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The Virtues of Unprincipled Constitutional Compromises: Church and State in the Irish Constitution
Published online by Cambridge University Press: 26 October 2020
Abstract
Constitution making – Disagreement – Principled constitutionalism versus unprincipled bargaining – Pragmatism – Church and state – Separation of religion and law – Maintaining religious peace – Drafting of the Irish Constitution of 1937 – Placating Irish Catholicism – Accommodation of protestant religious minority – Balancing religious freedom and religiosity – Balancing fundamental rights and religious influence – Flexibility and adaptability – Pragmatic assessment of constitutions and constitution making
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- © The Author(s), 2020. Published by Cambridge University Press on behalf of European Constitutional Law Review
Footnotes
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PhD, Assistant Professor of Law, Trinity College Dublin. I would like to thank Andrea Pin for very helpful comments on an earlier draft, and an anonymous reviewer for insightful suggestions.
References
1 See generally, on constitutionalism and its aims, N. Barber, The Principles of Constitutionalism (Oxford University Press 2018).
2 J. Waldron, Law and Disagreement (Oxford University Press 1999) p. 1.
3 S. Fish, ‘Mission Impossible: Settling the Just Bounds Between Church and State’, 97(8) Columbia Law Review (1997) p. 2255 at p. 2332.
4 S. Fish, ‘The Law Wishes to Have a Formal Existence’, in S. Fish, There’s No Such Thing as Free Speech (Oxford University Press 1994) p. 141 at p. 179.
5 S.D. Smith, ‘Idolatry in Constitutional Interpretation’, in P. Campos et al. (eds.) Against the Law (Duke University Press 1996) p. 157 at p. 180.
6 J. Rawls, A Theory of Justice (Harvard 1971) p. 198.
7 M. Perry, ‘The Legitimacy of Particular Conceptions of Constitutional Interpretation’, 77 Virginia Law Review (1991) p. 669 at p. 690.
8 B. Ackerman, ‘Constitutional Politics/Constitutional Law’, 99 Yale Law Journal (1989) p. 453 at p. 525.
9 Even textualism implicitly relies on a principled understanding of constitutions. See S. Fish, ‘There is No Textualist Position’, 42(2) San Diego Law Review (2005) p. 629.
10 Rawls, supra n. 6, p. 197-200.
11 C. Sunstein, Designing Democracy (Oxford University Press 2001) p. 49.
12 M. DeWolfe Howe (ed.), The Holmes-Pollock Letters, 2nd edn. (Harvard University Press 1961) p. 36. Holmes also noted that ‘force, mitigated so far as may be by good manners, is the ultima ratio’.
13 Sunstein, supra n. 11, p. 50. My argument goes further, suggesting something like what he calls ‘full particularity’, where functionality is all that matters, regardless of the theory or principle underlying it.
14 Sunstein, supra n. 11, p. 52.
15 This could be because principles are purely rhetorical, or because the content of principles is epistemologically unknowable to the point where they create fundamental contest as to their character not resolvable by reference to the principles themselves.
16 P. Campos, ‘Against Constitutional Theory’, in Campos et al., supra n. 5, p. 116.
17 See D. Kenny, ‘Merit, Diversity, and Interpretive Communities: the (Non-Party) Politics of Judicial Appointments and Constitutional Adjudication’, inL. Cahillane et al. (eds.) Judges, Politics and the Irish Constitution (Manchester University Press 2017) p. 136.
18 See P. Brooks, ‘The Rhetoric of Constitutional Narratives’, 2 Yale Journal of Law and the Humanities (1990) p. 129 at p. 130: ‘the true mechanism of narrative… really starts from the desired or presumed end, and works backwards, deriving beginnings, origins, and the events of the middle, from the end’.
19 Sunstein, supra n. 11, p. 53.
20 L. Alexander, ‘Liberalism, Religion, and the Unity of Epistemology’, 30 San Diego Law Review (1993) p. 763 at p. 776.
21 Fish, supra n. 4, p. 161. Fish argues that attempts to demystify the law may be ‘unworkable’, and mystification may a core part of the law’s function.
22 Another example that Brexit provided was the emergence of somewhat fringe theories that the monarch has functional veto power over Bills by denying royal assents from quarters where this would have been unlikely to emerge in other times. For a summary of this controversy, see J. King, ‘Can Royal Assent to a Bill Be Withheld If So Advised by Ministers?’, UKCLA Blog, 5 April 2019, ⟨https://wp.me/p1cVqo-1FY⟩, visited 7 October 2020.
