TY - JOUR
AU - McCrudden, Christopher
AB - Abstract This article addresses the correctness of Samuel Moyn’s contention that the inclusion of ‘dignity’ in the Irish Constitution of 1937 reflects a particularistic, sectarian and conservative Catholic viewpoint, rather than (as some other scholars do) seeing the inclusion of ‘dignity’ as the first tentative step towards the instantiation of a universalistic, liberal human rights ethic into the Irish Constitution. For Moyn, ‘dignity’s’ sectarian, political origins in Ireland add weight to his sceptical approach to human rights more generally, given the extent to which human dignity is now seen as underpinning the justification of human rights. In arguing against Moyn’s conclusions, the article provides a detailed re-examination, based on archival research, of the drafting of the Preamble to the Irish Constitution in which the term ‘dignity’ is located, situating it in the intellectual changes in political Catholicism and Irish nationalism at that time. In particular, the article examines for the first time to what extent insights can be gleaned from the contemporaneous translation of ‘dignity’ into the Irish language version of the Constitution, and the significance of the choice of ‘uaisleacht’ in the Irish text. Drawing from this, the article identifies the various different influences that appear to have contributed to the use and meaning of dignity in the Preamble, before returning to consider how far Moyn’s assessments are correct in light of the re-examination of the drafting history. I. Introduction Samuel Moyn has argued that religious influences on constitutional rights thinking in several national contexts prior to 1945 continued after the Second World War, with significant effects on the subsequent development of human rights law.1 He considers that the early post-War development of international human rights law had strongly Christian democratic, conservative and anti-communist ideological roots, and that there is a major difference between this and the later development of the international human rights movements of the 1970s.2 Part of the evidence for his continuity/discontinuity argument lies in his understanding of the evolution of the concept of ‘human dignity’, which has become central to post-1945 human rights law, and he has, as a result, taken to conceptual history to explore this argument.3 Focusing on ‘human dignity’ was a good call. It has become increasingly central to systems of international and regional human rights protection, being included as a foundational principle in nearly every international human rights convention since its inclusion in the United Nation’s Universal Declaration of Human Rights in 1948. It was, famously, included in the German Federal Republic’s Grundgesetz in 1949 and is now recognised as foundational by the German Constitutional Court. It is a central pillar of constitutional rights in several other national legal systems, for example, those of Israel, South Africa, and (in some contexts) the United States. The history of human dignity since 1945 is relatively well known, but its emergence and role before 1945 is only now coming to light, significantly due to Moyn’s work. He has investigated the developing discourse on ‘dignity’ and ‘human dignity’ prior to 1945, particularly in Europe, connecting its use in national political and religious contexts with its eventual inclusion in constitutional texts, and then its emergence in international law. There is much at stake in this historical work because, justifiably or not, unearthing these earlier uses is seen as helping us to understand the meaning and functions of dignity in later legal contexts; the source of the concept is even seen by some as relevant to its current legitimacy. If ‘dignity’ is historically rooted in Christian theology, is it a suitable foundational principle in international human rights law in the secularised twenty-first century? The meaning of human dignity has thus become a critical issue of controversy in current international and domestic human rights law and practice. In his work on the origins of ‘dignity’, Moyn has identified its inclusion in the Preamble to the Irish Constitution of 1937 as a key moment in the adoption of dignity in European constitutional texts, because it is one of the first times that the concept takes centre stage in a modern European constitution. Its previous appearance in the Weimar Constitution of 1919 gave ‘human dignity’ a much more specific and limited role.4 He has stressed both the roots of Ireland’s adoption of dignity in the 1937 Constitution in Catholic social teaching and the links between this and the development of a conservative, European, Christian democracy, culminating in the German Basic Law of 1949 and the drafting of the European Convention on Human Rights in 1950.5 Moyn has argued that the inclusion of ‘dignity’ in the Irish Preamble reflects the influence of a group of Jesuits and the President of Blackrock College, Fr. John Charles McQuaid (later to become a traditionalist Catholic Archbishop of Dublin). Rather than seeing the inclusion of ‘dignity’ as the first tentative step towards the instantiation of a universalistic, liberal human rights ethic into the Irish Constitution, he sees the opposite. For him, the inclusion of ‘dignity’ reflects a particularistic, sectarian and conservative Catholic viewpoint, which should lead one to be sceptical of its current use. But is Moyn correct? At this point, it is necessary to specify carefully which of the several claims that Moyn appears to be making on which I am focusing in this article. Moyn appears to make four separate claims. First, the origins of dignity in Ireland are conservative, religious and Catholic; second, Ireland’s constitutional use of dignity was influential in the development of international human rights discourse around dignity; third, the source from which dignity derives should influence, if not determine, the current legitimacy of that concept; and, fourth, the post WWII human rights movement was essentially conservative. In this paper, I am only interested in examining the correctness of the first claim. This claim matters because it supports a broader argument which I understand Moyn to be making: that left-liberals should be sceptical of human rights; at a time when human rights is under severe pressure throughout the world, examining whether the claims of a prominent critic of human rights are correct matters. This paper addresses the correctness of his first claim in the following way: in section II, I describe recent debates over the wider significance of the Irish Constitution, and particularly scholarship on the contest between a more liberal, non-sectarian vision of Ireland and a more conservative Catholic vision. In section III, I introduce the reader to the drafting of the Constitution of which the Preamble containing the reference to ‘dignity’ was a part, identifying the principal actors and the political and ideological contexts in which the drafting was carried out. In section IV, I consider the function of preambles in constitutional texts and consider which of the various functions de Valera intended the Preamble of the Irish Constitution to fulfil. In section V, I turn to a detailed examination of the drafting of the Preamble, in particular the introduction of ‘dignity’ into the draft text, and the changes that were introduced in the surrounding text that altered its meaning over the course of the drafting. In section VI, I examine to what extent insights can be gleaned from the contemporaneous translation of ‘dignity’ into the Irish language version of the Constitution and the significance of the choice of ‘uaisleacht’ in the Irish text. The problem of translating the English word ‘dignity’ into another language is now the subject of several studies in other jurisdictions, notably in Israel6 and Japan,7 a literature on which this paper also builds, and to which it hopes to contribute. In section VII, I identify the various different influences that appear to have contributed to the use and meaning of dignity in the Preamble. Finally, in section VIII, I return to consider what my research contributes to resolving the scholarly debates described in section II, and in particular how far Moyn’s assessment is correct in light of our re-examination of the drafting history. II. Debates on the wider significance of the Irish Constitution The inclusion of ‘dignity’ in the Preamble to the Irish Constitution of 19378—conceived and brought to birth by Éamon de Valera (1882-1975), the then President of the Executive Council (Prime Minister) of the Irish Free State, and, subsequently, Taoiseach (Prime Minister) and later President of Ireland—has been identified as a key moment in the adoption of dignity in European constitutional texts. But controversy has dogged this use of the concept since its inception, a controversy that is part of a broader debate over the making of the Irish Constitution in 1937. Different scholars take diverse and conflicting positions on who ‘won’ in the supposed battle between a more liberal, non-sectarian9 vision of Ireland and a more conservative Catholic vision.10 Moyn is not alone in seeing the inclusion of ‘dignity’ in the Preamble as substantially based in Catholic social doctrine, intended to encapsulate a backward-looking, conservative and anti-modernist agenda.11 Seen in this light, the concept of ‘dignity’ incorporated in the Preamble is hostile to current, mainstream understandings of human rights. On the other hand, some scholars have doubted this view of the dominance of a conservative Catholic orthodoxy.12 ‘Dignity’ has been seen as intimately related to the protection of those personal rights that provide limits to the power of government and the state, with the use of dignity in the Preamble providing one important link in the causal chain connecting the Weimar Constitution’s progressive use of dignity to the emergence of modern constitutional rights. Seen in this light, it is one of the first progressive uses of dignity.13 Gerard Hogan’s magnificent study of the drafting of the Constitution is closer to this viewpoint.14 Hogan’s argument is that the Preamble in its final form and taken as a whole reflects these contested visions, but with the liberal, non-sectarian vision of John Hearne,15 the Legal Adviser to the Department of External Affairs, and a critically important actor in the process of drafting the new Constitution,16 largely reflected in the penultimate (fifth) paragraph of the Preamble (that is, in the provisions regarding the ‘object’ of the Constitution, including the reference to ‘dignity’). He views the conservative Catholic vision of a group of Jesuits and McQuaid significantly influencing the first three paragraphs (that is, the basis for constitutional authority). Hogan infers that the provision regarding the ‘dignity and freedom of the individual’ is thus an illustration of Hearne’s more liberal vision. The contrasting views of Hogan and Moyn are important not only for an understanding of the deeper meaning of the Irish Constitution itself, but also because which of them is right is significant for the writing of the history of the use of ‘dignity’ in human rights discourse more generally. The particular issue in the current wider historiographical debates about dignity is the extent to which there has been a continuity of the use of dignity language. From this perspective of continuity, Ireland’s use of dignity is to be seen as one rivulet contributing to the flow of dignity into modern constitutional and international human rights discourse. In this narrative, the use of dignity in the Preamble to the Irish Constitution is of a piece with its subsequent uses: its incorporation into the Universal Declaration of Human Rights and several post-War European constitutions, its role as the principal theoretical grounding for international human rights law, and its virtually guaranteed place in all modern constitutions and human rights treaties. Moyn, on the other hand, has a very different understanding of the process, as we have seen. The Irish Constitution has thus become something of a resource for the building and testing of various constitutional and human rights models, and the Preamble has proven particularly fertile ground for authors wanting to develop different models of constitutional identity. In an important intervention,17 Mark Tushnet, of Harvard Law School, has distinguished between identitarian and universal components in national constitutions. By ‘identitarian’ components, he means those elements of a constitution that ‘are tied quite specifically to the nation itself,’ whilst universal or ‘principled’ components ‘invoke broader principles—liberty, freedom, equality, human rights—that are accessible to everyone’.18 He considers that the Preamble of the Irish Constitution is ‘intriguing because it offers a unique mixture of identitarian components’.19 In particular, he regards the principled components of the Preamble (which he identifies as ‘the dignity and freedom of the individual’) as ‘suffused with aspects of its identitarian ones’.20 This is the case, he explains, because they ‘are described in expressly Thomistic terms, including ‘final end’, ‘common good’, and ‘prudence, justice, and charity’.21 He recognises that Thomism claims that ‘its conclusions are available to anyone exercising the capacity of human reason, without regard to his or her religious commitments’, but nevertheless considers that ‘[t]hrough the Thomistic claim the Irish Constitution’s principled elements are fused with its identitarian ones’.22 This interpretation, he recognises, diverges significantly from Teresa Iglesias, who considers the same components (‘the dignity and freedom of the individual’) as universal and considers that the identitarian components are located elsewhere.23 For Iglesias, the ‘universal ethico-legal content of paragraph five [containing ‘dignity’] stands on its own. Its significance is not dependent on other parts of the Preamble, nor can it be interpreted as an ‘advertent commitment to sectarianism’.24 Tushnet, on the other hand, considers that this ‘cuts the connection between the identitarian components and the universal ones too abruptly’, reiterating that they are ‘better understood as fused’.25 In attempting to arbitrate these debates, this article explores the understanding of the role and function of dignity in the Irish constitutional context, as envisaged by de Valera. It will also consider the vexed and controversial question of what, if any, substantive understanding of dignity de Valera sought to instantiate at that time.26 In addressing these issues, several archive holdings of the drafting of the Irish Constitution in English that have already been critically examined by several scholars, in particular by Hogan, were re-examined. This has proven invaluable in testing further the various scholarly hypotheses I have considered, and I draw on these sources in what follows. Drafting what became the Irish Constitution required the drafters to work in both the English and the Irish languages, with the Irish language version ultimately having priority in cases of dispute. None of those debating the intended meaning of the Preamble (Moyn, Hogan, Tushnet or Iglesias) have considered whether the development of the Irish text, and in particular the use of ‘uaisleacht’ as the Irish translation of ‘dignity’ in the Preamble, can shed any further light on what was intended by the inclusion of ‘dignity’. If we are to ask what ‘dignity’ means in the Irish Constitution, then the answer lies not only in an understanding of the variety of its meaning in Europe, and in its expressive meaning in English for various different constituencies in Ireland at that time, but also in the relationship between English ‘dignity’ and Irish ‘uaisleacht’.27 Recent archival work in Dublin has pieced together the Preamble’s parallel English language and Irish language drafting processes, which occurred, in secret, in a few intense months of 1937. The English language drafts provide important insights into what was intended by the use of ‘dignity’ in the Preamble, but the need to translate the term into Irish, and to choose an Irish word that would convey the appropriate meaning (and, as importantly, not convey the wrong meaning), appears to have forced an intense debate on what was intended in the use of the English word ‘dignity’, casting further light on the meaning of the term. In seeking to understand what occurred in the drafting of the Irish language text, a second researcher was brought into the project, one who was an Irish language specialist, unlike the author.28 This article thus tests the argument of Moyn, Hogan, Tushnet and Iglesias by using a combination of previously studied archival resources and previously neglected sources. It considers what the study of the history of dignity in the Irish Constitution brings to attempts to understand the concept of human dignity in contemporary constitutional and human rights discourse. In particular, the article considers how far ‘dignity’ in the Irish constitutional context should be seen as exemplifying the sectarian and particularistic side of dignity, as Moyn and Tushnet conceive it, or a precursor of its ‘enlightened’ and universalistic use in post-WWII human rights and constitutional rights contexts (as Hogan and Iglesias incline towards). Based on an examination of the available archives documenting the drafting of the Preamble in which dignity features, it will be suggested that a strikingly modern conception of dignity emerges from the multiple sources, multiple functions, and multiple meanings which influenced its development, but one which also kept faith with its past. The result is that attempts to view the Irish conception of dignity as understood in 1937 as either rooted in a conservative Catholic past or as looking to a progressive liberal future are both wide of the mark. It was both—and more. III.Drafting the Irish Constitution: Irish and European influences The drafting of the 1937 Constitution saw the coming together of internal Irish and external European influences. We shall see that each plays an important role in understanding the twists and turns of the internal drafting process, to which I turn subsequently. The drafting of the new Constitution as a whole was a complex and time-consuming process, which cannot adequately be summarised here. The purpose of the following brief account is to bring to the attention of the reader the Irish and European political contexts in which this drafting took place, in order to situate the drafting of the Preamble in the broader constitutional drafting process of which it was only one part. A. Irish dimensions The major internal political context was the still-imperfectly achieved independence of Ireland from Britain. From the Act of Union between Ireland and Britain in 1800, forming the United Kingdom, Ireland had lost its separate constitutional identity and most of its separate structures of government in what Dicey at least considered the unitary state of the United Kingdom of Great Britain and Ireland. By the second half of the nineteenth century, there were significant reform movements within Ireland arguing for the devolution of significant powers back to Dublin from London. However, this movement (Home Rule, as it was called) failed to be accepted by the Westminster Parliament, and Irish nationalism, which sought the complete independence of Ireland from Britain, increased in importance and radicalism, influenced by the secret Irish Republican Brotherhood (‘IRB’). Accompanying this rise in political nationalism was an important resurgence of aspects of Irish culture and, particularly, the Irish language (the so-called ‘Celtic Revival’29). On Easter Monday, 1916, a small group of armed insurrectionists, organised by the IRB and comprising members of the Irish Volunteers, the Irish Citizen Army and Cumann na mBan, proclaimed an Irish Republic, and launched an unsuccessful rebellion against the British forces. In a major miscalculation, the principal leaders of the Easter Rising were executed, contributing to a backlash against the British authorities. In 1918, Irish Republicans participated in the General Election and, having swept the boards (except in Ulster, the northern counties), withdrew from Westminster, declared independence, established a rebel parliament in Dublin and launched a partially successful War of Independence against the British. This ended in 1921 with a ceasefire in July and the signing in December of a treaty between Ireland and Britain establishing a new constitutional arrangement. The effect of the treaty was that twenty-six of the thirty-two counties (termed ‘the Irish Free State’) were accorded Dominion status (at the time, akin to the status of Canada), with a separate parliament in Dublin. A Constitution for the Irish Free State was drafted, incorporating the terms of the treaty, coming into effect in 1922. Six of the northern counties on the island of Ireland had already (in 1920) had significant powers devolved to a new Parliament of Northern Ireland and were permitted in the treaty to opt out of joining the new Irish Free State and to remain part of the United Kingdom, retaining a separate parliament and government in Belfast. The separation of the island of Ireland into two parts came to be called ‘Partition’.30 Those supporting this treaty saw it as a way of securing complete independence in the future, and were prepared to bide their time. Those opposed to the treaty, led by de Valera, saw it as a betrayal of the Irish Republican ideal, given Partition and the continuing links between the Irish Free State and Britain, including the need for those serving in the Dublin Parliament to take an oath to the crown, the remaining presence of the British Crown in the shape of the resident Governor-General, and the right of appeal from the Irish courts to the Privy Council in London. A civil war ensued, in which de Valera and the anti-Treaty forces of the insurgent Irish Republican Army (the IRA) were defeated militarily, although they remained a potent threat to public order. By the mid-1920s, de Valera broke with the IRA, and he decided to embark on constitutional politics and participate in elections to the Irish Parliament, entering Dáil Éireann (the lower house of the Irish Parliament—the Oireachtas) in 1927. His party (Fianna Fail), and he personally, became increasingly popular and were able to form a government in 1932, although only with the support of the Irish Labour Party in the Dáil. Following his electoral success in the 1932 general election, de Valera’s initial aim appears to have been to strip the 1922 Constitution of those elements of continuing British involvement, rather than necessarily