an objective such as the above had been given constitutional underpinning.

In a much earlier Thomas Davis Lecture in 1966 (later published in a volume entitled The Irish Struggle 1916-1926), Patrick Lynch, who was lecturer in economics in UCD at the time, contextualised the ditching of the Democratic Programme in an essay entitled ‘The Social Revolution That Never Was’.

He stressed that it was very doubtful that a majority of the members of the First Dáil would have supported the Programme without amendment if there had been any immediate prospect of putting it into force.

By 1922, the situation had changed.

“Political liberation of the Irish Free State had been secured,” said Prof Lynch.

The social conflict, as seen from Wolfe Tone to Connolly, and indeed by socialist republicans after him, had been submerged.

Nevertheless, the Democratic Programme remains, in the words of Prof Farrell, the best known and most frequently quoted document produced by the First Dáil. President Higgins’ recent reference to it demonstrates yet again its enduring presence in the sub-culture of Irish politics.

Today, the Democratic Programme could serve as an inspiration for a new Constitution, a sort of springboard for such a document framed for the Ireland of the 21st century. This is a very different Ireland, a far more diverse society, than the Ireland of 1937.

Taoiseach, Leo Varadkar hailed last month’s referendum to repeal our blasphemy laws as a small step towards creating a 21st century constitution.

“It is very much part of an ongoing campaign in many ways to reform our Constitution, to make it a 21st century constitution for a 21st century Republic,” said Mr Varadkar.

He placed the outcome of the public poll on blasphemy among a series of reforms, beginning with the decision to remove the “special position” of the Catholic Church from the Constitution in 1972, and including enshrining marriage equality and repealing the Eighth Amendment so as to give women access to abortion in Ireland.

“This is the next small step in what is a very big deal, which is the reform of our Constitution, so the next set of referenda is pencilled in for May,” he said.

On the same occasion, the Taoiseach said the Presidency may need reform. He favoured cutting the presidential term to five years.

“I have to say my personal view is a five-year term would be more in line with modern norms than a seven-year term,” said Mr Varadkar. “That would require a referendum.”

But if producing a 21st century constitution for a 21st century republic is such a “very big deal”, then why not abandon the piecemeal approach to reform and initiate instead a process for the drafting of a new constitution to replace Bunreacht na hÉireann?

For one thing this would save a lot of money, because instead of an ongoing series of referenda, an entirely new document — just as in 1937 — could be put to the people in one referendum.

The case for a new constitution is compelling. The Ireland of today is a very different Ireland to that which confronted Éamon de Valera in 1937. The new constitution, Bunreacht na hÉireann, of which he was the main architect, is very time-conditioned.

For one thing, it was framed in the context of a society that was intensely Catholic. Now we are on the threshold of a post-Catholic Ireland, a fact acknowledged by the Archbishop of Dublin, Diarmuid Martin.

The latest findings established by the Washington-based Pew Research Center have revealed that just 69% of people in Ireland believe in God, while 26% do not. And belief in God is not the same as church affiliation. Ireland is also now very much a multi-faith society, with a growing number of citizens, according to the last census, professing no religion at all.

Writing of Bunreacht na hÉireann, John A Murphy, emeritus Professor of Irish History at UCC, said:

In many respects, the Constitution bore a specifically Catholic complexion, expressing the values of a homogeneously Catholic Twenty-Six county society.

That society no longer exists, and any new Constitution would have to take account of this. In the midst of the present housing and homelessness crisis, the Democratic Programme of 1919 provides significant support for the inclusion of socio-economic rights in any new constitution.

In his landmark encyclical ‘Pacem in Terris’ (Peace on Earth), Pope John XXIII opens with a section on rights, in which he stresses that every person “has the right to life, to bodily integrity, and to the means which are necessary and suitable for the proper development of life; these are primarily food, clothing, shelter, rest, medical care, and finally the necessary social services”. Any 21st century constitution would have to enshrine these rights.

Then there has been the rise and on-going impact of feminism. The calls for changes to Article 41.2 grow louder and more persistent. This deals with women’s life within the home, and the need to ensure that mothers do not neglect their “duties” in the home.

In an Ireland where working mothers are now commonplace, this article is clearly outmoded when gender recognition, equality of opportunity, and parity of esteem have come to the forefront of our culture.

As Yvonne Scannell, lecturer in law at TCD, has emphasised: “De Valera’s Constitution was not consciously designed to advance the cause of women’s rights”. 

Today women’s rights would have to be high up on any reform agenda.

Then there is another fundamental question — is it time for a secular constitution, given all the changes that have occurred in Irish society in the 81 years since Bunreacht na hÉireann was ratified?

Such a constitution should not be seen as a tract hostile to religion. In fact, it is vitally important that a secular constitution should enshrine and guarantee freedom of conscience and religious liberty for all citizens.

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