The Irish Constitution and the evolution of Human Rights

The Irish Constitution is the fundamental law of Ireland (the Republic of Ireland). Approved by a statewide plebiscite held on 1 July 1937, it came into force on 29th December 1937, 80 years ago today.

A constitution absolutely ours

It replaced the 1922 Constitution that established the Free State after the Anglo-Irish Treaty of 1921. The Treaty caused deep division, resulting in the splitting of Sinn Fein into pro-Treaty (Cumann na nGaedheal, later Fine Gael) and anti-Treaty factions and a bloody eleven-month civil war¹. The anti-treaty side lost, and abstained from participation in the Dail. In 1926 Sinn Fein split further when Eamon de Valera suggested ending abstention. de Valera’s group formed Fianna Fail, which went on to win the 1932 General Election. From 1933, de Valera started a series of amendments to a constitution that he viewed as “imposed from without” by the British. In 1935 he stated “I hope…that we will be able to bring in a constitution which…will be absolutely ours.”²

The constitution is often described as de Valera’s work by both detractors and supporters of it. In fact the bulk of the work was carried out by a drafting team of civil servants notably John Hearne (the principal drafter; he had started drafting heads of a constition under de Valera’s orders as early as 1935), Maurice Moynihan, Philip O’Donaghue and Michael McDunphy³. de Valera did, however, had considerable influence. As well as having political control over the process and selecting the drafting team:⁴

he had the clarity of thought to sketch out the constitutional model he wanted while allowing innovation on the part of the drafting team; he resisted Church pressure to have an established Church; he demonstrated a consummate understanding of the legal issues during the course of the Dail Debates; and he also took on board many (admittedly not all) of the useful suggestions made by those opposition Deputies….who had constructively engaged with him

The drafters drew on many sources for the 1937 Constitution, not least the 1922 Constitution. These included other constitutions including those of the US and Weimar republic, and sources both Catholic and secular (John Hearne in particular has been described as having a “broadly egalitarian, liberal outlook”⁵). Philosophically, though, there was one aspect of the constitution that was novel: the focus on human dignity.

The dignity and freedom of the individual

1937 was not only notable for the writing of the Irish constitution. The idea of the centrality of the “human person” was rising in Christian discourse. In the UK the Oxford Conference not only laid the groundwork for the post-war World Council of Churches, but spread the rhetoric of the “human person” as a moral alternative to power politics. In Rome Pius XI and his soon to be successor Pius XII realised the rising totalitarianism of right and left threatened the moral community⁶.

Pius XI’s encyclicals had attached the term dignity to collective groups. Catholic states formed around this time equally attached rights to groups (family or labour) as opposed to individuals. This so-called “corporatist” ideological strand came into conflict with a “civil society” strand, who emphasized the importance of the “human person”, quite apart from membership in groups. They were not secular liberals: Michael Oakshott’s 1939 survey The Social And Political Doctrines Of Contemporary Europe combines both strands under the category “Catholicism” (offered as an alternative to “Representative Democracy”, “Communism”, “Fascism” and “National Socialism”.)⁷ It was this “civil society” strand that influenced the Irish constitution: a strand that attempted to stave off communist devaluing of the individual, corporatist flirtations with authoritarianism and fascism; and atomistic liberalism⁸.

As such, it provided a middle way for an Ireland still divided after the civil war and a leader that had “little to nothing in common with the authoritarian Catholic leaders of the 1930s…De Valera exhibited none of the demagoguery practised by the Central European Catholic dictators of the 1930s.” ⁹

In March 1937 Pius XI attacked both Nazi incursions on the Church and communist excesses, the latter in terms of human dignity in the “civil society” sense in an encyclical letter called Divini Redemptorus. It seems that this was the trigger that led to the insertion of “dignity” into the preamble of the 1937 constitution, the original draft of which had been based on the preamble of the Polish constitution. This amendment seems to have been done by de Valera himself, possibly with the advice of Archbishop McQuaid¹⁰. The preamble reads¹¹:

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,

Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,

And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,

Do hereby adopt, enact, and give to ourselves this Constitution.

The afterlife of human dignity

Fine Gael “Say No” Poster used in the Irish constitutional referendum of 1937. Wikimedia, Public Domain

De Valera’s constitution was not uncritically accepted. James McElligott, a civil servant in Finance, offered savage criticism of many of the articles, and of the “various declaratory phrases” of “idealistic tendency which…may, if launched out into the void in the draft constitution, recoil like a boomerang on the Government of some future day”¹². Women such as Louis Bennett¹³ and Hanna Sheehy Skeffington ¹⁴ criticised the paternalism of the sections dealing with women. At the same time, the constitution was criticised by feverent Catholic supporters who wanted the constitution to name the Catholic Church as the one true Church.

The section on dignity attracted little attention until later in 1937, when the Vatican newspaper L’Osservatore Romano wrote that the Irish constitution “differs from other constitutions because it is inspired by respect for the faith of the people, the dignity of the person, the sanctity of the family, of private property and of social democracy.” This came at a fortuitous time for de Valera, satisfying the religious vote and aiding the acceptance of the new constitution¹⁵.

The Irish constitution is not influential in itself in the development of human rights (though it is given as an example in Oakshott’s political survey, and it provided the “genetic code” for the Indian and Israeli constitutions¹⁶ It acts as a signal of currents within political thought just before the Second World War, important in the development of the modern conception of human rights. In 1939 a young John Rawls wrote in his senior thesis: “an individual is not merely an individual but a person…a society is not a group of individuals but a community.”¹⁷. On Christmas day 1942, Pius XII included the dignity of the human person as a key point to ensure peace. Jacques Maritain was already developing the principles of a liberal Christian humanism and defense of natural rights based on human dignity in the 1930s, and post war was actively involved in drafting the United Nations Universal Declaration of Human Rights (1948)¹⁸. “The Irish were the true pioneers both in the development of religious constitutionalism and in symbolizing its project though appeals to human dignity”¹⁹

The Irish Constitution was radical for the 1930s in another way: “the very fact that it was not a partisan power grab, and that de Valera took the opportunity to entrench democracy and fundamental rights, made it radical indeed.”²⁰ One of the oldest constitutions in use today (15th in the Comparative Constitutions Project list of 190²¹), the 1937 Constitution is no less controversial today than in the year it was enacted. Since 1997, an all-party commission has been reviewing the constitution, aimed at renewing its provisions²². Yet even if all proposed changes are made, the core 1937 document will remain.

Featured Image: Hibernia and Irish flag, GPO
(c) Aaron G Stock/Flickr (CC BY-NC 2.0).

A constitution absolutely ours

The dignity and freedom of the individual

The afterlife of human dignity

Further Reading