to proceed to the wholesale replacement of the 1922 Constitution with a new Constitution.31 Amendments to the 1922 Constitution that had been introduced in 1929 meant that the 1922 Constitution ‘was amendable by the Oireachtas alone’.32 In the 1933 general election he increased his proportion of first preference votes, but still fell just one seat short of securing an absolute majority in the Dáil, and he continued to need the support of the Irish Labour Party, until he won a majority of seats in subsequent by-elections. As well as being the equivalent of Prime Minister in the British system (President of the Executive Council), de Valera also headed the critically important Department of External Affairs. From 1933 onward, de Valera succeeded in removing the oath to the crown, reduced the powers of the Governor-General, and abolished the right of appeal from the Irish courts to the Privy Council in London. The changes that were introduced did little to improve the 1922 Constitution’s coherence, however, and several other events led to the 1922 Constitution being seen as a weak basis on which to govern the country, including providing only weak protection of fundamental rights.33 An internal process of revising the 1922 Constitution was initiated in 1934, and civil servants were instructed to advise on those articles of the 1922 Constitution that were of fundamental importance, with the apparent aim of keeping the important bits and jettisoning the rest. To cap it all, in December 1934, the Irish Supreme Court cast doubt on the extent to which the Irish Parliament could legislate in ways that were contrary to the treaty, calling into question whether de Valera’s attempts to strengthen Irish autonomy were constitutionally valid.34 Over time, then, tinkering with the 1922 Constitution evolved into a full-scale effort to produce a new Constitution, culminating in de Valera’s instructions to John Hearne—the civil servant he was to work with most closely on developing the new Constitution—in April and May 1935 to begin drafting.35 We might think, or perhaps hope, that constitutions such as the Irish Constitution of 1937 would be drafted in the full blaze of public accountability and democratic participation, but that was not to be.36 The first fully public appearance of the draft Constitution on 10 May 1937 was preceded by over two-year’s worth of private, indeed secret, intense discussions and drafting behind the scenes. The secrecy of the process, and de Valera’s working methods,37 have meant that the details of the drafting remain somewhat opaque. Fortunately, recent historical scholarship (and additional work in several Dublin archives) has substantially traced the evolution of the drafting of the Constitution in the period prior to its presentation to Dáil Éireann: the first tentative draft attributed to John Hearne; the alternative drafts proposed by a group of Jesuits (in particular, Fr. Edward Cahill); the involvement of the future Archbishop of Dublin (Fr. John Charles McQuaid); and the internal discussions within government departments. The details of the process are still emerging, however, and although we are now further advanced in understanding what happened than in 1989, when Joseph Lee warned that any verdict ‘on the genesis, content, or consequences of the constitution must be even more provisional and subjective than normal historical judgments,’38 we are still far from having a complete understanding, even now. The draft Constitution, published to the public and introduced into the Dáil on the 10 May 1937,39 was then the subject of public debate and (limited) amendment, and approved on 14 June 1937. A plebiscite was held on the proposed new Constitution to coincide with a general election,40 and this was held on 1 July 1937. The Constitution was approved by 56% of those voting (685,105), comprising 38.6% of the entire electorate, with 526,945 (29.6%) voting against.41 But a significant proportion of the electorate (31.8%) either abstained or spoiled their vote. The Constitution came into effect on 29 December 1937. B. European dimensions As we shall see, the contextual factors that framed the drafting of the Preamble were primarily those political developments taking place in Ireland itself, notably the extent to which the state should be seen as exclusively Catholic rather than as inclusively Christian, the position of women within the state and the implications of the historical transition from a territory under the British Crown to an independent, democratic state based on republican principles. It is also important, however, to situate the Preamble’s drafting process in the broader European context of the time, a complex and shifting scene.42 Two European developments that came to prominence during the 1930s were to prove of particular importance in the Irish context. The first major European development occurring when the Constitution was conceived and drafted was the standoff between fascism and communism, with liberal constitutional democracy squeezed between these two opposing forces and, in terms of constitutional developments, coming off poorly from the encounter. The development of the Irish Constitution thus took place at a time of turmoil in European constitutional developments, and as Donal Coffey notes, ‘bears the traces of these constitutional debates’.43 Both ‘sides’ in the struggle over the drafting of the Irish Constitution drew heavily on different models of European constitutional law to support their proposals, with the Constitution of the German Reich of 11 August 1919 (the Weimar Constitution) being presented by some as a model of the modern European social-democratic constitution that Ireland should seek to emulate. The Weimar Constitution provided the model for several of the post-First World War liberal constitutions, and Gerard Hogan has provided a convincing account of its influence on successive waves of Irish constitutional development.44 As we shall see, another liberal constitution of some influence was the Polish ‘March’ Constitution of 1921, which incorporated extensive democratic elements together with an extensive set of protections for citizens’ rights until it was replaced in April 1935 by a considerably more authoritarian version.45 So too, the liberal democratic Estonian Constitution of 1920 had some influence on Irish discussions (but it too was replaced in 1934 by a more authoritarian version). Hogan concludes that ‘in 1922 and again in 1937, the drafters sought out a broader European constitutional heritage …’, and that ‘the Constitution’s language, structure and thinking has deep roots in [this] continental constitutional law …’.46 The change from democratic to authoritarian constitutions in Poland and Estonia was not, unfortunately, unique. By the mid-1930s, many other liberal constitutions had also collapsed (including Weimar itself) and been replaced by authoritarian constitutions of the Nazi or fascist varieties, as in Germany, Spain and Italy, or of the corporatist variety, as in Portugal’s 1933 ‘estado novo’ Constitution and Austria’s 1934 ‘Austrofascist’ Constitution. This development is tied up with the second important European development affecting the Irish debate—the emergence of significant debates within continental Catholic thought. Where should Catholic intellectuals, and the Catholic Church, situate themselves in the brutal conflicts between fascism and communism? Should it align with one or the other? Should it support liberal constitutionalism? Or should it seek to stake out its own unique theology of political action? Until the 1930s, the orthodox Catholic response would have been pretty clear to any Catholic, one that had been that provided by generations of popes and clerical leaders: in states where Catholics were the preponderant religion, Catholics should seek to make Catholicism the official religion of the state; in states where Catholics were in a minority, the aim should, first, be to seek to convert non-Catholics and, then, make Catholicism the state religion. Freedom of religion was not freedom to practice error, but only freedom to pursue the truth. Catholic moral teaching should, as James Chappel notes, ‘pervade political affairs, economic relationships, and popular culture’.47 As Chappel brilliantly demonstrates, this clerical orthodoxy began to be displaced during the 1930s in continental Europe by what he calls ‘Catholic modernism’. Catholic intellectuals and the engaged laity rejected the orthodox understanding of the role of Catholicism in political life and ‘defined for themselves what it would mean to be Catholic—and specifically, how the faith would translate into social and political life’,48 drawing inspiration from papal pronouncements but increasingly divided as to what the appropriate Catholic response should be to the crisis in and of Europe. Crucially, ‘the framing of [European] Catholic debate shifted from “How can we overcome the secular state?” to “How can we shape secular modernity to our specifications?”’49 A strand of Catholic political theology emerged that came to be known as Christian personalism, in which a ‘third way’ was articulated between the Left and the Right. There is a very considerable variety of ‘personalist’ metaphysical approaches. The particular type of personalism that is the focus of attention here is in the form of ‘Christian personalism’, or Thomistic personalism, associated with French Catholic debates during the inter-war period, in particular those involving Jacques Maritain, a prominent Catholic philosopher and subsequently a major figure in the development of the Universal Declaration of Human Rights. Thomas Williams has identified the core of personalism as a school of thought or intellectual movement that ‘focuses on the reality of the person … and on his unique dignity, insisting on the radical distinction between persons and all other beings (nonpersons)’.50 Williams sets out the distinctive characteristics of personalism as including ‘a concern for the person’s subjectivity, attention to the person as object of human action to be treated as an end and never as a mere means, and particular regard for the social (relational) nature of the person’. In the France of the inter-war years, personalism was seen not only as providing an alternative to the extremes of communism and fascism, but also as an alternative to ‘liberal’ ideologies. As Williams explains, it ‘arose as a reaction to impersonalist modes of thought which were perceived as dehumanizing’,51 whether based on radical collectivist ideologies, such as communist and Marxist materialism, deterministic ideologies such as Nazism or racism, and radical individualism as espoused by utilitarians and Nietzsche. For Maritain, personalism was ‘a phenomenon of reaction against two opposite errors (totalitarianism and individualism) …’.52 The rejection of totalitarianism is seen in the emphasis on subjectivity (with its view of persons as free and responsible moral subjects, giving rise to a responsibility on others to respect this), and the prohibition on treating others as means rather than ends, with strong echoes of Kant.53 The rejection of radical individualism is seen in the identification of the person in relationships, as a social being in community with others. For Maritain, personalism was a ‘social philosophy centered in the dignity of the human person’ and must be distinguished ‘from every social philosophy centered in the primacy of the individual and the private good’.54 Two competing forms of Catholic political action developed: one attempting to face down authoritarian communism, the other attempting to face down authoritarian fascism, and both contributed to the complex pattern of European constitutional development at that time. Neither was committed to Weimar-style social democracy. European left-leaning Catholic constitutionalism in France focused on the importance of trade unionism, social solidarity and emancipation. A European, conservative Catholic constitutionalism developed, seen operating in the Portuguese, Austrian and Polish Constitutions of 1933, 1934 and 1935 respectively, that differed significantly both from liberal constitutionalism, and from fascist and Nazi constitutionalism. The most noteworthy aspects of these constitutions explicitly or implicitly were the centrality of Christian (read Catholic) moral principles, and (in Portugal and Austria) the importance given to the corporatist approach in the organisation of social and economic life developed in the papal encyclical Quadragesimo Anno. Despite their other differences, both forms of Catholic political action emphasised the importance of human rights and dignity. Chappel’s analysis of this turn is key to what follows: Once they abandoned the goal of state capture, Catholics had recourse to a new and modern language to think about political legitimacy. If the state would not itself be Catholic, and if religion would in some sense have to be restricted to the private sphere, then the task for the state was to protect that private sphere. Catholics, therefore, began to use a new set of concepts to rigorously delineate the private sphere into which the state could not intrude.55 A ‘new set of keywords’ emerged: ‘antitotalitarianism, dignity, religious freedom, and human rights’.56 These terms could, and would, be used in different countries to attack the Right, the Left or liberalism. What grew up, therefore, was Catholic political action which sought to be involved in politics and emerging constitutional debates, but did so in different ways, depending on which competing ideology was considered to be the greatest threat, but using a similar set of concepts, influenced by personalism. For de Valera, a Catholic intellectual himself, operating in a state in which the overwhelming portion of the population was Catholic, with a powerful Catholic hierarchy, and an active Catholic laity, and now embarking on establishing a new Constitution during the political turmoil of 1930s Europe, the stakes could not have been higher. Should he aim, as Catholic clerical orthodoxy would have it, to establish Catholicism as the state religion? If not, should he steer the Constitution towards Catholic conservative modernism, viewing communism as the primary threat and adopting corporatism and the trappings of Austrian and Portuguese authoritarian constitutionalism to head it off? Or should he, instead, focus on instantiating progressive Catholic social doctrine? And what role should human rights and dignity play in this? IV. What are constitutional preambles for? ‘Dignity’ is located in the Preamble to the Irish Constitution, and this location is significant in various ways for understanding the function it played in that Constitution. Different visions of what a preamble is for can be identified. In his classic 1867 account of the English Constitution,57 Walter Bagehot introduces his famous distinction between the ‘efficient’ and the ‘dignified’ parts of constitutions. The dignified part refers to those parts of the Constitution (and, in England, the monarchy was his paradigm example) ‘which excite and preserve the reverence of the population’, whilst it is the efficient parts (for example, the Cabinet) by which the Constitution ‘works and rules’. There are, Bagehot suggests: two great objects which every constitution must attain to be successful … : every constitution must first GAIN authority, and then USE authority; it must first win the loyalty and confidence of mankind, and then employ that homage in the work of government. The dignified parts of government are, he suggests, ‘those which bring it force—which attract its motive power. The efficient parts only employ that power’. The dignified parts ‘may not do anything definite that a simpler polity would not do better; but they are the preliminaries, the needful prerequisites of ALL work. They raise the army, though they do not win the battle’. The approach that Éamon de Valera took to the construction of the new Irish Constitution in the 1930s seems to reflect Bagehot’s insights. Hearne, the civil servant, was particularly focused on efficiency, but, for de Valera, that was not sufficient. As John Kelly suggested, the Irish Constitution was part law, and part manifesto.58 An important way of understanding the role that the Preamble to the 1937 Irish Constitution plays is to see it as essentially an aspect of the dignified part of the newly constructed Constitution, part of an attempt to reflect and instantiate a new constitutional identity, more manifesto than law.59 On this reading, de Valera sharply distinguished the efficient from the dignified parts of a constitution, with the preamble being the dignified part, and the substantive text of the rest of the constitution being the efficient part. Both were necessary, but they should not be confused. As we shall see, de Valera was wary of inserting into the substantive articles of the text anything other than purely efficient measures. It is no coincidence, then, that ‘dignity’ does not appear in the substantive sections of the Constitution, but in the Preamble, that part which can most clearly be seen as the dignified part of a constitution. This is not to say that preambles must necessarily be part of the ‘dignified’ part of the constitution only. Liav Orgad has suggested that there are three functions that preambles play, only the first of which sees preambles in this limited role. Some preambles are, he suggests, ‘ceremonial-symbolic’ in which the preamble ‘serves to consolidate national identity but lacks legal force’. In a second group, the preambles are ‘interpretative’, where the preamble ‘is granted a guiding role in statutory and constitutional interpretation’. In a third group, the preambles are ‘substantive’, where the preamble, ‘serves as an independent source for constitutional rights’.60 The Preamble to the Irish Constitution was considered by de Valera, as we shall see, to be ‘ceremonial-symbolic’, using Orgad’s terms.61 Eric Voegelin, the German-born political philosopher, writing about the Austrian Constitution of 1934, described how the preamble to a constitution may offer ‘substantial insights into the configuration of the forces’ that mould a state. ‘The purpose of a preamble’, he wrote, ‘is for the power that drafts the constitution solemnly to acknowledge the principles underlying the construction of a state that produce a political alliance by way of the constitution that follows the preamble’. Voegelin suggests that ‘as a rule, a preamble contains three typical elements: the power authorized to draft the constitution; the principles of the drafting process; and the object of the provisions instituting the constitution’.62 The Preamble to the Irish Constitution certainly contained these elements. The Preamble suggests that the power authorized to draft the constitution was based on a mixture of democratic (‘We, the people …’; ‘give to ourselves’) and deistic authority (‘In the Name of the Most Holy Trinity, from Whom is all authority …’). The principles of the drafting process were based on the ‘due observance of Prudence, Justice and Charity’ and ‘remembering … [the] struggle to regain … independence’. The object of the provisions instituting the constitution consisted in the promotion of ‘the common good, … 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’. These objectives are set within the context of an overarching understanding that it is the ‘Most Holy Trinity, … to Whom, as our final end, all actions both of men and States must be referred’.63 That said, disaggregating the Preamble in this way has its limitations. We risk underestimating the fact that the whole of the Preamble is considerably greater than might be suggested taking these three elements separately. A significant problem for states transitioning from one constitutional system and into another, if we accept Bagehot’s analysis, is not only how to create a new constitution embodying the mechanisms of efficient government but also how to capture, or replace, the dignified parts of the previous constitution with a new set of signs, symbols and cultural references that can ‘excite and preserve the reverence of the population’. De Valera, I suggest, wanted to ensure that, taken as a whole, the Preamble was drafted in such a way as to plot out, and justify, the essentials of the new Irish constitutional identity in language that was neither wholly literary, nor wholly legal, but a combination of both. This is another way of saying, as Dermot Keogh has argued, that ‘de Valera was engaged in a politico-psychological exercise. He was claiming to provide the Irish people with their own Constitution …’,64 and to persuade them that they should, ultimately, support it. In using the Preamble to help achieve this, he was (whether he realised it or not) following Plato’s advice that ‘the legislator must explain and justify his laws. Hence every law must be headed by a preamble justifying its provisions; further, the preamble must be rhetorical in character; it must not only instruct, but persuade’.65 V. Drafting the Preamble A. First phase (1935-1936): a false start? By the time it was first published to the public on 10 May 1937, the Preamble was complete and the text was not changed thereafter. In understanding the intended meaning of dignity in the Constitution, we need to focus attention on the period between May 1935 and May 1937.66 The drafting of the Preamble can be said to begin in May 1935, when de Valera began in earnest his efforts to enact a new Constitution, relatively secure in his political position. Two documents are available that date the beginning of drafting to May 1935. One is an early draft of a new Constitution (‘Preliminary Draft of Heads of a Constitution for Saorstát Éireann’) attributed to John Hearne.67 The other (the ‘Squared Paper Draft’) consists of notes of a meeting in de Valera’s own hand setting out a sketch of instructions to Hearne as to what a draft Constitution should contain, which may also date from May.68 Both the Hearne draft69 and de Valera’s notes70 refer to the possible content of a Preamble. There is a noticeable similarity in the approach suggested by Hearne and the ‘Preamble’ (although it was not called that) of the 1922 Constitution of the Irish Free State, which had been sparse.71 In both style and substance, Hearne’s draft echoes the approach taken in the Preamble to the 1919 Weimar Constitution.72 De Valera had referred to the Weimar Constitution in the ‘squared paper’ draft.73 It is unclear which came first, but it would not be surprising if the Hearne draft had been presented to de Valera, who then gave further instructions as what a revised version should contain.74 The differences between the two are subtle but important. First, de Valera’s instructions considerably expanded on the religious element