23 See R. Dixon and T. Ginsburg, ‘Deciding Not to Decide: Deferral in Constitutional Design’, 9 International Journal of Constitutional Law (2011) p. 636; M. Loughlin, ‘The Silences of Constitutions’, 16(3) International Journal of Constitutional Law (2018) p. 922.
24 Silence is only noticed – perhaps it only comes into being – where something thought certain or not thought of at all is later opened to question and rendered uncertain: ‘the text ends where one’s full confidence in the surrounding suppositions begins’: R. Albert and D. Kenny, ‘The Challenges of Constitutional Silence: Doctrine, Theory, and Applications’, 16(3) International Journal of Constitutional Law (2018) p. 880 at p. 885.
25 Fish, supra n. 4, p. 161.
26 Campos, supra n. 16, p. 135.
27 Fish, supra n. 4, p. 171.
28 See Albert and Kenny, supra n. 24; Loughlin, supra n. 23; M. Fadel, ‘The Sounds of Silence: The Supreme Constitutional Court of Egypt, Constitutional Crisis, and Constitutional Silence’, 16(3) International Journal of Constitutional Law (2018) p. 936.
29 See generally W. James, Pragmatism (Dover 1995) (first published 1907); R. Rorty, The Consequences of Pragmatism (University of Minnesota Press 1982); D. Kenny, ‘The Human Pared Away: Hilary Mantel’s Thomas Cromwell as an Archetype of Legal Pragmatism’, Law and Literature (2021) (forthcoming).
30 Fish, supra n. 4, p. 179.
31 See Kenny, supra n. 29, for more detailed argument on these points. Moreover, if certainty is unavailable to us, that cannot be a reason for paralysis; we need a willingness to act without warrant – that is, a willingness to act as best we can, knowing that we may be wrong. I borrow this phrase from P. Schlag, ‘The De-differentiation Problem’, 41 Continental Philosophy Review (2009) p. 35, who borrowed it from Duncan Kennedy.
32 See generally J. Rawls, Political Liberalism (Columbia University Press 1993).
33 This views religion as something that is all in the head, which work for some faiths, but for others ‘treats religion as a hobby’. See S.L. Carter, ‘Evolution, Creationism, and Treating Religion as a Hobby’, Duke Law Journal (1987) p. 997.
34 On the large role played by ‘neutrality’ in constitutional law, and a defence of this, see generally J. Kis, ‘State Neutrality’, in M. Rosenfeld and A. Sajó (eds.), Oxford Handbook of Comparative Constitutional Law (Oxford University Press 2012) p. 318.
35 See e.g. Everson v Board of Education of Ewing Township, 330 U.S. 1 (1947).
36 See S.D. Smith, Foreordained Failure: the Quest for a Constitutional Principle of Religious Freedom (Oxford University Press 1995).
37 C. Haupt, Religion-State Relations in the US and Germany: the Quest for Neutrality (Cambridge University Press 2012) p. 168.
38 M. Tushnet, ‘Of Church and State and the Supreme Court: Kurland Revisited’, Supreme Court Review (1989) p. 373.
39 See e.g. Haupt, supra n. 37; D. Laycock, ‘Substantive Neutrality Revisited’, 110 West Virginia Law Review (2007-2008) p. 51; Smith, supra n. 36; W. Fallers Sullivan, The Impossibility of Religious Freedom (Princeton 2005).
40 See P.M. Garry, ‘Religious Freedom Deserves More than Neutrality: The Constitutional Argument for Nonpreferential Favoritism of Religion’, 57 Florida Law Review (2005) p. 1.
41 Sullivan, supra n. 39, persuasively argues that you cannot assess the validity of individual religious beliefs without privileging major, institutional religions at the expense those on the fringes.
42 J.M. Bickers, ‘Of Non-Horses, Quantum Mechanics, and the Establishment Clause’, 57 Kansas Law Review (2009) p. 371 at p. 382.
43 See Alexander, supra n. 20, p. 776; Fish, supra n. 3, p. 2261.
44 Bickers, supra n. 42, p. 405.
45 J. Locke, A Letter Concerning Toleration (1689).
46 Fish, supra n. 4, p. 161.
47 Fish notes that because education is inculcation into various ideas and ideals, unless education is from the same religious viewpoint, it will eventually come into conflict with these rights: S. Fish, The Trouble with Principle (Harvard University Press 1999) p. 153.
