One day, we will have to ask if the Irish Constitution is an aid or a barrier to Irish unity, suggests Supreme Court judge Gerard Hogan.
Hogan has spent a lifetime writing about the Constitution, and since 2021 has been one of the Supreme Court judges who frequently decide whether its terms have been obeyed.
In a lecture in Blackhall Place on Thursday, Hogan – ever conscious of the curbs upon him as a member of the highest court – took his audience on “a thought experiment” about the Constitution and its significance for Irish unification.
For decades, it was argued the territorial claim enshrined in Article 32 was a block to unity, but that has been removed since the Belfast Agreement referendum in 1998, the Supreme Court judge told his audience.
RM Block
“Ask yourself has that made any difference? Are the relationships between the Northern unionist community and the rest of the island really any better in terms of potential reunification than was the case in the 1970s?
“I’m not taking sides on this, I’m not offering my own views, or anything like that. I’m just posing this question because, certainly, there was a lot of people in the 1970s who said, ‘Let’s do this, and that will be a precursor to the ultimate reunification.’
“If only these three or four things were done, that we’d be well on the way to reunification. Well, they have been done, and they’ve been done for a long period of time and ask yourself, are we any closer now?”
For years, too, it was argued that the objections of a majority in Northern Ireland to Irish unity centred on “the special position” enjoyed by the Catholic Church in the Constitution, along with bans on divorce and contraception.
However, “the special position” was never what it was claimed to be, he said, noting the unhappiness in the late 1930s of senior Catholic leaders that the church had not been made the State’s official religion.
Article 44 accurately acknowledged the church was “the guardian of the faith professed by the great majority”, but recognised, too, the Church of Ireland, the Presbyterian Church, the Methodists, Quakers and the Jewish community.
The wording was supported by the minority religions, with the rabbinate committee of the Dublin Jewish community offering “tender congratulations” and expressing “the greatest satisfaction” at the mention that they received.
The chosen Irish wording – though it did not include its creator John Hearne’s more secular drafts – has been “presented as a kind of Hibernian exceptionalism when, in fact, it was very common on the continent of Europe in the 1930s”.
Language of a similar hue regarding religions could be found in other constitutions of the time in Scandinavia, the Netherlands and Greece covering Lutheranism, the Catholic Church or the Greek Orthodox church.
One of “the slightly surprising things” about the criticism of Article 44 was that the United Kingdom had tougher sectarian rules, requiring the British royal family to be “subscribing Protestants”.
“That was provided for in the Act of Settlement of 1701. The Church of England was the established religion, the lord chancellor had to be an Anglican, and there were Church of England bishops in the House of Lords,”Hogan went on.
Imagine, he said, if the Republic required the President to be a Catholic, “that he or she can’t marry a Protestant, that there’s Catholic bishops in the Senate and that the Chief Justice had to be a Catholic, we’d never hear the end of it”.
However, Article 44 could, he suggested, offer a model for a unified island where it would be “the special position of religious/political Protestantism” that would be protected, not the Catholic Church.
The Constitution – heavily copied by India after its independence – offers stronger protection for personal rights and freedoms than the United States constitution, or the European Convention on Human Rights.
“But even if we got a verdict of international comparative law scholars to set it out chapter and verse and deliver it by hand personally to every home in Larne, or in east Belfast, would it make any difference?”, he asked.
Posing questions about the constitutional changes people in the Republic would be prepared to make for unity, the Supreme Court judge said they “like” the 1937 document, because “it is a symbol of statehood”.
“It is cemented in and embedded in the institutions of the State to which we’re attached and for which for the most part – again I’m generalising – we don’t want to change, or see the reason, or the necessity for change,” he went on.
The “ultimate paradox”, he said, is that a constitution designed to achieve unity “may ultimately complicate that ambition”, not “because it was weak and inflexible”, but “rather because it was sufficiently flexible and strong”.
Looking to the past, Hogan said the Civil War did not occur because of partition, since both sides in it had “naively” convinced themselves that the Boundary Commission, which eventually reported in 1925, would bring about unity.
The hold that London enjoyed over the Free State in the 1922 constitution – the oath of allegiance, the existence of the post of governor general or the ability to take cases to the privy council, had gone by 1937.
However, he wondered if an Ireland united from 1922 could ever have taken such steps to independence by removing what the British saw as “safeguards for the protection of minorities”, especially in a Protestant-dominated northeast.
They would, he suggested, have “been extremely unhappy at the idea that their cherished symbols of identity such as the governor general or the oath of allegiance” had “simply have been eradicated and eradicated”.
Speaking to his audience in Dublin, he posed the question: “Would you be happy to have a governor general as the representative of the crown as they have in Canada Australia and New Zealand?
“It doesn’t seem to cause people there an awful lot of bother, but instead of the office of President? Would we be happy to have that?” he wondered, or a privy council that would be “the ultimate interpreter or guardian of the existing, or even a new constitution”.
The Boundary Commission report cemented the Border in place, leaving Northern nationalists as the main losers, and “equally sowed the seeds of destabilisation of Northern Ireland”.
He went on: “Let’s acknowledge there was never going to be a perfect Border. West Belfast is a standing response to the argument that you could have a perfect, or satisfactory Border. It was never going to be such.
“But had, for example, south Armagh, south Down, parts of Fermanagh and Tyrone and or even Derry city been transferred to the Free State in 1925, Northern Ireland would certainly have been smaller.
“But it might have been a lot more stable with a smaller percentage of nationalists and with less incentives for gerrymandering and discrimination and so on on the part of the unionists,” he said.
The lessons of the past show, however, “that you cannot really have a state in which – without taking sides, at all – you have one third at least, and maybe more of the population disaffected and feeling that they are in the wrong state”.