which appeared in Hearne’s draft, and there is also a significantly expanded set of references to the struggle for independence from Britain, including the Proclamation of the Republic in 1916,75 the Declaration of Independence in 191976 and the Democratic Programme of the first Dáil (also in 1919).77 Hearne’s draft is forward looking; de Valera’s is insistent that there be seen to be clear links to the past. As Broderick observes, the Preamble envisaged by de Valera ‘was to be Christian (though it was not specifically Roman Catholic in this draft) and nationalist, thus giving expression to the two great influences which he believed shaped the Irish state’.78 Hogan notes that, for reasons ‘which are not entirely clear, the drafting process fell into abeyance from the autumn of 1935 for another twelve months’.79 This is not entirely accurate, as there continues to be some internal correspondence indicating that work did proceed, with Hearne continuing to study several European constitutions as possible models.80 But it is correct to say that the drafting process began again in earnest in August 1936, after de Valera had informed King Edward VIII on 8 June of his decision to draft a new Constitution.81 Even then, discussion of the Preamble remained in flux until relatively late in the process. Thus, in a ‘Plan of Fundamental Constitutional Law’ of 20 August 1936, although a preamble is envisaged, no details are included, and there is a clear indication from a marginal handwritten note, attributed to de Valera by Hogan, that thinking had not much advanced from the previous year.82 The ‘Summary of Main Provisions of the Constitution’ dated 5 November 1936, also states only that ‘there will be a Preamble acknowledging that all lawful authority comes from God and setting forth the ideals of the Nation and the purposes of the people in establishing’ this Constitution.83 It appears that Hearne did, indeed, draft a Preamble in these terms around this time.84 From this draft, we can see how Hearne wove into his previous draft several additional elements that de Valera had asked to be included, in particular references to the struggle for independence, and a somewhat more developed set of religious references.85 We shall see how several of the themes that Hearne included in this early draft were replicated in subsequent drafts, although in somewhat different language. B. Second phase: enter the Jesuits, stage right It would appear that de Valera was still not satisfied that the Preamble was fit for purpose, and that he looked outside the civil service for alternative suggestions.86 I pick up the drafting process in 1936. Fr Edward Cahill, a personal friend of de Valera and a Jesuit, had sent de Valera suggestions in early September 1936 for what a new Constitution should contain, and had been invited to develop his ideas into a fuller draft. Cahill was one of the more prominent Irish Catholic theologians at the time, and in 1932 had published his Framework of a Christian State, in which ‘dignity’ and ‘human dignity’ featured heavily,87 and of which de Valera apparently thought highly.88 De Valera replied to Cahill on 19 September 1936 thanking him, but raising the issue that indicated that the distinction between the efficient and dignified aspects of a constitution was on his mind: ‘The difficulty [with Cahill’s draft],’ he wrote to Cahill, ‘is to decide how much can be or should be embodied formally in the new Constitution’.89 He continued, ‘I can see that some of the principles might be set forth in a preamble, but I fear there there (sic) is not much that can be incorporated into the body of the Constitution, i.e. made Articles of it.’90 De Valera asked Cahill to suggest draft articles but also specifically mentioned his wish to have suggestions as to what a preamble might contain. Following this, the Provincial (Head) of the Jesuit Order in Ireland appointed a committee ‘to advise on certain matters connected with the Constitution’, after some concerns had been raised internally about letting Cahill do more work for de Valera unsupervised. The Jesuit committee met during September and October 1936 and produced a full draft Constitution, together with an extensive Preamble,91 which was forwarded by Cahill to de Valera, on behalf of the Jesuit committee, near the end of October, followed by a subsequent set of suggestions prepared by Cahill himself in November of that year. There are several aspects of these drafts that are critically important in understanding the evolution of the ideas underpinning the Preamble, and the eventual incorporation of ‘dignity’. The first is that there was an explicit attempt to reflect recent European experience regarding the development of new constitutions in Catholic nations. The minutes of the Jesuit Committee drafting the various documents records that: It was resolved unanimously that references to Constitutions and Concordats of Catholic states should be added … , that those who have the task of drawing up the Constitutions may come to know what the Catholics of other Catholic European States have already secured.92 When the drafts were submitted to de Valera, they contained detailed footnoting with references to several European constitutions, in particular those of Austria and Poland. Indeed, at one of the earliest meetings of the committee, it had been agreed that, ‘A preamble is to be drawn up on the model of the preamble to the Polish Constitution.’93 The Preamble of Polish Constitution of 17 March 1921 thus provided (in the English translation available in Ireland at the time94) the template for the Jesuit drafts and, via this source, for parts of what became the final version of the Irish Preamble.95 Two further points of importance relate to the theistic substance of the Preamble rather than its sources. There is a clearly evident desire to ensure that Irish identity, as set out in the Preamble, should be Christian, and should explicitly link its Christianity with the national struggle for independence, through references to the strength that adherence to the faith gave to those resisting foreign oppression. There is also a clear attempt to ensure that all legitimate authority would be seen as explicitly derived from the deity (‘Acknowledging that all supreme political and civil authority, legislative, executive and judicial, and all other moral powers of government come to us from God’96). This approach appears to have been influenced by the Austrian Constitution, which is frequently referenced throughout the drafts.97 The Jesuit draft goes beyond this, however, providing that the provisions of any constitution would be bound in the future by natural law and the rest of the Constitution is explicitly made subject to natural law (‘we declare that all such authority and powers shall be exercised only in accord with the precepts of the Divine Law, natural and positive, and that any other exercise of them is, and shall be null and void, and of no moral force, and in no way sanctioned by us’98). The Weimar and Polish Constitutions did not accept this constraint. The adoption of natural law as both a source of and a constraint on constitutional powers also appears to go somewhat beyond even the Austrian approach. Perhaps of most importance, in terms of the differences between the Jesuit drafts and the Hearne drafts, is the much more highly developed articulation of citizens’ and family rights as placing important limits on the exercise of state power. Although there had been references to the principles of freedom and equality in the earlier drafts, the Jesuit draft is much more detailed and programmatic in its approach. (‘We guarantee to all citizens of this State full equality, before the law as human persons, and full recognition and protection by the State of all their personal and family rights.’99) This drafting, too, was acknowledged as having been drawn from the Polish Preamble. We should note, however, that there is no reference to ‘dignity’ in the Jesuit drafts submitted to de Valera, even though the English translation of the Polish Preamble available at that time is noteworthy as the first document in the drafting process (informal though that was) to mention the term ‘dignity’. (It is noteworthy, incidentally, that the English translation of the Polish Constitution that was in circulation in Ireland at the time uses the phrase ‘respect for the dignity of labour’, which does not, in fact, appear in the Polish-language version of the Constitution.100 The translator appears to have inserted the phrase as an appropriate way to get across the spirit of this part of the Constitution, a point I shall return to subsequently.) That difference aside, there is a clear influence of the growing Catholic ‘personalist’ political theology discussed earlier. We can see this in particular by the reference to the ‘human person’,101 an indication at that time of personalist influences at work. C. Third phase (September 1936 - March 1937): McQuaid’s dignity The deliberations of the Jesuits coincided with the commencement of the next phase of drafting within government, which began in earnest in September 1936 and lasted until March 1937. At this point, the figure of Dr McQuaid begins to figure strongly in the process, particularly from November 1936. There is extensive (if often undated) evidence from the Dublin Diocesan Archives that he began to send a constant stream of advice and suggestions to de Valera, presumably at de Valera’s urging. (McQuaid was both a friend, and de Valera’s spiritual adviser.) This correspondence shows that McQuaid was feeding de Valera material, including references to the important papal encyclicals Rerum Novarum (1891) and Quadragesimo Anno (1931), as well as Immortale Dei (1885), Casti Connubii (1930) and Divini Illius (1929).102 Undated drafts of a preamble can be found in the archives of the Dublin Archdiocese,103 which contain the correspondence between McQuaid and de Valera concerning the Constitution. I can say, with some confidence, that these early drafts of the Preamble are likely to date from before or (more likely) during February 1937.104 In the archives, there are three draft versions of English language versions of the Preamble that was eventually adopted, the second and third being amended versions of the first.105 One version is in typescript; a second version is a handwritten copy of the first also containing manuscript amendments; and a third is a typewritten version of the second, with several more manuscript amendments. It is particularly intriguing that the second manuscript version appears to have been handwritten by McQuaid himself,106 although there is no direct evidence that it was drafted by him. I do not know whether the first typewritten version found in the archives was drafted by Hearne or by another hand. It was not unknown for McQuaid to re-transcribe by hand a document written by another person. It does give some further credibility, however, to the theory that the original draft of the preamble was, indeed, drafted by Dr McQuaid himself, although that is not certain. What is clear, however, is his early and close involvement in considering the text of the Preamble that, as amended, became the final version of the Preamble as included in the Constitution. There is a reference by John Cooney107 to the future Archbishop as having been involved in advising de Valera on the drafting of the Preamble,108 and referring to the drafts of what would become the Preamble he found in McQuaid’s papers in the Diocesan Archives. Both are labelled ‘X’.109 These appear to be later versions of the drafts discussed above. I do not know from these papers whether McQuaid himself was responsible for either of these drafts, only that he was in some way involved in either drafting them or in commenting on them. I can reasonably conclude, however, that McQuaid was responsible for the spirit of the draft if not for its specific wording, that he had been encouraged to incorporate in the Preamble some of the general principles, derived from the encyclicals, which as we shall see he had earlier proposed should be included in the text of the substantive provisions of the Constitution. Thus far, none of these drafts has referred to ‘dignity’. We now come to a critical juncture in the drafting process, one that we shall see has important implications for assessing the accuracy of Moyn’s claim that ‘dignity’ was first introduced into the draft Preamble only after 16 March 1937.110 However, in McQuaid’s proposal, dated the 16 February 1937, for a new provision on private property, ‘dignity’ appears for the first time in a discussion of what the substantive articles of the Constitution (not the Preamble) should contain. ‘Dignity’ appears in McQuaid’s suggestions regarding how draft provisions relating to the protection of private property might be supplemented. The relevant paragraph of McQuaid’s proposal states: The State, while acknowledging that the work of body and mind is an honourable means of virtuous and creditable living, shall aim, by this just distribution of material resources, at aiding all the citizens to attain that higher level of prosperity and culture which is more consonant with human dignity.111 The source of this provision is clearly the provisions of the papal encyclicals referred to earlier. In particular, it reflects the Church’s position regarding the ‘dignity of labour’.112 Indeed, McQuaid specifically acknowledges in a letter dated 16 February how these encyclicals ‘proved extraordinarily helpful to me’.113 A little later, on 22 February, he wrote to de Valera that ‘The statement is a combination of two more Papal pronouncements. So we are in good company.’114 McQuaid’s suggestion of the 16 February regarding private property did not meet with success, in that his proposed addition, incorporating the reference to ‘human dignity’, was not included in any subsequent drafts of the private property article or any other substantive article in the Constitution. But this rejection is to miss the point that, by February 1937 at the latest, dignity language had been included as one of the concepts that sought to capture the values that the new Constitution espoused. If McQuaid’s draft of a private property provision was an unsuccessful attempt to introduce dignity into the efficient part of the Constitution, it coincides with the first appearance of dignity in the draft Preamble, the dignified part. The similarity in wording between the penultimate paragraph of the first version of the draft Preamble and the draft provision on private property is striking, in particular the reference to the ‘dignity’ of ‘the citizens’. Throughout this process, the earlier continental European constitutions continued to be a pervasive presence. The Preamble of the Polish Constitution of 17 March 1921 was (to repeat, in the English translation that was used115) strikingly similar in several respects to the draft that I think McQuaid drafted or strongly influenced: the references to God, to the ‘Motherland’, to ‘social order’, to ‘principles of Justice’, to ‘citizens’ being protected, and to the Constitution being ‘vote[d] and confirm[ed]’ by the nation (in the Polish Preamble) or the ‘people’ in the draft Irish Preamble. Given these other drafting similarities, it is surely more than mere coincidence that this time, in McQuaid’s draft, there is a reference to ‘dignity’ in both. It is true that, in the English translation of the Polish Preamble, ‘dignity’ is included in the sense of the ‘dignity of labour’, and that the early drafts of the Irish Preamble refer to the ‘dignity … of the citizens’, but if I am correct that the thrust of McQuaid’s February suggestions regarding private property concerned the dignity of labour, that is a less significant difference than might first appear. From internal evidence, then, it appears that, as amended, McQuaid’s draft formed the basis for the draft Preamble in the so-called ‘Sunday Draft’, dated 28 February 1937 that de Valera discussed with his internal advisors. The ‘Sunday Draft’, comprising the English text of the Constitution, was the basis from which the final Preamble developed.116 This version, as amended following discussions on that Sunday, was re-typed by Kathleen O’Connell, de Valera’s private secretary, and circulated to the Ceann Comhairle (Speaker) of the Dáil on 2 March.117 De Valera’s broadcasts on 17 March 1937 of his annual St Patrick’s Day message to Ireland and to the Irish diaspora118 provides a unique insight into the type of issues that concerned de Valera at this critical point during the drafting of the Constitution, and the expressive message that he wanted the Constitution to convey. Given that the primary element in the Constitution used to convey this expressive message was the Preamble, it also helps us understand more clearly than any other external sources the thinking behind the Preamble at that time. There are four basic themes of importance that emerge from the broadcasts. First, there is a concern with the dire economic circumstances of the country. Although he does not explicitly advert to the fact, Ireland was in the middle of the so-called ‘economic war’ with the United Kingdom, which resulted in trade barriers being established by the United Kingdom, involving the imposition of tariffs that significantly damaged the competitiveness of Irish goods in what was then (and remains) Ireland’s prime export market. The ‘economic war’ thus further deepened the effects in Ireland of the still continuing worldwide economic depression that had begun in the late 1920s. In his speech, de Valera identifies the urgent need to deal with the dire economic plight of the country: ‘Like other peoples our people want to see an end to the impossible economic situation which in other countries has been driving men to violence, revolution and war.’ Having identified the problem, the question he poses is what to do about it, ‘In what direction were we to look for the solution?’ Second, in seeking a ‘solution’, there is a clear rejection of the European extremes of fascism and communism. Ireland should reject proposed solutions that ‘could only lead to greater evils than those from which we are suffering’. A solution ‘was not to be sought along the lines, for example, of any form of State absolutism, either of the Communist variety or the Fascist variety’. In sections of the speech that were drafted but not delivered, this rejection is made even clearer, and set out at greater length. In one draft, he wrote that, ‘We know that many countries have despaired of finding any remedy … . They have sought a solution by a complete abandonment of it, a denial of natural individual rights and a deification of the State in one form or another.’119 In another draft, he identified a ‘clash of ideas’ in which one of the contending ideologies that should be rejected involved ‘a materialistic conception of life and a glorification of the State at the expense of individual liberty …’.120 These passages clearly indicate the influence of Catholic personalism on de Valera at that time. Third, the alternative to state absolutism and materialistic ideologies was to be found in the protection of the individual and the family. ‘A solution to be a solution of this problem must take account of the moral and spiritual side of man’s being no less than of the material. A system which would deny the liberty, the dignity and the destiny of the human person can be no solution.’ Ireland must stand ‘for the personal rights of her citizens and for the spiritual as well as their material well-being’.121 Against the materialistic and state absolutism of fascism and communism, there is an alternative approach, ‘an increasing recognition of spiritual values and of the dignity of human life and labour’.122 ‘Dignity’ becomes an important way for de Valera to capture the set of values that he espouses, drawing explicitly on the language of continental Catholic modernism. Fourth, this approach is one firmly grounded in Catholic political theology, a combination of ‘faith and reason’. ‘As Catholics, we conceive the function of the State to be not to submerge but to aid the individual and the family which we acknowledge to be prior to and more fundamental than the State.’ Here we see clearly articulated an understanding of personal rights as existing prior to the state and superior to the state. Again, this understanding is reflected also in earlier drafts of the Preamble. ‘For us there are personal rights which the State may not abrogate. It is essential that in any solution the dignity and liberty of the human person should be safeguarded … as required in the natural order.’123 Ireland, above all, should embrace these principles: Our people are overwhelmingly a Catholic people, having the Christian faith and the Christian philosophy of life. If there was one country in the world in which it could be hoped that Christian principles could be made apply, surely that country should be ours. By 17 March, then, ‘dignity’ was not only in the Sunday Draft, it had also been internalised by de Valera as central to his message, and broadcast to the world. The St Patrick’s Day broadcast shows that the concept of dignity had been firmly planted in his mind. We can see, therefore, that McQuaid’s approach to dignity, one rooted in the encyclicals, and with a strong undercurrent of social justice, was a powerful force behind the incorporation of dignity in the Preamble. D. Fourth phase (16 March-April 1937): redrafting amid high religious politics But to stop at this point would be to misunderstand the extent to which these drafts were still open to significant change. I turn now to the subsequent redrafting of the Constitution that occurred after the 16 March. We shall see that de Valera took advantage of the source of dignity in the encyclicals in order to ensure that the function that dignity played was one that helped secure the tacit approval by the churches to the Constitution as a whole. The surrounding textual context of dignity changed, however, in subtle ways, not such as to risk wrecking the political function that it played in the negotiations with the churches, but sufficient to indicate a broader meaning than that which the churches themselves may have understood it to have. We have seen that the first widely circulated draft of the Constitution was published on 16 March 1937. This appears to have been prepared by Hearne, in collaboration with Arthur Matheson, the parliamentary draftsman. Although the Sunday draft had included the ‘McQuaid’ Preamble, the 16 March draft did not (nor, indeed, were other provisions regarding the place of religion in the Constitution, in particular the position of the Catholic Church, included). This may indicate that the substance of the Preamble was still sufficiently controversial, so far as de Valera was concerned, that he had not yet ‘signed off’ on these provisions, or it may indicate that de Valera considered that it would be wise to regard the Preamble and the religious provisions as part of a joint package that would be the basis for further discussions with the churches. I think that the latter interpretation is the more plausible, in light of subsequent events. Following the publication of 16 March draft, de Valera’s editorial committee consisting of Maurice Moynihan,124 Michael McDunphy,125 Philip O’Donoghue126 and Hearne was formally established and went into overdrive, reacting to internal and external comments on this draft, with new drafts being circulated. A revised (English-language) draft was circulated in early April. It was during April that the text of the Preamble also appears to have been settled. During this period, the vexed question of the position of the churches was extensively debated, not least between de Valera and McQuaid, and involving discussions with the Papal Nuncio to Ireland, and with the Vatican; in all these, the Preamble was seen by de Valera as an important card to play. For much of the rest of April, de Valera was deeply immersed in negotiating with the churches, particularly the Catholic Church, over the terms of the article that would eventually form Article 44 of the Constitution.127 The first full draft of the Constitution that had been prepared and circulated to a small group in mid-March had included a provision dealing with church-state relations. This draft proved highly controversial and, as we have seen, was not included in the three drafts of the Constitution circulated in April because the whole provision was being re-negotiated. De Valera’s space for manoeuver, at this point, was limited: he had to produce a provision that appealed both to the democratic imperative that the state was ultimately responsible to the people, with the Catholic (orthodox) ideal that the state was ultimately responsible to God and natural law as interpreted by the Catholic Church. It is striking that, during April, the discussions with the churches over the church-state article was always combined with consideration of the Preamble. They were seen as intimately connected. The second version of the X draft appears in the official papers in the form of one of the documents recorded as shown to the Papal Nuncio on 3 April,128 and then to the Catholic Archbishop of Dublin Edward Byrne on his first visit to de Valera on 5 April.129 By this point, de Valera appears to have achieved several aims in the drafting of the Constitution: to reflect in the Preamble his own commitment to Catholic principles, and by showing it to the Papal Nuncio on 3 April, and Archbishop Byrne on 5 April, to use it to help gain the Irish Catholic hierarchy’s overall approval for a Constitution in which the Catholic Church (contrary to clerical orthodoxy) was not established as the state religion. There appears to have been much enthusiasm about this draft of the preamble in Catholic circles. According to de Valera’s own account of his meeting with Archbishop Byrne, he ‘liked the preamble immensely, and with the preamble was prepared to see’ the appropriateness of moderating the hierarchy’s approach to the issues of the relationship between church and state in the substantive provisions.130 At the beginning of April, it appears that liberalising the church-state article, refusing to make the Catholicism the official state religion, was seen by de Valera as counterbalanced by a strikingly Catholic Preamble. The question was whether the Catholic hierarchy, which could mobilise its supporters to vote against the draft Constitution and thereby likely kill it, would accept the trade-off. Situated in the Catholic intellectual developments in continental Europe, the choice before the Catholic hierarchy was ultimately between Catholic orthodoxy and Catholic modernism. De Valera was refusing to succumb to the former, but offering the latter: the hierarchy was being given a significant role in influencing how Ireland was to engage with modernism after the adoption of the Constitution, not whether Ireland should do so. It chose the former, but in doing so it was to choose a conservative Catholic modernism, one that was to remain dominant in Ireland for a significant part of the twentieth century. It did not, however, push Ireland towards the adoption of the type of Catholic corporatism that Portugal and Austria had adopted. And in the conservative Catholic modernism espoused by de Valera and accepted by the hierarchy, rights and dignity were seen as playing a significant and conservative role. Or at least that is what the hierarchy appeared to believe. The day after the Constitution was adopted, Vatican Radio made known its approval, specifically citing the Preamble as evidence of the Constitution’s Catholic character. At the same time as the Preamble, with its reference to ‘dignity’ was helping to smooth the acceptance of the draft Constitution by the churches, something significant appears to have occurred to the Preamble itself, with a rather different mind-set apparently being brought to bear on the drafting. While these negotiations with the churches were continuing, the Preamble itself was itself subject to liberalising influences, apparently as a result of its consideration by the civil service drafting committee between 5 and 11 April.131 ‘Prudence, Justice and Charity’ lose their specifically Christian character; the ‘common good’ (ultimately preferred over the phrase ‘common welfare’ which briefly replaced it in the drafts) is to be promoted ‘with’ due observance of these principle rather than ‘by’ observing them; the aim is to ‘assure’ dignity and freedom rather than ‘secure’ them. In other respects, there is a return to the pre-Jesuit, pre-McQuaid approach of Hearne’s initial drafts.132 Not only is there an additional national aim of ending Partition (‘national unity’), reflecting the very similar language first used in the preliminary draft heads of a Constitution, produced in May 1935 (‘promote the ultimate unity of Ireland’), the aim of securing ‘concord with other nations’ is also included, returning to the internationalist approach that Hearne had inserted in 1935 of ‘ensur[ing] harmonious relations with neighbouring peoples’. Both these aims reasserted themselves in these final internal stages, when the civil service (and John Hearne) appear to have come back into the frame. Dermot Keogh views Maurice Moynihan and John Hearne, in particular, as having ‘helped infuse the document with a balance and basic humanism.’133 Whilst important, however, these changes were also accompanied by what may be the most important change of all, for the purposes of this article. The dignity and freedom of ‘the citizens’ (collectively) was replaced by the aim of securing the dignity and freedom of ‘the individual’ (singular). Since the Jesuit draft, all drafts, including McQuaid’s drafts, and the internal drafts since the Sunday Draft, had referred to the State’s responsibility to its ‘citizens’, echoing the Polish Preamble,134 not to the ‘individual’. An earlier, somewhat parallel change occurred in the drafting of what became Article 40, the equality provision. The first draft of the provision of May 1935 provided only for ‘citizens’ to be considered equal before the law. The Jesuit draft had referred instead to the ‘human person’, but only in the context of citizenship, guaranteeing ‘… to all citizens of this State full equality before the law as human persons’. The Sunday Draft of 28 February reflected this approach, providing that ‘citizens are as human persons equal before the law’. In contrast, the approach taken in the Weimar Constitution to dignity (albeit in the economic context only) had been to secure a dignified life ‘to all’, and to ‘individuals’.135 This new version, providing for the ‘dignity and freedom of the individual’ was presented, on 11 April, by Sean T. O’Kelly, effectively the Deputy Prime Minister, to the Papal Nuncio for onward transmission to the cardinal, apparently without objection to the changes.136 What was the motive in changing from ‘citizen’ to ‘individual’? We simply do not know for certain. On the one hand, the change might be thought to represent an attempt to move the text to be even more closely in line with the papal encyclicals, and the timing of the change—when de Valera was negotiating with the Catholic Church—might add weight to this interpretation. But if that were the case we might have expected ‘person’ to be substituted rather than ‘individual’—after all, we have seen that the traditionalist Jesuit proposal in 1936 used the term ‘person’, as did McQuaid in several of his drafts of other articles. On the other hand, we might view the change from ‘citizen’ to ‘individual’ as suggesting that whilst, in the earlier draft, dignity represents that aspect of personalism that rejected radical individualism, identifying the person in relationships, as a social being in community with others (‘the citizens’), in the final draft dignity represents that aspect of personalism that rejected totalitarianism, emphasising subjectivity (with its view of ‘the individual’ as a free and responsible moral subject, giving rise to a responsibility on others to respect this). I suggest that the latter reading is to be preferred. There appears, in other words, to have been a significant shift from a more communitarian, corporate understanding of the appropriate relationship between the state and the individual, to a more universalist understanding, what Teresa Iglesias has termed ‘an advertent commitment to a just universalism’.137 Taken together with the dropping of the reference to the ‘Irish Race’, and somewhat downplaying ‘our fathers’ constant commitment to the faith, the result was a classic example of the ability of someone adept at drafting (and the skills of members of the committee in that regard are well attested to) to keep many of the words of the original text, whilst subtly shifting its meaning, ameliorating somewhat dignity’s conservative Catholic roots, by individualising and universalising it. This is made even clearer in the changes to the Irish text: whereas in the first translation of the relevant paragraph of the Preamble into Irish the term used to describe those whose dignity was protected was ‘urradh Éireann’ (native-born Irish) or ‘saoránach’ (citizens), the final text refers to ‘gach aon duine’ (everyone). This interpretation of why ‘individual’ was preferred over ‘citizen’ in this part of the Preamble may also reflect an important structural feature of the ‘efficient’ part of the Constitution.138 There are several provisions that guarantee rights to ‘citizens’ (Articles 40 and 44). Several other provisions (Articles 41-43), though protecting rights, do so for all, and not just citizens, in particular Article 43, which guarantees the right to private property. We have seen earlier that McQuaid had a hand in drafting the provision on private property, and that he had originally included ‘dignity’ in the draft he sent to de Valera, but I suppose that de Valera had removed it. What is striking about Article 43, as finalised, was the heavy reliance on an understanding of private property as a ‘natural right’, and one that is ‘antecedent to positive law’.139 The reference to ‘dignity’ in the Preamble may, then, be an attempt to flag up and reflect this natural rights perspective; one in which rights apply to all, irrespective of citizenship, simply based on a recognition of man as ‘a rational being’ or one made in the image of God.140 If that is the case, however, I might have expected that ‘[human] person’ would have been preferred to the term ‘individual’, which is only infrequently used elsewhere in the Constitution. This universalising tendency (if such it can be described) was not, however, without political risks. Between 7 April and 10 April, another significant change was proposed to the Preamble that proved a step too far. The reference to ‘our Divine Lord, Jesus Christ’, included in the drafts up to 7 April, was omitted in both the 9 April and 10 April drafts and a less specific reference to ‘Him’ substituted. By 11 April, the full reference to ‘our Divine Lord, Jesus Christ’ had been restored, and, although there were two further drafts of the Preamble near the end of April,141 the drafting of the Preamble was effectively completed by the 11th. The sensitivity of religious references in the Preamble is made clear in a Note attached to the relevant file, dated 11 April 1937,142 which also, by inference, helps explains some of the changes that were made: As regards the Preamble,’ it said, ‘many are sensitive because of its religious character. The mention of our Divine Lord’s name they think is more suited to a Church document than to a Constitution, and fear that it may give rise to charges of hypocrisy or pharisaism. A solution was suggested that ‘This could all be met if it were generally known that the competent ecclesiastical authorities had approved of the religious part.’ Copies were duly shown to Archbishop John Gregg, of the Church of Ireland, to Rev William Massey, head of the Methodist Church in Ireland, and were taken by Dr James Irwin, a Presbyterian friend of de Valera, to be shown to the Moderator and Moderator Designate of the Presbyterian Church. Whether it was fully realised or not is unclear, but in doing so the basic tenets of a more liberal Catholic modernism is in evidence, that Catholics should be able to influence state policy, but not dominate it. VI.Translating ‘dignity’ The ‘translation’ to which I refer is dual-faceted. There is, first, the translation of conceptions of ‘dignity’ from religious, political and social discourse into the constitutional domain. But there is also the ‘translation’ of dignity in a more literal sense: the Irish Constitution was drafted in both Irish and English, and the translation into Irish has particular significance as the Irish language text has formal priority as the authoritative text.143 A suitable and rigorous rendering of ‘dignity’ in Irish, therefore, was not merely an academic exercise. Choosing the right word was no simple task, indicating the difficulty of pinning down the multiplicity of usages of ‘dignity’ in English. Further light on the meaning that de Valera meant ‘dignity’ to convey may, therefore, be gleaned from this previously unexplored source.144 It is important initially to understand the context in which the translation into Irish took place. By 1937, the state had been in existence for only fifteen years, as had the official attempts to resuscitate the use of the Irish language as the official language of that state. Before 1922, at best, the Irish language was a language of literature, of folklore and of farming; it was not a language of government and of law. To make it such (given that Irish was the first official language, and all legislation was translated into Irish) required the establishment of a government translation service (Rannóg an Aistriúcháin), and a sustained attempt by this body to bring the existing Irish vocabulary into novel uses. As Órla McGrory has described it, ‘this required the coining of new terms, the standardisation of existing terminology, and differentiating between synonymous terms’.145 This was also the task that those translating the Preamble faced. Rannóg an Aistriúcháin was not, however, the body initially given the responsibility for translating the Constitution or the Preamble.146 The Irish version of the Preamble, according to the authorised biography of de Valera in Irish, is a translation of the English version of the Preamble.147 This biography attributes the responsibility for the translation to T.F. O’Rahilly, but the process was, inevitably, more complicated than that suggests. O’Rahilly was involved, but there were several other hands also involved. From October 1936 to around May 1937, there was a parallel process of drafting an Irish language version of the Constitution as a whole. It appears, pace de Valera’s biographer, that Mícheál Ó Gríofa, a writer and native Irish speaker from County Clare, was primarily responsible (based in Government Buildings in Dublin) for providing the Irish language version, in constant dialogue with Risteard Ó Foghludha, and subsequently edited by Liam Ó Rinn and Tomás Page, who joined the translation team from Rannóg an Aistriúcháin but only from early April.148 Maurice Moynihan was the chair of both the English language and the Irish language drafting groups, being fluent in Irish, thus providing an important link between the two processes. Micheál Ó Cearúil’s study of the Irish text of the Constitution is a useful starting point for trying to understand the implications of the Irish term used to express ‘dignity’ (‘uaisleacht’). The same term is used in the Constitution’s Article 40.2.10, which in English provides that ‘Titles of nobility shall not be conferred by the State.’ ‘Titles of nobility’ is expressed as ‘gairm [title] uaisleachta [nobility]’ in the Irish text. So, too, Article 40.2.20 provides (in English) that ‘No title of nobility or of honour may be accepted by any citizen except with the prior approval of the Government,’ with the words unlined being expressed in Irish as ‘gairm uaisleachta [nobility] ná gairm onóra [honour]’. Ó Cearúil identifies how the abstract noun uaisleachta is translated as ‘nobility, gentility’ in Ó Dónaill, one of the principal Irish-English dictionaries, to which Dinneen, another dictionary, adds ‘generosity, refinement; finery’. ‘úaislecht’ is also translated as ‘nobility, honour, greatness’ in DIL, a third dictionary, where examples are cited from the twelfth-century Book of Leinster onwards; it is based on ‘úaisle’, ‘nobility, dignity’—DIL cites ‘cu ro pinnit fo uaisli in graidh’ (‘in proportion to the dignity of the grade’), from a commentary on an early Irish law-tract. This form is in turn based on ‘úasal’, ‘high, lofty’ and, more metaphorically, ‘noble, honourable’. Ó Cearúil is largely silent, however, on the process of decision-making that led to the use of ‘uaisleacht’ and why it was preferred over the alternatives that were in use around that time. It appears from internal evidence that there were three phases in the drafting of the Irish-language version of the Preamble, and that the translation of ‘dignity’ was not settled until late in the process of finalising the English-language text. Uaisleacht was not the only Irish word that was used at the time to translate ‘dignity’. The word dighnit appears in two Acts of the Oireachtas from roughly the same period as the drafting of the Constitution. In both cases, it is used purely in relation to honorific titles. The 1931 Trustee Act (Acht na nIontaobhaithe) employs the word dighnit as the equivalent of the English word ‘dignity’, but here it is expressly a title of office.149 The 1931 Legitimacy Act uses dighnit in the same sense as an alternative to teideal onóra ‘title of honour’ in a discussion of the inheritance of title in cases of illegitimacy.150 Given that one of the main concerns of Rannóg an Aistriúcháin was consistency in the use of Irish terms translating English words, but that none of these terms eventually made it into the text of the Constitution, it is probably significant that Rannóg was not running the constitutional translation process, and that its representatives on the translation team were only two among several already established members.151 Later, Pádraig Ó Siochfhradha,152 speaking in Irish on the second stage of the Courts of Justice Bill on 2 July 1947, speaks of the ‘appropriate dignity’ that should attach to the judiciary, adding that their dignity (dighnit) must be cultivated for the sake of the law, for justice and in order that the people should respect the law.153 The sense here is that of respect or honour due to the judiciary without which they (and the law) would not command authority over the citizenry. Ó Siochfhradha’s speech was made in the context of securing a suitable remuneration package for judges. Their dignity, therefore, is an external quality which he attaches directly to their monetary value or worth: if they are not paid highly enough, then they will lack the dignity necessary to carry out their duties. Later still, the term dhínit an duine was used in Irish legislation when translating ‘human dignity’ in the Universal Declaration and in European Union treaties and legislation, rather than ‘uaisleacht’. To add to the plethora of possible Irish words that might have been drawn on to translate ‘dignity’, the Irish term that was most commonly used in translating the idea of ‘dignity’ in Rerum Novarum (and, later Quadragesimo Anno) was not ‘uaisleacht’ or dighnit, but ‘gradham daona’, which means something more like ‘human esteem’. While there was a concerted attempt within the drafting committee to choose the right word, but, as we have seen, the variety of possible candidates was quite substantial. I need, at this point, to distinguish three sets of drafts of the Irish-language version of the Preamble. The earliest is based on the text from the McQuaid papers without the corrections seen there. This Irish version is the basis for a translation, which is altered, however, to reflect changes in the English. There is also another text based on the amended English version, but this appears to be only loosely based on the earlier translations. The majority of the surviving Irish texts of the Preamble, however, are a second group of Irish drafts of the Preamble, which derive from the amended and ‘liberalized’ final English texts produced between 5 and 11 April 1937. These texts are separate translations of the amended Preamble, seemingly produced independently of one another. The third group of texts are reworkings of a single translation based on one of those found in the second group. This third group of texts leads directly to the final version as sent to the Dáil. The word dignity is translated successively in the first early set of drafts as réim, eineach and fíor-uaisleacht, but there continues to be considerable activity in the second and third stages of drafting, and we find ‘dignity’ rendered into Irish, at various points, as gradam, dighnit (= dínit), céim, eineach and uaisleacht. It is clear, then, from considering the relationship between the surviving Irish texts that the translation of the Preamble into Irish ran in parallel with the drafting in English but was particularly active in the final stages with several independent versions being prepared. An analysis of the attempts at translating ‘dignity’ suggests that the translators were having difficulties identifying a suitable equivalent in Irish. While it probably goes too far to suggest that the Irish form made any decisive contribution to the evolving understanding of what was understood