American Journal of Legal History, 2016, 56, 412–435
doi: 10.1093/ajlh/njw014
Advance Access Publication Date: 16 November 2016
Contesting the Commonwealth: The Life and
Social Legal Thought of Clemens France*
Thomas Murray
ABSTRACT
Clemens J. France (1877–1959), a labour lawyer at the Port of Seattle, contributed
substantially to the making of the 1922 Irish Free State Constitution. Notably, he
advocated referendum and initiative measures similar to those used in the State of
Washington. France also advocated egalitarian socio-economic development as a basis
for genuine national independence. Ultimately, proposals for an ‘economic commonwealth’ and for direct democratic mechanisms met with very limited success. Their
reception indicates the ideological, institutional, and interest-based constraints on constitutional engineering in post-revolutionary Ireland. France’s unsuccessful interventions in Dublin are best understood in light of what Duncan Kennedy has described as
‘the globalisation of social legal thought’ in the early twentieth century. The goal of
rethinking law as a purposive activity, newly designed to regulate laissez-faire capitalism, consistently underpinned France’s socio-legal biography from the Municipal
League in Progressive-era Seattle to his Directorship of Social Welfare in post-war
Rhode Island. Retracing the Transatlantic life and social legal thought of Clemens
France demonstrates the importance of rethinking apparently self-contained, national
constitutional development as part of a broader, transnational exchange of legal institutions and ideas. It also suggests a role for legal life writing in shedding light on the
apparently anonymous globalisation of legal ideas and institutions.
During the tense weeks before Ireland’s civil war, Clemens James France (18771959) helped draft a constitution for the new Irish Free State.1 His attempted contribution was remarkable. A labour lawyer from the United States, France envisaged
the transformation of an unequal, agrarian, society into ‘a great industrial and trading
* I wish to thank the staff at the National Library of Ireland, University College Dublin’s Library and
Archives, and the New York Public Library for their assistance while researching this article. Thanks also to
Graham Finlay, Robert Fine, Thomas Mohr, John Coakley, John O’Dowd, and Bryan Fanning for their discussion of some ideas presented here. Thank you, in particular, to the journal’s two anonymous reviewers
whose excellent commentaries helped this article’s revision significantly. Any errors are my own.
1 Some confusion over France’s first name exists. Several published accounts refer to him as ‘Clement’.
However, contemporary census forms, newspapers, and biographical accounts clearly identify him as
‘Clemens’.
C The Author 2016. Published by Oxford University Press. All rights reserved.
V
For Permissions, please email: [email protected]
412
Contesting the Commonwealth
413
nation’, an egalitarian ‘economic commonwealth’.2 Drawing on his experience of law
and politics in Seattle, Washington, France proposed that Ireland’s socio-economic
development be accompanied by direct democratic reforms. Constitutional provisions were therefore necessary both to remedy conditions that produced abject poverty and to expand the capacity of men and women to self-govern through
referendum, initiative, and urban commission mechanisms. Ultimately, for interesting
reasons, the Irish Free State adopted some of the latter proposals but not those concerning economic sovereignty or socio-economic rights.3 France returned to the US
where he played an important role in developing social security programmes in the
state of Rhode Island. In both Ireland and the US, the fundamental questions he
raised about capitalism and democracy would prove enduring.
The present article examines the life and social legal thought of Clemens France.
This seems necessary for at least three reasons, local, comparative, and methodological in nature. Firstly, France contributed significantly to the drafting of the 1922
Irish Free State Constitution, most notably by advancing the initiative mechanism.
Yet he remains a comparatively unknown figure in Irish legal history. The two most
in-depth historical reconstructions of the drafting process sketch brief biographical
portraits only.4 These portraits indicate France’s origins as a labour lawyer in Seattle
and outline how the Provisional Government recruited him to the drafting process
through his involvement in the Irish White Cross, a civilian relief organization operating during Ireland’s War of Independence (1919-21) and Civil War (1922-23).
Large gaps persist, however, in our knowledge of France’s personal, professional, political, and intellectual development. His family connections and later life experiences
have not yet been examined. In this regard, My Native Grounds, the biography of
Clemens’s brother, Royal Wilbur, provides a particularly rich seam of information on
the France family that has yet to be mined.5
Secondly, France’s somewhat unlikely presence in the drafting of the 1922 Irish
Free State Constitution suggests the importance of rethinking apparently selfcontained or strictly ‘national’ legal developments as part of a much broader global
or transnational migration of legal institutions and ideas.6 Comparative scholars
assuming the hermetic isolation of nation-states risk attributing to internal
2 C.J. France, ‘Document 24’, Thomas Johnson papers, National Library of Ireland, Ms. 17,136. An
amended, shorter version of this document is also available, see Hugh Kennedy papers, University College
Dublin Archives (UCDA) P4/320.
3 See Thomas Murray, Contesting Economic and Social Rights in Ireland: Constitution, State and Society 18482016 (CUP 2016).
4 Brian Farrell, ‘The drafting of the Irish Free State Constitution’ Irish Jurist 5 (1970), 115–140, 343–356; 6
(1971), 111–135, 345–359; DH Akenson and JF Fallin, ‘The Irish Civil War and the Drafting of the Free
ire-Ireland 42.
State Constitution’ (1970) 5 E
5 Royal Wilbur France, My Native Grounds (Cameron 1957) 21.
6 On the migration of constitutional ideas, see Vlad Perju, ‘Constitutional Transplants, Borrowing and
Migration’ in Michael Rosenfeld and Andras Sajo (eds), The Oxford Handbook of Comparative
Constitutional Law (OUP 2012) 1304–27; Sujit Choudry (ed), The Migration of Constitutional Ideas (CUP
2006); Alan Watson, Legal Transplants: An Approach to Comparative Law (University of Georgia Press
1974). See also Samuel Moyn, ‘On the Nonglobalization of Ideas’, in Samuel Moyn and Andrew Sartori
(eds), Global Intellectual History (Columbia University Press 2013) 187-204.
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dynamics changes happening in strictly analogous ways in other jurisdictions.7 In
contrast, France’s transatlantic life and thought directly links Ireland’s revolutionary period to farmer-labour upheaval in the USA, including the Seattle General
Strike, and to the wider social transformation occurring in the aftermath of World
War One and the altogether unanticipated victory of the Russian Revolution. His
advocacy of an economic commonwealth and direct democratic mechanisms in
Dublin in 1922 underlines the willingness of Irish nationalists to experiment with
American and continental European constitutional models. His contributions,
moreover, indicate a characteristic post-war optimism in democratic constitutional
engineering, an optimism that later yielded to pre-existing or more authoritarian
state formations.
Thirdly, this article’s subject matter suggests the importance of ‘legal life writing’
in understanding legal history.8 Between the Scylla of methodological individualism
and the Charybdis of structural determinism, the subject matter of the present article
readily suggests the mutual interpenetration of biography, social structure, and historical transformation.9 In particular, France’s biography encapsulates an important
socio-legal transformation occurring at the turn of the 20th century, characterized by
the critical legal studies scholar, Duncan Kennedy, as ‘the globalization of social legal
thought’.10 Urbanization, factory production, mass warfare, and a crisis-prone credit
system all challenged states and jurists to rethink the law as a purposive instrument,
to be redesigned for ‘society’ and the ‘common good’. France’s advocacy of an economic commonwealth and direct democratic mechanisms in Dublin in 1922 conformed precisely to this political logic of challenging laissez-faire and monopoly
capitalism by improving welfare state supports and deepening political engagement
for farmers and workers.11 That his proposals were interpreted as socialist then rejected or only partially implemented indicates the wider ideological, institutional and
interest-based constraints on both socio-economic and democratic development in
the Irish Free State.12
The work falls into four parts. Part one maps France’s class and familial background, his academic, professional, and social networks, as well as his intellectual
stock in trade. These influences proved enduring. Remarkably, three of the brothers
France demonstrated a strong commitment to ethical interventions in US politics in
favour of civil liberties and social justice, sometimes at personal cost in terms of career or political advancement. Part two traces Clemens’s involvement in and attitude
toward two moments of revolutionary upheaval, moving from the Seattle General
Strike to Ireland’s War of Independence via the American Committee of Relief and
7 Duncan Kennedy, ‘Three Globalisations of Law and Legal Thought: 1850-2000’ in David Trubek and
Alvaro Santos A (eds), The New Law and Economic Development: a critical appraisal (CUP 2006) 25.
