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The Making of the Irish Constitution 1937 by Dermot Keogh and Andrew J. McCarthy

Cork: Cork University Press 2007, pp. 504, €30.00 pb. ISBN 978 1 85635 561 2.

Reviewer: Alex White*

“A new garment for a new nation” was Nehru’s description of the Indian Constitution, promulgated in 1950, some three years following that country’s independence. While de Valera might have wished to make similar claims for Bunreacht na hÉireann, that document did not emerge for some fifteen years after independence, and was of course preceded by the Constitution of the Irish Free State 1922 which it replaced in 1937.

In a recent radio discussion, Linda Colley, Professor of History at Princeton, observed that constitutions frequently come out of revolutions, and that accordingly they tend to deal not just with the relatively prosaic matters of government organization, but that they “almost try to encompass a people”. There may be some debate as to whether it is possible to “encompass” the Irish people, or any people, in one document, however revered. However, in this remarkable and scholarly account of the making of the Irish Constitution, Dermot Keogh and Andrew McCarthy document the extent to which the drafters - and de Valera in particular - were striving to articulate a sense of the nation and of its people, as well as setting out the fundamental principles which were to govern the State’s laws and institutions.

A central theme for de Valera was the need to jettison the 1922 Constitution, regarded by him as having been imposed on the Irish people on the occasion of their defeat. Such a Constitution was not appropriate to a truly independent Ireland in his view and “could never escape its basis in British law”. The objective therefore was to replace the 1922 garment with a new one - quite a formidable task in circumstances where there was no obvious or compelling need for new clothes, and when the people had many more pre-occupations with which to contend. Nevertheless the authors observe that “the primary point of the whole constitutional exercise [was] to renew the declaration of independence”. The authors describe De Valera’s consummate skill in managing this complex and ambitious exercise. Events such as the Royal Abdication of 1936 (and to a lesser extent, the Eucharistic Congress of 1932) appear almost as if they were part of the plan; certainly they were marshalled to great advantage.

A small “closely-knit” group of senior civil servants was assembled, including John Hearne, Stephen Roche, Michael McDunphy and Philip O’Donoghue, each of whom had legal and constitutional expertise. It is one of the achievements of this book that the contributions of these significant figures are documented in such detail. We learn that Hearne and his colleagues, presumably working away assiduously to an exacting timetable, and with the lawyer’s preference for a short, concise document, were nevertheless frequently thwarted. Thus the authors observe that: “...they [Hearne et al] were to witness the inclusion of other forces in the drafting process and they were, to their deep regret, unable to control or contain that change”.

Most prominent amongst these “other forces” were leading figures in the Catholic Church, including a specially convened group of Jesuits. The involvement of John Charles McQuaid, future Archbishop of Dublin, has been the subject of speculation and debate for seventy years. There is a detailed treatment of this issue here, one which clarifies a great deal and from which the reader can draw a more informed conclusion than perhaps was possible heretofore. The extent to which de Valera sought to placate and accommodate McQuaid (and the Vatican) is striking, and it is clear that he wished to have their endorsement. On the other hand, it is fair to record, as the authors do, that McQuaid did not get his way on anything like every point. A bitter row between the two men is recorded at one stage. Here one is left with the impression of a clever and wily de Valera who, if he could not obtain agreement on a matter, sought to minimize the impact of such conflict. However, one cannot doubt that the two men collaborated closely, and that they met and corresponded frequently during the drafting process. The following extract from one of McQuaid’s letters to de Valera is telling, at least as to McQuaid’s ambitions: “Herewith I send with great pleasure the remaining dossier, point by point, for the Family, Education and Private Property. By tonight I hope to have Church and State all typed”.

The Constitution was not, however, dictated by McQuaid, though his input was very significant. Joe Lee has observed that the text “constituted an ingenious squaring of the formal circle, circumventing Catholic clericalist demands for more triumphalist recognition, and residual republican resistance to any recognition at all, while satisfying the other churches”. The authors conclude, rightly, that the Irish Constitution represented a significant achievement, one that has endured into the 21st century. They re-cast the controversy around the Church’s influence and fairly pose the following question: “ did a document so protective of citizens’ rights emerge from a decade so heavily influenced by anti-democratic ideas rooted in Catholic authoritarianism, vocationalism, corporatism, fascism and Nazism”.

In addition to offering a chronicle of the meticulous (and often tedious) drafting of the text itself, ‘The Making of the Irish Constitution 1937’ represents an important addition to the modest body of work available on Irish constitutional history. The absorbing Foreword is provided by the leading constitutional lawyer Gerard Hogan who, on the day of writing of this review, has been nominated for appointment by the President as a Judge of the High Court.