Was the 1937 Irish Constitution merely a Catholic document? Valera made a large impact in the drafting of the constitution. It is an examination the

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1 Was the 1937 Irish Constitution merely a Catholic document? Abstract Deemed a constitution which embodies the catholic principles of the Irish nation by Eamonn de Valera, the 1937 Constitution of Ireland has often been accused of being an overtly Catholic document. 1 However the document has its origins in legal and nationalist aspirations and was crafted under the guidance of leading civil servants. Despite this it is undeniable that certain members of the Catholic hierarchy, close to de Valera made a large impact in the drafting of the constitution. It is an examination the extent and scope of this influence which uncovers if this undermines its integrity reducing it to a mere Catholic document. By exploring the origins of the 1937 document, while also charting the input of the Jesuits and Archbishop John Charles McQuaid the extent of their religious imprint can be assessed. The document analysis centred on the articles on religion, the national territory, education and the place and status of women. The extent to which these embody the contemporary public opinion or mere religious rhetoric was held as key to the investigation. While there are certain sections of the document which do not present an overt Catholic ethos, the vast majority of articles were found to be influenced by either McQuaid or the Jesuits, showing the pervasive influence of religion. This ensured the constitution was built on a firm Catholic foundation from articles on the nature of the state to all elements of social policy. This led to a document which while not merely Catholic is pervasively Catholic. Key words: religious influence, Irish politics, constitutional history, de Valera, Archbiship McQuaid 1 Dermot Keogh and Andrew J. McCarthy, The Making of the Irish Constitution 1937:

2 Was the 1937 Irish Constitution merely a Catholic document? Deemed a constitution which embodies the catholic principles of the Irish nation by Eamonn de Valera, the 1937 Constitution of Ireland has often been accused of being an overtly Catholic document. 2 However the document has its origins in legal and nationalist aspirations and was crafted under the guidance of leading civil servants. Despite this it is undeniable that certain members of the Catholic hierarchy, close to de Valera made a large impact in the drafting of the constitution. It is an examination the extent and scope of this influence which uncovers how much of the constitution was affected by it and ultimately if it undermines its integrity reducing it to a mere Catholic document. Upon entering office in 1932 Eamonn de Valera implemented a programme of constitutional reform; removing the symbols of imperialism. 3 Dermot Keogh argues that though the 1922 constitution was viewed as a divisive British document by many, post-civil war, there is little evidence to suggest that de Valera intended to introduce a new constitution at this early stage. 4 The inspiration for this decision was driven more by legality than emotion or religion. The preliminary work of assessing the 1922 constitution began in 1934 when de Valera tasked an informal committee with analysing the constitution. 5 This committee included John Hearne, Phillip O Donoghue and Michael McDunphy. The Earl of Longford and Thomas O Neill note that it became clear from this committee that further amendment to the constitution would be 2 Dermot Keogh and Andrew J. McCarthy, The Making of the Irish Constitution 1937: Bunreacht na héireann (Mercier Press, Cork, 2007), p Dermot Keogh, The constitutional Revolution: An Analysis of the Making of the Constitution, in Frank Litton (ed.), The Constitution of Ireland, (Institute of Public Administration, Dublin, 1988) p.6. 4 Keogh, The constitutional Revolution, p.6. 5 Dermot Keogh, The Vatican, The Bishops and Irish Politics (Cambrigde University Press, Cambridge and New York, 1986), p

