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1. Constitutions as a Political Force
Unlike most ordinary people, lawyers and political scientists do not confine their use of the word constitution to an identifiable document. [1]
Constitutions have become effective political devices when the politically dominant class in some of the rapidly developing societies of Western Europe and North America felt the need to define and delimit government; to insist that their governments, hitherto absolute rulers, should abide by the law; and to be willing themselves to do likewise. / The term constitutional has come to signify this bundle of attitudes towards political power. ... Most politics most of the time is conducted in accordance with such constitutional provisions. [5]
Madison, in The Federalist Papers: ‘In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the priary control on the government; but expereince has taught mankind the necessity of auxiliary precautions.’ [5]
Chubb adopts the term ‘normative’ as opposed to ‘nominal’ constitution from Loewenstein. [5].
.. the fit of the Constitution even for the people of the Republic of Ireland has become less good with the passage of time. [7]
2. The British Connection and the Constitution
Pearse: ‘anything less by one fraction of one iota than separation from England’ was an ‘immense’ crime (Political Writings, 1924, pp.231-2; Michael Collins: The Treaty might not have achieved ‘the ultimate freedom that all nations desire’ but it did give ‘the freedom to achieve it.’ (19 Dec 1921; in Dáil Eireann, Official Report, Debates on the Treaty, Dublin 1922, vol. 458, cols 1414-15. [14]
Atlee, in House of Commons, 25 Nov. 1948: ‘.. close relations aris[ing] from ties of kinship and from traditional and long established economic, social and trade connections based on common interest ... Accordingly the United Kingdom government will not regard the enactment of this legislation by Eire [the Republic of Ireland Act, 1948] as placing Eire in the category of foreign countries or Eire citizens in the category of foreigners. [15]
During the Treaty debates and after, Dáil deputies and later IRA members had more interest in the status of the new Ireland [in relation to what de Valera called ‘the big question’ of the Crown] than its size. [15]
Chubb’s clear thinking: To look for a Gaelic, Catholic, 32 county republic was to ask the impossible given the presence of the Northern unionists; to the extent that Gaelic, Catholic twenty-six country republic was in the making, any hopes that there might have been of absorbing the other six counties was being dashed. Northern Unionists would never accept it and neither the British government nor the Irish government—nor both in concert—could force them into such a state, nor into any all-Ireland polity, whatever its nature. Obvious as it may be now more than half a century later, this fact was hardly recognised at the time. [16]
When Chubb says ‘une ile derriere une ile’, he might be suspected of a touch of affectation, but no: the phrase is quoted from J Blancard, Le droit ecclesiastique contemporain d’Irlande (Paris 1958), p.11.
3. De Valera and the Constitution
In the dictionary “republic” debate, de Valera read out the dictionary definition in answer to a question posed by Deputy Dillon, but said that he had deliberately avoided declaring Ireland a republic in his constitution because he was trying to ‘keep open a bridge over which the Northern Unionists might one day walk.’ He said that this avoidance of the nomenclature ‘puts the question of our international relations in their proper place and that is outside the Constitution.’ [24]
Republic declared in a single short statue by the govt. of John A Costello: Republic of Ireland Act, 1948.
De Valera’s St Patrick’s Day speech: ‘Since the coming of St Patrick, fifteen hundred years ago, Ireland has been a Christian and a Catholic nation. All the ruthless attempts made down through the centuries to force her from this allegiance have not shaken her faith. She remains a Catholic nation.’ (Quoted in Whyte, State and Church, 2nd ed. 1980, p.48). [27]
De Valera’s preliminary draft of Art 42.3. [corrsponding to subseq. 44.1.2.] of Bunreacht na hEireann: ‘The State achknowledges that the true religion is that established by our Divine Lord Jesus Christ Himself, which he committed to his Church to protect and propagate, as the guardian and interpreter of true morality. It acknowledges, moreover, that the Church of Christ is the Catholic Church. (Keogh and Litton, ed., The Constitution of Ireland, 1988, p.59. [28]
4. The Church and the Constitution
Following him [Chief Justice Kennedy], Gavan Duffy, in a sustained effort to deny the validity of English precedents and to replace them with decisions based on Catholic principles, showed what potential there was for invoking natural law, establishing a set of Catholic rights and, generally, for Catholicising Irish law. In doing so, he made painfully clear what this might mean for the rights of Protestants. ... basing his decision [in the case of a priest’s refusing to divulge information in a seduction case] not to follow British precedents explicitly on the ‘special position’ of the Catholic church in the Constitution: ‘In a state where nine out of every ten citizens today are Catholic and on a matter closely touching the religious outlook of the people, it would be intolerable that the common law, as expounded after the Reformation in a Protestant land, should be taken to bind a nation which persistently repudiated the Reformation as heresy ... I hold the emergence of the national Constitution is a complete and conclusive answer to the objection that I have no judicial precedent in favour of the parish priest.’ (Cook v. Carroll, 1945, p.519.). In the same spirit, he adjudged a pre-marital promise to bring up the children of a mixed marriage as Catholics, in accordance to the requirements of Ne Timere, as binding, contrary to common law precedent, in 1951. Chubb comments: In these cases as elsewhere, Judge Gavan Duffy was to a great extent a lone voice. ... Gavan Duffy in particular is important rather because his judgements showed clearly where a thoroughly Catholic approach to the Constitution could have taken Irish law. [43-44] And see GM Golding, George Gavan Duffy 1882-1951: A Legal Biography (Blackrock Dublin 1982). [ftn, p.13].
