BINCHY LECTURE:THE 1937 Constitution owes more to the European constitutional tradition than to the influence of Catholic social teaching, according to High Court judge Mr Justice Gerard Hogan.
He was giving the Binchy Memorial Lecture to the Burren Law School at the weekend.
He said the drafters of the Constitution drew heavily on the German Weimar constitution, largely written by the liberal Jewish lawyer and politician Hugo Preuss.
“He probably had as much influence on the drafting of our Constitution as anyone outside the drafting team and Mr de Valera himself,” he said.
He pointed to many parallels between the documents, including a preamble; the prescription of the colours of the national flag; the assertion of popular sovereignty; a popularly elected president, with a seven-year term and open to every citizen over the age of 35, and who had similar powers in both constitutions; guarantees of the protection of liberty and dwelling in similar terms; and an invocation of the rules of international law, which was a new element to common law constitutions.
Other common provisions were the protection for marriage and motherhood; parental autonomy over children, but with the proviso for state intervention in exceptional cases; recognition of the right to property and the right to inherit; while also acknowledging the right to form unions and the state’s duty to protect workers from exploitation.
Both constitutions provided for the protection of individual rights, while also acknowledging socio-economic rights, he said.
He said that the 1980 book by JH Whyte, Church and State in Modern Ireland, which stated that certain articles in the Constitution “were obviously marked by Catholic thought”, has influenced much debate on the Constitution since. However, he pointed out that the recognition of the “special position” of the Catholic Church, now repealed, as the religion of the great majority of the people, echoed the 1801 Concordat between the pope and Napoleon.
This clearly influenced other constitutions, and a similar provision exists in the Polish constitution of 1921.