Seventy years ago yesterday the people voted to approve a new Constitution for this State with moderate enthusiasm: 56 per cent were in favour and 44 per cent were opposed. The 1937 Constitution is regarded now as a signal success, surpassing the modest expectations then set for what has since become, perhaps, Éamon de Valera's greatest achievement.
The higher courts have skilfully interpreted its provisions, notably since the early 1960s, as judges have adapted the State's basic law to reflect a fast changing society.
Today the success of the Constitution owes much to the creativity and innovation of the judiciary, not least in developing the unenumerated personal rights for the benefit of the people. It owes far less to the efforts of the legislature. If legislative caution has been the watchword in Leinster House over the last half century, then judicial activism has been a defining feature of the Supreme Court.
The Oireachtas has spent a good deal of time reviewing the Constitution, but to little practical effect. Seán Lemass chaired the first all-party committee on the Constitution which reported in 1967. A year later a Fianna Fáil government, ignoring the report's recommendations, sought unsuccessfully and for a second time to amend the Constitution to abolish the proportional representation voting system. And in the next decade, a number of similar parliamentary committees examined aspects of the Constitution. None, however, reported.
In 1981, former Taoiseach Garret FitzGerald embarked on a constitutional crusade which was well-intentioned but ill-conceived. His liberal crusade foundered with the rejection of his anti-abortion amendment in 1983 and later failed with the defeat of the divorce referendum in 1986. Since 1997, a succession of Oireachtas committees have analysed the Constitution in microscopic detail. They have issued countless reports and made many recommendations which have been ignored.
The courts, arguably, have had a greater success in changing the Constitution than the Oireachtas has managed, either by proposing constitutional amendments, or by using legislation to test the limits of constitutional tolerance. The roll call of legislative failure is familiar. Reform of the laws on contraception came only after the Supreme Court had established a right to marital privacy. Since 1992, following the X case, the Oireachtas has never attempted to legislate for what the Supreme Court had decided: namely, where a suicide threat represented a real and substantial risk to the life of an expectant mother, then abortion was permissible.
The late Professor John Kelly once noted that Mr de Valera undoubtedly saw the fundamental rights articles in the Constitution merely as headlines for the Oireachtas. They became guidelines for the courts. Mr de Valera's Constitution has succeeded in a way that he never imagined and, undoubtedly, certainly never intended.