5. The Church and Constitutional Change
Bishop Cathal Daly has said at New Ireland Forum: ‘We have repeatedly declared that we in no way seek to have the moral teaching of the Catholic church become the criterion of constitutional change or to have the principles of Catholic faith enshrined in civil law. ... What we have claimed, and what we must cliam, is the right to fulfil our pastoral duty ... to alter the consciences of Catholics to the moral consequences of any proposed piece of legislation and to the impact of that legislation on the moral quality of life in society.’ [51]
John Whyte comments: ‘the analogy between the hierarchy and other interest groups breaks down because in a mainly Catholic country, the Catholic hierarchy has a weapon which no other interest group possesses: its authority over men’s consciences.’ (Church and State, 1980, p.368.)
Pro-Life Amendment Campaign (est. 1981). The Amendment: ‘the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.’ [55]
Commenting on the parallels in voting patterns county-by-county between the anti-abortion and divorce amendment referenda, Michael Gallagher concuded tht ‘the common theme is obviously the place of Catholic values in Irish society.’ (Irish Times, 3 July 1986).
6. The Courts and Constitutional Change
[Chubb writes here:] The central argument of this book is that the constitution of a democratic country ought to be ‘normative’, i.e., it should be an actual political force, respected and obeyed because it reflects the traditions, culture and standards of the people. To that end, it must be capable of being constantly adjusted, and perhaps occasionally recast, to reflect alterations in political practice and changes in community values. ..a process of continuous development ...
in Bunreacht na hEireann ... the power to review legislation is explicitly stated, Art 15.4.1 forbids the Oireachtas from enacting any law repugnant to the Constitution and, in Art 34.3.2, the jurisdiction of the High Court is stated as extending ‘to the question of the validity of any law having regard to the provisions of the Constitution.. Under Art 34.4.3, such questions may go on appeal to the Supreme Court [60-61].
In the years following the inception of Bunreacht &c, ... the courts were ‘rarely innovattory’. [63]
Mr Justice Kenny, whose decision in the case of Ryan v Attorney General [1965], is universally recognised as a seminal judgement, introducing as it did the concept of ‘undisclosed human rights’ [65] ... gave it as his opinion that:’the personal rights which may be invoked to invalidate legislation are not confined to those specified in Art 40 but include all those rights which result from the Christian and democratic nature of the state.’ [67]
25 yrs before, Justice Johnston had said: ‘I do not think that a further Constitution—an unwritten one—was intended by the people of Eire to exist side by side with this written constitution ..’; but Ó Dalaigh, in Norris v Attorney Gen., declares: ‘I find it philosophically impossible to carry out the necessary exercise of applying what I might believe to be the thinking of 1937 to the demands of 1983 ... I cannot accept the approach based upon applying the test of the then contemporary mores to the issue of constitutionality.’ (1984) [67].
Justice Walsh asserted that ‘Art 41, 42 and 43 emphatically reject the theory that there are no rights without laws, no rights contrary to the law and no rights anterior to the law. They indicate that justice is placed above the law and acknowledge the natural rights or human rights are not created by law but that the Constitution can confirm their existence and give them protection.’ (1974). [68]
Byrne v. Ireland and Attorney General established that the state is not immune to being sued for civil wrong [69]
Puis XII congratulated de Valera on the fact that the human rights formulations in Bunreacht na hEireann were ‘grounded on the bedrock of the natural law.’ (Quoted in Ireland, The Weekly Bulletin of the Dept. of External Affairs, no. 421, 13 Oct 1958.) [71]
Crotty v. An Taoiseach in April 1987 established by Supreme Court judgement tha the government was not entitled to ratify a treaty that restricted the freedom of future government to decide on matters of foreign policy, a decision which necessitated the Single European Act referendum. [73]. Cf.: It was not entitled to enter into arrangements which restricted its own freedom in matters of foreign policy. [70]
In the American lawyer Archibald Cox’s words, applied to the so-called Warren Court in America: ‘a period of extraordinary creativity in constitutional law’ with the effect of given the judiciary a ‘gratly enlarged role’, and causing people to comment in a partisan manner. [75]
7. Northern Ireland
In this chapter, Chubb traces what he calls the learning process’ by which the Southern political establishment came to realise—in so far as it has done—that its Constitution and its governmental practices are incompatible with the declared intention of sharing a political state with the members of the unionist tradition in the north of Ireland.
