Getting closer to our constitution

In an interesting opinion piece in yesterday’s Irish Times, Dr Fiona de Londras of UCD’s School of Law, one of the authors on the always interesting website Human Rights in Ireland, voiced her strong support for the Irish Constituion of 1937, Bunreacht na hÉireann, and expressed her doubts about the wisdom of replacing or amending it. Her main theme, if I am correctly summarising it, was that as a people we are not in sufficiently close touch with the constitution, and it is this rather than its inadequacy or inappropriateness that is undermining its standing in the community.

In fact, she has put forward this perspective on previous occasions, notably in an article on Human Rights in Ireland. In this she argued we needed to develop what she describes as a ‘constitutional imagination’ for the Irish people, in which constitutional ‘myth’ is replaced by a deeper understanding of what the constitution says and what it can do for our aspirations and how it can reinforce our values.

I should say that her take on the constitution is interesting and certainly worthy of comment, and her attempt to stir up a constitutional debate is entirely welcome. But when all that is said and done, I still think she is wrong. The social and political influences which shaped the wording of the Irish Constitution are ones that do not speak to us today. They included some of the undercurrents of 1930s fascism, or at any rate the Mediterranean version of it as found in Salazar’s Portugal with state-sponsored corporatism; the particular ethos of the Roman Catholic church at the time (which was anything but progressive or liberal); the kind of rural idyll for what de Valera called a ‘frugal society’; and a view of women that saw them as homemakers subservient to the male population. It is entirely true that the courts have, over the years, thrown a more liberal veil over the original wording and allowed it to be used in jurisprudence to reform outdated laws. But even that is, it seems to me, of doubtful value, as it sets up the judiciary as a non-elected legislative body, using a document which on the face of it lends very little support to what they are doing.

I’m afraid I cannot help feeling that if we are to create a ‘constitutional imagination’, it needs to relate to a document that more easily expresses the principles and values that guide society today and for which we would want constitutional protection. A constitution should not express a kind of opaque mystique that only a special judicial class can elucidate as they currently happen to see fit; it should be a document that speaks to the people  directly  rather than through intermediaries.

I believe it is time for fundamental constitutional reform.

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4 Comments on “Getting closer to our constitution”

  1. Mark Dowling Says:

    The article talks about a referendum of the definition of marriage but not why, even with a national embrace of that little blue book, there was a chance of that particular status quo being more successfully dislodged than was seen in, for example, California under Prop 8. Human rights are rarely vindicated by plebiscite, I believe. Would the Human Rights Act have passed in the UK by referendum? Perhaps not.

  2. Vincent Says:

    FYI it was the Polish Constitution that provided the template and the vision for the priests. But between DeValera and Mannix in Melbourne the republican gloss was put on it. You will have noted that for every hard statement which holds in all circumstances there follows another which provided for enough exceptions that nullifies it totally.
    To my mind that would be the reason for a change in that it is way too prescriptive at one level. Property rights for instance. And unbelievably wishy washy on another.
    However I hold that the Supreme Court is designed to be much less of a passive actor than it has been in the past. Where much of its protocols and traditions are just that, worse in fact, for they are the traditions of a colonial judiciary. Such that it is not just the ultimate Court of Appeal and a legal advisor to Presidents. And is one where the the Citizen has an unmediated right to appear before it when Rights protected by the constitution have been infringed by the State.

  3. Fiona de Londras has responded to some of the points made here on her own blog site:

  4. […] Ferdinand Von Prondzynski disagrees and sees our constitution as being tainted by: undercurrents of 1930s fascism, or at any rate the […]

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