In the summer of 2007 Trinity College, Dublin was the venue for a conference to mark the 70th anniversary of the coming into force of Bunreacht na hÉireann, the Irish Constitution. Most of the papers delivered over the two days of the “Constitution at 70” programme have been collected in this excellent volume. It includes contributions made by nearly all of Ireland's leading public law practitioners and academics, two foreign guests, and several Irish scholars from adjoining fields.
The breadth of the topics covered is most impressive, ranging from the Constitution's historical foundations, to the perceived need to update certain constitutional provisions and even the relationship between the Constitution and the law of evidence. In all, the volume comprises 29 chapters, all but one of which (the introduction, by Barry Sullivan, an American academic and practitioner) is a substantive discussion. As is natural in a collection of such dimensions, some of the contributions are short and provide only a brief overview. Sometimes the reader is left a little unfulfilled and wishing for a more substantial helping but the generally bite-sized dimensions of the chapters make the book as a whole eminently digestible. On balance, the volume certainly provides plenty of food for thought.
A useful point of contrast is provided by the last major indigenous collection of constitutional commentary, Ireland's Evolving Constitution, published in 1998. Then, contributions were solicited from historians, philosophers, political scientists, politicians and even a linguist, as well as lawyers. It is a mark of the expansion of the Irish legal academy in the last decade that the roster here is almost entirely filled by members of native law faculties. A brief comparison of the topics covered is also worthwhile. Gender equality seems to have fallen from the constitutional agenda and one wonders out loud whether the enactment of legislation and the advocacy work of the Equality Authority have moved discussion of equality from the constitutional plane (although it must be noted that at least two important Supreme Court cases are pending in the equality area). A similar tale may lie behind the absence of any essay on the status of the Irish language: robust legislative and political efforts have been made on its behalf recently. The European Union also does not feature, although the editors could not possibly have foreseen the crisis provoked by the electorate's rejection of the ‘Lisbon Treaty’ in June 2008 and the subsequent popular discussion of the necessity to hold a referendum. Freedom of expression and assembly, long the sleeping dogs of the Constitution but now beginning to rouse themselves, are addressed but largely in a historical context, in Gerard Hogan's exploration of the origins of the relevant constitutional provision.
A number of major themes recur. Religion, as prominent as one would expect in a Constitution adopted in the 1930s, continues to excite much discussion and is well addressed here in Part III, “Fundamental Rights”, as is the constitutional protection of the family, to the fore in several recent legal and political controversies. Institutions have largely escaped detailed constitutional analysis heretofore, a shortcoming remedied by a fine set of essays on policing, privatisation, accountability of independent agencies, the separation of powers, and parliamentary proceedings, grouped under the heading “Governance”, in part II. Part I, “Philosophies and Histories”, takes the broader view that its title implies, but it perhaps lacks for an overall historical assessment, or a précis of developments since 1937. Another prominent theme, if one can so describe it, is the future. Colm O'Cinneide's splendid closing essay leaves open the intriguing question of how the European Convention on Human Rights, incorporated at a sub-constitutional level by an eponymous 2003 Act, will interact with the Constitution. Richard Humphreys asks how, in the event of the unification envisaged by the “Good Friday Agreement” coming to pass, Churchill's dreary steeples of Fermanagh and Tyrone can be accommodated in the current constitutional framework. Fergus Ryan and former Chief Justice Ronan Keane ponder the fate of some of the Constitution's protection of the family in a time of great social and cultural change.
A number of new frontiers for constitutional scholarship are opened up. John O'Dowd's essay on the Oireachtas (Houses of Parliament) brings into view the tantalising prospect of parliamentarians reaching and publicising their own views on contested matters of constitutional interpretation. With his sophisticated critique of the use of the separation of powers by Irish courts, Eoin Carolan might prompt a reconsideration of reliance on formal concepts in public law. A debate on the constitutionalisation of socio-economic rights which is in danger of becoming stale may be enlivened by Rory O'Connell's suggestion of an equality-led approach. Humanism is a growing force in Irish society and Oran Doyle's critique of the Constitution's apparent privileging of the religious over the non-religious breaks new constitutional ground. Donal O'Donnell's trenchant defence of property rights is especially pertinent in the current climate of nationalisation and emergency financial regulation and prompts one to wonder what view the courts will take when, as seems inevitable, aspects of the current economic recovery programme come before them.
Overarching interpretive approaches are not neglected either. William Binchy's essay on dignity attempts to tease out an underlying theme of the Constitution. Tim Murphy's discussion of the legal philosophy of Garrett Barden aims to renew discussion, largely terminated by the Supreme Court in the mid-1990s, of the place of natural law in the Irish legal system. Desmond Clarke's essay on essentially contested concepts takes an expressly Dworkinian view of the abstract pronouncements of the Constitution and implicitly at least, recognises the need to address and justify the role accorded to and functions exercised by Ireland's powerful superior courts.
In all, this primarily forward-oriented volume is a worthy addition to the Irish constitutional canon. It provides an excellent introduction to Irish constitutional law for the outsider and is a most valuable work for native practitioners, academics and students.
