Dev’s constitution may have flaws, but it has lived to a ripe old age
By so asking, Hogan acknowledges the depth of antipathy in some quarters, and indifference in others, towards the State’s primary architect. Twenty years of almost uninterrupted Fianna Fáil-led governments, and unprecedented political and economic progress, have meant that even members of that party no longer feel the need instinctively to defend, let alone champion, his legacy.
The bulk of the of more than 500 pages consists of reprinted extracts of early drafts of what became Bunreacht na hÉireann and are of interest only to the specialist reader. The meat — around 200 pages — is manageable even if those of a liberal bent will choke on Hogan’s foreword.
Essentially, Keogh and McCarthy have described the process from the coming to power of Fianna Fáil in 1932 to the constitution becoming operative 70 years ago last week. Their conclusions are confined to two paragraphs. Hogan, meanwhile, has taken it upon himself to defend the constitution from the band of historians who have criticised its provisions in relation to the North, social teaching and women, and its prevailing Catholic ethos.
Indeed, some such as Conor Cruise O’Brien and Roy Foster have described it as a step backwards from the 1922 Free State constitution that de Valera was determined to replace.
Still, it is not clear whom Keogh and McCarthy have in their sights when they refer to “some historians” who “without the guiding hand of the former colonial power … continue to feel that Irishmen and women could not be trusted to adhere to universal democratic principles”.
If it is, to use Hogan’s word, “unbalanced” to find the 1922 constitution preferable in some respects to the 1937 one, it is also unbalanced for Keogh and McCarthy to suggest that criticism of the current document relates to its parentage. You don’t need to be anti-national to believe the constitution has helped unintentionally to set partition in concrete or that it reeks of paternalism.
Few nowadays would argue that in the event of a united Ireland, the constitution would not need to be replaced or, at least, subjected to comprehensive revision. It was made very clear during the negotiations leading up to the Good Friday Agreement that the constitution was intended for 26-county purposes only. In the 1930s, however, as Keogh and McCarthy make clear, it was designed to perform a dual function as a basic law for the South and for a future 32-county Ireland .
At no time was this duality more apparent than when de Valera was attempting, ultimately successfully, to win the Catholic hierarchy’s support for a document which did not entirely reflect the ‘one true church’ position. The papal nuncio and the cardinal were enraged by drafts describing the Protestant denominations as “Christian churches”. Another priest took grave exception to any reference to the Church of Ireland: its very name was “lying propaganda” in his generous view.
De Valera’s special envoy to the Vatican was obliged to remind the Pope’s secretary of state that Ireland might be very largely (Roman) Catholic, but a quarter of the population, mainly in the North, was not, and rather fiercely so.
Hogan’s contention is that the constitution’s flavour was unremarkable given the circumstances of 1937. Not only was secularism far from the norm in Europe at that time but the constitution’s critics should be grateful that it did not set up something far worse, the authoritarian State Fine Gaelers feared de Valera had his heart set upon.
In Hogan’s words, “what is more remarkable, however, is the extent to which the document also reflected secular — one might almost say ‘Protestant’ values — values of liberal democracy, respect for individual rights”, etcetera, etcetera.
Hogan’s case would carry more weight if it were not for the fact that 1937 was not year zero: the Free State already had a creditable 15-year history of upholding those essential values and a parliamentary inheritance predating 1922.
Nowadays, of course, the ‘special position’ of the Catholic Church is long gone and articles 2 and 3 embodying the claim to the North have been defanged.
Article 41, with its references to a woman’s “duties in the house”, remains. A courageous government would ask the people to delete such references. Instead, the 1996 recommendations for modernisation continue to gather dust.
Back in 1937 some in Fianna Fáil felt constitution-writing was a distraction from the pressing issue of unemployment. The current Taoiseach can (fairly) plead that he has been busy with the North, but the next one will have no such excuse for neglecting the State’s legal fabric.
I found the most interesting those parts of Keogh’s and McCarthy’s study relating to the constitution’s passage through the Dáil and the Northern reactions to it. The details of the referendum are also fascinating. I did not know, for instance, that in one Dublin constituency it was rejected outright while in four others the number of spoilt votes and votes against outweighed the yes tally. In west Cork, a mere 36.6% voted yes on an 80% turnout. Partisanship was the hallmark of many of the debates on the constitution. Fine Gael contributions centred on the playwright, not the play. But if claims that de Valera was a prima donna attempting to establish a dictatorship rang hollow, the opposition played a creditable role in defending women’s equality and freedom of speech.
BUT independent TD Frank MacDermott was almost alone in questioning the document’s nationalistic tone. He tabled 42 amendments, not the least of which was an attempt to include unionists’ sense of identity in the constitution’s preamble. The House was not moved: there was only one Irish history, one of trial and struggle.
Presciently, MacDermott proposed simply striking out the “special position” of the church clauses.
The irredentist clauses which the secretary of the Department of Finance, JJ MacElligott, regarded as a nonsense received little Dáil scrutiny. Interestingly, given the later controversy they were to cause, unionists seemed rather blasé about the new constitution. “Isn’t it far better to carry on, the North doing its best and the South having its own way, managing affairs just as it wants?”, asked Lord Craigavon.
Other sections of unionism were ruder, the Belfast Telegraph calling the constitution a “freak”, the Northern Whig predicting it would only “stiffen Ulster’s resistance”. It was only when the articles were tested in the 1970s and found to be not just rhetoric but a barrier to respectful North-South cooperation that they assumed real political significance.
If unionists generally underestimated the problems the constitution would cause, they also tended to underestimate its longevity. Sir Ronald Ross MP was sure it would die an early death like its predecessor. On the contrary, the 1937 constitution has lived to see three score years and 10 which, for all its faults, is no mean achievement on de Valera’s part.
As they say, keep a hold of nurse for fear of finding something worse.
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