by the term ‘dignity’ in the English texts, it must be recognised that the difficulties of establishing a suitable rendering and, in particular, the need to grapple with the undesirable connotations of several of the available Irish terms can only have enhanced the understanding of the drafting team and sensitised them to the precise meaning of the English term. Given the legal and ideological context of the Irish language and the fact that the translation process ran in parallel with the drafting, we may suggest that the choice of Irish terms at least indicates some of the thinking about the meaning of the word ‘dignity’ in English. The earliest attempt, réim, seems to suggest that people should have control over their own destinies. Nevertheless, it appears to represent a strategy to avoid an otherwise untranslatable word and may indicate that the translator understood clearly enough that the other more obvious possibilities that later surface in the translations are freighted with undesirable and unwelcome connotations. The most obvious terms suggest an exclusive sense of dignity linked to hierarchical divisions or distinctions in status, class or standing, whereas the chosen word had to be wholly inclusive. Eineach was another term that was tried, but it may have been thought unsuitable not only because it was an obsolete word but also because of its strong links to manifest inequality in early Irish law, according to which one’s eineach increased in proportion to one’s wealth. Its brief reappearance in the final (Irish) draft seems to reflect unease with the various other translations and hints at an attempt to retreat to the safety of a pre-English, Gaelic Ireland. Gradam was also closely linked to status and social standing and had a pronounced connection with honours, still prominent today, which rendered it unsuitable. Similarly, céim has a clear link to rank, although it is remarkable in view of this association that it survived through several iterations into the final draft. The persistence of the term seems to indicate that the translators realised that all the possible terms that might have been used were compromised by the same colonial and inegalitarian undertones. ‘Dignity’ was intimately associated in Gaelic Ireland with status, and it is unlikely that the drafters would aim to produce a document so clearly characterised by inequality in its Irish version. It is noteworthy that status terms were being reappropriated by various authors (both before and after 1937) to assert the fundamental dignity of the working poor, the nation and the native language. However, this is frequently achieved not by undermining or subverting the concept of rank but by reordering elements within the status quo to promote the previously undervalued. At its best, status is decoupled from the positive attributes associated with dignity, allowing those of low rank to be seen to exhibit the virtues previously associated only with those of high rank. At its worst, the traditional lower ranked individual or concept, such as the Irish language itself, is merely explicitly or implicitly promoted within the established hierarchy. Céim is, however, fundamentally and intrinsically hierarchical, and no amount of reinvention or reimagining could reclaim the term to express the qualities of human dignity. Dighnit would seem at first glance to have been a good candidate for the translation, as it is borrowed from English ‘dignity’ or its French equivalent. The answer as to why it was not chosen may lie simply in the desire of the draftsman (or of de Valera) to avoid the use of English loanwords, if a more Irish sounding term was available. DIL’s entry on ‘dignit’ states that it is an English or Romance loanword. T.F. O’Rahilly included it in his ‘English words rooted in Irish before 1580’. There may, however, be an additional reason explaining its rejection. Around that time the word still connoted rank and status, and this can be seen very clearly in Ó Siochfhradha’s 1947 use of the term to describe the high status and monetary reward he thought due to the judiciary, as discussed earlier. Like céim, it remained hierarchical, although it later proved capable of decontamination and democratisation, although not without some problems. The term that appears in the final constitution text is uaisleacht. This term was also tainted by its association with the Anglo-Irish aristocracy. Its vestigial toxicity is indicated by the use of the qualifier ‘fíor-’ (‘true’) in one of the earlier drafts and in the wider literature of the period.154 Nevertheless, the idea of the nobility (uaisleacht) of the mind, of language and of selfless action had become well established in the early part of the twentieth century, and the term had almost completely been reclaimed and reappropriated by Irish speakers. There is no intrinsic sense of rank or status as with céim or gradam, and it could be applied equally to all individuals without distinction: by definition only a select number of people can attain rank, but all can exhibit nobility.155 The problem in the translation, therefore—the ineluctable link between dignity and status—was overcome by recourse to the term that described the highest-ranking individuals of all, that is, the nobility. There seem to be several reasons why this solution was not alighted on sooner. ‘Dignity’ was not among the English equivalents of uaisleacht in Dinneen’s dictionary, and Ó Dónaill does not include it in his definition of uaisleacht, despite the fact that it was by then translating the term in the Preamble. In a post-colonial environment, where the upper class were often perceived as associated with the foreign oppressor, there may well have been a desire to create distance between that aristocracy (also called uaisleacht in Irish) and the notion of dignity. Dighnit later developed to fill the lurking lexical vacuum and ousted uaisleacht in that semantic field—it is the first equivalent given for ‘dignity’ in de Bhaldraithe’s English-Irish dictionary of 1959—but it had not done so by 1937. A further factor in this evolving situation may have been the idea of dignity as describing patient resilience or forbearance in the face of adverse circumstances. To behave with dignity is to rise serenely and with composure above one’s situation, whether that is personal attack, political oppression or grinding poverty, whereas to behave nobly is to behave consistently according to resolute principles whatever the external pressures one faces. Dignity is passive while nobility is active. The use of uaisleacht helps to anchor the meaning of a foreign concept into Irish not in a submissive acceptance of external circumstances but in the principle of the equality and worth of each individual. It calls on us to interpret the notion of the ‘dignity of the individual’ in terms of our shared ‘nobility’.156 Two shifts in the connotations associated with uaisleacht take place: first, the shift from a focus on the status of those in the highest echelons of society to a focus on the intellectual or ethical qualities associated with that status; and second, from a focus on the selective and hierarchical distribution of such qualities to a focus on those qualities being possessed by all individuals. We suggested earlier that the English word ‘dignity’ in the earlier draft of the Preamble represents that aspect of personalism that rejected radical individualism, instead identifying the person in relationships, as a social being in community with others (‘the citizens’). In the final draft, dignity represents that aspect of personalism that rejected totalitarianism, emphasising subjectivity (with its view of ‘the individual’ as a free and responsible moral subject). The use of the Irish uaisleacht appears to copperfasten this understanding and confirms the Preamble’s anti-totalitarian position by according nobility equally to all individuals in the state, without exception. High rank is not something deserved or earned by a few individuals among the masses; everyone belongs to the nobility, everyone is a noble. As nobility was traditionally seen as a birth right and so inherent in the individual, the choice of uaisleacht implies that all individuals are noble by birth. Nobility and its attendant dignity are sacrosanct, therefore, and are natural to and inalienable from the people. The Constitution binds the state to guarantee their uaisleacht and so is bound to uphold and protect the rights and freedom of the individual. VII.Influences The narrative up to this point has attempted to distinguish three different, if overlapping elements: the initial source of the term dignity, the function that dignity played in the Preamble and the expressive meaning that de Valera intended it to have for those reading it at that time. At this point, I need to consider more why de Valera was content to keep the reference to ‘dignity’ in the draft Preamble that I think he received from McQuaid, but also why it subtly changed over time. I do not have to go quite as far as Dermot Keogh, who argues that de Valera and McQuaid differed significantly ‘both in philosophy and ecclesiology’,157 in order to acknowledge that de Valera showed he was quite capable of rejecting suggestions that McQuaid had put forward. For example, we have seen that he rejected McQuaid’s proposals on private property. De Valera’s independent judgment even incited on another occasion an intemperate response from McQuaid, an outburst for which McQuaid subsequently apologised profusely. We can see a similar pattern in de Valera’s willingness to ignore criticisms from senior figures in the Church ‘that the use of the term Church of Ireland [to describe the Reformation Anglo-Catholic Church in Ireland] was nothing less than the authoritative approval of lying propaganda’.158 So too, whilst he flirted with corporatism, urged on by sections of the Church, it was only a very weak form that was eventually incorporated. Few would dispute either that the document was democratic or that de Valera intended it to be so. Indeed, Kissane has described ‘popular sovereignty’ as the Constitution’s ‘most important principle’.159 De Valera’s view throughout was that the Irish people were the sovereigns, and in that sense the Constitution was a ‘republican’ statement of values.160 The religious input did not affect the design of the institutions established by the Constitution, the design of the legislative process, or the distribution of powers within those institutions. As has been said, ‘his courting of the church showed that de Valera combined hard-headed appreciation of where political power lay in Ireland, with a genuine vision of an Irish nation whose genius ‘always stressed spiritual and intellectual rather than material values’.161 In particular, as I have argued, de Valera was conscious of the need to distinguish the dignified from the efficient parts of a constitution. Although he may well have been looking for ways to reflect the important role that dignity played in Catholic social teaching,162 he also wanted to ensure that it remained firmly in the dignified rather than the efficient part. We have seen that one of de Valera’s reactions to Cahill’s set of recommendations was to suggest that some of the general principles that Cahill had set out, whilst not necessarily suitable for incorporation in the text of the articles of the Constitution, might nevertheless be considered for inclusion in a future preamble. The most significant incorporation of the principles of the papal encyclical Quadragesimo Anno of 1931 in the Constitution were placed in the non-judicially enforceable Article 45, the Directive Principles of Social Policy. This interpretation of the role that de Valera wanted dignity to play in the new Constitution is strengthened by the approach he took to the issue of how the right to private property should be formulated. McQuaid was not alone in suggesting an approach that would have made explicit in the substantive article of the Constitution (and therefore judicially enforceable) the social limits on the right and the obligations of ownership. Rachel Walsh has convincingly demonstrated how de Valera ultimately rejected these provisions, leaving a liberal right to property significantly unrestricted.163 This approach was taken, Walsh argues, not because de Valera disagreed with the principle of restraining property ownership, but because he accepted arguments that allowing these to be judicially enforceable would be too expensive and should not therefore be included, a neat example of why the ‘efficient’ part of the Constitution should be kept separate from the ‘dignified’. As she concludes: Driven not by a desire to de-couple private property rights from their social context, but rather to avoid the flood of legal claims under the social principles predicted by the Department of Finance, the drafters separated the guarantee of private property rights from the principles of social policy and limited the power of judges to engage with the social principles.164 However, no such problems were thought likely to arise from the provisions of the Preamble, which everyone clearly assumed was not justiciable. In addition to Catholic and pragmatic influences, however, there were also important nationalistic, paternalistic and social democratic influences that may well have been significant in de Valera’s understanding of the role of dignity. I can begin with the nationalistic influences. It would not be at all surprising for ‘dignity’ to be used in the context of an explicitly nationalist Constitution, although separating the Catholic from the nationalist influences is not easy.165 It is important to remember that an important purpose of the Constitution was (in de Valera’s eyes) to rid Ireland of the remaining (largely, by that time, symbolic166) connections with Britain that had been retained in the Constitution of the Irish Free State in 1922, and that from the earliest stages of the development of the Preamble, de Valera had insisted that it draw from key texts of Irish republicanism, viz the 1916 Declaration of the Republic, and the 1919 Declaration of Independence, and the Democratic Programme. It is too easy simply to ignore the idea that what de Valera was doing in incorporating the idea of ‘dignity’ was to reflect on the idea that a ‘dignified’ person was someone who had their own nation, and that when the original draft refers to the ‘dignity of the citizen’ the reader would have been conscious that what may have been intended was a reference to the dignity of citizenship in a free and independent Ireland. Rather than seeing the reference to dignity solely in transcendental and metaphysical terms, then, there appears to have been a strand of thinking that regarded ‘dignity’ as closely related to ‘honour’, and the honour was not just that of the citizen qua individual, but also the honour of Ireland. De Valera’s civil war-era ‘Presidential Message to the Farmers of Ireland’,167 had praised them (in somewhat blood-curdling terms) for ‘suffering with dignity and patience the most appalling persecution, the most atrocious infamies, at the hands of a barbarous and uncivilized enemy’.168 Earlier, Winston Churchill had popularised the phrase ‘the dignity and honour of Ireland’ in his 1912 speech in Belfast.169 During the 1918 elections, John Hearne had referred to his desire to win for Ireland ‘a dignified and self-developing status among free peoples.’170 In the momentous debates in the Second Dáil on whether to accept the treaty, debates in which de Valera played a critical role, we see the dignity of the citizen, the honour of Ireland and its independence closely entwined.171 Gavan Duffy referred to how the Treaty ‘inflicted a grievous wound on the dignity of the Irish nation by inflicting an alien king upon them’.172 As Seamus Ó Tuama has argued, de Valera saw the Constitution ‘as the culmination of a long struggle to restore the integrity of an independent people whose right to nationhood had its roots in the Gaelic order’.173 The Preamble, seen in this light, further contributed to what Joseph Lee has identified as de Valera’s desire ‘to isolate the IRA from the mainstream of politics by denying them legitimacy’.174 In the case of the Preamble, denying them legitimacy involved de Valera appropriating the symbols, aspirations and ideology of republicanism to the state. In this context, it is worth retracing our steps a little and recollecting the drafting of the proposed Jesuit Preamble. When we look back at this, we see that the Jesuit Constitution Committee Minutes in October 1936175 decided to include language in the Preamble reflecting this idea, and that the subsequent Jesuit draft, which de Valera had sent to McQuaid when McQuaid was preparing his draft, referred explicitly to ‘the honour of Ireland’.176 Remember also that the relevant paragraph of McQuaid’s proposal regarding how the provisions relating to the protection of private property might be supplemented states: The State, while acknowledging that the work of body and mind is an honourable means of virtuous and creditable living, shall aim, by this just distribution of material resources, at aiding all the citizens to attain that higher level of prosperity and culture which is more consonant with human dignity.177 The linkage of ‘dignity’ with the nationalistic project of Irish freedom and independence was important in these respects, but it had another dimension, which was even more clearly anti-colonial in its motivation. In considering the choice of which word in Irish should be used to translate the English word ‘dignity’, we have seen how care was taken to avoid the use of Irish words that would associate the ‘dignity’ referred to in the Preamble with the hierarchical society of colonial times, and in particular how important it was to avoid associating ‘dignity’ with the Anglo-Irish aristocracy. In this sense, choosing the appropriate Irish word became another practical manifestation of a more general stand of anti-colonialism in the 1937 Constitution.178 The irony that this anti-colonial moment was captured in a language which had been prohibited for a significant period of time by the colonisers is unlikely to have been lost on the drafting committee. The drafting history of the Preamble may also indicate an additional influence. One concept is noticeably missing from a Preamble that otherwise reflects a strong republican ethos, and that word is ‘equality’. The concept of ‘equality’ had been included in the Hearne draft (‘in order to declare and confirm our constitutional rights and liberties, consolidate our national life, establish and maintain domestic peace on a basis of freedom, equality and justice’),179 in the Jesuit draft (‘We guarantee to all citizens of this State full equality, before the law as human persons, and full recognition and protection by the State of all their personal and family rights.’180), and in the otherwise influential Polish Constitution (‘to guarantee to all citizens of the Republic equality’), but it was not included in McQuaid’s draft. An important aspect of the subsequent disputes over the draft Constitution, when it was eventually published in May, may shed some light on this omission. There was a significant debate between de Valera and various groups representing women who objected to the non-inclusion of a specific gender equality provision in the 1937 Constitution equivalent to what had been included in the 1922 Constitution,181 and guaranteed in the 1916 Proclamation.182 Article 3 of the 1922 Constitution had guaranteed equal citizenship,183 and Articles 3 and 14 had included ‘without distinction of sex’.184 Both were omitted from the draft of the 1937 Constitution, although during the draft Constitution’s passage through the Dáil, Article 16 was subsequently amended to include ‘without distinction of sex,’ and a non-discrimination clause was added to Article 9. Is it too much of a stretch to think that one aspect of de Valera’s earlier incorporation of ‘dignity’ in the Preamble was as an alternative to ‘equality’, and that he and McQuaid were agreed that dignity better captured the appropriate relationship between men and women than ‘equality’? This is probably going too far, but it does point to the complex relationship that ‘dignity’ and ‘equality’ appears to have played in their thinking. De Valera’s struggle with how best to formulate the equality provision in the ‘efficient’ part of the Constitution (in Article 40) is well known,185 and the article is carefully drafted and narrowly circumscribed. The reference to citizens being held equal before the law ‘as human persons’ places it firmly within personalist Catholic thought, and links it strongly to ‘dignity’. And Catholic social teaching on equality, as reflected in Leo XIII’s encyclical Quod Apostolici Muneris links equality and dignity: ‘equality among men (sic) consists in this, that one and all, possessing the same nature, are called to the sublime dignity of being sons of God’.186 There is some evidence that McQuaid defended the controversial Article 41(2) regarding the role of women in just these terms, arguing that ‘the dignity and indispensable role of those women who choose to get married’187 should be recognised. McQuaid considered that the provision aimed to guarantee that the State ‘will endeavor to see, not that women will be prevented from engaging in this or that career, but a certain class of women, namely Mothers, will not be forced, by pressure of need, so as to engage in work as to neglect their proper home-duties’.188 In a briefing note to de Valera opposing divorce, McQuaid wrote how, because of it, ‘the dignity of womanhood is lessened and brought low’.189 ‘Dignity’ rather than ‘equality’ may have appealed to them both because it conjured up an idea of individuals conforming to the roles in which they found themselves (in other words, one based on an essentialist understanding of gender roles), or it may simply have been that ‘dignity’ was considered the more fundamental concept, and thus the more appropriate to put in the Preamble. Given the importance to de Valera of using references that would play across different constituencies, it may well also have been significant that there was another indigenous use of ‘dignity’ in recent Irish history, namely the use of ‘dignity’ from the late 1890s on by Republican Socialists like James Connolly, who invoked ‘the dignity of labour’ and the ‘dignity of humanity’.190 Although McQuaid and de Valera might seem unlikely persons to be incorporating the idea of the ‘dignity of labour’ into the Irish Constitution, the indirect influence of the term and its connections to the strand of republicanism that emphasised social justice should not be ruled out.191 Support for this understanding of dignity can be drawn from de Valera’s broadcast on 17 March 