8 See David Sugarman, ‘From Legal Biography to Legal Life Writing: Broadening Conceptions of Legal
History and Socio-Legal Scholarship’ (2015) 42 Journal of Law and Society 7.
9 For a classic statement of the structure-agency problem, see C. Wright Mills, The Sociological Imagination
(OUP 1959) 134, 149, 161. See also Tom Garvin, 1922: the birth of Irish democracy (Gill and MacMillan
1996) 192-4.
10 Kennedy (n 7).
11 Kennedy (n 7) 38.
12 See Joseph Lee, Ireland: 1912-1985 (CUP 1989) 528-30; Denis O’Hearn, The Atlantic Economy: Britain,
the US and Ireland (Manchester University Press 2001) 109-16.
Contesting the Commonwealth
415
the Irish White Cross. Part three outlines how these wider revolutionary contexts
combined with France’s ethico-political convictions shaped his proposals for an economic commonwealth and direct democratic mechanisms in the new Irish Free
State. Their cool reception and limited implementation respectively suggests the
conservative balance of power in 20th century Ireland and Britain, as well as the limits
of contemporary legal thought. In the concluding section, I trace France’s remaining
career as a progressive lawyer and political actor in the US before reflecting on the
significance of his life and socio-legal thought today.
‘ LAWYE RS SE LL THEI R BR A IN S’: F RAN C E’S F AM IL Y, E THICS, AN D
E A R L Y C A R EE R
Clemens James France was born on 22 January 1877, in Kalamazoo, a trading town
in the southwest of Michigan.13 Only two generations previously, the United States
had claimed the territory from the indigenous Potawatomi. In the intervening years,
its fertile farmlands and trading outposts attracted New England farmer-settlers before drawing industrial capital.14 Within this milieu, the France family were readily
distinguishable. Clemens’s father, the Reverend Joseph H. France, was a scholarly
and reforming Presbyterian minister, described as ‘a striking figure’ in his church.15 A
graduate in classics, law, and divinity from George Washington University, Joseph’s
ministry saw him travel widely to deliver well-attended lectures throughout the US.16
Hannah Fletcher James, Clemens’s mother, was born in Monmouthshire, Wales. She
too was university educated, having received an arts degree from the Baltimore
Female College, but placed her skills at the service of the household and her husband’s ‘church work’.17 From about 1880 onwards, after years of the church-lecture
circuits, the couple settled in the state of New York.
Clemens had six siblings, including William (b. 1872), (Joseph) Irwin (b. 1874),
Mary (b. 1876), Ina (b. 1879), Royal (b. 1883), and Marguerite (b. 1888).18 The children’s upbringing involved the inculcation of strong ethical convictions and religious beliefs, reinforced through their parents’ discussion and example rather than disciplinarian
methods.19 Both parents similarly encouraged their children’s education and travel, as
well as, in the case of their sons, provided them with advantages to move into professional careers. Joseph Irwin studied medicine at a series of universities, including Leipzig
University in Germany, before returning to practice medicine in Maryland. Mary
‘received a splendid education from her parents’ and would become a ‘widely known
missionary worker’.20 Royal studied law at Hamilton College in New York. He was
13 Clarence Bagley (ed), History of Seattle: from earliest settlement to the present time (SJ Clarke Publishing
Company 1916) 772-3.
14 John Houdek and Charles Heller, ‘The Emergence of Prosperous Farmers and Businessmen in
Nineteenth-Century Kalamazoo County, Michigan’ (2011) 37:2 MHR 53.
15 Bagley (n 13) 772-3.
16 Bagley (n 13) 772-3.
17 Bagley (n 13) 772-3.
18 <http://scholtz.org/Genealogy/getperson.php?personID¼I1717&tree¼MyTree> accessed 7 May 2015.
19 France (n 5) 15-17.
20 Obituary, ‘Mary France’ Johnston Morning Herald (Johnston, 9 February 1931) <http://scholtz.org/
Genealogy/getperson.php?personID¼I1716&tree¼MyTree> accessed 7 May 2015.
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American Journal of Legal History
disappointed to find Hamilton to be an ‘ivory tower’, where ‘economics courses were
confined to teaching the classical concepts of an imaginary free-enterprise world’.21
Core values learned in childhood tend to resist change in later life.22 In Royal’s
case, after studying at the New York Bar, he joined a patent law firm in New York.
The firm was prestigious and counted William Randolph Hearst, the American newspaper mogul, among its clients. Royal, however, felt like ‘a servant, even if a highly
paid one, of big business’.23 His conscience troubled him: ‘We played the game according to the code of ethics of the legal profession but the game itself ran counter to the
ideals in which I had been reared. . .I was naive in expecting to see the Sermon of the
Mount practiced in Wall Street, but then I had to put blinders over my eyes the way
they do with scary horses’.24 Royal subsequently resigned, claiming that if ‘lawyers sell
their brains’, he felt increasingly ‘like an intellectual prostitute’.25 He became a teacher,
working in settlement houses and the juvenile reform movement.26
The France family was well-connected to the WASP (White Anglo-Saxon
Protestant) families that dominated US politics on the east coast. Of the US
Presidents elected between the turn of the century and World War Two, the Frances
knew the families of each one personally.27 These ties were historic. Clemens was a
great-grandson of the famous Captain Thomas Boyle, a brilliant Baltimore privateer
captain during the War of 1812. Boyle’s war-time exploits notably included proclaiming a blockade on the entire United Kingdom of Great Britain and Ireland, much to
the consternation of London’s banking houses.28 Clemens was also the grandson of
Colonel William James. During the American Civil War, James had sided with the
Union, and President Lincoln subsequently appointed him internal revenue collector
of Richmond, Virginia.29 Stories of both men’s war exploits were part and parcel of
family folklore.30 Given these connections and the family’s standing in public opinion, politics seemed a natural route for the brothers France to follow.
Joseph ran successfully for the Republican Party to the United States Senate in
1916 and served from 4 March 1917, until 3 March 1923. Joseph’s political orientation
was largely conservative on economic questions but liberal on questions of civil rights
and racial equality. During World War One, he opposed restrictions on free speech
and proposed (unsuccessful) amendments to the Sedition Act of 1918. In 1920, he addressed a meeting of the National Association for the Advancement of Coloured
People in support of the Dyer Anti-Lynching Bill and broader voter enfranchisement.
At this point, Joseph was a potential Republican candidate for the US Presidency. The
‘oil barons’, however, shifted their support behind the party’s laissez-faire wing and its
21 France (n 5) 17.
22 On political socialisation, see Gabriel Almond and Sidney Verba, The Civic Culture: Political Attitudes and
Democracy in Five Nations (Sage 1989).