48 Art. 12.8. Other constitutional oaths – for judges and members of the Council of State – are similar.
49 These provisions bear striking similarity to the papal encyclicals Divini Illius Magistri, Rerum Novarum, and Quadragesimo Anno. See D. Keogh and A. McCarthy, The Making of the Irish Constitution 1937 (Mercier Press 2007) p. 111-210. See S. Moyn, ‘The Secret History of Constitutional Dignity’, 17(1) Yale Human Rights and Development Journal (2014) p. 39, speculating about the influence of Divini Redemptoris on the protections of dignity and personhood.
50 Art. 42.1-3.
51 Art. 41.3.1.
52 J. McGahern, Memoir, ebook edition (Faber 2009) p. 64.
53 For a brief overview of the historical background, see G. Hogan et al., Kelly: the Irish Constitution, 5th edn. (Bloomsbury Professional 2018) p. 3-9.
54 The Church was vocally critical of declining moral standards in the 1920s/30s, and politicians eagerly responded with legislation on divorce, censorship of publications, regulation of dance halls, and the sale and importation of contraception: M. Nolan,‘The Influence of Catholic Nationalism on the Legislature of the Irish Free State’, Irish Jurist (1975) p. 128; J.H. Whyte, Church and State in Modern Ireland, 2nd edn. (Gill and MacMillan 1980) p. 24-61.
55 D. Keogh, ‘Church, State and Society’, in B. Farrell (ed.), De Valera’s Constitution and Ours (RTÉ 1988) p. 103 at p. 105.
56 Keogh, supra n. 55, p. 117. See generally I. Milne and I. d’Alton (eds.), Irish and Protestant (Cork University Press 2019).
57 Keogh and McCarthy, supra n. 49, p 163; G. Hogan, The Origins of the Irish Constitution, 1928-1941 (Royal Irish Academy 2012) p. 483-486.
58 This was expressed in the Preamble, and in the original Arts. 2 and 3.
59 5 Seanad Debates, 435-36, 11 June 1925.
60 Keogh and McCarthy, supra n. 49, p. 165.
61 See Hogan, supra n. 57, p. 247-250; Keogh and McCarthy, supra n. 49, p. 105-112.
62 Hogan, supra n. 57, p. 214; Keogh and McCarthy, supra n. 49, p. 156 and 162.
63 Hogan, supra n. 57, p. 317; D. Coffey, Drafting the Irish Constitution, 1935-1937: Transnational Influences in Interwar Europe (Palgrave 2018); G. Hogan, ‘Some Thoughts on the 1937 Constitution’, in F. Larkin and N. Dawson (eds.), Lawyers, the Law, and History (Four Courts Press 2013).
64 Ireland’s Constitution is the last inter-war European constitution to survive. See D. Coffey, Constitutionalism in Ireland, 1932-1938: National, Commonwealth, and International Perspectives (Palgrave 2018) p. 120.
65 Coffey, supra n. 63, p. 30; G. Hogan, ‘The Influence of Continental Constitutional Tradition on the Drafting of the Constitution’, in B. Ruane et al. (eds.), Law and Government – A Tribute to Rory Brady (Round Hall 2015).
66 Coffey, supra n. 64, p. 119. Cf Hogan, supra n. 57, p. 215-222.
67 G.W. Hogan, ‘Legal Aspects of Church/State Relations In Ireland’, 7 St. Louis University Public Law Review (1988) p. 275 at p. 278; G. Whyte, ‘Religion and the Irish Constitution’, 30 John Marshall Law Review (1996-1997) p. 725 at p. 735.
68 See Quinn’s Supermarkets v Attorney General [1972] IR 1. See Hogan et al., supra n. 53, p. 2457-2509; E. Daly, Religion, Law and the Irish State (Clarus Press 2012). In short, unless there is no free practice rationale for a discrimination, it will be allowed.
69 See Campaign to Separate Church and State v Minister for Education [1998] 3 IR 321, upholding the funding of religious chaplains in schools performing overtly religious roles.
70 Hogan and Coffey also show that these clauses had more inspiration from their European counterparts than is commonly supposed; see Hogan, supra n. 57, p. 245-254; Coffey, supra n. 64, p. 145-146.