3 impractical. 6 Brian Farrell examines this finding, pinpointing that due to the large number of constitutional changes implemented by Cumann na ngaedheal, the 1922 Constitution was reduced to a thing of shreds and tatters, necessitating the introduction of a new constitution. 7 This shows that the new constitution was enacted for political rather than religious reasons. 8 Dermot Keogh and Andrew McCarthy agree that it was on the back of this that de Valera enlisted Hearne to prepare draft heads for a new constitution which would ensure the fundamental rights of the people were guaranteed whilst also increasing the republican, Gaelic and catholic connotations of the document. 9 This gave a legal foundation to the social changes he envisaged. It is perhaps interesting to note that Hearne initially studied for the priesthood before taking the Irish bar exam in Keogh argues that this grounding in civil and canon law and his previous work in drafting the constitutional amendments during the previous three years made him an invaluable asset to de Valera. Due to this he advances that Hearne was to have the most influence in the shaping and drafting of the 1937 constitution after de Valera himself. 10 Gerard Hogan corroborates this, noting that aspects of the constitution such as the preamble, creation of the presidency, nature of the state and the guarantee of the fundamental rights of citizens, have their origins in Hearne s 1935 draft. 11 Some of these aspects were however to undergo further changes under the influence of the catholic hierarchy. Keogh notes that as was characteristic of his style of governing, de Valera worked with a small number of people during the 6 The Earl of Longford and Thomas P. O Neill, Eamonn de Valera (Boston Houghton Mifflin, Dublin, 1971), p Brain Farrell, From First Dáil through Irish Free State, in Brian Farrell (ed.), De Valera s Constitution and Ours (RTÉ and Gill&Macmillan, Dublin, 1988), p J.J. Lee, Ireland, : Politics and Society (Cambridge University Press, Cambridge and New York, 1989), p.177; John Whyte, Church and State in Modern Ireland, (Gill&Macmillan, Dublin, 1971), p Keogh and McCarthy, The Making of the Irish Constitution 1937, p Keogh, The constitutional Revolution, p Keogh, The Vatican, The Bishops and Irish Politics, p.208; John Hogan, The Origins of the Constitution, (Royal Irish Academy, Dublin, 2012), p

4 drafting of the constitution. 12 Therefore, Keogh and McCarthy maintain that while de Valera did not overtly seek out advice from the catholic hierarchy, certain known members must have been apprised of events directly by him. 13 Two such people were Fr. Edward Cahill and Archbishop John Charles McQuaid. It was Fr. Cahill who instigated this involvement of the Jesuit order in the largely closed drafting process. His original submission of suggestions for inclusion in the constitution, August 1936, was politely returned with a request that he might revise it in the form of draft articles, with perhaps a draft preamble. 14 Keogh argues that this early submission had very little influence over de Valera due to Cahill s reputation as a man removed from mainstream Catholic opinion. 15 Due to this, de Valera s offer to consider any suggestions made in this revised form caused alarm among the wider Jesuit community in Dublin. It was felt that Cahill would tarnish the credibility of the society and misrepresent their views if he submitted any further suggestions. 16 Séan Faughan notes that in order to prevent this eventuality but also gain a measure of influence over the infusion of religious ideals into the constitution, a committee was set up to draft a formal submission from the Jesuits. 17 Keogh through his examination of the minutes of these meetings outlines that they formed articles on topics of social and religious life including education, marriage, the freedom of religious worship and the nature of church-state relations. 18 The pervasiveness of these suggestions ensured that they had the potential to greatly influence the constitution along catholic ideals with Cahill personally viewing the 12 Keogh, The constitutional Revolution, pp Keogh and McCarthy, The Making of the Irish Constitution 1937, p Quoted in Keogh, The constitutional Revolution, p. 12; De Valera to Cahill 19 September Keogh, The constitutional Revolution, p Keogh, The constitutional Revolution, p Séan Faughan, The Jesuits and the Drafting of the Irish Constitution of 1937, Irish Historical Society, Vol.26, No. 101 (May 1988), p Keogh, The constitutional Revolution, pp

