Constitutional revision

During the recent Lisbon referendum campaign, the anti-Treaty group COIR at one stage put up posters that read: ‘We love our constitution’. I was not absolutely sure what this was trying to say – perhaps that the Lisbon Treaty would weaken the effectiveness of the Irish Constitution. At any rate as we know, these arguments did not have a significant impact on the electorate and thus on the referendum outcome.

However, maybe the COIR assertion should prompt us to consider whether it is true; the time may be right to ask ourselves whether the Irish Constitution of 1937 is still appropriate as the basis for our legal system.

Bunreacht na hÉireann (Constitution of Ireland) was adopted by a referendum in 1937. It replaced the 1922 constitution of Saorstat Éireann (Irish Free State), which had ceased to have any real effect mot least because its provisions could be amended by a simple parliamentary decision. And so the new constitution was given an entrenched status, subject to amendment only on the basis of a popular vote. It has a higher legal status than statutes, and therefore is capable of being used by the High Court or (on appeal) the Supreme Court to strike down legislation or administrative actions. It has a section on fundamental rights which, in particular, have featured prominently in constitutional litigation.

It is necessary, in assessing the 1937 constitution, to distinguish between the text of the document and its actual legal effect. The text was in many ways a typical product of its time. It displays some conservative Catholic and also fascist influences of the era, and many of its provisions also reflect corporatist thinking that may have had its origins in Portugal, Spain or Italy in the 1930s: this suggests that society should be organised along vocational lines in a collectivist setting. The constitution, at least in its original wording, provided for a ‘special position’ of the Roman Catholic church, and it incorporated some traditionalist teachings of that church in other provisions, particularly those on the family. It has however also been argued, with some justification, that the then Irish leader, Eamonn de Valera, followed a clever and sometimes independent-minded path in the drafting, and that conservative politicians and prelates were not happy with some of the provisions of the document.

On the other hand, the provisions of the constitution have been interpreted by the judiciary in what has often been a very liberal way. The courts used the constitution to enforce equality between men and women in jury service, to overturn the legal prohibition of contraception, and so forth. This reinterpretation proceeded at such a pace that it became increasingly hard to see the apparently conservative ethos of the 1937 constitution as worded in the litigation giving it force.

I think I am probably right in saying that most Irish lawyers would prefer to see the constitution left unchanged. Given the jurisprudence of the courts’ decisions on constitutional law that does seem a tempting proposition. On the other hand however, such an approach is not without its risks. The actual substance of constitutional law in Ireland is now to be found in the case law rather than in the constitutional document. The socially conservative tone of the latter now inhabits a legal instrument that, as interpreted, actually protects rights and freedoms that would have seemed truly shocking to those who drafted the constitution. This in turn has also meant that the Irish judiciary have used its provisions to enforce legal standards that often seem only vaguely connected with the document itself, or even may seem to contradict it. But this process, whereby the legal text and its apparent literal meaning is separated from the  meaning given to it by the courts, cannot go on for ever, not least because it is unpredictable and because judges should interpret and apply the law rather than make it.

On the other hand, there is still a good deal of affection for Bunreacht na hÉireann in Ireland, and it would not be wise to call its future into question before an alternative document has been considered. What I am arguing for, therefore, is a fundamental review of the constitution, taking in popular and expert opinion wherever possible. The outcome of this review could then determine whether Bunreacht na hÉireann is still fit for purpose, or whether it needs to be replaced by a more modern document that gives expression directly to the substance of our constitutional law as we would now wish it to be.

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3 Comments on “Constitutional revision”

  1. Vincent Says:

    One of the main reasons for the thing in the first place hinges on fixing property rights, the rights of the Churches in particular. What frightened the living bejesus out of churchmen of all stamps was the spectre of France and then Republican Spain. While FG was in power they felt relatively safe, actually in the 20’s moved actively to remove those who would vote for a leftish republican party. You will have noted that Ireland does not See those living outside of the State.
    As to it being fit, it never was fit in the way you write. But the blessed miracle was that it did not reflect something to the right of Franco.
    Oh, Abp Mannix in Melbourne lost a red hat for his work on that document. And a giggle was that the GB’s big ear on the Wires kept Whitehall informed.
    As to the Case Law shifting the core meanings. This is one of the reasons why Republicans in the USA sitting on SCOTUS will live on life support if a Democrat is in the Whitehouse rather than loose a seat.
    I feel that there is not a chance in hell of a revision of the Document. The days of two groups calling out the vote are gone. So all you would have is a wishy washy ‘all men’ sort of crap. Which would leave you exactly where you are now.
    In Irish Law, what might help is a bit more Class Actions. Something that will not occur until all European advocates have equal access to plead.

  2. The campaign was called Cóir, not Coir. “Cóir” is an adjective meaning “fair”, “just”. “Coir” is a noun meaning “crime”. I’d like to think you intended the pun but I doubt it.

  3. Denis Says:

    In fairness to Dr. von Prondzynski, even Cóir themselves have a bit of a problem spelling their name, as you will see from this page from their own website:

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