Saturday 24 March 2018

The history makers

The Constitution is 75 years old this month. Historian Diarmaid Ferriter recalls its birth

Less than 10 years after being on the losing side in the Irish Civil War, Eamon de Valera was back in power in 1932 as leader of Fianna Fail, and remained head of government until 1948.

One of De Valera's main political missions in the 1930s was to discard the Anglo-Irish Treaty and the 1922 Constitution, which contained an oath of allegiance to the British crown and a role for the crown's representative in Ireland, the governor general.

He aimed to increase the sovereignty and independence of the 26-county State, pending the reunification of Ireland. He saw the constitution of 1937 as a crucial document in that quest.

He was its main architect and closely supervised the drafting of the Constitution by appointing a committee of civil servants that reported directly to him, consisting of John Hearne, the principal drafter, Maurice Moynihan, Philip O'Donoghue and Michael McDunphy.

Published on May 1, 1937, the Constitution was approved by the Dail on June 14, but could not be enacted without the approval of the electorate. It was put to a vote of the people with no guarantee of success; the electorate voted in favour by the narrow margin of 685,000 to 527,000 in July, before it came into effect on December 29, 1937.

The Constitution asserted the Irish nation's "inalienable, indefeasible, and sovereign right to choose its own form of government, to determine its relations with other nations, and develop its life, political, economic, and cultural, in accordance with its own genius and traditions" (Article 1), and declared that "Ireland is a sovereign, independent, democratic state" (Article 5) whose head of state would be a president elected by direct popular vote to hold office for seven years (Article 12).

De Valera did not use the opportunity to declare a Republic, but instead named the State 'Eire' ('Ireland') rather than 'Poblacht na hEireann' ('The Republic of Ireland').

This was a decision likely to have been made to prevent British revenge that might have damaged the rights of Irish-born citizens in Britain or their enforced repatriation.

But there was another reason: as he explained to his party's Ard Fheis in 1937, if Ireland was to be declared a republic, he wanted "to see it in operation, not for 26 counties alone, but for the whole 32 counties".

The new Constitution was part of a broader process that culminated in the declaration of neutrality in 1939 at the start of World War Two, after De Valera had successfully negotiated the return to Irish ownership of the Irish ports held by Britain under the terms of the Anglo-Irish Treaty.

The effect of this, De Valera told the Dail, was "to hand over to the Irish State complete control of those defences, and it recognises and finally establishes Irish sovereignty over the 26 counties and the territorial seas".

The Constitution reflected the values establised over the previous 15 years, building on the 1922 document with some significant additions, including the principle of judicial review of legislation and extended sections on fundamental rights.

European, and especially German, constitutional thinking and the Weimar constitution of 1919 also influenced its principal drafter, John Hearne, a legal adviser to the Department of External Affairs.

This influence was reflected, for example, in articles concerning the presidency, equality before the law, the right of property and the protection of marriage. This is not to say that Hearne's preferred tone always prevailed; his initially more secular draft was altered to include more Catholic influences.

In relation to the religious article (44), De Valera rejected the demands of senior Catholic churchmen such as Cardinal Joseph MacRory and John Charles McQuaid – then president of Blackrock College and later archbishop of Dublin (1940-72) – for an exclusive recognition of the Catholic Church.

The "special position" conferred on the Catholic Church was a compromise, and its explicit references to Protestant denominations and to Jews denied the Catholic Church the supremacy it would have preferred.

McQuaid, and the Jesuit Fr Edward Cahill, another friend of De Valera, supplied him with documentation relating to papal encyclicals, philosophy and theology. Some of this material influenced the articles of the constitution relating to personal rights, the family, education and private property.

It was also clear that, with the Constitution, De Valera's cutting of ties with the IRA was complete: as far as he was concerned, the moment he enacted the Constitution, treason had a new meaning. Framed when democracy was widely under threat in Europe, the Constitution was seen as necessary to emphasise the exclusive legitimacy of the State, particularly in view of the threat to the State from the IRA.

It was clear from the Constitution that De Valera was happy with the strong, centralised State, and his articles allowing for the creation of a new senate made it clear it would not impinge on parliamentary decision-making (the Taoiseach could nominate 11 members to ensure control).

But these assessments need to be balanced with the recognition that, given the provisions for referendums, and an independent supreme court, he created a framework for the dispersal of power across a number of independent institutions. It also established limits to the exercise of executive power.

At the time of its drafting, there were civil service objections to judicial review of legislation and guarantee of fundamental rights, which were overridden by De Valera.

Nonetheless, it is clear that over the decades, the court system, while more widely defining and protecting fundamental rights, also connived in the State's abuse of its power, particularly in relation to the incarceration in institutions of so many vulnerable people whose rights were not afforded constitutional protection.

What has been interesting in recent times, in response to the revelation of a variety of scandals and to economic and political crises of the last few years, is the notion that the Constitution needs to be revisited.

Minister for Foreign Affairs Eamon Gilmore maintained in July 2012 that "there is much in the 1937 Constitution that has served us well but we must also acknowledge that there are many who it has served less well", part of the justification for a constitutional convention whose members met for the first time earlier this month to begin a review of this crucial document, 75 years after it came into being.

Diarmaid Ferriter is Professor of Modern Irish History at UCD

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