71 McGee v Attorney General [1974] IR 284. See Whyte, supra n. 54, p. 409-414 for an account of the controversy that followed this judgment.
72 This concern was expressly cited by the government in proposing the abortion amendment as one of the core concerns motivating it: 339 Dáil Debates, col. 1356-7 (9 February 1983). Cf Whyte, supra n. 54, p. 413.
73 Whyte, supra n. 54, p. 409.
74 G. Hogan, ‘De Valera, The Constitution, and the Historians’, 40 Irish Jurist (2005) p. 293 at p. 306-307.
75 See the majority judgment of the Chief Justice in Norris v Attorney General [1984] IR 36 at 64 upholding the criminal prohibition on homosexual sodomy on the basis of the ‘purposive Christian ethos of the Constitution’ and arguing that the people in 1937 ‘were proclaiming a deep religious conviction and faith and an intention to adopt a Constitution consistent with that conviction and faith and with Christian beliefs’.
76 He warned that these provision ‘convey different ideas to the student of Catholic social science, and to those (including all or most of our judges, and lawyers, and possibly most of our public men) whose ideas and mentality are much influenced by the individualistic and Liberal principles of English jurisprudence’: Hogan, supra n. 57, p. 573.
77 Not every judgment of the Irish courts can be said to be positive from this perspective: see in particular Re Tilson [1951] IR 1, which upheld the validity of ne temere decrees – required by the Catholic Church for ‘mixed marriages’ between protestants and Catholics – where parents swore to raise their children in the Catholic faith. Such decrees had the effect of reducing the protestant population, and were seen as highly sectarian; the Irish Times criticised this judgment as giving ‘the impression that the philosophy underlying Irish jurisprudence is tending, slowly but surely, to be informed by the principles of the Roman Catholic Church’. ‘Ne Temere’ The Irish Times, 7 August 1951. There is a nuance here, however. Hogan offers a compelling alternative account of the case, suggesting the interpretation of the law and the Constitution was correct, the context of the case is largely misunderstood, and the criticism the case was subject to in its aftermath was ‘downright unfair’. He does, however, think the majority of the Court should have made it clear that no legal privilege was being given to Catholics by virtue of the judgment, and that the effect on the protestant community in practice was negative: G. Hogan ‘A Fresh Look at Tilson’s Case’, 33 Irish Jurist (1998) p. 311 at p. 329. Cf a similar account in G. Hogan, ‘Law and Religion: Church-State Relations in Ireland from Independence to the Present Day’, 35(1) American Journal of Comparative Law (1987) p. 47 at p. 57-60.
78 The special position of the Catholic Church and recognition of other denominations, though inconsequential in practice as no more than a recognition of social fact (67 Dáil Debates, col. 1890-91, (4 June 1937)) were removed by referendum in 1972. However, the religious language elsewhere remains. The territorial claim in Arts. 2 and 3, removed in 1998, was another major step in this respect, as was, perhaps, the removal of the constitutional ban on divorce in 1995.
79 The reaction to the McGee case legalising contraception was positive in protestant communities; see D. Ferriter, Occasions of Sin (Profile Books 2009) p. 429.
80 D. Keogh, ‘Address to the Constitutional Convention’, Dublin, 1 December 2012.
81 See e.g. N. Sammon, ‘Should an Institution that Presided over Child Abuse Control Most Schools?’, The Irish Times, 9 April 2019.
82 Hogan also notes that it was the norm in Europe at the time (and even later) to have religious elements not dissimilar to the Irish Constitution’s, and argues that the most remarkable aspect of the Constitution is that it ‘did not go further’ in its religiosity: Hogan, supra n. 57, p. 220-222.
83 See generally, Whyte, supra n. 54, p. 10-12.
84 See e.g. the Education (Admission to Schools) Act 2018, removing the ‘baptism barrier’, which had allowed all religiously-funded public schools to discriminate in favour of children of their own religious denomination.
85 ‘The combination of the introduction of no-fault divorce and, in particular, the amendment of the Constitution providing for the introduction of same-sex marriage have resulted in a legal institution of marriage that cannot be described in terms of traditional Christian doctrine’: HAA v SAA [2017] IESC 40, at [98], per O’Malley J.
86 Fish, supra n. 47, p. 160.
87 Fish, supra n. 47, p. 161.