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the years, thrown a more liberal veil over the original wording and allowed it to be used in jurisprudence to reform outdated laws.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.