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This St. Patrick’s Day, Consider the Irish Constitution
Conor Casey on common good constitutionalism in action
In honor of St. Patrick’s Day, Postliberal Order is pleased to offer this guest post by Professor Conor Casey of the University of Liverpool (on Twitter @Caseyco231).
This St. Patrick’s Day I invite those interested in common good constitutionalism to study the 1937 Irish Constitution. The brainchild of one of Ireland’s greatest statesmen, Éamon de Valera, and the supremely erudite lawyer John Hearne, the Irish Constitution is a document deeply influenced by the natural law tradition. From start to finish, the rich influence of this tradition permeates the document. It is discernible in the Constitution’s approach to questions like the purpose of governmental power and the State, the nature and value of personal rights and how they relate to the common good, and the centrality of institutions like marriage, religion, and family to true social order.
The Constitution’s striking preamble begins:
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 Constitution’s fundamental rights provisions contained in Articles 40–45 also share several classical themes: they emphasize the state’s responsibility to promote and vindicate human flourishing by respecting what is due in justice to individuals and families, while ensuring rights are properly ordered to the common good and true social order. The rights provisions also demonstrate deep respect for subsidiarity and the legitimate role of non-state actors in promoting this same end, particularly the family. In framing these provisions, the drafters drew liberally on papal encyclicals like Rerum novarum, Quadragesimo anno, Castii connubi, and Divini illius magistri.
Article 40.1 commits the state to not make arbitrary and unreasoned distinctions between citizens, by recognizing that all citizens shall, as human persons, be held equal before the law, but that the state can have regard to “capacity, physical and moral, and of social function” when making laws. Article 40.3 commits the state to “respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” The state must “in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.” Article 40.6.1 provides for liberty of free expression of opinions, the right to assemble peaceably without arms, and to form unions and associations; but notes that none of these can be used to “undermine public order or morality or the authority of the State.”
Article 41 acknowledges the family as a moral institution and necessary basis of social order, and as indispensable to the welfare of the nation, and charges the state with protecting its authority. The Constitution has particular respect for the institution of marriage on which, it recognizes, the family is “founded.” Article 42 also recognizes the family as the primary and natural educator of children and guarantees not to oblige parents to send their children to schools designated by the state in violation of their conscience. As guardian of the common good, however, the state can require all children receive a certain “minimum education, moral, intellectual and social.” The same article also provides that the state, as guardian of the common good, can step in when the rights of children are threatened through failure of parental duty.
With respect to property, Article 43 provides the state will not attempt to abolish the rights of private ownership of property or inheritance. But the Constitution emphatically acknowledges such rights must be regulated by the state guided by the principles of social justice and that, to this end, the state may delimit the exercise of property rights with a “view to reconciling their exercise with the exigencies of the common good.”
Article 44 provides that the state acknowledges homage of public worship is “due to Almighty God” and that it shall “respect and honour religion.” Article 44.2.1 provides for the free profession and practice of religion to every citizen, subject to public order and morality. Article 44.4 permits the state to provide aid to religious schools, but it also guarantees the right of children to attend schools in receipt of public money not to be forced to attend religious instruction. The original 1937 text provided that the state recognized the “special position” of the Catholic Church as the guardian of the faith of the majority of citizens, but also extended recognition to several protestant churches and Jewish congregations of Ireland. Reference to God is incorporated into the three oaths prescribed for the president, members of the Council of State, and judges.
Article 45 contains several nonjusticiable provisions committing the state to social policies that “promote the welfare of the whole people by securing and protecting as effectively as it may a social order in which justice and charity shall inform all the institutions of the national life.”
In a forthcoming essay for the Harvard Journal of Law and Public Policy written for a symposium on Professor Vermeule’s Common Good Constitutionalism, I use the Irish Constitution as an extended case study of common good constitutionalism in action, and show how officials and jurists in the Irish legal system have approached the task of working through and specifying the theoretical precepts of the classical tradition to a concrete set of public law issues and questions. I hope it will serve as a resource for current exploration of the theory and practice of common good constitutionalism. For proponents of common good constitutionalism, I hope it can profitably be approached as a study filled with suggestions, instructive lessons, rules of thumb and conceptual heuristics for how officials might begin the task of adapting, translating, specifying and working out the classical tradition’s core precepts in their own system.
My story is not entirely a positive one, however. The ascent of economic and especially social liberalism in Irish politics and culture has been rapid. The values promoted in the natural law tradition now have diminished traction in Irish political life and discourse. This is due to several interlocking factors, including rapid secularization, Ireland’s deep reliance on global—especially American—corporate investment and goodwill, and the state’s increasingly deep integration into the European Union liberal order. These pressures, both internal and external, domestic and foreign, have contributed to the waning of the Catholic Church’s moral authority.
All that said, the classical natural law tradition retains vibrancy in Irish legal practice and argumentation. A prominent example involves jurisprudence concerning parental autonomy and the rights of the family vis-à-vis the state in the domains of education and health care choices. Considerations of background principles of legal justice and political morality stemming from the natural law still regularly factor into constitutional interpretation and were key, for instance, to the Supreme Court holding the line against individual autonomy arguments for a right to assisted suicide in Fleming v Ireland  IESC 19. The classical natural law tradition is also deeply prevalent in jurisprudence affirming that the common good is the proper end of constitutional government; that the executive and legislature have ample authority to pursue this end and to order individual goods to it; and that all legitimate exercises of public power should be presumed to be purposive and reasoned.
Simply put, the Irish Constitution and the classical tradition underpinning it have, for now, helped to insulate Irish legal practice and constitutional jurisprudence from the influence of the pernicious liberalism that increasingly dominates other areas of political life. This is, in my view, no small achievement.