Keeping women in the home

I came across something recently I had not heard for a very long time, and indeed had not expected to hear again, ever. I was having a cup of coffee in a Dublin city centre cafe, and at the table next to me were two middle aged ladies (you know, young compared with me these days). I don’t want to give the impression that I eavesdrop, but then again, maybe I do sometimes: I have to get material for my blog, after all. And here’s what they were saying.

Lady 1: ‘Do you remember Sarah [name changed], you know the red haired one that Jimmy was going out with?’
Lady 2:  ‘Yes. Too many opinions, if I remember rightly.’
Lady 1: ‘That’s the one. Well, she and Jimmy are getting married.’
Lady 2: ‘Really? I didn’t think Jimmy was, shall we say, the marrying kind.’
Lady 1: ‘Yes, I thought that. But they are. But do you know, Sarah is going to continue working in the travel agency, you know the one Louise was working in until they let her go.’
Lady 2: ‘I hate that. Another married woman taking up a job that could go to someone who needs it.’
Lady 1: ‘Yes, just thinking of herself instead of others at this time when good people are losing jobs.’

I suspect the two ladies themselves were not unduly burdened with jobs – they looked more like the shopping-and-lunching kind – but even then I was aghast at the conversation and was sorely tempted to interject. Such an exchange would not have been untypical in, say, the early 1960s, but in the new millennium?

Well, even if the spirit of the age is against them, the law is not. Because here is what the Irish Constitution (Bunreacht na hÉireann) has to say on the matter, in article 41(2) (in the context of constitutional protection for the family).

‘1° In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
2° The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.’

Before we get too anguished at all this, it is worth remembering that the Constitution was adopted in 1937, and it is full of social and political commentary that is typical of the age in which it was written, which in Europe generally was the age of corporatism, fascism and conservative social values. It is a document of its time. All in all, it has been interpreted in case law in a more modern, liberal manner (the effect of that being that the Constitution does not mean what it says, but what the judges say it means). So I am not aware of any case in which article 41 has been used to restrict women’s rights in employment, or anything similar (though an attempt was made to use it in a case on the tax code).

But still it is there, and is capable of being quoted. More than that, the lead-in to article 41, in referring to the rights of the family, says that the family is ‘a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.’ This latter phrase could suggest that the ‘special’ status of women – what you and I might consider discrimination against women – cannot even be revoked by law, not even by constitutional law.

Anyway, Senator Ivana Bacik has now called for a referendum to remove article 41 and its provisions from the Constitution. I would go along with this proposal, as a method by which we as a country may secure closure to an age in which society victimised some of its members, including women, and in which inequality was the norm. It’s time to move on. I might merely suggest – and I’ll return to this – that we don’t restrict our discussions to article 41, but might look more broadly at the possibility of adopting a completely new constitution.

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Power to the judges

No doubt there are many people who think of February 14 principally as St Valentine’s day, and for them the theme of the day is defined by love poetry, red roses, quiet dinners and declarations of love. For those of a more sober disposition – and I won’t say here whether that applies to me – February 14 may be equally notable as the day on which the principle of judicial review of legislation based on constitutional law was proclaimed by the United States Supreme Court in the case of Marbury v. Madison in 1803. The effects of this case were and still are profound, and have determined the nature of law in a significant number of democratic countries, though not without controversy.

The facts of the case, at least in the detail, were complex and don’t need to be explained here in any detail. But the key issue was whether the Court could, in considering the application of a particular statute (in this case the Judiciary Act 1789), determine that it was incompatible with the United States Constitution and therefore did not have legal effect. The court (in a judgement read by Chief Justice John Marshall) set out the issue as follows:

‘The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.’

For the Court, a lot hinged on the requirement for judges in their oath of office to declare that they will uphold the constitution. If they found a law that was incompatible with the constitution, then their oath would require them, they found, to give precedence to the constitution. The Court concluded:

‘The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.’

Thomas Jefferson, then President of the United States, criticised the decision and declared that the principle of judicial review of legislation would place the country under the ‘despotism of an oligarchy’. In other words, as constitutions need to be interpreted and because their meaning may not always be plain, judges will have to interpret constitutional provisions and, on the back of their interpretations, may invalidate legislation passed by the elected parliament.

The principle of judicial review of legislation has also been adopted by the Irish courts under the 1937 Constitution, Bunreacht na hEireann. Indeed the Irish courts have stepped beyond what was decided in the United States and have held that the Constitution contains ‘unspecified rights’ which are not enumerated or made explicit but which judges may nevertheless use to invalidate legislation. All this made the Irish courts the authors of significant social reforms, particularly during the 1960s and 1970s, for example legalising contraception when the government was unwilling or unable to do so. While one might welcome the reforms, one might still want to ask whether unelected judges should be allowed to determine such wide-ranging changes to law.

On the other hand, judicial review is a potentially strong defence against tyranny, and against the possibility of parliament undermining or denying the rights of minorities.

There is probably no easy answer to this issue, but for better or for worse many of the stronger democracies hold to the principle of judicial review. And this being so, February 14 is one of the more important dates that define our concept of how a modern state is defined.

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.