23 France (n 5) 61.
24 France (n 5) 18.
25 France (n 5) 52.
26 France (n 5) 18.
27 France (n 5) 15-17.
28 Bagley (n 13) 773.
29 Bagley (n 13) 773.
30 France (n 5) 15-17.
Contesting the Commonwealth
417
eventual candidate, Warren Harding.31 Over the same period, Royal also demonstrated
a strong commitment to civil liberties and free speech. He supported overturning laws
preventing socialists and atheists sitting in New York’s State legislature and was arrested after attending a protest on the issue in Philadelphia.32 Upon hearing news of
his arrest, Clemens wired Royal’s wife to say that ‘he was more proud to have a
brother in jail under the circumstance than one in the Senate’.33
Clemens’s own ethico-political convictions and professional development mirrored
those of his brothers. He received a broad classical arts training. In 1898, he graduated
with an arts degree from Hamilton College of Clinton, New York, before completing a
PhD in psychology and philosophy at Clark University, Worcester, Massachusetts.34
Subsequently, Clemens specialized in law, graduating ‘with highest honours’ from
Baltimore Law School.35 He practiced for two years at the firm of Drake and France in
Baltimore and married Annie Lapham, the daughter of a New York judge, during this
period.36 In September 1908, the couple migrated to Seattle, Washington, a thriving frontier economy where Clemens built up a general law practice.37 According to contemporary reports, he quickly ‘reached a point where he no longer [found] it necessary to seek
clients but where a liberal professional support [was] accorded him, his ability ranking
him with leading representatives of the Seattle bar’.38 On Mayday, 1915, the Municipal
Corporation of Seattle appointed Clemens attorney for the port commission, the body
tasked with the development and administration of the largest port on the Pacific Coast.39
In terms of political activity, Clemens helped found and later became president of
the Municipal League of Seattle.40 The progressive Council of the National
Municipal League of America had formed to improve Municipal Government
throughout the US. The League sought to draw into its all-male membership a wide
range of professionals, clergymen, small-business owners, and labour leaders. Most
were comfortably middle class, Republican or Progressive in political outlook and
often recent migrants to Seattle from the North-east or the Midwest. The Municipal
League supported social controls on free enterprise, as well as non-partisanship, efficiency and economy in city government. It deemed the public ownership of utilities
a crucial bulwark to contemporary monopolies and robber barons.41 It established
committees for health, sanitation, utilities, harbour development, city budgeting, and
city planning. In a similar vein, France conducted ‘an extensive study of political
economy, public finance and government in general’ for the Municipal League.42
31
32
33
34
35
36
37
38
39
40
41
42
France (n 5) 46.
France (n 5) 49.
France (n 5) 50.
United States Census (1900) <http://us-census.mooseroots.com/l/503305016/Clemens-J-France> accessed 7 May 2015.
Obituary, ‘Clemens France, Retired Lawyer’ New York Times (New York, 10 June 1959).
J. Boyce Smith, ‘Our Graduates’ (1905) 21(3) The Shield: Theta Delta Chi fraternity 395, <https://arch
ive.org/stream/shieldmagazinepu01dome/shieldmagazinepu01dome_djvu.txt> accessed 28. April 2015.
Bagley (n 13) 773.
Bagley (n 13) 773.
Richard Berner and Paul Dorpat, Seattle 1900-1920: From Boomtown, Through Urban Turbulence, To
Restoration (Charles Press 1991) 71-2.
Bagley (n 13) 773.
Berner and Dorpat (n 39) 72.
Clemens France, ‘Comments on the Foregoing Article’ (1923) 12(47) Studies 356.
418
American Journal of Legal History
Clemens, like his family, identified with the Republican Party that championed
the unionist cause under Lincoln and that between 1856 and 1932 formed a majority
party, dependent on a broad coalition of support including industrialists, bankers,
Northern and Western farmers, and, to a limited degree, organized industrial workers.43 After the Republican Party split in 1912, however, Clemens allied with
Theodore Roosevelt’s Progressives. The Progressive Party’s platform claimed its first
task was ‘to dissolve the unholy alliance between corrupt business and corrupt politics’.44 In the Tammany Hall era of strong local and state party organizations, the
Progressive party proposed direct democratic measures such as the referendum and
the initiative, extending women’s suffrage, greater regulation of monopolies and corporate lobbying, as well as social reforms such as universal insurance, farm relief and
an eight-hour day for workers. Within the Progressive movement, the National
Municipal League advocated for weakening the link between party ward bosses and
electors, proposing instead that elected mayoral positions be replaced by city managers appointed by local assemblies.
In a later article written for an Irish audience, France described the philosophy of
the Municipal League as the ‘Commission Form of Government’. By the early 1900s,
he claimed, City Administration in America had become notorious for ‘its corruption, its inefficiency and the attendant heavy cost to the taxpayer’.45 He added:
‘There is no greater fetish in the world than that of the business man in politics. The
fact that a man has made a million in the manufacture and sale of soap is no indication that he can succeed as a City Administrator’.46 Conversely, popularly elected
city commissions introduced in the 1910s allowed a concentration of legislative and
administrative responsibility in ‘a small body of five to nine men elected at large’ but
placed sole administrative responsibility for a Department in one member. The chief
reason why the new commissions worked so well, France claimed, was because of
‘the latent capacity in the average man’ and the spotlight that popular democratic
election placed upon him [sic]’.47 Far from a voice in the wilderness, France’s experiences in the Progressive Movement and the Municipal League belong to a wider moment of social, political and legal transformation in the early 20th century.
R E T HI N KI N G L A W A ND S O C I E T Y : P P R O G R E S S F R O M S E A T T L E TO
DUBLIN
Between 1900 and 1968, ‘social legal thought’ provided governments, reforming jurists,
and popular movements with a shared conceptual vocabulary, modes of reasoning, and
characteristic arguments with which to critique the inherited laissez-faire or night watchman state. Popular movements contesting slum living conditions, and industrial work
practices, as well as the interdependence of global markets and world warfare compelled
states and jurists to rethink law as a purposive instrument, to be designed for society as
43 David McKay, American Politics and Society (4th edn, Blackwell 2003) 84-5.
44 Michael Heale, The United States in the Long Twentieth Century: Politics and Society since 1900
(Bloomsbury 2015) 42.
45 France (n 42) 356.
46 France (n 42) 357.
47 France (n 42) 357.
Contesting the Commonwealth
419
whole and for the ‘common good’, howsoever defined.48 Originating in Germany and
France, ‘social’ proponents typically advanced concepts of pluralism (emphasizing the
role and validity of non-state norms and institutions); corporatism (envisaging society as
an organic whole while acknowledging the importance of intermediate groups between
individuals and the state, notably class factions); legislative re-design (expanding the
regulatory function of the state); and expertise (commitment to empirical investigation
of society in order to identify and remedy shared problems).49 State intrusion on and
regulation of private capital came to be justified in terms of an expanding middle class.
Politically, social legal ideas and institutional proposals were highly mutable.
Depending on the balance of contending forces, social legal thought proved moderately left in the Netherlands and (Fabian) Britain; centrist in the United States; and
fascist in Spain, Portugal, Greece, and (Mussolini’s) Italy. Importantly, however, this
mode of thought explicitly rejected two political positions: the laissez-faire liberalism
that it sought to ameliorate, and the socialist ideologies of revolutionary class struggle
that it sought to undermine. Equally importantly, social revolution often seemed
more likely than reform during this period. Notably, from 1917 until 1923, a pronounced surge in popular militancy accompanied the end of the First World War,
stretching from Moscow through Germany to Italy, Hungary, and beyond. In these
circumstances, as Thomas Marshall observed of newly emergent social rights, state
intervention in pursuit of class-abatement did not attack the class system. On the
contrary, social jurists ‘aimed, often quite consciously, at making the class system less
vulnerable to attack by alleviating its less defensible consequences’.50
The world-revolutionary moment of 1917-23 intersected with Clemens France’s
biography in important ways, taking him from the social upheavals of post-war
Seattle to relief work and constitution-making in war-torn Ireland. The United States
mirrored wider, global upheavals: more than four million workers, one in every five,
participated in a strike in 1919. Seattle, in particular, witnessed a strong upsurge in
workers’ self-organization, primarily among the city’s shipyard labour. In February,
1919, over 65,000 workers engaged in a five-day general strike, shutting down the
city and its production lines in order to force an end to wartime wage controls.51
The primary organization in the strike was the American Federation of Labour
(AFL), which aimed at securing remedial legislation, notably trade union recognition
by government, in return for industrial peace. Meanwhile, the anarcho-syndicalist
Industrial Workers of the World provided the strike with labour militants and a radical ideological edge, seeing in the mass strike the possibility of forming One Big
Union as a step towards worker control of society. Workers’ co-operatives flourished,
providing health services, care for children and the elderly, as well as food.52
48 Kennedy (n 7) 37-46.
49 Social proponents included Rudolf von Jhering, Otto von Gierke, Eugen Ehrlich, Raymond Saleilles,
Francois Geny, Edouard Lambert, Emmanuel Gounod, and Georges Gurvitch. Beyond this FrancoGerman orbit, contemporary social jurists included, Paul Scholten, and Harold Laski in Europe, as well as
Roscoe Pound, Benjamin Cardozo, and Louis Brandeis in the United States. Kennedy (n 7) 37-8, 46-7.