5 Jesuit submission as the minimum that [he] would consider necessary to realise a Christian constitution. 19 However there was a fear that Cahill, who must be allowed to make the submission to de Valera, would add to the report diluting the influence of these vital proposals. The president of the committee, Fr. Bartley requested that Cahill be instructed to submit the recommendations unchanged and separate from his own additions that were expected to be voluminous and rather singular. 20 Though the provincial made these precautions, Cahill s subsequent actions were not anticipated. Despite the level of education and talent among the men who assisted in the drafting of the Jesuit submission, Keogh and McCarthy note that it would appear that Cahill led de Valera to believe the work was largely of his own creation. 21 This is seen as de Valera s official biographers, Longford and O Neill refer to the Jesuit submission as Cahill s sole creation. 22 This corroborates that de Valera was possibly unaware of the true authorship of these suggestions. Keogh maintains that this situation arose due to the letter Cahill attached to the submission. In this he intimated that while he had availed [himself] of the advice and assistance of others, the draft was largely of his own creation. 23 Faughan outlines that as Cahill had suggested that he might get the opinion of some few others of our fathers who are interests in the matter and revise the present draft in his initial submission, de Valera did not question that this was Cahill s own work. 24 Faughan further argues that de Valera most certainly did not know that Cahill s submission had the full backing of the provincial and the wider Jesuit 19 Quoted in Keogh and McCarthy, The Making of the Irish Constitution 1937, p.103; Cahill to de Valera, 21 September Keogh, The constitutional Revolution, p.14; Fr. P. Bartley to Provincial Lawrence Keiran, 11 October Keogh and McCarthy, The Making of the Irish Constitution 1937, p.96, Longford and O Neill, Eamonn de Valera, p Quoted in Keogh, The constitutional Revolution, p.17; Cahill to de Valera, 21 October Quoted in Faughan, The Jesuits and the Drafting of the Irish Constitution of 1937, p.81; Cahill to de Valera, 4 September 1936, de Valera papers. 4

6 community. 25 The level to which this reduced the influence of the proposal cannot be known for sure, though it is clear that de Valera wanted to represent the wider views of the church which Cahill did not. 26 Keogh notes that general church-state relations were improved greatly by the connections and friendships many members of the cabinet cultivated within the hierarchy, offering information on clerical opinion and sympathetic ears. 27 This is seen most clearly in the close relationship that solidified between McQuaid and de Valera during the drafting process. Cathal Condon advances the theory that McQuaid played a key role in the framing of the 1937 Constitution extending to the drafting of articles. He furthers that McQuaid s material was merely edited by Hearne and de Valera to fit into the wider tone of the Constitution. 28 Longford and O Neill pay no reference to McQuaid s drafting of any articles merely outlining that his notes on papal encyclicals and foreign constitutions proved useful. There is a surprising lack of reference to him in relation to any particular article or his actual role in the drafting process. 29 Despite this de Valera personally remarked in 1960 that, the parts he approved of then have never been questioned, the parts he disapproved of have been criticised. 30 Keogh and McCarthy argue that while it is undeniable that McQuaid had a serious influence on the drafting process, the lack of dates or names on drafts make it difficult to discern authors. 31 Despite this Keogh agrees that while McQuaid initially offered advice based on quotations from papal encyclicals he soon became involved in the actual framing of articles on family, education, private property and religion: those social 25 Faughan, The Jesuits and the Drafting of the Irish Constitution of 1937, p Keogh, The constitutional Revolution, p Keogh, The Vatican, The Bishops and Irish Politics, p Cathal Condon, An Analysis of the Contribution made by Archbishop John Charles McQuaid to the Drafting of the 1937 Constitution of Ireland (MA thesis, University College Cork, 1995), p Longford and O Neill, Eamonn de Valera, p Quoted in Keogh and McCarthy, The Making of the Irish Constitution 1937, p Keogh and McCarthy, The Making of the Irish Constitution 1937, p