1937 of his annual St Patrick’s Day message discussed earlier.192 Remember, too, that de Valera was still dependent to some extent on votes of the Irish Labour Party, the heirs of Connolly, and more particularly that in a future plebiscite the important trade union movement would be likely to vote in significant numbers.193 The extensive study of social democratic European constitutions may also have influenced the use of dignity. Although clearly Catholic in influence, it also overlapped significantly with a social democratic understanding of the role of the state. The Weimar Constitution 1919194 and the Estonian Constitution195 both used language that was strikingly similar to dignity as de Valera articulated it, and there is clear evidence that de Valera was attracted to the Weimar provision.196 Franz Neumann’s 1930 analysis of Article 151 of the Weimar Constitution, containing the reference to dignity as part of the social Rechtsstaat, echoes strongly the rejection of unrestrained materialism and capitalism we find in de Valera’s speeches at that time. For Neuman, in these provisions ‘there is no question of the sanctification of capitalistic principles of freedom’. He argues that, in Weimar’s Article 151, ‘justice [is] materially defined by the aim of economic activity being the guarantee to all of a humane existence. Only within this framework are capitalistic rights of freedom in property, contract and enterprise guaranteed.’197 Some support for this understanding of dignity as capturing this more pluralistic vision of dignity can be drawn from de Valera’s broadcast on 17 March 1937 of his annual St Patrick’s Day message to Ireland and to the Irish diaspora.198 VIII.IRISH ‘CONSTITUTIONAL-IDENTITY’ SCHOLARSHIP REVISITED How does all this impact on the conflicting views of scholars about the nature of the constitutional vision identified at the beginning of this paper? We saw in the introduction that Ireland’s 1937 Constitution is sometimes seen as the paradigmatic illustration of Catholic conservative constitutionalism, or of the outcome of a proto-modern constitutional moment in the emerging development of human rights. Both these interpretations have drawn support from readings of the Preamble, of its construction, and of the inclusion of ‘dignity’ in the text. In assessing the ‘constitutional identity’199 reflected in the constitution, my analysis up to this point suggests several reasons to be cautious about reaching conclusions. First, we should resist an overemphasis on the ‘expressive’, ‘dignified’ or ‘manifesto’ elements of the Constitution to the detriment of treating the Constitution as a whole, including its more ‘efficient’ parts. Its constitutional vision is also reflected in its ‘legal and institutional provisions’, as Kissane suggests, particularly its adoption of popular sovereignty.200 Second, even the Constitution’s ‘dignified’ provisions do not project a singular constitutional identity. My argument in this section is that the Preamble, including its use of ‘dignity’, cannot do the work of justifying an interpretation that it indicates either Catholic conservative constitutionalism or the emerging development of human rights, to the exclusion of the other, without ignoring or underplaying crucial layers of the Preamble’s meaning, including the Irish text. The formative influences in including ‘dignity’ in the Preamble were, as we have seen, likely to have been quite diverse: comparative (the Polish Preamble), social democratic (the idea of the ‘dignity of labour’ and Weimar), nationalist (the association of dignity with the nation), and conservative (behaving in a way appropriate to one’s social role), as well as specifically Catholic (personalism). To claim that the religious influence was the sole influence on de Valera in adopting ‘dignity’ is, therefore, questionable. Considering all these influences together points, rather, to a conclusion that there were radically different conceptions of dignity that emerged at different times in the drafting process: dignity as the ultimate and inherent value of the human person; dignity as the value we have as persons created in the image of God; dignity as not using individuals merely as means not ends in themselves; dignity as nobility in the face of adversity; dignity as being treated appropriately according to one’s inherent nature; dignity as the freedom to exercise autonomy and self-determination (whether as a person or as a nation); dignity as the respect accorded to those performing their appropriate role in life, such as the dignity of labour; dignity as resistance to viewing the individual simply as a factor of production, a cog in the economic machine; and dignity as the source of individuals’ rights against the state and against each other. Although we may consider that some of these come closer than others to capturing what various actors in the process may have intended, none was the clear ‘winner’, and for de Valera the politician, it was probably important that none did, if it was to retain its all-encompassing attractiveness to different constituencies. Tushnet is correct, therefore, in seeing the Preamble as an important indicator of de Valera’s understanding of Ireland constitutional identity. The question of which identity was being chosen, whether it was Tushnet’s narrower ‘identitarian’ model, or Iglesias’ more ‘universalistic’ model is more debatable. What is clear is that the debate between Iglesias and Tushnet can be seen, in the light of the history of the drafting of the provision, to be too static in its understanding of what occurred, and that what appears to have been the case is that the relevant provisions began as strongly identitarian, but that by the end of the process there was an equally strong attempt to recapture the terms as universalistic. But to see this process as ‘fusing’ the two is a mistake; rather, they are in competition with each other and, as good legal drafters do, this continuing competition is sufficiently camouflaged for progress to be made without necessarily resolving the tension. What has been said thus far appears strongly to support Moyn’s argument that dignity originally enters into the Irish constitutional debate as an explicit attempt to instantiate the idea of ‘dignity’ to be found in Quadragesimo Anno and Rerum Novarum. Of that, there now seems little doubt. It would be overly simplistic, however, to conclude that the adoption of ‘dignity’ in the Preamble was a victory of McQuaid, the conservative, over Hearne, the liberal. Hearne was as likely to have been committed to the importance of recognising ‘dignity’ as was McQuaid. Although it is somewhat risky to rely on what Hearne said after the Constitution had been adopted as proof of what he believed during its drafting, Hearne’s consistent position from December 1937 was highly personalist, emphasising consistently and passionately the central importance of the ‘dignity’ of the human person to the Constitution. In a speech delivered by John Hearne near the end of 1937, just before the Constitution came into effect, he recalled how the Irish people were watching carefully ‘the development of ideas and the growth of movements in other countries’. And what, he asked rhetorically, did they find? They found systems of government erected upon the negation of those very ideas and ideals which had been the basis and substance of our national life and our national policy for centuries. They found systems and schools whose doctrine is the denial of personal morality or state responsibility, whose method is force and whose object and effect is the establishment of a social order destructive of human dignity … .201 However, Moyn wants to go further than simply to identify the source of the term and its Catholic personalist roots. He also seeks to argue for a very particular type of Catholic meaning. Moyn claims that ‘the crucial revisions of the Irish Constitution that led to the appearance of individual dignity in its Preamble also occurred in this period—very precisely, in the immediate aftermath of the encyclical [Divini redemptoris]’.202 This is no idle claim on Moyn’s part; chronology becomes a critical part of his thesis. His thesis is that ‘the draft constitutions that de Valera circulated to various circles from March 16, 1937 didn’t yet include the preamble …’.203 But by 3 April 1937, he says, de Valera was showing drafts of the Preamble which invoked ‘the dignity and freedom of the citizens.’204 He claims that ‘the documentation is rich enough to provide a clear sense of the timing of the constitutionalization of dignity, in the immediate aftermath’ of Divini redemptoris.205 Moyn concludes that because dignity was introduced after Divini redemptoris, ‘[t]here is no better evidence than this matter of timing that the encyclical inspired the insertion of dignity’.206 For Moyn, there is more to this discovery than simply the satisfaction of identifying the source of the dignity language, for to Moyn the source ‘provides the clue about what it meant’,207 not just in the Irish context but more broadly, ‘in the current enthusiasm over human dignity, it decisively establishes both the right chronology and the “original meaning” of its constitutionalization in the circumstances of religious democracy’.208 This is because, by emphasising the importance of Divini redemptoris, which is explicitly anti-communist (as opposed to the other encyclical published in March 1937, Mit Brennender Sorge, which was anti-Nazi, Moyn locates the development of dignity in the Irish Constitution with a conservative, anti-left political agenda. For Moyn, an anti-communist, proto-Christian Democracy arrives on the European constitutional scene in the form of the Irish Preamble, which synthesises Catholicism and democracy, a synthesis which dignity both signals and to which it gives meaning.209 The ‘crucible for human dignity that religious constitutionalism provided thus establishes a potentially troubling starting point’.210 Not only is its origin in conservative Catholic religious constitutionalism troubling, he suggests, it also emphasises the need for an alternative narrative explaining the emergence much later, during the 1970s, of ‘a very different version of human dignity’ that later emerged, one that is ‘no longer tightly, let alone exclusively, tethered to the framework of religious constitutionalism’.211 There are several aspects of Moyn’s argument that are troubling. First, his chronology is simply incorrect. The specific encyclical that Moyn claims to have been particularly influential (Divini Redemptoris) was published on 19 March, two days after the important radio broadcast in which dignity features heavily (on St Patrick’s Day, 17 March), and a full month after McQuaid’s February suggestions. The conclusion is clear: Divini Redemptoris could not have influenced the content of that speech and (more importantly) McQuaid’s even earlier February draft, since it occurred after them.212 The evidence suggests, rather, that it is Quadragesimo Anno and Rerum Novarum that were the primary influences, not least given that none of the primary documents in the archives mentions Divini Redemptoris. Second, Moyn distinguishes between what he terms ‘collectivist’ or ‘corporatist’ conceptions of dignity, where dignity is attached ‘primarily to collective entities such as workers and religious sacraments such as marriage’, from the use of dignity as ‘attaching to individuals’.213 He argues that, in March 1937, papal encyclicals shifted Catholic teaching. ‘At the beginning of the month,’ he writes, ‘thanks to Pope Pius XI’s encyclicals Casti connubi (1930) and Quadragesimo anno (1931)’,214 dignity was used in the former sense. By the end of the month, an encyclical published on 19 March (Divini redemptoris) changed this—indeed, it was ‘epoch-making, for it gave the concept as an incident of individuals or persons by far its highest profile entry in world politics to that date’.215 The reason this is important, he suggests, is that it provided the stimulus for the formulation in the Preamble. Yet the evidence is, again, pretty clear that McQuaid was reflecting an already embedded reading of Catholic social teaching. There is no sharp distinction between, for example, Quadragesimo anno and the approach that Divini Redemptoris took in this respect, since the former had already, in critical paragraphs, decollectivised dignity, and individualised it.216 In this respect, Divini Redemptoris should not be seen to have had the epoch-changing character that Moyn sees it as having. So far, we can say that Moyn is correct in his identification of the original Catholic origins and conservative underpinnings of dignity as originally introduced, but he appears to be incorrect in his chronology and interpretation, appearing to overemphasise the effect of the 1937 encyclical. More importantly, he has also significantly underestimated the extent to which later discussions in the drafting process led to its conservative, ‘collectivist’ Catholic origins and meaning (deriving from McQuaid) being significantly less apparent by the final draft.217 During the period when the Constitution was being drafted, organised Catholic political activity spoke with one voice at the level of principle (being neo-Thomist, and rooted in the papal encyclicals, especially Quadragesimo Anno), but were much less united on how to put these principles into practice at the level of practical constitution making.218 De Valera prevented an outright rejection of his draft Constitution (and thus saw off what would have been a serious threat to the acceptance of the Constitution in the plebiscite) by providing the type of principles that Catholic lay organisations expected, but often adapting them in such a way as to moderate their more extreme implications. He was quite prepared to use ‘theological advice as a short cut for political expediency’.219 De Valera headed off the Catholic hierarchy’s ‘orthodoxy’, rejecting their preference for Catholicism to become the state religion, and by using language such as ‘dignity’ that appealed to both, avoided any close alignment with either left- or right-leaning versions of personalism. Moyn also underestimates influences other than the Catholic. As we have seen, de Valera was quite capable of adapting Catholic and, indeed, continental European concepts and approaches and then translating them into Irish conditions when it suited him, as with his adoption of a highly diluted form of Irish corporatism, renamed ‘vocationalism’. De Valera was, therefore, quite adept at drawing inspiration from a diverse set of sources, such as the constitutions of other European states, and then translating them to produce a result that contributed to the moulding of a distinctly Irish identity. Keogh has suggested that, by March 1937, what had emerged from the drafting of the Constitution as a whole was a document that was ‘self-consciously nationalistic, strongly Catholic in tone and republican in aspiration’.220 It would be surprising if the Preamble did not also contain these elements, and I have suggested that they did, in fact do so, but that these were combined with a cosmopolitan sensibility. In the debate between Moyn and Hogan, whilst both provide us with important insights into the process, neither captures the totality. To use a musical metaphor, I suggest that in order to understand the complex meaning of dignity incorporated into the Irish Constitution in 1937, we should think more in terms of polyphony, the style of musical composition simultaneously employing two or more parts, each forming a relatively independent individual melody but harmonising with each other. In contrast, both Moyn and Hogan each appear to consider the meaning of dignity in monophonic terms, where dignity is heard as a single vocal part and the only argument is over which of two alternative ways best characterises that single part. My understanding of the meaning of dignity incorporated in the Preamble, then, is that we should think more Brandenburg Concerto than plainchant, whilst Moyn and Hogan consider the issue to be which type of plainchant. Hogan and Moyn not only differ in their understanding of the meaning of dignity, but also in the relative importance attached to internal Irish politics versus the broader European context, as well as which particular European context is relevant. In his masterful analysis of the drafting of the Constitution, Hogan has focused primarily on internal Irish debates, particularly within the civil service and between it and Irish Catholic figures, and with the development of liberal European constitutions such as that of Weimar Germany, which he sees as an important but still secondary influence. Moyn, on the other hand, has focused primarily on the influence of debates within continental Catholic political theology. Again, I suggest that both have important insights but that it is a mistake to think that these are necessarily conflicting perspectives; all of these influences are important. IX.Conclusion There is little in the internal discussions of ‘dignity’ in the drafting of the Irish Constitution between 1936 and 1937 that would seem out of place in a discussion of dignity now: whether dignity is intrinsic or attributed; whether dignity should be seen as a legal concept and the suitability of judicialising it;221 what is the relationship between dignity and other principles, such as equality; and how dignity should be translated into different languages and cultures. In that, the understanding of dignity reflected in the Preamble is remarkably modern, with a similar variety of conceptions competing for prime position. The role of dignity in the Preamble can also be seen as playing a very similar role to dignity as in emerged in the 1940s and later: where the very variety of meanings available enables a degree of consensus to emerge on the use of the term as indicating something foundational, without a clear consensus as to any single meaning. What this meant in practice was that the meaning of the term was effectively left open to subsequent interpretation, a process that has been played out not only in the Irish courts, but also increasingly in Irish political debate. I am grateful to the staff of the de Valera Archives at University College, Dublin, and the staff of the Catholic Archdiocese of Dublin for access to, and their assistance in finding, relevant materials. Earlier versions of the paper were presented at: the Wissenschaftskolleg zu Berlin; Queen’s University Belfast; Trinity College Dublin; Harvard Law School; and the Royal Irish Academy. I am grateful to the participants at these discussions, and to the two anonymous reviewers, for helpful comments. I am grateful also to those who read drafts and commented on them: David Capper, Donal Coffey, Mary Dobbs, Oran Doyle, Mark Hanna, Gerard Hogan, Daithi Mac Sithigh, Samuel Moyn, Mark Tushnet, Gerry Whyte, and, particularly, Bruce Ackerman, William Alford, Caroline McCrudden and Gregory Toner. Footnotes 1 Samuel Moyn, Christian Human Rights (University of Pennsylvania Press 2015). 2 Samuel Moyn, The Last Utopia (Harvard UP 2012); Jan Eckel and Samuel Moyn (eds), The Breakthrough: Human Rights in the 1970s (University of Pennsylvania Press 2015); Samuel Moyn, Human Rights and the Uses of History (Verso 2017). 3 See also Samuel Moyn and Andrew Sartori (eds), Global Intellectual History (Columbia UP 2015). 4 The Constitution of the German Reich, usually known as the Weimar Constitution, was the constitution that governed Germany from 1919 to 1933. Some scholars (including this one) have wrongly identified the Finnish Constitution of 1919 as another early adopter of ‘dignity’ language. See Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 EJIL 655, 664; Conor O’Mahony, ‘The Dignity of the Individual in Irish Constitutional Law’ in Dieter Grimm, Alexandra Kemmerer and Christoph Möllers (eds), Human Dignity in Context (Nomos/Hart 2018) 469, fn 11. In fact, however, the incorporation of the reference to dignity in Article 1 of the 1919 Constitution took place in 1995. See Tuomas Ojanen, Human Dignity in Finland in Paolo Becchi and Klaus Mathis (eds), Handbook of Human Dignity in Europe (Springer 2019) 245, 246. 5 Samuel Moyn, ‘The Secret History of Constitutional Dignity’ (2014) 17 Yale HR and Dev LJ 39; Samuel Moyn, ‘The Secret History of Constitutional Dignity’ in Christopher McCrudden (ed), Understanding Human Dignity (OUP 2014). 10 For an excellent assessment of the differing views up to 2005, see Gerard Hogan, De Valera, the Constitution and the Historians (2005) 40 IJNS 293, esp 296 ff. Since then, the debate has continued. For example, Gary Jeffrey Jacobsohn, Constitutional Identity (Harvard UP 2010) 30, is clear in his assessment, referring to the 1937 Irish Constitution as a document ‘that made no effort to conceal the sectarian sources of its deepest commitments.’ Others have adopted a more nuanced assessment, with Bill Kissane, for example, concluding that ‘de Valera used religion to create loyalty and respect, without allowing it to contaminate the rest of the document’, citing the Preamble as one area where ‘religion’ is utilised in this way, New Beginnings: Constitutionalism and Democracy in Modern Ireland (UCD Press 2011) 68. 11 See also JH Whyte, Church and State in Modern Ireland: 1923-1979 (2nd edn, Gill and Macmillan 1984) 51; Kieran Mullarkey, ‘Ireland, the pope and vocationalism: the impact of the encyclical Quadragesimo Anno’ in Joost Augusteijn (ed), Ireland in the 1930s: New Perspectives (Four Courts Press 1999) 106. 12 See, eg, Dermot Keogh, ‘Church, State and Society’ in Brian Farrell (ed), De Valera’s Constitution and Ours (Gill and Macmillan 1988) 103, 106. 13 Teresa Iglesias, ‘The Dignity of the Individual in the Irish Constitution: The Importance of the Preamble’ (2000) 89 Studies: An Irish Quarterly Review 19: ‘From the second decade of this century onwards, many countries have incorporated the concepts of “human dignity”, of “the dignity of the individual” and of “the dignity of the human person” into their constitutions, laws and other national and international normative instruments. The Constitution of Ireland is one of the pioneer instruments in this respect.’ 14 Gerard Hogan, The Origins of the Irish Constitution: 1928-1941 (RIA 2012). 15 Cathal Condon, An analysis of the contribution made by Archbishop John Charles McQuaid to the drafting of the 1937 constitution of Ireland (NUI 1995, Dept History UCC) 18. 16 John Joseph Hearne (1893-1969), diplomat and government legal adviser, see Marcus Bourke and Michael Kennedy, ‘Hearne, John Joseph’ Dictionary of Irish Biography (CUP/RIA) < https://dib.cambridge.org/viewReadPage.do?articleId=a3907&searchClicked=clicked&quickadvsearch=yes > accessed 30 June 2020; Brian Kennedy, ‘The special position of John Hearne’ Irish Times (Dublin, 8 April 1987) 13. 