50 Thomas Marshall, Citizenship and Social Class (CUP 1950) 32-3.
51 Jeremy Brecher, Strike! The true history of mass insurgence in America from 1877 to the present (Straight
Arrow Books 1972).
52 Harvey O’Connor, Revolution in Seattle: A Memoir (Haymarket Books 2009).
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American Journal of Legal History
The US government and employers responded with a series of patriotic ‘red scares’
to turn public opinion against the workers and to justify the strikers’ violent repression.53 The strategy worked and the AFL successfully pressured its more radical locals
to call off the strike. Thereafter, the federal government’s closure of Seattle’s war-time
shipyards broke the local economy and prompted further disorganization within the labour movement. In these circumstances, a growing number of workers, farmers, and
interest groups turned to electoral politics, coalescing around the recently formed
Farmer-Labour Party. Founded in Minnesota in 1918, the Farmer-Labour party was a
left-wing, third party movement in the United States that aimed at uniting farmers and
urban workers around ‘social’ protections, lower living costs, and government ownership of certain industries.54 Outside of Minnesota, the party proved strongest in
Washington. In the elections of 1920, Robert Bridges, port commissioner and exSocialist, was nominated to run for governor while Clemens France was chosen to run
for the US Senate for the state of Washington.55
Racial divisions dominated the campaign. Since the end of World War One,
Washington farmer groups had been agitating for anti-Japanese legislation similar to
that enacted in California. While Farmer-Labour candidates took a principled stand
against exclusionary legislation on grounds of equality, they lost support to
Republicans and Democrats among farming and working class communities fearful
of competition from cheap Asian labour. Though losing to the Republican candidate,
France polled 99,309 votes, 30,000 more than the better-known Democrat George
Cotterill. The results were a promising beginning, but France did not contest subsequent elections for the party. Instead, the attorney opted to engage in philanthropic
work. This activity would quickly bring him to Ireland, another site of popular militancy and labour upheaval in the period between 1917 and 1923.
Since 1919, a war of national independence had been ongoing throughout Ireland
between the British military and Royal Irish Constabulary on the one hand and the
Irish Republican Army on the other. Two years of guerrilla warfare and Crown reprisals had destroyed much physical infrastructure, halted transport, and disrupted
local, predominantly agrarian economies. At the same time, as people switched loyalties to the underground and popularly elected Sinn Féin (Irish: Ourselves) party, the
established administration ceased to receive tax revenue. Hospitals, orphanages, and
public charities were soon declared bankrupt.56 In these circumstances, Irish
Americans saw that traditional channels of sending money and relief to family and to
the nationalist movement were of no use. Aid would have to be administered in the
open and with the assent of the British authorities.
In December, 1920, Irish-American community and political leaders, notably
Cardinal Gibbons and the oil tycoon Edward Doheny, had formed the American
Committee for Relief in Ireland. The Committee’s extensive state and local
53 Robert K. Murray, Red Scare: A Study in National Hysteria, 1918–1920 (University of Minnesota Press 1955).
54 Hamilton Cravens, ‘The Emergence of the Farmer-Labor Party in Washington Politics, 1919-20’ (1966)
57 Pacific Northwest Quarterly 148.
55 Berner and Dorpat (n 39) 183. See also France (n 42) 356.
56 Akenson and Fallin (n 4) 16.
Contesting the Commonwealth
421
committees quickly raised more than $5 million.57 However, Irish-American political
amon de Valera’s fund-raising
rivalries, renewed in the wake of Sinn Féin President E
tour for the Irish Republic, threatened to impinge on relief efforts. The Committee
invited the Society of Friends (or Quakers) in Ireland to facilitate the impartial administration of funds. Quakers were popularly acknowledged for their nonproselytising approach to civilian relief in predominantly Catholic Ireland, notably
during the Great Famine of 1845-1850.58 To this end, Levi Hollingsworth Wood, a
friend and leading member of the American Committee for Relief, contacted the
Dublin businessman and fellow Quaker, James Douglas, and arranged to set up a
branch of the organization in Ireland. The resulting Irish White Cross (IWC) was to
be strictly apolitical and non-sectarian.59
At the same time, the American Committee agreed that eight delegates would
visit Ireland to report on conditions there and to oversee the distribution of funds.
Clemens France, a prominent member of the Committee’s Washington branch, was
chosen to lead this group of philanthropists and social experts.60 After first securing
permission from British military forces, the American Committee carried out its inspection tour of the war-torn island between 12 February and 31 March 1921. The
group’s members visited some 95 villages and towns that had been damaged extensively in the fighting and a further 150 that had suffered damage to one degree or another. Some 25,000 families (or approximately 100,000 men, women, and children)
were left out of work, without housing, or in some way destitute directly as a result
of war-time conditions. In addition to the destruction of private dwellings, farms, and
shops, the loss of some 55 creameries directly affected over 15,000 dairy farmers.
According to the Committee’s report, ‘The entire economic life had been torn up.
The fairs had been stopped. The railroads had been effectively halted. Whole communities, such as Balbriggan and Cork, had their industrial base destroyed by fire.
The fierce reaction in Belfast drove thousands more from their homes’.61
The IWC proved broadly successful in both observing neutrality and administering relief effectively. After the American Committee of Relief had finished its inspection tour, Douglas insisted that Clemens France remain in Ireland as the
organization’s permanent representative until all funds had been distributed. The
IWC’s relief efforts continued as the war of independence ended. In December 1921,
Sinn Féin delegates, led by Arthur Griffith and Michael Collins, signed the AngloIrish Treaty in London, which granted 26 counties limited independence in a new
amon de Valera, and Chief-of-Staff of the
Irish Free State.62 Sinn Féin president, E
anti-Treaty IRA, Liam Lynch, emerged as the Treaty’s most prominent critics, claiming that the Irish Republic proclaimed in 1916 was being surrendered.63 While
57 Report of the American Committee for Relief in Ireland (New York, 1922) <https://archive.org/stream/ire
landcommitt00amerrich#page/n0/mode/2up> accessed 7 July 2015.
58 Helen Hatton, The Largest Amount of Good: Quaker Relief in Ireland, 1654-1921 (McGill-Queens
University Press 1993) 13, 251-3.
59 Akenson and Fallin (n 4) 16-20.
60 F. Carroll, ‘American Committee for Relief in Ireland, 1920-22’ (1982) 23(89) Irish Historical Studies 30.
61 Irish White Cross, Report of the Irish White Cross (1922) 43. <https://archive.org/stream/reportofirish
whi00irisrich#page/n5/mode/2up> accessed 7 July 2015.
62 Hanna Lerner, Making Constitutions in Deeply Divided Societies (CUP 2011) 169.
63 France reported the growing split to the American Committee for Relief in Ireland. Carroll (n 60) 30.
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France privately shared the anti-Treatyites’ distrust of the British government, he
nevertheless accepted the Irish Free State’s legitimacy, believing that the majority of
the Irish people appeared ready to gamble on Britain’s willingness to honour the
Treaty.64 The American Committee for Relief’s executive broadly supported the
Irish Free State and urged France to shift the IWC’s focus from relief to job creation,
claiming it to be necessary for the new government’s stability.65 The Provisional
Government of the Irish Free State, however, offered France another role.
In January 1922, after the underground Dail narrowly voted for the Anglo-Irish
Treaty, Collins, now Chairman of the Provisional Government, invited a number of
IWC members to join a committee tasked with drafting a constitution for the new
‘Irish Free State’.66 The committee comprised of Hugh Kennedy and John O’Byrne (senior legal advisors to the Provisional Government), James McNeill (ex-colonial administrator and director of Sinn Féin’s National Land Bank), James Douglas (outfitter
business owner), and Darrell Figgis (writer and propagandist). Two academics, James
Murnaghan (Professor of Roman Law and Jurisprudence at University College Dublin)
and Alfred O’Rahilly (Professor of Mathematical Physics at University College Cork),
also accepted invitations to join.67 After accepting Collins’s invitation, Douglas suggested and the Provisional Government accepted that France’s legal expertise might
prove useful. Perhaps the most radical of the constitution-makers, France most notably
advocated direct democracy and an economic commonwealth for Ireland.