7 aspects which religion played a dominant role at the time. 32 John Cooney argues that McQuaid s enthusiasm and thoroughness is evident in the lengths he went to in order to suitably inform his suggestions rummaging in the heads of the last few popes. 33 He further asserts that de Valera s handwritten notes on McQuaid s suggestions show the attention he devoted to them. 34 Cooney furthers that due to his great number of submissions to the constitution McQuaid s, catholic and nationalist fingerprints are everywhere in the new [constitution], third only to those of de Valera and John Hearne. 35 Though Condon argues that McQuaid authored the preamble he notes that it was with a firm directive from de Valera to do so along Catholic lines. He furthers that the wish for the preamble to have religious undertones originated with de Valera, quoting an undated draft which accept(s) the ten commandments as fundamental law. 36 This shows that the constitution in its official state is more diluted in its Catholicism than its preliminary drafts. Condon notes that copies of Fr. Cahill s work is present in McQuaid s personal papers, indicating that de Valera sent them on to him for analysis or incorporation into his drafting. 37 This is tangible evidence that the Jesuit proposal has a bearing on the official constitution. Though it appears that McQuaid used the Jesuit preamble, in conjunction with the Polish and Austrian Constitution s and many papal encyclicals to draft the preamble he submitted for consideration to de Valera and Hearne. 38 Cooney notes that the draft text of the preamble he submitted 32 Keogh, The constitutional Revolution, p Quoted in Condon, An Analysis of the Contribution p John Cooney, John Charles McQuaid (O Brien Press, Dublin, 1999), p Cooney, John Charles McQuaid, p Condon, An Analysis of the Contribution, p Condon, An Analysis of the Contribution, p Condon, An Analysis of the Contribution, pp

8 received only minor changes to phraseology, such as the omission of the reference to Éire as the motherland of the Irish race. 39 There was a severe paucity of concern or reference to education in the early drafts of the constitution. However both the Jesuit submission and McQuaid commented on it, with the latter concerned particularly with religious education. Condon argues that Hearne initially overlooked education with the first draft to pay reference to it coming after October 1936, by which time only the Jesuit submission had referenced the possible denominationalism of schooling, something McQuaid rejected. 40 Condon therefore argues that it was McQuaid who revised the 1922 references to education something he was not altogether unqualified for due to his academic career and teaching experience. He had held the chairman position of the catholic headmaster s association in 1936 and attended four international conferences on secondary Catholic education Condon claims that de Valera did not become involved in this article until McQuaid s second drafting in early He notes that de Valera s alarm at the assertion that religious education should be compulsory shows that he left the analysis of the Jesuit submission to McQuaid as it had made a similar suggestion that he could have vetoed earlier. 42 The article on religion, though considered at first to be the easiest to draft, became hugely controversial. Whyte argues that one of the main differences between the 1922 and 1937 constitution is that while the 1922 document grants religious freedom and guarantees fundamental rights the latter is also infused with catholic morality. 43 This introduced a distinction between belief systems, which was not present before. The emphasis granted to the catholic religion, though not truly 39 Cooney, John Charles McQuaid, p Condon, An Analysis of the Contribution, pp Condon, An Analysis of the Contribution, pp Condon, An Analysis of the Contribution, p Kennedy p. 353; Whyte, Church and State in Modern Ireland, pp

9 enforceable is a step backwards when compared to the general freedom of religious belief given previously. 44 Condon advances that McQuaid provided the foundation of the article on religion. His submissions appealed to de Valera due to the direct links they presented with Papal Encyclicals and therefore mainstream Catholic thought. 45 However because his first draft specified, the state acknowledges that the true religious is the Catholic Church, 46 it was attacked. Keogh notes that before the draft constitution was circulated on 16 th March, 9 proofs were given to unknown confidants close to de Valera. The result of this was that the article on religion was omitted completely from the official draft due to considerable objections to this phrase. Considering the limited nature of this circulation de Valera would have been left clear that this formula could not be accepted by the wider cabinet who wished to extend equal rights to members of minority religions. 47 Hogan suggests that de Valera bowed to McQuaid s insistence that this be included without consideration of the political ramifications; an uncharacteristic move. 48 Condon outlines that on meeting the papal nuncio, 3 rd April 1937, de Valera attempted to gauge the opinion of the church on its position in the constitution. It appears that he obtained the nuncio s agreement that the true religion formula be removed. 49 However upon meeting Cardinal MacRory on 5 th April 1937, with a redrafted article, de Valera found it was unacceptable to both him and McQuaid. 50 This possible overt disapproval from the highest catholic authority on the island was a dangerous proposition. Without the approval of the church de Valera risked losing the 44 Whyte, Church and State in Modern Ireland pp Condon, An Analysis of the Contribution, p Condon, An Analysis of the Contribution, p Keogh and McCarthy, The Making of the Irish Constitution 1937, p Hogan, The Origins of the Constitution, , p Condon, An Analysis of the Contribution, p Condon, An Analysis of the Contribution, pp