De Valera’s] strategy for handing the Northern problem was to relegate it to ‘the back burner’ while he grappled with what he called ‘the big question’. [79]
Increasing concern about the position of the Northern Catholic minority was accompanied by a slowly growing awareness that the heart of the problem is the existence on the island not of one community with a dissident minority but of two communities, each with its own traditions, loyalties and aspirations, and that the laws and governmental practices of the Republic embodied the values of only one of these communities while ignoring those of the other.
.. the utter determination of most Unionists not to join an all-Ireland republic on any terms nor to contemplate arrangements that look like steps along a road to such a state, and their ability to veto any changes of this kind has not been recognised, let alone accepted, by many of the Republic’s political leaders or the mass of the people. [80]
The appropriate context in which to consider the amendment of Bunreacht na hEireann so far as Northern Ireland is concerned is not, therefore, an all-Ireland state of any kind, either now or in the foreseeable future. Increasingly this is becoming recognised in the Republic. [91]
[Sunningdale, ‘Power-Sharing Executive’, 1973; Hillsborough, Anglo-Irish Agreement, 1985; Single European Act, 1992]
~Chubb investigates the question of condominium rule in N. Ireland. He sees steps towards it in organically developed links within European structures, but also in the security establishments. But finally, he insists that:
Northern Ireland is not an underdeveloped territory like the Sudan or the New Hebrides to be ruled by two imperial powers. It needs, and its people in both communities desire, considerable powers of self-government devolved upon it. It is the policy of both governemtns to promote this. It is just possible that eventually Northern Ireland could be ruled by consensus within a framework of tripartite institutions. It is hard to see that it could be ruled on a popular basis in any other way. The onus lies upon the politicians of the Republic as well as the British Government to seek to maximise the chances of developing such popular provincial government. Without it, the tripartite institutions will never evolve. It is in this light that the questions of changes in Bunreacht na hEireann having regard to Northern Ireland ought be considered. [95]
8. European Communities and the Constitution
Bunreacht na hEireann adopts a dualist approach towards international and domestic law. Hence Art 29.6:’No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.’
Third Amendment of the Constitution ACt agreed by referendum in May 1982 to added one subsection to Art 29.6, in effect providing that the State may become a member of the EC, and would adopt its laws in its own legislative practice. ~[99]
Generally the rights affected by Community action are not the classic liberal rights such as belief, conscience or freedom from arrest: rather it is economic and social rights that have been identified, expanded and enforced.
Chubb gives an account of the successive ‘Titles’ which comprise the terms of the SEA agreement. [108]
When the Irish governemtn moved to ratify the SEA [with] the European Communities Bill, 1986, Dr Raymond Crotty, a leading opponent of EC membership sought a Court Order preventing [it] as unconstitutional. [109] And this was contrary to the views and advise of lawyers including Mary Robinson, Temple Lang, as well as politicians including Haughey, Fitzgerald, and Peter Barry—who openly disagreed with it. [110] The central issue regards whether ‘the State may become party to an international institutional arrangement whereby its freedom to deal with other states becomes . circumscribed’ [Michael Forde]. According to Finbarr Murphy, the arrangement of that kind chiefly endangered is the Anglo-Irish Agreement. [111]. The EC referendum to Art 29, by taking a minimalist’ approach (specifying one such arrangement by name only) failed to adress these problems. [112].
9. Politicians and the Constitution
Chubb summarises the Amendments to the Constitution:
3rd (1972) Membership of EC
4th (1972) lowered voting age to eighteen
5th (1972) deletion ‘of special position’ of RC Church
6th (?) on adoption, necessitated by court decision
7th (1979) allowing more 3rd level colleges to elect to Senate; not acted on
8th (1983-84) ‘right-to-life’ anti-abortion amendment
9th (1984) extension of vote to non-citizen residents
10th (1987) ratification of Single European Act
Lemass mooted amendment of Constitution in a Dáil speech of March 1966:’the time had come for a general review of the Bunreacht na hEireann. It is possible that some of the views regarding the procedures and institutional arrangements for applying the democratic principles on which the Constitution is framed, which prevailed thirty years ago, could now be modified in the light of our own experience or that of other countries in the intervening years.’ [121]
An informal three-party committee was formed to examine the Constitution, but the report was silently disowned. [122]
Cardinal O’Fiaich seems to support Garrett’s call for a constitional review when he said that ‘Southern politicians should have been working for the past ten years on a Constitution which would be acceptable to both Protestants and Catholics.’ This did not however extend to giving Church support to the effort to moderate the ‘right to life’ amendment or to introduce divorce. [125]
In the sequel to the New Ireland Forum report, with its call for a unitary state and a new constitution in which the civil liberties of the northern unionist would not be diminished, Haughey blew it by saying:’Asked what he would say if the Unionists refused to accept a unitary state, Mr Haughey said that in his view nobody was entitled to deny the national unity and unification of this country, and the Forum Report had stated this clearly. (Irish Times 3 May 1984) [89; and cited again at [126]
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