C O N S T I T U T I O N A L I S M , D E M O C R A C Y , A N D TH E E C O N O M I C
C O M M O N WE A L T H
France helped make the 1922 Irish Free State Constitution, but not in circumstances
of his own choosing. International upheavals between 1917 and 1923, occasioned by
World War One and the Russian Revolution, also influenced the constitutionmaking process. In Ireland, the dramatic upsurge in popular militancy of the post1916 period produced radical experiments in direct democracy in workplaces and
communities.68 Centralization of political power in the Sinn Féin party increasingly
marginalized these experiments. Nevertheless, during the early 1920s, revolution appeared in the press as a constant reminder to both the British and Irish governments
of the price of failure.69 Divisions within the Sinn Féin party, the IRA, and wider
64 Carroll (n 60) 48.
65 Carroll (n 60) 30. France discussed economic reorganization with Collins, claiming that the US could
help consolidate the Treaty and develop commercial ties by opening a consulate-general in Dublin separate from its diplomatic mission in the UK. He also argued for greater capital investment to stimulate business recovery and forwarded a plan for a $25 million Industrial Finance Corporation. Farrell (n 4) 352.
66 Collins was titular chairman of the committee only and did not attend the drafting sessions.
67 Apart from considerations of legal expertise and political or administrative experience, Collins seems to
have chosen the philanthropic organizers of the Irish White Cross, because they were likely to act in a
conscientious, nonpartisan manner and to produce a constitution that could be accepted by both proand anti-Treaty nationalists. Akenson and Fallin (n 4) 20.
68 Diarmaid Ferriter, The Transformation of Ireland 1900-2000 (Profile 2005) 210-1; Conor Kostick,
Revolution in Ireland (Cork University Press 2009) 5, 148.
69 Such connections were readily understood by political elites in Dublin and Westminster. Hugh Kennedy
believed that disorder in Ireland would have to be overcome by ‘utterly ruthless action’, similar to that
used by the Reichswehr–Freikorps in crushing the Spartacist uprising in Weimar Germany. Garvin (n 9)
162. See also John Regan, The Irish Counter-Revolution 1921-1936 (Gill and MacMillan 1999) 193.
Contesting the Commonwealth
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society over the Anglo-Irish Treaty correlated with pre-existing class tensions and
agrarian agitation.70 France perceived such agitation as posing an existential threat to
the state: ‘The recent revival of cattle-driving indicates the enormity of a problem
which the Irish State cannot long defer without danger to itself’.71
The drafting committee, meeting between January and March, thus had a number
of competing aims to satisfy. Europe’s post-1848 nationalist movements deemed vital
the creation of a distinctive, ‘national’ constitution for ‘the people’.72 The new
constitution, however, was subservient to the Anglo-Irish Treaty. Nevertheless, the
drafting committee aimed to create a document sufficiently republican to satisfy
anti-Treatyites and sufficiently democratic to satisfy civil society. Within these parameters, the committee was concerned with accomplishing an ‘Irish Ireland policy’.73
They discussed breaking with the artificial common law of England and reviving
both the Irish language and the medieval Brehon laws of Gaelic Ireland.74 Pressures
to produce a short, uncontroversial document circumscribed radical forms of constitutional engineering.75 Nevertheless, the drafting committee gave serious consideration to provisions concerning direct democracy, economic sovereignty, and public
welfare.76 France was unique among the committee members, however, in emphasizing ‘the primacy of an economic foundation for independence’.77
The constitution-makers drew on a wide range of legal models to advance these
diffuse aims. Three primary fonts of inspiration emerged. First, most possessed significant experience of the British constitutional model and Dominion legal systems
such as those of Australia, Canada, India, and South Africa. The existing model of ‘responsible government’ clearly mattered here for the design of parliament, the executive, and public administration.78 So too did the Sinn Féin party’s earlier borrowing
70 Opposition to the Treaty strongly correlated with poorer areas of high emigration and agrarian radicalism.
Peter Pyne, ‘The Third Sinn Féin party, 1923–1926’ (1970) 1(1) Economic and Social Review 29, 229.
Conversely, Ireland’s banks, graziers, creameries, and railway owners all pressed the Provisional
Government for the rapid re-imposition of ‘constitutional government’. Kostick (n 68) 180.
71 France (n 2).
72 For nationalists, a state’s system of law either reflected or should reflect the underlying normative order
in a nation’s history, identity, or geist. It was the ‘scientific’ task of national jurists to elaborate positive
legal rules on the premise of this coherence. Kennedy (n 7) 26, 29.
73 Douglas, Kennedy and France, ‘Notes of Draft B Group’, January, 1922, UCDA P4/307. See also
Kennedy, ‘Letter to Captain Boyd’, 26 June, 1922, UCDA P4/318.
74 Kennedy, ‘Observations on the criticisms of the British government on the draft Irish Constitution’, May
1922, UCDA P4/352; Constitution Committee (CC) ‘Committee Working Papers’, January-February,
1922, UCDA P4/308. France also recognized the nationalist history of a ‘native’ people’s dispossession
by an ‘alien race’. France (n 2).
75 That a majority of drafters believed socio-economic and welfare policy should be left to parliamentary discretion may be inferred from their support for a ‘Progressive Economic Policy’ that both Sinn Féin (proand anti-treaty) and Labour could support. CC (n 74).
76 One of the very earliest draft constitutions contains a ‘Fundamental Rights’ section, which includes both
a ‘social’ declaration of national sovereignty and a heading, ‘Economic Rights’, the space beneath which
was left blank. ‘Committee Working Papers’, January-February, 1922, UCDA P4/306. The committee
agreed that the constitution would ‘afford an instrument whereby the national genius of the Irish people
may work out their destiny to secure, not alone personal liberty, but economic freedom, and thereby attain happiness and prosperity for all’. CC (n74).
77 Farrell (n 4) 352.
78 See Alan Ward, The Irish Constitutional Tradition: Responsible Government and Modern Ireland, 1782-1992
(Catholic University of America Press 1994). In terms of public administration, the drafters reproduced
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from the UK’s ‘radical liberals’ who, not unlike the Progressive movement in the US,
advocated socio-economic reform and direct democratic mechanisms to counter
‘corrupt’ party machines.79 Second, the committee also looked to the republican
models of France, Switzerland, and the US, particularly with regard to mechanisms
such as the referendum and initiative. Third, the recent collapse of the European
land empires directly prompted the creation of some 14 constitutions for ‘new’ nation-states.80 Constitutions consulted included those of Yugoslavia, Poland, Austria,
Estonia, Czechoslovakia, Germany, the Soviet Union, Mexico, Denmark, Australia,
France, Switzerland, Canada, Belgium, Norway, Sweden, and the United States.81
France ‘contributed to the drafting substantially’.82 When the constitution committee disagreed about the powers of the future executive, prompting the submission
of three draft constitutions in March, France supported ‘Draft B’ with Kennedy and
Douglas.83 (The Provisional Government would ultimately adopt this version).84
Two of France’s specific contributions, however, deserve particular attention. Firstly,
he played a particularly important role in advancing direct democracy mechanisms,
notably the initiative, in the drafting process. France outlined to the committee how
the referendum and the initiative operated in the United States where, after significant Populist and Progressive mobilizations, 19 states had provided the initiative to
their electorates.85 He also provided a copy of the constitution of Washington State,
his home state, which had adopted referendum and initiative processes in 1911.86 All
three drafts presented by the committee to the Provisional Government provided for
the popular use of both the referendum and the initiative.87
79
80
81
82
83
84
85
86
87
Whitehall’s established principles of financial administration in Articles 36, 37, 54, and 61. Ronan
Fanning, The Irish Department of Finance: 1922–58 (Institute of Public Administration 1978) 26, 52.
Bill Kissane, New Beginnings: Constitutionalism and Democracy in Modern Ireland (UCD Press 2011) 11,
23-4, 40-1.