10 votes of their parishioners. 51 Condon notes that faced with the displeasure of the religious minorities or the catholic hierarchy, de Valera attempted a middle ground, drafting an article himself, drawing heavily from McQuaid s, MacRory s and the Jesuit drafts. 52 However it would be the special position proposed in Cahill s personal submission, which was adopted, showing further evidence of its influence. 53 Condon suggests that this phraseology appealed to de Valera as it held no legal weight. 54 Despite the displeasure of the Irish Catholic Hierarchy de Valera ensured the survival of the constitution by receiving the indifferent opinion of the pope, who stated that, I do not approve neither do I not disapprove, we shall maintain silence. 55 Articles of huge importance and controversy include those that state a claim to the national territory. These in their republican significance would appear to represent an aspect of the constitution wholly untouched by religious influence. However this view is eschewed when looked at in light of Condon s finding that much of articles 1-4 were penned or at the very least heavily influenced by McQuaid. Nicholas Mansergh agrees that de Valera and McQuaid co-operated in the writing of these articles infusing it with a shared wish that in the eventuality of a reintegration of Northern Ireland the changes required in the constitution would not encroach on nationalist or catholic sections. 56 The early drafts of the constitution by Hearne bear no reference to territorial claims as Hearne s initial task had been to merely analyse the key salvageable articles of the 1922 constitution: a document which bore no such 51 Condon, An Analysis of the Contribution, p Condon, An Analysis of the Contribution, pp Condon, An Analysis of the Contribution, pp.69-70; Keogh, The Vatican, The Bishops and Irish Politics, p Condon, An Analysis of the Contribution, p Keogh and McCarthy, The Making of the Irish Constitution 1937, p Condon, An Analysis of the Contribution, p.42; Nicholas Mansergh, The Unresolved Question: The Anglo-Irish Settlement and its Undoing, (Yale University Press, New Haven, 1991), p

11 claims. 57 Because articles 2 and 3 claim that Éire awaited the re-integration of the national territory so that this constitution [could] exercise jurisdiction over the whole territory, the extreme catholic influence in the first draft was deemed unacceptable by those such as Gerry Boland who felt that it would increase the divide between the states. De Valera s view on this precarious question was made clear in the Dáil as he stated: you cannot go farther than we have gone in this constitution to meet the views of those in the north without sacrificing, to an extent that we are not prepared to sacrifice, the legitimate views and opinions of the vast majority of our people. 58 Though this refers to the controversial articles 2 and 3, it may also indicate an unwillingness to further anger the church by removing its special position and the states obligations to our divine lord. Coogan argues that the articles regarding the role of women caused controversy. 59 The strong influence of McQuaid is clear here as the articles are phrased within the confines of Catholic thought. 60 However it is fair to note that despite feminist outcry the thoughts espoused within these articles were largely acceptable within Irish society. This is seen in a contemporary Irish Times editorial. In it Bertie Smyllie, a man neither catholic nor a fan of de Valera, hopes that someday the nation will be so organised that every woman may embark upon her proper profession marriage. 61 Despite this Article 40 s claim that all citizens shall be held equal before the law was comparable with both the 1916 proclamation and the 1922 constitution. However there are distinct and vital differences when analysed. The former had ensured religious and civil liberty, equal rights and equal opportunities to all its citizens while the 1922 constitution ensured that every person without 57 Condon, An Analysis of the Contribution, p.35n. 58 Quoted in Tim Pat Coogan, De Valera: Long Fellow, Long Shadow (Hutchinson, London, 1993), p.493; Dáil Eireann Vol.68, Col. 430, (14 June 1937). 59 Coogan, De Valera: Long Fellow, Long Shadow, pp Condon, An Analysis of the Contribution, p Smyllie, Bertie, Fifty-Fifty Marrigages, Irish Times, 22 February