17 Mark Tushnet, ‘National Identity as a Constitutional Issue: The Case of the Preamble to the Irish Constitution of 1937’ in Eoin Carolan (ed), The Constitution of Ireland: Perspectives and Prospects (Bloomsbury Professional 2012) 49. 18 ibid 50. 19 ibid 50. 20 ibid 53. 21 ibid 53, referring to the work of Thomas Aquinas. 22 ibid 54. 23 Iglesias (n 13) 21. 24 ibid at 21. 25 Tushnet (n 17) 54. 26 I should add that, in doing so, I should not be taken to be suggesting that an ‘originalist’ interpretation should be adopted to the meaning of the term. 27 Kissane (n 10) 77, emphasises the extent to which de Valera aimed to use the Constitution (and particularly the Preamble) to reflect a system of values, and not simply ‘define relations between institutions, if it wanted to inspire and elicit loyalty’. 28 I particularly want to acknowledge that I have been working with one of the preeminent Irish language scholars (Professor Gregory Toner of Queen’s University Belfast, and the editor of the Royal Irish Academy’s online Dictionary of the Irish Language) on a study of the Irish language drafts of the Preamble, and their implications, and Professor Toner is primarily responsible for the part of the paper on the translation of ‘dignity’ into Irish, from which I have drawn with his permission. This work is now the subject of a larger and more detailed discussion for a specialist audience, see Gregory Toner and Christopher McCrudden, ‘Framing Dignity in the 1937 Constitution’ Éigse: A Journal of Irish Studies (in press). Daithi Mac Sithigh generously provided an English translation of the article in Irish in Feasta which is cited subsequently. 29 Timothy G McMahon, Grand Opportunity: The Gaelic Revival and Irish Society, 1893-1910 (Syracuse UP 2008). 30 See further Brendan O’Leary, A Treatise on Northern Ireland, vol 2 (OUP 2019). 31 For an extended discussion of the reasoning underlying the various reasons driving de Valera’s decision to go for a new Constitution, see Donal K Coffey, ‘The Need for a New Constitution: Irish Constitutional Change 1932-1935’ (2012) 48 IJNS 275. 32 Alan J Ward, The Irish Constitutional Tradition: Responsible Government and Modern Ireland, 1782-1992 (Irish Academic Press 1994) 213. 33 See, in particular, Coffey (n 31) at 287. For a recent overview of the process in the domestic political context, see David McCullagh, De Valera, vol 11: Rule 1932-1975 (Gill Books 2018) ch 8. 34 State (Ryan) v Lennon [1935] IR 170. For the significance of the case for de Valera’s decision to draft a new Constitution, see Eugene Broderick, John Hearne: Architect of the 1937 Constitution of Ireland (Irish Academic Press 2017) 102-103 35 Coffey (n 31) 300. 36 Jürgen Habermas, The Theory of Communicative Action, vol 2 (Polity Press 1992); Jürgen Habermas, Between Facts and Norms (William Rehg tr, Polity Press 1996). 37 Kissane (n 10) 61: ‘de Valera did not believe in open government’. 38 JJ Lee, Ireland 1912-1985: Politics and Society (CUP 1989) 202. 39 The upper house, the Seanad, had been abolished on 29 May 1936 under the Constitution (Amendment No 24) Act 1936. 40 The plebiscite was required by Art 62 of the (new, draft) Constitution, and was enabled by the Plebiscite (Draft Constitution) Act 1937. I am grateful to Oran Doyle for this information. 41 D Morgan, Constitutional Law of Ireland (Round Hall Press 1985) 29. 42 Kissane (n 10) 57. 43 Donal K Coffey, Constitutionalism in Ireland, 1932-1938: National, Commonwealth, and International Perspectives (Palgrave 2018) 121. See also Bill Kissane, ‘Éamon de Valéra and the Survival of Democracy in Inter-War Ireland’ (2007) 42 J Contemp Hist 213. 44 Gerard Hogan, ‘Some Thoughts on the Origins of the 1937 Constitution’ in Felix M Larkin and NM Dawson (eds), Lawyers, the Law and History (Four Courts Press 2013) 209. 45 For an analysis of the differences between the two Polish Constitutions and the relevance of these differences for the Irish Constitution, see Bozena Cierlik, ‘Bunreacht na hÉireann and the Polish “April Constitution”’ in Tim Murphy and Patrick M Twomey (eds), Ireland’s Evolving Constitution: 1937-1997 (Hart 1998) 241. 46 Support for this in the University College Dublin Archives (hereafter ‘UCDA’) is extensive, and Hogan’s view is now endorsed by Coffey (n 43) 144. 47 James Chappel, Catholic Modern: The Challenge of Totalitarianism and the Remaking of the Church (Harvard UP 2018) 2. I am grateful to Samuel Moyn for alerting me to this work. 48 ibid 6. 49 ibid 12. 50 Thomas D Williams, Who is My Neighbour?: Personalism and the Foundations of Human Rights (CUA Press 2005) 108. 51 Thomas D Williams and Jan Olof Bengtsson, ‘Personalism’ Stanford Encyclopedia of Philosophy (May 2018) <https://plato.stanford.edu/entries/personalism/> last accessed 10 June 2020. 52 John J Fitzgerald, The Person and the Common Good (University of Notre Dame Press 1985) 12-13. 53 Robert P Kraynak, ‘The Influence of Kant on Christian Theology: A Debate About Human Dignity and Christian Personalism: A Response to Derek S Jeffreys’ (2004) 7 Journal of Markets and Morality 533. 54 Jacques Maritain, The Person and the Common Good (Fitzgerald tr, University of Notre Dame Press 1966) 13. 55 Chappel (n 47) 61. 56 ibid 12. 57 Walter Bagehot, The English Constitution (first published 1867, Miles Taylor ed, Oxford World’s Classics 2009) 7ff. Donal Barrington, ‘The North and the Constitution’ in Farrell (n 12) 61 distinguishes between the ‘efficient’ and ‘confessional’ parts of the Irish Constitution, drawing on Bagehot. 58 John Kelly, ‘The Constitution: Law and Manifesto’ in F Litton (ed), The Constitution of Ireland 1937-1987 (IPA 1988) 208. 59 Aileen Kavanagh, ‘The Irish Constitution at 75 Years: Natural Law, Christian Values and the Ideal of Justice’ (2012) 48 IJNS 71. 60 Liav Orgad, ‘The preamble in constitutional interpretation’ (2010) 8 ICON 714, 715. 61 Although the Irish courts have subsequently viewed the Preamble, and ‘dignity’, as of ‘interpretative’ value in understanding the meaning to be given to the substantive Articles of the Constitution, Gerald Hogan, Gerry Whyte, David Kenny and Rachel Walsh Kelly: The Irish Constitution (5th edn, Bloomsbury Professional 2018) 65 ff. 62 Eric Voegelin, Published Essays, 1934-1939, vol 9 of the Collected Works of Eric Voegelin (University of Missouri Press 2001) 32. 63 For an alternative, if somewhat similar, typology of the contents of preambles, see Orgad (n 60) 714-18. 64 Dermot Keogh, ‘The Irish Constitutional Revolution: An Analysis of the Making of the Constitution’ in Frank Litton (ed), The Constitution of Ireland 1937-1987 (IPA 1988) 4, 67. 65 Plato, The Laws 137-45, 424-29 (Trevor J Saunders (ed), Penguin 2005), quoted in Orgad (n 60) 22. 66 The most detailed analysis to date of the drafting of the Preamble can be found in Donal K Coffey, Drafting the Irish Constitution, 1935-1937: Transnational Influences in Interwar Europe (Palgrave 2018), ch 2. 67 Condon (n 15) 18. 68 Broderick (n 34) 88, thinks so, but Coffey (n 43) 125, disagrees. 69 Preliminary Draft of Heads of a Constitution for Saorstát Éireann: 17 May 1935: ‘Preamble: In the Name of Almighty God, We, the sovereign Irish People through our elected representatives assembled in this Dáil Eireann sitting as a Constituent Assembly, in order to declare and confirm our constitutional rights and liberties, consolidate our national life, establish and maintain domestic peace on a basis of freedom, equality and justice, ensure harmonious relations with neighbouring peoples, and promote the ultimate unity of Ireland do hereby, as of undoubted right, ordain and enact this Constitution.’ 70 The ‘Squared Paper Draft’ (UCDA: P150/2370), May 1935 (?): ‘Preamble: The I[rish] people ackn[owle]dg[ing] their depend[ence] on almighty God, thank[in]g him for the preservation of their nation + dedicat[in]g thems[e]l[ves] to his Service, accept[in]g the ten com[man]d[men]ts as fund[amental] law give themsel[ve]s this constit[utio]n fundamentally so as to (1) (2) (3) See Proc 1916, Dec. of In 1919 – Dem Prog[ram]m[e]’. 71 ‘Dáil Eireann sitting as a Constituent Assembly in this Provisional Parliament, acknowledging that all lawful authority comes from God to the people and in the confidence that the National life and unity of Ireland shall thus be restored, hereby proclaims the establishment of the Irish Free State (otherwise called Saorstát Eireann) and in the exercise of undoubted right, decrees and enacts as follows …’. The three drafts proposed in the Irish committee established to draft the 1922 Constitution all included more elaborate preambles, closer to the style and substance of 1937 Constitution’s Preamble. The Provisional Government finally proposed a much-reduced version to the British Government; however, due to the former’s fear of an adverse reaction by the latter to a more elaborate draft. See Laura Cahillane, Drafting the Irish Free State Constitution (Manchester UP 2016), 17-18, 155. 72 In the translation most widely available in Ireland at the time, it stated: ‘The German people, united in every branch and inspired by the determination to renew and establish its realm in freedom and justice, to be of service to the cause of peace at home and abroad, and to further social progress, has given itself this Constitution.’ Select Constitutions of the World (Stationery Office 1922). In 1922, the Constitution Committee had collected together English translations of the texts of various Constitutions. (References to this work subsequently use the abbreviation ‘SCW’). In 1934, this was updated by B Shiva Rao as Select Constitutions of the World (Madras Law Journal Press 1934). 73 Broderick (n 34) 176 74 As suggested by Coffey (n 43) 125, as one plausible explanation of the document. 75 Proclamation of the Irish Republic, Easter Monday, 24 April 1916. 76 Irish Declaration of Independence, adopted by Dáil Éireann at its first meeting on 21 January 1919. Texts of the declaration were adopted in three languages: Irish, English and French. 77 Democratic Programme, adopted by Dáil Éireann, 21 January 1919. 78 Broderick (n 34) 90. 79 Hogan (n 14) 21. Broderick (n 34) 100, speculates that it was due to a combination of political crises and personal tragedy during that period. 80 UCDA: P150/2370, covering minute, 10 December 1935, from John J Hearne to Assistant Secretary [Séan Murphy] enclosing ‘notes on the Constitutions of Czecho-slovakia, Austria, Spain, Poland, the United States and France …’. 81 Broderick (n 34) 81. 82 UCDA: P150/2370; Hogan (n 14) 280. 83 UCDA: P150/2375; Hogan (n 14) 298. 84 UCDA: P150/2425. Condon (n 15) 150, dates this to August 1936. 85 ‘Affirming our belief in the Most Holy and Undivided Trinity, the Author of all life and the source of all lawful authority: |Gratefully recalling the heroic sacrifices of past generations of our race in the cause of Irish national independence: |Resolved to declare and confirm our constitutional rights and liberties, establish domestic tranquillity [sic] on the basis of freedom, equality and justice, maintain and foster the sanctity and welfare of the family as the basis of moral education and social harmony, ensure the growth of the spiritual and cultural ideals of the Nation and the development of the material resources of our country: |Confident of thus restoring our national life, securing the blessings of peace and freedom for coming generations and promoting the ultimate unity of Ireland: |We, the Sovereign Irish People as of undoubted right and, under the Providence of Almighty God, of our own absolute authority do hereby give ourselves this Constitution to be the Constitution of E[ire].’UCDA: P150/2425, Draft of Preamble to Constitution [in manuscript: Mr Hearne]. 86 For some, this was because Hearn’s draft was insufficiently Christian and nationalistic. Condon (n 15) at 18-19: ‘… the drafting of the Preamble would require the services of someone from outside the parliamentary draftsman’s office. Hearne’s attempt … was no longer what de Valera required. The President was more interested in stronger Christian, if not specifically Roman Catholic references in the Preamble. (…) Mc Quaid and the Jesuits were involved because de Valera saw their relative capacity to bring about his ideal in a way that Hearne, or his legal draftsmen, could not.’ 87 Edward Cahill, Framework of a Christian State: An Introduction to Social Science (Gill 1932). The word ‘dignity’ features 80 times. 88 Finola Kennedy, ‘Two Priests, the Family and the Irish Constitution’ (1998) 87 Studies 353, 354. 89 Quoted in Séan Faughnan, ‘The Jesuits and the Drafting of the Irish Constitution of 1937’ (1988) 26 Irish Historical Studies 79, 82. 90 UCDA: P150/2393: From de Valera to Fr. Cahill, September 19, 1936. 91 This included the paragraphs: ‘With the sacred purpose and intention of maintain social unity and order on the eternal principles of Justice, and Liberty and of ensuring the development of all the moral, spiritual and material resources of our citizens and country,| we guarantee to all citizens of this State full equality, before the law as human persons, and full recognition and protection by the State of all their personal and family rights.’ UCDA: P150/2393. 92 Jesuit Constitution Committee Minutes, 1936, Source: Jesuit Archive, Lesson Street, Dublin – Cahill Papers (hereafter ‘Cahill Papers’), 1 October 1936. 93 Jesuit Constitution Committee Minutes, 1936, Cahill Papers, 24 September 1936. 94 Translation in SCW (n 72). Rachel Walsh, ‘Private Property Rights in the Drafting of the Irish Constitution: A Communitarian Compromise’ (2011) 33 DULJ 86, at fn 12, 89-90, has observed: ‘It can be assumed, therefore, that the contents of the book were known to the drafters [of the Irish Constitution]’, Private Property Rights. Broderick (n 34) 176, is more certain that the collection influenced de Valera directly. 95 ‘In the Name of Almighty God: We, the Polish Nation, thanking Providence for having delivered us from a slavery that lasted for a century and a half, recalling gratefully the heroic and persistent sacrifices incurred in the struggles in which every generation spent itself in the cause of independence, following the glorious tradition of the Constitution of May 3rd (1791), seeking the welfare of a united and independent Motherland—determined to establish it in strength and security and to maintain social order on the basis of the eternal principles of Justice and Liberty, and resolved to ensure the development of all its moral and material resources for the benefit of mankind in the new world now being born, and to guarantee to all citizens of the Republic equality, respect for the dignity of labour, and recognition of their rights, together with individual protection by the State—vote and confirm this Constitution in the Constituent Assembly of the Polish Republic.’ 96 Suggestions for a Catholic Constitution, October 1936 [Jesuit draft]. 97 The Preamble to the Constitution of Austria, 1934 provided: ‘In the name of God the Almighty, who is the source of justice and law, the Austrian people receive this constitution for a Christian, German, federal state on a corporative basis.’ 98 Suggestions for a Catholic Constitution, October 1936 [Jesuit draft]. 99 ibid. 100 The original Polish version read: ‘W imię Boga Wszechmogącego! My, Naród Polski, dziękując Opatrzności za wyzwolenie nas z półtorawiekowej niewoli, wspominając z wdzięcznością męstwo i wytrwałość ofiarnej walki pokoleń, które najlepsze wysiłki swoje sprawie niepodległości bez przerwy poświęcały, nawiązując do świetnej tradycji wiekopomnej Konstytucji 3-go Maja– dobro całej, zjednoczonej i niepodległej Matki-Ojczyzny mając na oku, a pragnąc Jej byt niepodległy, potęgę i bezpieczeństwo oraz ład społeczny utwierdzić na wiekuistych zasadach prawa i wolności, pragnąc zarazem zapewnić rozwój wszystkich Jej sił moralnych i materialnych dla dobra całej odradzającej się ludzkości, wszystkim obywatelom Rzeczypospolitej równość, a pracy poszanowanie, należne prawa i szczególną opiekę Państwa zabezpieczyć—tę oto Ustawę Konstytucyjną na Sejmie Ustawodawczym Rzeczypospolitej Polskiej uchwalamy i stanowimy.’ The words underlined translate literally as ‘respect for work/labour’, but that does not appear to capture the full meaning, which also includes the value and worth of those individuals undertaking the work, see, Pisarczyk, Łukasz, ‘Wstęp do Konstytucji Rzeczypospolitej Polskiej - poszukując aksjologii prawa pracy’ [The Preamble to the Constitution of the Republic of Poland—in Search of the Axiology of Labour Law] in Michał Skąpski and Krzysztof Ślebzak (eds), Aksjologiczne podstawy prawa pracy i ubezpieczeń społecznych [Axiological Foundations of Labour and Social Security Law] (Poznań: Przedsiębiorstwo Wydawnicze Ars boni et aequi & autorzy, 2014), 149–62. I am indebted to Patrycja Dabrowska-Klosinska and Paulina Wilson for assistance on this. 101 Suggestions for a Catholic constitution, October 1936 [Jesuit draft] 102 Hogan (n 14) 307. 103 Dublin Diocesan Archives (Archbishop’s House, Drumcondra, Dublin) (hereafter ‘DDA’): AB8/A/V/61. 104 The drafts of the Constitution dated 3 February 1937 and 13 February had a heading labelled ‘Preamble’, but no content, P150/2387. 105 The first of these versions reads as follows (with amendments introduced by the second and third versions included): ‘In the name of the Most Holy Trinity, from whom is all authority and to Whom, as to our final end, all actions both of men and states must be referred, We, the people of Eire, Motherland of the Irish Race, humbly acknowledging (all) our obligations to our Divine Lord Jesus Christ, for Whose true worship we have endured so many centuries of pain, gratefully recalling the [its] heroic and unremitting [struggle] efforts of this Nation, more especially in these latter times [especially in these latter times], to regain its [the] rightful independence [of this Nation], now [and] seeking to promote the common good by due observance of the Christian principles of Prudence, Justice and Charity, whereby the dignity and freedom of the citizens may be rightfully secured and true social order adequately established and maintained, [do now] [declare] vote and confirm hereby this Constitution.’ 106 Sean P Farragher, Dev and his alma mater: Eamon de Valera's lifelong association with Blackrock College, 1898-1975 (Paraclete Press 1984) 173: it was McQuaid ‘who actually provided the most satisfactory draft of the Preamble to the Constitution’. See also Condon (n 15) 25; and Andreas Kloevekorn, Die irische Verfassung von 1937: Entstehung und Rezeption (Franz Steiner Verlag 2000). 107 John Cooney, John Charles McQuaid: Ruler of Catholic Ireland (O’Brien Press 2003) 96-97. 108 Giving the following reference to his archives: DDA (n 103): AB8/A/V.48. 109 The two drafts are very similar, but marginal amendments to one draft are then found included in another in typed form indicating that the former predated the latter. The latter (with manuscript amendments indicated in the usual way) reads: ‘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, Motherland of the Irish Race, |Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, for Whose true worship we our fathers have endured so many centuries of pain. |Gratefully recalling their heroic and unremitting struggle, especially in these latter times, to regain the rightful independence of our Nation, |And seeking to promote the common good by due observance of the Christian principles of Prudence, Justice and Charity, whereby the dignity and freedom of the citizens may be rightfully secured and true social order adequately established and maintained, |Do now vote, confirm, enact and proclaim this our Constitution.’ 110 See below, text at nn 189 ff. 111 From Dr McQuaid to de Valera, 16 February 1937, UCDA: P150/2395. [Compare: American Declaration of the Rights and Duties of Man, Article 23 of the Declaration states that: ‘Every Person has the right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.’] 112 See especially, the quotations from Quadragesimo Anno, referring to ‘the energetic defence of those sacred rights of the working man, which proceed from his dignity as a man and as a Christian’; and that ‘Labour … is not a mere chattel, since the human dignity of the workingman must be recognized in it, and consequently it cannot be bought and sold like a piece of merchandise.’ 113 See, in particular, UCDA: P150/2411, which evidences the extensive quotations from several papal encyclicals sent by McQuaid to de Valera. The papal pncyclicals referenced are: Immortale Dei (1885), Rerum Novarum (1891), Quadragesimo Anno (1931), Casti Connubii (1930) and Divini Illius (1929). 114 UCDA: P150/2395, 16 February – 25 May 1937, Letters to de Valera from Dr John Charles McQuaid, letter dated 22 February 1937. 115 Translation SCW (n 72). 116 Here is the text of the Preamble in the Sunday Draft (UCDA: P150/2387/2, ‘Sunday Draft, 28 February 1937: ‘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 Eire, Motherland of the Irish Race, |Humbly Acknowledging all our obligations to Our Divine Lord, Jesus Christ, for Whose true worship our fathers have endured so many centuries of pain, |Gratefully Recalling the heroic and unremitting struggle especially in these latter times, to regain the rightful independence of our Nation, |And seeking to promote the common good by due observance of the Christian principles of Prudence, Justice and Charity, whereby the dignity and freedom of the citizens may be rightfully secured and true social order adequately established and maintained, |Do now vote, confirm [ENACT] and Proclaim this our Constitution.’ 117 UCDA: P/150/2387, Typescript ‘Bunreacht’ (2 March 1937) comprising text of Preamble, with top page labelled ‘Remainder given to Ceann Comhairle Nat Parlt and Seanad 2.3.37 by [Kathleen O’Connell]’. 118 The St Patrick’s Day Speech was broadcast on Irish radio, 17 March 1937, and can be found in UCDA: P150/196. It was published in full in the Irish Independent (Dublin, 18 March 1937). UCDA: P150/196 also includes several drafts of the speech (to Australia, draft of 15 March) and to the United States (draft, nd), in both of which there are references to dignity, in the former case to ‘the dignity and liberty of the human person’, and in the latter case to ‘the dignity of human life and labour’. 119 St Patrick’s Day Broadcast to Australia, draft 15 March 1937, UCDA: P150/196. 120 St Patrick’s Day Broadcast to the United States, draft, nd, UCDA: P150/196. 121 ibid. 122 ibid. 123 St Patrick’s Day Broadcast to Australia, draft 15 March 1937, UCDA: P150/196. 124 Maurice Gerard Moynihan (1902-99), civil servant, Secretary of the Department of the President of the Executive Council, and subsequently Governor of the Central Bank, see Deidre McMahon, ‘Moynihan, Maurice Gerard’ Dictionary of Irish Biography (CUP/RIA) < https://dib.cambridge.org/viewReadPage.do;jsessionid=A5889725808A4DF51E2B9C372E54B531?articleId=a6014> last accessed 30 June 2020. 