Jon Elster, ‘Forces and mechanisms in the constitution-making process’ (1995) 45Duke Law Journal 364.
Kissane (n 79) 28-31.
Farrell (n 4) 128. France unsuccessfully opposed the inclusion of a formal definition of citizenship, supported Kennedy’s initiative to disqualify clergy from political office, and opposed the creation of a special
External Relations Committee. He supported proposals for a Swiss-style ‘external ministers’ scheme and
also advocated a second chamber of 25 members only. See Kissane (n 79) 31, 33, 35, 41; Lerner (n 62)
152-82.
Figgis, McNeill and O’Byrne, ‘Draft A’, 7 March, 1922, UCDA P4/331; Douglas, France, and Kennedy,
‘Draft B’, 7 March, 1922, UCDA P4/332; O’Rahilly and Murnaghan, ‘Draft C’, 7 March, 1922, UCDA
P4/333.
Lerner (n 62) 164.
See Amy Bridges and Thad Kousser, ‘Where Politicians Gave Power to the People: Adoption of the
Citizen Initiative in the U.S. States’ (2011) 11 State Politics & Policy Quarterly 167.
Figgis, ‘Letter from Figgis to Collins’, March, 1922, UCDA P4/336. See also Constitution of the State of
Washington (1911), Chapter 42, section 1. (pp. 136-9).
Drafts A and B contained four articles dealing with (1) referral of legislation to a popular vote, (2) initiation of legislation by citizen petition, (3) popular authorization for the declaration of war, and (4) approval of constitutional amendments by referendum. See Paul Brady, ‘Social, Political and Philosophical
Foundations of the Irish Constitutional Order’ in Denis Galligan and Mila Versteeg (eds), Social and
Political Foundations of Constitutions (CUP 2014) 269, 280. Draft A introduced tighter restrictions on the
use of the initiative, excluding its usage with regard to ‘laws imposing taxation or appropriating revenues
or moneys, or to such laws as may be declared by the Oireachtas to be necessary for the immediate preservation of the public peace, health or safety’. Akenson and Fallin (n 4) 69.
Contesting the Commonwealth
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Certainly, France was not solely responsible for this outcome. The committee
shared the belief that the referendum would challenge the concentration of power
and the control of party machines over legislation in a Westminster-style cabinet system.88 Moreover, the post First World War constitutions in continental Europe accorded a significant role to direct democratic mechanisms.89 The 1922 referendum
provisions were almost identical to that of the 1920 Estonian Constitution, while the
voting requirements mirrored those of the 1919 Constitution of the Weimar
Republic.90 Significantly, however, the referendum was more prevalent than the initiative in the European constitutions.91 Suggesting the particular importance of the
US example and France’s input for the inclusion of the initiative, a pencilled annotation to a preliminary draft of the direct democracy provisions notes the ‘State of
Washington System’.92 Moreover, Article 49 (Draft A) and Article 48 (Draft B)
make use of the same threshold to launch the initiative, ‘the petition of not less than
fifty thousand voters on the register’, as that used in the Washington State constitution.93 Finally, the committee decided to attach ‘a memorandum received by C.J.
France from Washington, of the working of the Initiative and the Referendum in
that State’ to their reports for the guidance of the Provisional Government.94
France’s second key intervention concerned the economic basis of Irish independence and the need to create a more egalitarian society.95 His ‘Document 24’ clearly
recognized that social and economic transformation in the Irish Free State would involve challenging those large farming, financial, and commercial interests who benefitted from maintaining an agrarian economy peripheral to the UK.96 Echoing
arguments rehearsed in Seattle, he impressed upon the drafting committee the need
for constitutional provisions to direct state intervention towards long-term economic
and social development. Hence, state ownership of natural resources as well as strategic public utilities, such as harbours and ‘aerodromes’, was vital to Ireland’s becoming ‘a great commercial and trading nation’.97 To permit their control in private
hands, France claimed, ‘would be subversive of the welfare of the general public’:
88 Douglas and O’Rahilly championed the Swiss Constitution, which included referendum and initiative provisions. Kennedy was convinced that the referendum would give strength to the law (‘the people being directly behind it’), counteract the influence of wealth by making corruption almost impossible, and,
importantly, have ‘a sobering effect on revolutionary movements’. ‘Constitution with notes by Kennedy’,
1922, UCDA P4/342. Figgis hoped the referendum would destroy the power of parties. Kissane (n 79) 33.
89 Vernon Bogdanor, ‘Western Europe’ in David Butler and Austin Ranney (eds), Referendums around the
World: The Growing Use of Direct Democracy (American Enterprise Institute 1978) 78-86.
90 Bairbre O’Neill, ‘The referendum process in Ireland’ (2000) 35 Irish Jurist 306. The older Swiss
Constitution (1874), which the committee consulted frequently, also provided an important reference point
for campaigns to introduce the Initiative and Referendum in the US. Bridges and Kousser (n 85) 167.
91 Laura Cahillane, ‘The Influence of the Post War European Constitutions on the Constitution of the Irish
Free State’ (2011) Electronic Journal of Comparative Law 5 <http://www.ejcl.org/151/art151-3.pdf>
accessed 9 September 2016.
92 CC, ‘Document 43. Initiative and Referendum’, February, 1922, UCDA P4/321. See Kissane (n 79) 41.
93 Figgis, McNeill, and O’Byrne (n 83); Douglas, France, and Kennedy (n 83).
94 Figgis, ‘Letter to Collins’, March, 1922, UCDA P4/336.
95 France (n 2).
96 O’Hearn (n 12).
97 France (n 2).
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‘Every State which comes into being is possessed with natural endowments
which are gifts of the Creator and belong, therefore, by natural right to promote the happiness, prosperity and wellbeing of all the people in that
State. . .In fact, the history of countries with Republican institutions, notably
the American Republic, has proven that democracy and freedom cannot be obtained by reserving political liberty alone. The persons who control and own
the great Natural Resources of the Country also control the freedom and wellbeing of the people. . .The result has been in America that notwithstanding a
Republican and Democratic Government, an economic autocracy has developed which controls the Government of the Country and the personal liberties of the people almost as effectively as was ever done by an absolute
monarchy’.98
Constitutionalizing norms of public ownership, he suggested, was necessary to
‘stem the tide of pressure. . .to give away a birthright for a temporary advantage’.99
France’s most provocative constitutional proposal challenged the corner-stone of
Ireland’s agrarian political economy: private ownership in land. Citing the example
of New York’s Astor family, he argued that ‘the most glaring inequalities in wealth
which are found in the world today result from the fact that an individual purchases
a piece of land that has great strategic value, and in course of years becomes extremely wealthy through no effort of his own but merely from the value given to that
land by the community at large’. To rectify this perceived failure of classic legal
thought, France suggested constitutionalizing land value tax reforms similar to those
proposed by the American political economist, Henry George.100 In effect, the state
would nationalize all large farm holdings, divide them into economic holdings and
lease them back to farmers on condition that they engaged in agricultural production.
The proposal sought to counter labour-extensive grazier production, assuage the
land hungry, and ensure that any increase in land values—the ‘unearned increment’—would become a state asset.101
All three drafts presented by the committee to the Provisional Government provided for the constitutionalization of provisions concerning economic sovereignty
and public welfare. Article 1 (Drafts A and B) is particularly significant in this regard:
The nation’s sovereignty extends not only to all the men and women of the nation, but to all the material possessions of the nation, the nation’s soil and all
its resources and all the wealth and wealth-producing processes within the nation. All right to private property is subordinated to the public right and welfare of the nation. It is the duty of every man and woman to give allegiance
and service to the commonwealth, and it is the duty of the nation to ensure
that every citizen shall have the opportunity to spend his or her strength and
98
99
100
101
CC (n 74); Douglas, France, and Kennedy. ‘Memoranda on Draft B’, March, 1922, UCDA P4/339.
France (n 2).
See Henry George, Progress and Poverty (CUP 2009 [1881]).
France (n 2).