12 distinction of sex [shall] enjoy the privileges and be subject to the obligations of such citizenship. Though Hogan clarifies that article 3 of the1922 constitution merely ensured that citizenship would be guaranteed through both paternal and maternal lines, Coogan argues that it evoked a notion of equality in sentiment if not reality. 62 Article 40 however eradicates any notion of equality clarifying that citizens are only equal before the law with due regard to differences of capacity, physical and moral and of social function. This comparison between what has proven to be a liberal document in certain ways with two significantly older incarnations show that in many respects it was a constitutional step backwards. 63 Though Coogan notes de Valera s personal disregard for feminism as a whole he agrees that McQuaid s influence is transparent in these articles. He shows that when de Valera discussed the burgeoning controversy with McQuaid he was met with the reply that the objectors were very confused. McQuaid cast support for the official wording in the papal encyclicals casti connubi and quadragesimo anno, emphasising that the law of nature lays diverse functions on men and women. 64 Hogan argues that while it is clear form the preamble onwards that he constitution is infused with Catholic thought; he regards this as unsurprising due to the historical context of John A. Murphy corroborates that those issues, which are now controversial, were deemed fair and liberal in He further outlines that the main controversies which arose around the constitution were the motives behind de Valera s decision to create a presidency and the failure to create an established church. 66 While Condon would argue that the religious aspects of the constitution are not merely 62 Coogan, De Valera: Long Fellow, Long Shadow, p.495; Hogan, The Origins of the Constitution, , p Coogan, De Valera: Long Fellow, Long Shadow, p de Valera papers quoted in Coogan, De Valera: Long Fellow, Long Shadow, p Hogan, The Origins of the Constitution, , p John A. Murphy, Ireland in the Twentieth Century (Gill&Macmillan, Dulbin, 1989), p

13 decorative trimmings as they are pervasive within the document, he concedes that the constitution is open to interpretation. In 1974 Mr. Justice Walsh confirmed that no interpretation of the constitution is intended for all time. 67 Mr. Justice O Higgins is also quoted as clarifying that the constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment. 68 This ensures that while there are catholic overtones to the document, in relation to sections such as the Preamble, it is the essence of prudence, justice and charity which are the mainstays of its interpretation. In addition to this, Enda McDonagh highlights that the religious aspects of the constitution were not a perfect adaption of catholic teaching furthering that it merely offered a framework by which democracy and the church could interact. 69 The document in essence succeeds in becoming what it was intended to, namely, self-consciously nationalist, strongly catholic in tone and republican in aspiration. 70 The above snapshots of the drafting process of certain elements of the 1937 Constitution of Ireland provide a framework from which to judge the make up of the wider document. While there are certain sections of the document which do not present an overt Catholic ethos, the vast majority of articles were influenced in some way by either McQuaid or Cahill. Furthermore while Hearne s basic mission was to ensure the citizens fundamental rights were upheld, his background in Canon law would have influenced his writing. In this way the evidence examined above shows the pervasive nature of the influence of McQuaid and to a certain extent the Jesuits. The advice offered from these clerical sources was not cast aside nor was it in short supply. Their influence was significant enough to ensure the constitution was built on a firm Catholic IR 284, quoted in Condon, An Analysis of the Contribution, p.31; IR 325, quoted in Condon, An Analysis of the Contribution, p.32;. 69 Enda McDonagh, Church and State in the Constitution of Ireland, Irish Theological Quarterly, Vol. 28, No. 2 (1961), p Keogh, The constitutional Revolution, p

14 foundation from articles on the nature of the state to all elements of social policy. This led to a document which while merely Catholic, to the loss of minority groups, is pervasively Catholic. 13

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