Against the backdrop of recent uproar following two key Irish referenda regarding the country’s constitution earlier this year, this article aims to show that the Irish constitution set a process in motion that enabled the incremental liberalization of the law, despite the constitution’s contrary original purpose.

On March 8, 2024, the Irish electorate returned landslide “No” votes in two separate referendums each aimed at altering the country’s constitution. Termed the “family” referendum and the “care” referendum, voters defied opinion polls to deliver a crushing defeat for the government and most of the opposition parties which had backed a “Yes” vote on both proposed amendments. The results were hailed around the world as a major upset to the liberalization process of Irish society.

Over the past decade, referendums have delivered significant victories for the movement towards greater liberalization in Ireland. However, the novelty of holding referendums to achieve such changes has been a somewhat new phenomenon. In the twentieth century, the main agent of legal change on social policy was court rulings arrived at through interpretations of the Constitution. This reality somewhat contradicts the narrative that the constitution is an inherently “conservative” document that has held back the liberalization of Irish society.

This article aims to show that the Irish constitution set a process in motion which enabled the incremental liberalization of the law, despite the constitution’s contrary original purpose.

To understand the underlying historical and cultural factors, first, we must look at the facts. The Irish constitution was adopted following the vote of a simple majority in favor of the draft constitution in a plebiscite held in July 1937. It superseded the state’s previous constitution, the “Free State constitution”, which was operational from 1922 onwards. The former constitution was a simple document that was considerably shorter than its successor. It set out the machinery of the state in the context of the agreement for a treaty reached between Irish representatives and the British government on 6 December 1921. This 1921 treaty confirmed the Irish state’s status as a Dominion within the British Commonwealth and ensured its constitution would reflect this subordinate status. However, the most egregious aspects of this subordinate status were incrementally removed during the 1920s and 1930s by successive governments.

From 1932 until the adoption of the new constitution in 1937, Ireland’s parliamentary democracy was perhaps among the purest in the world. The former post of the “governor-general” (the representative of the British crown) had been removed and replaced by a provision whereby the chairman of the parliament simply signed bills into law. The parliament had the power to amend the constitution by majority vote. This body was also unicameral following the abolition of the Senate in 1936.

The decision to present a new constitution in 1937 was almost exclusively the work of Éamon de Valera, the President of the Irish Free State. Although there is often an assumption that the 1937 constitution confirmed the “independence” of Ireland and removed the last vestiges of British influence, in truth the Free State constitution was equally free from British influence by 1937. This begs the question if it was even necessary to bother introducing a new constitution.

The new constitution differed from the old in two important ways. Firstly, it claimed to be the constitution of an all-Ireland state (including Northern Ireland) but accepted the reality that its writ was not enforceable beyond the jurisdiction of the old Free State. Secondly, it endeavored to establish that Catholic social teaching would be the guiding philosophy of the state in perpetuity.

In the radio broadcast in which he introduced the draft constitution, de Valera explicitly rejected the idea that a constitution should “contain nothing more than the legal machinery necessary for the establishment and control of the organs of State”, but rather it “should inspire, as well as control, elicit loyalty as well as compel it.” This philosophy can be seen all over the constitution, which sets out the rights and obligations of citizens in articles 40-44 covering topics such as the family, education, children, and religion. Article 45, titled “directive principles of social policy”, is perhaps the most obvious example of this idea. This article overtly promotes policy principles for “the general guidance” of parliament. Such directives and similar lofty pronouncements in the constitution contribute to it spanning over 200 pages.

The new constitution synthesized elements of British parliamentary democracy with the constitutional republicanism of the United States in a strange marriage. It produced a highly centralized parliamentary system, which is anathema to the American system, whilst adopting a model of a supreme court that ostensibly exists to keep public law in check with the constitution. Legislation can be struck out if it is found by the Supreme Court to be repugnant to the Constitution.

The new constitution confirmed that the character of the state was religious. Throughout the document, the influence of Catholic social teaching is undeniable. For example, divorce was prohibited, a situation which remained in effect until 1996. The “special position” of the Catholic Church was also formally acknowledged (until 1972, a deletion which was approved by the Catholic bishops).

Under the auspices of the new constitution, the judiciary began to reinterpret pre-independence British case law in order to fit with the new ethos of the state. The trailblazer of this process, Judge George Gavan Duffy, made several innovations during his tenure as president of the high court. In boldly reversing British legal precedent, he stated in a 1939 ruling (Exham v Beamish) that “nothing is law here which is inconsistent with the derivation from the People.” This opened up a legal Pandora’s box which allowed the judiciary to more freely overturn precedent to shape the law in accordance with the constitution, which was said to be the expression of the character of a particular people. The Irish people were Catholic and illiberal, as distinct from Britain.

