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the years, thrown a more liberal veil over the original wording and allowed it to be used in jurisprudence to reform outdated laws.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