125 Michael McDunphy (1890-1971), Assistant Secretary of the Department of the President of the Executive Council, see Maire Coleman, ‘McDunphy, Michael’ Dictionary of Irish Biography (CUP/RIA) <https://dib.cambridge.org/viewReadPage.do?articleId=a5651&searchClicked=clicked&quickadvsearch=yes> last accessed 30 June 2020. 126 Philip O’Donoghue (1896-1987), legal assistant to the Attorney General’s department, subsequently Judge of the European Court of Human Rights, see also ‘Philip O’Donoghue, SC: an appreciation’, Irish Times (Dublin, 25 February 1987) 9. It is interesting to note that during his time as a judge on the European Court of Human Rights ‘O’Donoghue took inspiration from the classical encyclical of Pope John XXIII, Pacem in Terres … . He drew a connection between the dignity and worth of the human person as recognized by the convention and the Charter of the United Nations, and the Christian belief that God has created man “in His own image and likeness”’, see Daire Hogan, ‘O’Donoghue, (Patrick) Philip’ Dictionary of Irish Biography (CUP/RIA) < https://dib.cambridge.org/viewReadPage.do?articleId=a6709&searchClicked=clicked&quickadvsearch=yes> last accessed 30 June 2020. 127 See Niall Meehan ‘Article 44 Reconsidered’ (2019) 27(1) History Ireland 44. 128 UCDA: P150/2419, Documents shown to [Papal] Nuncio on first visit, 3 April 1937: ‘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, Motherland of the Irish Race, |Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, for Whose true worship our fathers have endured so many centuries of pain. |Gratefully recalling their heroic and unremitting struggle, especially in these latter times, to regain the rightful independence of our Nation, |And seeking to promote the common good by due observance of the Christian principles of Prudence, Justice and Charity, whereby the dignity and freedom of the citizens may be rightfully secured and true social order adequately established and maintained, |Do now confirm, enact, and proclaim this our Constitution.’ 129 Documents shown Archbishop [Edward] Byrne on first visit, 5 April 1937: ‘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, Motherland of the Irish Race, |Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who kept our fathers constant to His worship through centuries of trial. |Gratefully recalling their heroic and unremitting struggle, to regain the rightful independence of our Nation, |And seeking to promote the common good by due observance of the Christian principles of Prudence, Justice and Charity, whereby the dignity and freedom of the citizens may be rightfully secured and true social order adequately established and maintained, |Do now confirm, enact, and Give to ourselves this Constitution.’ 130 Keogh (n 64) 31. 131 UCDA: P150/2425; UCDA: P150/2419. Of the changes made (with omissions indicated by strike-through, and additions indicated by underlining), perhaps the most significant for the purposes of this article were the changes to the fifth paragraph, containing the reference to ‘dignity.’ It is this amended text that became the final text of the Preamble. It states: ‘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, Motherland of the Irish Race, |Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who kept our fathers constant to His worship sustained our fathers through centuries of trial, |Gratefully recalling remembering their heroic and unremitting struggle, to regain the rightful independence of our Nation, |And seeking to promote the common good, by with due observance of the Christian principles of Prudence, Justice and Charity, whereby so that the dignity and freedom of the citizens of the individual may be rightfully secured assured, true social order adequately established and maintained attained the unity of our country restored, and concord established with other nations, |Do hereby confirm adopt, enact, and Give to ourselves this Constitution.’ 132 Kissane (n 10) 83, appears to miss this development when he concludes that ‘[t]he longer the drafting [of the Preamble] went on, the more the Catholic influence.’ 133 Keogh (n 64) 65. 134 Hearne’s original draft, the ‘Preliminary Draft of Heads of Constitution for Saorstát Éireann’, 17 May 1935, had left the addressees of the protection of ‘freedom, equality and justice’ studiously ambiguous. 135 ‘Die Ordnung des Wirtschaftslebens muß den Grundsätzen der Gerechtigkeit mit dem Ziele der Gewährleistung eines menschenwürdigen Daseins für alle entsprechen. In diesen Grenzen ist die wirtschaftliche Freiheit des Einzelnen zu sichern’ (emphasis added). 136 UCDA: P150/2419 (emphasis added). 137 Iglesias (n 13) 21. 138 I am grateful to Oran Doyle for suggesting it. 139 See D Clark, ‘The Role of Natural Law in Irish Constitutional Law’ (1982) 17 IJNS 187; T Murphy, ‘Democracy, Natural Law and the Irish Constitution’ (1993) 11 ILT 81; A Twomey, ‘The Death of the Natural Law?’ (1995) 13 ILT 270; G Whyte, ‘Natural Law and the Constitution’ (1996) 14 ILT 8; M De Blacam, ‘Justice and Natural Law’ (1997) 32 IJNS 323. 140 There is some hint of this in a speech John Hearne gave whilst Irish Ambassador, on St Patrick’s Day, in which he clearly adopts the view of man as made in the image of God and thus possessing ‘dignity’, see UCDA: P291-15, 6. 141 UCDA: P150/2525, and P150/2424. 142 UCDA: P150/2419, Note, April 11 1937, para 6. 143 As enacted, the Preamble provides (in Irish): ‘In Ainm na Tríonóide Ró-Naofa is tobar don uile údarás agus gur chuici, ós í is críoch dheireanach dúinn, is dírithe ní amháin gníomhartha daoine achgníomhartha Stát, |Ar mbeith dúinne, muintir na hÉireann, ag admháil go huiríseal a mhéid atáimid faoi chomaoin ag Íosa Críost, ár dTiarna Dia, a thug comhfhurtacht dár sinsir I ngach cruatan ina rabhadar ar feadh na gcéadta bliain, |Agus ar mbeith dúinn ag cuimhneamh go buíoch ar a chalmacht a rinneadarsan troid gan staonadh chun an neamhspleáchas is dual dár Náisiún a bhaint amach, |Agus ar mbeith dúinn á chur romhainn an mhaitheas phoiblí a chur ar aghaidh maille le Críonnacht agus le hIonracas agus le Carthanacht de réir mar is cuí, ionas go dtiocfaidh linn a uaisleacht agus a shaoirse a chur in áirithe do gach aon duine, saol ceart comhdhaonnach a bhunú, aiseag a haontachta a thabhairt dár dtír, agus comhcharadra a dhéanamh le náisiúin eile, Atáimid leis seo ag gabháil an Bhunreachta seo chugainn, agus á achtú agus á thíolacadh dúinn féin.’ 144 UCDA: P150/2422; UCDA: P150/2423. 145 Órla McGrory, ‘Legal Translation and Terminology in the Irish Free State, 1922-1937’ (PhD thesis, Queen’s University Belfast 2018) 2. 146 ibid 3. 147 Unlike the Irish text of the Constitution in general, the Preamble is acknowledged in the authorised Irish biography of Éamon de Valera to be a translation from English done by Tomás Ó Rathile. Tomás Ó Néill and Pádraig Ó Fiannachta, De Valera vol 2 (Cló Morainn, 1970) 691: ‘Fuair de Valera dréacht de bhrollach ar dtús ón Athair Éamann Ó Cathail, S.J., ach mheas sé go raibh sé róscaoilte. Ansin chuaigh sé i gcomhairle leis an Athair Seán Mac Uaid, C.S.Sp., i gColáiste na Carraige Duibhe ina chóngar, agus fuair dréacht sásúil uaidh. Rinne de Valera ábhar leasaithe ar an dréacht agus ansin chuir Tomás Ó Rathile, an scoláire cáiliúil, Gaeilge air.’ (Translation: ‘De Valera initially got a draft of a preamble from Fr. Éamann Ó Cathail, S.J., but considered that it was too loose. Then he consulted Fr. Seán Mac Uaid, C.S.Sp. [John McQuaid], in Blackrock College near him, and got a satisfactory draft from him. De Valera made some amendment to the draft and then Tomás Ó Rathile, the famous scholar, put it into Irish.’) Translation in Micheál Ó Cearúil, Bunreacht na hÉireann: a study of the Irish text (Oifig an tSoláthair 1999) 2. 148 The most thorough study of the drafting history of the Irish text is Breandán Mac Giolla Choille, I dtaobh an tsaothair sin na Gaeilge ar an an mBunreacht, (Feasta 1988) 64. This is based, in part, on a Memorandum from M. Moynihan, UCDA: P122/103(2). 149 1931 Trustee Act (Acht na nIontaobhaithe) art1: ‘San Acht so—foluíonn an focal “oifig” aon oifig, post, no beart go n-íocaíocht no gan íocaíocht, agus aon teideal no dighnit’ (‘and any title or dignity’). 150 Art 3(3): ‘Má bhíonn maoin, réalta no pearsanta, no aon leas inti, teoranta i slí gur maraon le dighnit no teideal onóra (chó gar do is leigeann an dlí é) do thuitfeadh sí chun duine (fé réir theoranta no muirir ar bith do bheadh ann cheana no gan iad) dá mba ná rithfí an tAcht so, ansan, ní oibreoidh éinní san Acht so chun na maoine ná aon leasa inti do dheighilt amach ón dighnit no ón teideal onóra san ach raghaidh agus tuitfidh an céanna chun an duine sin (gan dochar do sna teoranta ná do sna muirir sin atá ann cheana) díreach fé is dá mba ná rithfí an tAcht so.’ (Translation: Where property real or personal or any interest therein is limited in such a way that, if this Act had not been passed, it would (subject or not to any preceding limitations or charges) have devolved (as nearly as the law permits) along with a dignity or title of honour, then nothing in this Act shall operate to sever the property or any interest therein from such dignity or title of honour, but the same shall go and devolve (without prejudice to the preceding limitations or charges aforesaid) in like manner as if this Act had not been passed.) 151 An omission that subsequently led to some criticism in Seanad Éireann (the Irish Senate), see McGrory (n 145) 206. 152 He wrote under the Irish pen name of An Seabhac (the Hawk). 153 'Tá mé ar aon aigne le furmhór na ndaoine a labhair ar an gceist seo. Maidir le breithiúin agus lucht riartha dlí, caithfear aird do thabhairt gur féidir leo sin maireachtaint agus saol do riaradh le dighnit oiriúnach don phost, agus ná beidís faoi chomaoin ag aon duine. Caithfear dighnit an bhínse agus an bhreithimh do chóthú ar mhaithe leis an dlí, ar mhaithe leis an gceart agus ar mhaithe le meas an phobail ar an dlí céanna.’ Available at: <http://oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/seanad1947070200004?opendocument> accessed 30 June 2020. 154 For further details, see Toner and McCrudden (n 28). 155 This root appears in the rendering in Irish of the title ‘Mister’ or ‘Monsieur’—An tUasal. I am grateful to Oran Doyle for pointing this out. 156 Further support for this interpretation is contained in the UCD Archives, UCDA: P150/2383, Typescript of words in Irish with English equivalents, A-V (n d), translates ‘Uaislím – iú’ as ‘ennoble, enhance’. 157 Keogh (n 64) 19. 158 D. George Boyce, ‘Valera, Eamon De (1882–1975)’, Oxford Dictionary of National Biography (online edn, Jan 2008, OUP 2004) <http://www.oxforddnb.com/view/article/31029>last accessed 10 June 2020. 159 Kissane (n 10) 57. 160 ‘Republican’ both in the sense of Irish republican ideology, and in the sense of the broader political theory understanding of republicanism. For an extended discussion, see Eoin Daly and Tom Hickey, The Political Theory of the Irish Constitution: Republicanism and the Basic Law (Manchester UP 2015). 161 Boyce (n 158) quoting K Mullarkey, ‘Ireland, the pope and vocationalism: the impact of the encyclical Quadragesimo Anno’ in J Augusteijn (ed), Ireland in the 1930s: new perspectives (Four Courts Press 1999) 105. 162 Coffey (n 66) 242, points out that ‘De Valera’s advertisement to the electorate on 15 February 1932 had proclaimed: “[a] Fianna Fail Government will accept the full responsibility of governing in accordance with the principles enunciated in the Encyclical of Pope Pius XI on ‘The Social Order.’”’ Broderick (n 34) 187, has also pointed to how the Irish Press newspaper, a strong supporter of de Valera, claimed in 1933 that ‘there is no social or economic change Fianna Fáil has proposed or brought about which has not its fullest justification in the encyclicals of Leo XIII or the present pontiff.’ 163 Rachel Walsh, ‘Private Property Rights in the Drafting of the Irish Constitution: A Communitarian Compromise’ (2011) 33 DULJ 86. 164 ibid 108. 165 Broderick (n 34) 185. 166 But not entirely symbolic. For example, three ‘Treaty Ports’ were retained by the UK under the 1921 Treaty and were controlled by the UK until 1938, when control passed to Ireland under the Anglo-Irish Trade Agreement of 1938. 167 Quoted in CJC Street, Ireland in 1921 (Philip All & Co 1922) 10. 168 ibid. 169 Quoted in Norman Rose, Churchill: The Unruly Giant (Free Press 1994) 111. 170 Broderick (n 34) 19. 171 Dáil Éireann, vol 3, 21 December 1921, see eg EJ Duggan (‘consistent with our own dignity and the honour of our country’). 172 Quoted in ibid 288. George Gavan Duffy was an Irish politician, barrister and judge who served as Minister for Foreign Affairs from January 1922 to July 1922, and a judge (and from 1946, President) of the Irish High Court from 1936 to 1951. 173 Seamus Ó Tuama, ‘Revisiting the Irish Constitution and De Valeras’s Grand Vision’ (2011) 2 IJLS 54, 76. 174 JJ Lee, ‘De Valera’s Use of Words: Three Case Studies’ (2001) 2 Radharc 75, 86; see also Broderick (n 34) 65, 151. 175 Cahill Papers (n 92). 176 Suggestions for a Catholic Constitution, October 1936 [Jesuit draft]. 177 Compare: American Declaration of the Rights and Duties of Man, Art 23 of the declaration states that: ‘Every Person has the right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.’ 178 On which, see Patrick Hanafin, ‘Constitutive Fiction: Postcolonial Constitutionalism in Ireland’ (2002) 20 Penn St Int’l LR 339. 179 Preliminary Draft of Heads of a Constitution for Saorstát Éireann: 17 May 1935 (emphasis added). 180 Suggestions for a Catholic Constitution, October 1936 [Jesuit draft] (emphasis added). 181 Thomas Mohr, ‘The Rights of Women Under the Constitution of the Irish Free State’ (2008) 41 IJNS20. 182 Maria Luddy, ‘A “Sinister and Retrogressive” Proposal: Irish Women’s Opposition to the 1937 Draft Constitution’ (2005) 15 Transactions of the RHS 175. 183 Art 3 provided: ‘Every person, without distinction of sex, domiciled in the area of the jurisdiction of the Irish Free State (Saorstát Eireann) at the time of the coming into operation of this Constitution, who was born in Ireland or either of whose parents was born in Ireland or who has been ordinarily resident in the area of the jurisdiction of the Irish Free State (Saorstát Eireann) for not less than seven years, is a citizen of the Irish Free State (Saorstát Eireann) and shall within the limits of the jurisdiction of the Irish Free State (Saorstát Eireann) enjoy the privileges and be subject to the obligations of such citizenship: Provided that any such person being a citizen of another State may elect not to accept the citizenship hereby conferred; and the conditions governing the future acquisition and termination of citizenship in the Irish Free State (Saorstát Eireann) shall be determined by law.’ 184 Art 14 provided: ‘All citizens of the Irish Free State (Saorstát Eireann) without distinction of sex, who have reached the age of twenty-one years and who comply with the provisions of the prevailing electoral laws, shall have the right to vote for members of Dáil Eireann, and to take part in the Referendum and Initiative. All citizens of the Irish Free State (Saorstát Eireann) without distinction of sex who have reached the age of thirty years and who comply with the provisions of the prevailing electoral laws, shall have the right to vote for members of Seanad Eireann. No voter may exercise more than one vote at an election to either House, and the voting shall be by secret ballot. The mode and place of exercising this right shall be determined by law.’ 185 Coffey (n 66) 201; Oran Doyle, Constitutional Equality Law (Round Hall 2004) 52. 186 Quod Apostolici Muneris. 187 UCDA: P150/2411. 188 UCDA: P150/2411. 189 Quoted in Cooney (n 107) 99. 190 James Connolly, Labour in Irish History (1910), 156 (quoting another author); James Connolly, Regicide and Revolution (September 17 1898). I am grateful to TT Arvind for discussion on this point. 191 De Valera had invoked Connolly on the need to address social conditions at the beginning of his campaign to establish the need for a new Constitution, see Speech delivered by de Valera, 23 April 1933, as reported in the Irish Press (Dublin, 24 April 1933) (Moynihan Papers, UCDA: P122/105). 192 St Patrick’s Day Speech broadcast on Irish radio, 17 March 1937, UCDA: P150/196. 193 Although, as Kissane (n 10) 85 notes: ‘Labour … remained neutral in the plebiscite.’ 194 Art 151 provided: ‘Die Ordnung des Wirtschaftslebens muß den Grundsätzen der Gerechtigkeit mit dem Ziele der Gewährleistung eines menschenwürdigen Daseins für alle entsprechen. In diesen Grenzen ist die wirtschaftliche Freiheit des Einzelnen zu sichern.’ In translation: ‘The organization of economic life must correspond to the principles of justice, and be designed to ensure for all a life worthy of a human being. Within these limits the economic freedom of the individual must be guaranteed.’ 195 Art 25 of the Esthonian (sic) Republic, as translated, stated: ‘The organization of economic life in Esthonia must conform to the principles of justice, so as to ensure to all citizens a life worthy of human beings, by means of laws for the encouragement of agriculture, the ensuring of a dwelling and of work for every citizen, the protection of maternity, the safeguarding of labour, the assistance of the aged, and the relief of disablement due to accidents at work.’ UCDA: P150/2411. It is interesting that the Constitution referred to is the first Constitution of the Esthonian Republic (1920-33), which was a liberal democratic constitution. By the time that it was referred to in drafting the Irish Constitution in 1936-37, this Constitution had been replaced by the second more authoritarian Estonian Constitution, which was introduced following a coup d’etat in 1934. This second Constitution is not referred to. 196 Condon (n 15) 243. 197 Reprinted as: Franz Neumann, ‘The Social Significance of the Basic Laws in the Weimar Constitution’ (1981) 10 Economy and Society 329, 338. 198 St Patrick’s Day Speech broadcast on Irish radio, 17 March 1937, UCDA: P150/196. 199 Cf Jacobsohn (n 10) passim. 200 Kissane (n 10) 88. 201 UCDA, Papers of John Hearne, P291/4 (‘The Constitution and National Life’), nd, December, 1937; Broderick (n 34) 159-61 has collected together the many references by Hearne after that to the importance of ‘human dignity’. 202 Moyn, Christian Human Rights (n 1) 39 203 ibid 45. 204 ibid 46. 205 ibid. 206 ibid. 207 ibid. 208 ibid at 60. 209 Although the term ‘Christian democracy’ has generally not been attached by Irish political scientists to the Irish state post-1937. For a discussion of the difficulties of attaching the term to any of the existing political parties in Ireland, see Liam Weeks, Parties and the Party System, in John Coakley and Michael Gallagher (eds), Politics in the Republic of Ireland (6th edn, Routledge 2018) 111, 115-6. 210 Moyn, Christian Human Rights (n 1) 61. 211 ibid 61. 212 It is highly improbable that McQuaid received an advance copy of Divini Redemptoris. He was at this time a prominent cleric, but contacts with the Vatican would have gone through the cardinal or the archbishop, not the headmaster of a school, and there is no evidence from the Diocesan Archives that the archbishop had advance sight of the encyclical. 213 Moyn, Christian Human Rights (n 1) 4. 214 ibid 33. 215 ibid. 216 Quadragesimo Anno, paragraphs 28 (‘dignity as men’), and 87 (‘the worker’s human dignity’). 217 He is not alone, see Kloevekorn (n 106): ‘McQuaid’s design made clear the basis for the later final version’ (my translation). 218 See Maurice Curtis, A Challenge to Democracy: Militant Catholicism in Modern Ireland (History Press 2010) 135. 219 Maurice Curtis, The Splendid Cause: The Catholic Action Movement in Ireland in the Twentieth Century (2nd edn, Greenmount Publications 2009) 208. 220 Keogh (n 64) 24. 221 There was, as we have seen, a strong assumption that the Preamble would not be subject to judicial application (indeed, the better understanding is that certain ideas were inserted into the Preamble because of this assumption). After the Constitution was adopted, however, the Irish courts were subsequently referred to the Preamble and, on occasion, have used it as an aid to the interpretation of other parts of the Constitution, eg Garvey v Ireland [1981] IR 75, 99. Since then, there have been several important decisions in which ‘dignity’ features strongly, see Connolly v Governor of Wheatfield Prison [2013] IEHC 334 at paras 13 to 25 (per Hogan J), and Ruffley v Board of Management [2017] IESC 33, para 76 (per O’Donnell J). For an account up to 2000, see, eg TJ O’Dowd, ‘Dignity and Personhood in Irish Constitutional Law’ in G Quinn, A Ingram and S Livingstone (eds), Justice and Legal Theory in Ireland (Oak Tree Press 1995) 163; Iglesias (n 13) 28-32; W Binchy, ‘Dignity as a Constitutional Concept’ in E Carolan and O Doyle (eds), The Irish Constitution: Governance and Values (Round Hall 2008) 311. For a more recent discussion, see C O’Mahony, ‘The Dignity of the Individual in Irish Constitutional Law’ in Dieter Grimm, Alexandra Kemmerer and Christoph Möllers (eds), Human Dignity in Context (Hart 2016). There is considerable debate as to the approach that the Irish courts have taken to the meaning of ‘dignity’ in that context. See Kavanagh (n 59) 74-91. The temptation is to view the intentions of the drafters through the lens of this subsequent judicial interpretation, but I resist this temptation. The drafting narrative was both subtler, and more interesting, than this approach allows. My article is an exercise in historical inquiry, rather than Irish legal exegesis. 6 Orit Kamir, Honor and Dignity Cultures: the case of kavod (honor) and kvod ha-adam (dignity) in Israeli society and law in David Kretzmer and Eckart Klein (eds), The Concept of Human Dignity in Human Rights Law (Kluwer 2002) 231. 7 Kyoko Inoue, MacArthur’s Japanese Constitution: A Linguistic and Cultural Study of its Making (University of Chicago Press 1991) ch 6. 8 ‘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.’ I have used ‘|’ in this and subsequent quotations where a new line was in the original. 9 By ‘sectarian’ I understand is meant choosing one particular ‘sect’ or religion, over another. © The Author(s) 2021. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) © The Author(s) 2021. Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com
TI - Where Did ‘Human Dignity’ Come from? Drafting the Preamble to the Irish Constitution
JO - American Journal of Legal History
DO - 10.1093/ajlh/njaa023
DA - 2021-02-26
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SP - 485
EP - 535
VL - 60
IS - 4
DP - DeepDyve
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