This process of Catholicizing the legal system can be seen in several historical cases. For example, Gavan Duffy authored a decision finding that the Catholic decree of Ne Temere, which provides that in mixed marriages the children should be brought up as Catholics, is enforceable in public law (Tilson case, 1950). He also authored a decision affirming that every communication from a priest to his congregation is privileged, not just what is said in the confessional (Cooke v Carroll, 1944). And that private discrimination against minority religions is permissible (Schlegel v Corcoran & Gross, 1942). The constitution, which enabled this sort of judicial review, encroached upon the sovereignty which has traditionally been reserved for parliament in a traditional Westminster system.

The Irish Catholic legal revolution met a firm halt with the onset of Vatican II (1962-65). Whilst Ireland seemed to be charting a clear path from the 1950s towards a greater and greater Catholicization of public life, Rome seemed to suddenly shift gears. Since Vatican II, the Irish judiciary has handed down rulings that contradicted the hitherto prevailing winds of Catholicization.

The McGee case (1973) overturned a ban on the importation of contraceptives which was in place since the Criminal Law (Amendment) Act 1935. The court invoked two articles of the constitution: Article 44.2.1, (guaranteeing freedom of conscience) and Article 40.3.1 (personal rights). It was partly underpinned by establishing a right to privacy in the Irish constitution, an innovation clearly influenced by the US Supreme Court’s Roe v Wade decision of the same year (despite the Irish and American laws being dramatically different in terms of enforcement). The McGee judgment found that married couples had a right to import contraceptives, a decision which may seem minimal today but which was significant for its time.

Since McGee, Irish conservatives began to fear that the Irish judiciary was leaning on its privileged position as lawmakers to usher in socially liberal rulings. Most politicians have been quite content to allow the supreme court to make such decisions on contentious matters and allow them to avoid responsibility.

The pro-life amendment inserted in the constitution following the 1983 abortion referendum, a rearguard action by Irish conservatives to formally prohibit abortion in the Irish constitution, was in turn interpreted by the supreme court in 1992 following the controversial X Case. This ruling found that the pro-life amendment itself (article 40.3.3), which acknowledged the “right to life of the unborn… with due regard to the equal right to life of the mother”, could allow for abortion in circumstances which “threatened” the mother’s life (not just in cases where death was imminent). It suggested that abortion could sometimes be legitimately legislated for, including in cases of suicidal ideation and other mental conditions. As journalist Emily O’Reilly (currently the European Ombudsman) wrote, “the [pro-life amendment] had actually legalized abortion in the state” and in fact placed no gestational restrictions on when an abortion would be unlawful. Whilst this was the legal view of the Supreme Court, it would require legislative action to actually introduce a law regulating abortion.

Whilst the X Case opened a window for the parliament to legislate for abortion, there was considerable public opposition to the notion and a resulting political reluctance to move towards introducing any form of abortion. The issue was addressed in a piecemeal way throughout the 1990s and early 2000s. But the fallout from the 2012 Savita Halappanavar case, which concerned the death of a pregnant Indian dentist living in Ireland, considerably shifted public opinion on abortion. This in turn led to the first legislative regulation of abortion in 2013 followed by the 2018 referendum which repealed article 40.3.3 and ushered in the current abortion legislation which has operated since 2019: the Health (Regulation of Termination of Pregnancy) Act 2018.

Conclusions

On a prima facie basis, the Irish constitution appears to be a thoroughly “conservative” document. Its preamble makes repeated references to religion. The constitution itself is enacted 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.” Meanwhile, its social directives were clearly influenced by Catholic social teaching, even though the state does not explicitly endow the Roman Catholic Church as the one, true church. The hierarchy in Ireland gave its full approval to the constitution, which allowed it over time to receive cross-party support in the mostly Catholic country. However, the “conservative” intentions of the constitution’s shapers are now largely irrelevant in the face of a judiciary which does not share even a modicum of the Catholic ethos of their forerunners.

The March 8, 2024 referendum on the family would have prescribed that “durable relationships” are equal to marriage with regards to the basis of a family unit. The proposed wording could easily have included a provision that the definition of a “durable relationship” would be decided by the parliament, but it did not include this. If enacted, it would have ceded yet further powers to the courts to decide on more areas of public policy which by right should be the domain of a democratically elected parliament. It is ironic that the Supreme Court and the notion of judicial review were intended to keep a check on the parliament and ensure that it did not stray too far from Catholic social teaching and theology. But Ireland’s constitutional development in the twentieth century shows that the inverse has been the case.

With the primacy of European Union law, which is explicitly written into the Irish constitution (third amendment), the idea of an Irish judiciary shepherding the public law of the state is further removed from reality. Whilst there is often considerable public discussion about a need to “modernize” the Irish constitution, nothing in the document is seriously acting as an impediment to liberalization—provided the political and judicial will for it exists.

Jack Traynor is a PhD candidate in the Department of History at Trinity College Dublin. His research focuses on inter-war nationalism in Germany and Ireland. The project is funded by the Irish Research Council’s Postgraduate Scholarship. He previously attained an MA from Queen’s University Belfast and a BA from Trinity College Dublin. He is the author of a biographical book General Eoin O’Duffy (Jefferson, NC: McFarland & Co., 2024), and he has also written articles covering topics in history and politics for several publications.