Contesting the Commonwealth
427
faculties in the service of the people. In return for willing service it is the right
of every citizen to an adequate share of the produce of the nation’s labour.102
This provision most explicitly referenced the 1919 Democratic Programme and
the nationalist thought of Patrick Pearse.103 France’s concern for public control of
natural resources, however, found more explicit expression in Articles 41 and 42
(Draft B), which delineated terms for the alienation and lease of lands, waters and
natural resources, and for the control of the Oireachtas over water power and electrical energy.
Contemporary advocates for the public control of resources and for public welfare
measures had a tough time of it. For generations, the Catholic Church in Ireland had
placed a cordon sanitaire around alien ideas of socialism, conflating modest social reform with godless communism. Sinn Féin similarly dismissed socialism as antinational and generally favoured a Ruritanian idyll of small farms and co-operatives,
with vocational councils to cut across class lines and decide policy in the national
interest.104 O’Rahilly articulated this understanding most explicitly in Draft C’s ‘economic life’ provisions. The sentiment was more widely shared, however. Drafts A
and B both made provision for the creation of vocational councils. Conversely,
France’s discussion of the economic commonwealth was modern, forward-looking,
and ‘determined at the cost of sacrificing all traditions if necessary, to give every individual in Ireland an equal opportunity with every other individual’.105 Arguably,
France’s proposals were more cognizant of reality for the majority of people living in
Ireland: ‘The appalling poverty which I have seen in every city and hamlet in Ireland
can only be rectified by taking a bold stand on. . .basic principles of natural right and
justice’.106
Suspicions of France’s left-wing leanings were possibly heightened when John D.
Ryan, a finance and metals magnate with significant influence in Irish-American circles, wrote to warn Douglas against him.107 Ryan referred to Clemens’s brother,
Senator Joseph France, who in 1921 had become the first US diplomat to visit
Moscow after the Russian Revolution.108 Joseph had met with Russian officials,
including Lenin, and advocated cordial relations between the US and the Soviet
Union to counter rival industrial powers such as the UK and Germany.
Controversially, the Senator accepted uncritically the Bolshevik account of the recent
Kronstadt rebellion and accused President Hoover of using the American Red Cross
to foster counterrevolution in Russia.109 No doubt indicating the concerns of fellow
committee members, France felt compelled to deny his proposals were socialist: ‘As
102 Figgis, McNeill, and O’Byrne (n 83); Douglas, France, and Kennedy (n 83).
103 Figgis, ‘Letter to Collins’, 13 April, 1922, UCDA P4/339.
104 Michael Laffan, The Resurrection of Ireland: the Sinn Féin party 1916-23 (CUP 1999) 253. On Ruritania,
see Ernest Gellner, Nations and Nationalism (Cornell University Press 1981).
105 France (n 2).
106 France (n 2).
107 See J. Anthony Guaghan, Memoirs of Senator James G. Douglas (UCD Press 1998) 174. Douglas assured
Ryan that France’s work had been of great value to the committee but observed that ‘the face value of
the correspondence makes France look like a pure adventurer’; Farrell (n 4) 118, 352.
108 France (n 5) 23-7.
109 France (n 5) 78.
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American Journal of Legal History
I have said before, not one of my proposals is incompatible with the individualistic
conception of the social order’.110 The committee’s draft proposals for
socio-economic reorganization as well as for direct democracy would now come
under scrutiny from governments in Westminster and Dublin.
T HE OT HE R CO M MO NW E A LT H : W ES T M I NS T E R A N D D U BL I N
IN TE RV E NE
The Provisional Government consulted Professor George O’Brien, Professor of
National Economy at University College Dublin.111 O’Brien was sceptical toward public law, preferring the Westminster model of parliamentary sovereignty, which the constitution ‘should fetter as little as possible’.112 He vehemently rejected proposals that
citizens should receive ‘an adequate share’ of the nation’s wealth, claiming ‘I do not
know what the last sentence of the present article means’.113 The drafting committee
defended their economic sovereignty proposals. Douglas claimed they were ‘a good
general statement of democratic principle’, while Figgis argued that O’Brien’s concerns
had not been realized in Switzerland, where similar provisions operated.114 The
Provisional Government shared O’Brien’s preference for a shorter constitution, shorn
of ‘highly controversial’ socio-economic provisions.115 Notably, the final sentence of
the sovereignty provision—‘In return for willing service it is the right of every citizen
to an adequate share of the produce of the nation’s labour’—was omitted from the
draft constitution subsequently discussed with the British government.
Redrafting of the 1922 Constitution took place in London before the Irish elections of 16 June 1922. British objectives included producing a constitution that was,
recognizably, that of a British Dominion.116 Simultaneously, the established constitutional model was under domestic pressure from the British labour movement and
the emergence of mass democracy.117 Conservatives had long given careful consideration to how these national, social, and popular democratic pressures could be reconciled to the established order. Notably, during the late 19th century, the British legal
jurist and Unionist, Albert Venn Dicey, looked aghast at the looming prospect of
mass enfranchisement, dismissing it contemptuously as ‘Americo-mania’.118
According to Dicey, established elites could best defend themselves from the tyranny
of the majority through the conservative design of state institutions, specifically by
retaining an upper house, centralizing power in the lower house in an executive, and
110
111
112
113
114
115
116
117
118
France (n 2).
Kissane (n 79) 37.
O’Brien, ‘Criticisms of Draft B’, 27 March, 1922, UCDA P4/339.
O’Brien (n 112).
‘To lay down as a constitutional stipulation that all expropriation requires compensation would impose
an impossible limitation on legislation’, Figgis (n 103).
Quotation from O’Brien (n 112). See also Patrick Hogan, ‘Memo’, March, 1922, UCDA P4/339.
Thomas Mohr, ‘British involvement in the creation of the constitution of the Irish Free State’ (2011) 30
Dublin University Law Journal 166, 170.
Kissane (n 79) 1-25. On contemporary ‘radical constitutionalism’ in the British labour movement, see
Andrew Chadwick, Augmenting democracy: political movements and constitutional reform during the rise of
Labour, 1900–1924 (Aldershot 1999); Logie Barrow and Ian Bullock, Democratic ideas and the British labour movement, 1880–1914 (CUP 1996).
Hugh Tulloch, ‘A.V. Dicey and the Irish Question: 1870-1922’ (1980) 15 Irish Jurist 137.
Contesting the Commonwealth
429
ensuring entrenched minority and property rights via judicial review.119 Conversely,
Sinn Féin’s leadership, regarded as ‘saturated with American ideas’, threatened a significant break from the British constitutional model along national, social, and popular democratic lines.120
Anglo-Irish negotiations centred on exchanges between Hugh Kennedy and Lord
Chief Justice Hewart. British Law Officers disliked the emphasis on popular sovereignty in Articles 1 and 2, as well as what Austen Chamberlain, then Lord Privy Seal,
described as their ‘Soviet character’.121 Provisions subordinating private property
rights were ‘of communistic tendency’ and had to be removed.122 Kennedy, concentrating on achieving a declaration of the Irish Free State’s co-equality within the
British Commonwealth, agreed that Articles 1 and 2 formed ‘an unnecessary declaration’ and acquiesced in the offending provisions’ removal.123 Moreover, by allowing
for a judicial appeal to the Privy Council, the constitution not only provided for
Dominion status but also safeguarded extensive British property rights in Ireland.124
The British Law Officers, however, did not criticize the constitution’s direct democratic mechanisms, perhaps because of precedents for the referendum provided by
dominions such as Australia.125 These provisions remained unchanged.
The Provisional Government published the draft Constitution on 15 June 1922,
the day before the general election. After the election, the Treaty split deepened into
civil war. During the subsequent Constituent Assembly debates, some of Clemens
France’s concerns regarding the control of natural resources and the introduction of
the referendum and the initiative came to be articulated by Darrell Figgis, an
Independent TD, and by Labour party TDs Tom Johnson, William O’Brien, and T.J.
O’Connell.126 Figgis and O’Brien notably proposed amending a provision dealing
with the transfer of title over Crown possession in natural resources to the Free
State so as to capture the ‘unearned increment’.127 The Labour party further
119 Dicey’s subsequent support for the referendum owed much to his quietly desperate belief that the great
mass of Englishmen were, like himself, conservative and would therefore reject measures such as old age
pensions, female suffrage, and Home Rule, Tulloch (n 118) 137. Dicey also influenced Sinn Féin,
Kissane (n 79) 11, 42.
