Irish History:'Few things have shaped and controlled Irish political and legal culture as decisively as the Constitution of Ireland." So writes Prof Gerard Hogan in the foreword to Dermot Keogh and Andrew McCarthy's new documentary study of the constitution which will be 70 years old on December 29th, and is now one of the oldest written constitutions in Europe.
Yet the circumstances in which it was drafted were shrouded in mystery for decades. The gradual opening of the de Valera papers in 1987 followed by government archives after the passing of the National Archives Act in 1986 has shed more light on this mystery.
De Valera did not intend writing a new constitution when he came to power in 1932. The turning-point came in 1934-35 when he established an inter-departmental Constitution Committee and subsequently asked John Hearne, legal adviser to the Department of External Affairs, to draft the heads of a new constitution. In the various drafts of 1936-37, published in the book, the reader can chart the gradual evolution of the document and the contributions of various advisers, officials, ministers, and members of the Catholic clergy (including the Jesuits and Dr John Charles McQuaid).
The draft constitution was circulated to ministers and officials in March 1937. Some of the responses, which Keogh and McCarthy discuss in detail, are intriguing. The attorney general, Patrick Lynch, was against tribunals in any national emergency having the power to impose the death penalty. He spoke from bitter experience as he had been involved in the trial of Erskine Childers, who was executed in November 1922. Stephen Roche, the secretary of the Department of Justice, disliked written constitutions, had reservations about judicial review and predicted meddling judicial activism. James Ryan, the minister for agriculture, feared that a "conscientious or pernickety president" could make a taoiseach's position "almost impossible".
What emerges clearly from these documents is the vital role of the officials who made up the drafting team: John Hearne, Philip O'Donoghue, legal assistant to the attorney general, Maurice Moynihan and Michael McDunphy of the president (subsequently taoiseach)'s Department. Keogh and McCarthy consider that for too long the work of these men has been unappreciated "and in some cases undervalued". They were all first-generation civil servants of the new state and came from a broad nationalist tradition. They wanted a constitution which would represent all citizens and in this they faithfully carried out de Valera's intentions.
THE AUTHORS AND Prof Hogan are critical of the way the constitution has been interpreted by commentators and historians such as Conor Cruise O'Brien, John Whyte and Roy Foster. They considered that the 1922 constitution was more liberal, a view Hogan contests in his foreword as it ended in failure and had been "wholly ineffective as a means of protecting individual rights". Its successor strengthened fundamental rights.
They also dispute the view that the 1937 constitution was unduly influenced by Catholic social teaching. It was surely unremarkable that a document drafted in 1937 reflected aspects of such teaching; what has been less emphasised was the respect for secular values of liberal democracy, separation of church and state and individual rights. In any event, case law had long since moved on. On the much-criticised religious clause, the authors point to more illiberal provisions elsewhere (for example in Britain and Norway) for an established church while the special position of the Catholic Church had later parallels in the constitutions of Poland, Italy, Greece and Spain.
Keogh and McCarthy observe that, at a distance of 70 years, one of the most important questions to ask about the 1937 constitution is how a document so protective of citizens' rights emerged from a decade so permeated with anti-democratic ideas. De Valera also had the courage to entrust the constitution to a popular referendum. He was, this study concludes, a far more complex political thinker and constitutionalist than he has been given credit for.
Deirdre McMahon is a lecturer in History at Mary Immaculate College, Limerick
The Making of the Irish Constitution 1937: Bunreacht na hÉireann by Dermot Keogh and Andrew McCarthy Mercier Press, 511 pp, €30