120 Lionel Curtis, a civil servant in the colonial office at Whitehall, cited in Mohr (n 116) 169. On the mocking of time-honoured British empiricism by the enunciation of basic principles and fundamental rights,
see Leo Kohn, The Constitution of the Irish Free State (G. Allen & Unwin 1932) 81.
121 ‘Article 1: The Nation’s sovereignty extends not only to all the men and women of the Nation, but to all the
material possessions of the Nation, the Nation’s soil and all its resources and all the wealth and wealthproducing processes within the Nation; and all right to private property is subordinated to the public right
and welfare of the Nation. Article 2: It is the duty of every man and woman to give allegiance and service to
the commonwealth, and it is the duty of the Nation to insure that every citizen shall have opportunity to
spend his or her strength and faculties in the service of the people’. Mohr (n 116) 172-3.
122 Kennedy, ‘Notes on British amendments’, June, 1922, UCDA P4/362.
123 Kennedy, ‘Letter to Collins’, 11 June, 1922, UCDA P4/362.
124 Kissane (n 79) 47.
125 Brady (n 87) 280.
126 France submitted his ‘Document 24’ to Johnson in early February, writing that ‘you may have some way of
giving them support, directly or indirectly’. France (n 2). See also Dail Debates, vol 1 col 755, 26
September 1922; Dail Committee Stage, ‘Amendments to the Draft Constitution’, 1922, UCDA P4/341.
127 ‘Increment in the value of landed property not accruing from any expenditure of labour and capital
upon the land shall be devoted to the uses of the community’. Dail Debates, vol 1 col. 703/710, 25
September 1922.
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American Journal of Legal History
advocated constitutional safeguards to prevent the Dail’s ‘handing over’ the nation’s
natural resources ‘to any foreign capitalistic or other corporations’ and to ensure that
‘the interests of the Nation as a whole’ were served in their exploitation.128
Significantly, however, the party did not adopt France’s explicitly developmentalist
rhetoric, but emphasized instead the nationalist rhetoric of Patrick Pearse and the
1919 Democratic Programme.129 The Labour party also supported the introduction
of the referendum and the initiative.130
The Provisional Government rejected attempts to re-introduce ‘economic sovereignty’ provisions that might interfere with private property rights or otherwise be
‘uneconomic’.131 Minster for Local Government, Ernest Blythe, feared that the national ownership of natural resources ‘might compel the State actually to work the resources itself, which, of course, we would not want to tie ourselves to’.132 Echoing
the British Law Officers, Minister for Home Affairs, Kevin O’Higgins, similarly
declared it would be unwise ‘to embody in the constitution what certainly looks very
much like a Communistic doctrine’.133 Ultimately, ‘economic sovereignty’ or otherwise redistributive proposals were roundly defeated, typically by a two-to-one majority according to the number of seats occupied by pro-treaty Sinn Féin and Labour.
The Provisional Government was supportive of the referendum and the initiative,
at least initially. Up to this point, from drafting committee to British negotiations,
each preliminary draft constitution provided that amendments to the constitution
proposed by the Oireachtas required approval by the people in a referendum.134
O’Higgins praised Article 48 because, he claimed, ‘it keeps contact between the people and their laws, and keeps responsibility and consciousness in the minds of the
people that they are the real and ultimate rulers of the country’.135 Meanwhile, the
Provisional Government strengthened the powers of parliament. Article 49 required
a majority of the Oireachtas, not a referendum, to go to war. During the Dail debate
of the Agreed Text, a government-sponsored amendment to Article 50 allowed for
the amendment of the constitution by ordinary legislation for a period of eight years
after its enactment.136 The Dail enacted The Constitution of the Irish Free State
ireann) Act 1922 on 25 October; the British parliament enacted The Irish
(Saorstat E
Free State Constitution Act 1922 on 5 December, and the next day, following a royal
proclamation, both the Irish Free State and its Constitution officially came into
existence.
While Clemens France contributed to a range of provisions, his more radical proposals for an economic commonwealth in Ireland were by no means visible in the
128 Dail Debates, vol 1 col1659; 18 October 1922; Dail Debates, vol 1 col708, 25 September 1922.
129 Johnson unsuccessfully proposed returning Pearse’s statement of economic sovereignty to the preamble.
Dail Debates, vol 1 col. 494, 20 September 1922.
130 While not opposing these mechanisms, Johnson believed that the Provisional Government intended them ‘to be a brake upon the activities of reformist, radical, socialistic, or bolshevistic
Parliaments’. Dail Debates, vol 1 col 1212, 05 October 1922.
131 Dail Debates, vol 1 col757–8, 26 September 1922.
132 Dail Debates, vol 1 col708, 25 September 1922.
133 Dail Debates, vol 1 col. 707, 25 September 1922.
134 Brady (n 87) 280.
135 Dail Debates, vol 1 col. 1213, 05 October, 1922.
136 Kissane (n 79) 50.
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enacted constitution. Article 11, concerning the vesting of ‘lands and waters, mines
and minerals’ in the Free State, sanctioned the maintenance of existing forms of tenure and left the precise terms of these property relations to future parliamentary discretion.137 Admittedly, as the contemporary German legal scholar Leo Kohn
observed, this ‘programmatic declaration’ left open to parliament the possibility of a
‘progressive nationalisation of natural resources’.138 Moreover, Article 48 explicitly
envisaged a citizen’s initiative process to amend the constitution and to draft legislation.139 Writing of Ireland’s future in 1922, nothing appeared to France ‘more hopeful than the many evidences of a will to deal constructively with the problems
confronting the new State’.140
France’s optimism, however, proved somewhat misplaced with regard to the fate
of his more radical proposals. Following the civil war of 1922-3, the referendum and
initiative provisions, perhaps the most innovative parts of the 1922 Irish Free State
Constitution, were abandoned.141 Pro-treaty Sinn Féin (renamed Cumann na
nGaedheal) failed to enact the required laws to give effect to Article 48. Rather, successive Cumann na nGaedheal governments passed 16 amendments during the
eight-year window for legislative amendment, the last of which in 1929 extended the
period for amendment by ordinary legislation for a further eight years. In 1928
Cumann na nGaedheal removed the provisions for the legislative referendum and
the initiative entirely.142 Significantly, although he had previously championed the
137 ‘11: All the lands and waters, mines and minerals, within the territory of the Irish Free State (Saorstat
Eireann) hitherto vested in the State, or any department thereof, or held for the public use or benefit,
and also all the natural resources of the same territory (including the air and all forms of potential energy), and also all royalties and franchises within that territory shall, from and after the date of the coming into operation of this Constitution, belong to the Irish Free State (Saorstat Eireann), subject to any
trusts, grants, leases or concessions then existing in respect thereof, or any valid private interest therein,
and shall be controlled and administered by the Oireachtas, in accordance with such regulations and
provisions as shall be from time to time approved by legislation, but may in the public interest be from
time to time granted by way of lease or license to be worked or enjoyed under the authority and subject
to the control of the Oireachtas: Provided that no such lease or license may be made for a term exceeding ninety-nine years, beginning from the date thereof, and no such lease or licence may be renewable
by the terms thereof.’
138 Kohn (n 120) 389-418, 174.
139 ‘Article 48. The Oireachtas may provide for the Initiation by the people of proposals for laws or constitutional amendments. Should the Oireachtas fail to make such provision within two years, it shall on the
petition of not less than seventy five thousand voters on the register, of whom not more than fifteen
thousand shall be voters in any one constituency, either make such provisions or submit the question to
the people for decision in accordance with the ordinary regulations governing the Referendum. Any legislation passed by the Oireachtas providing for such Initiation by the people shall provide (1) that such
proposals may be initiated on a petition of fifty thousand voters on the register, (2) that if the
Oireachtas rejects a proposal so initiated it shall be submitted to the people for decision in accordance
with the ordinary regulations governing the Referendum; and (3) that if the Oireachtas enacts a proposal so initiated, such enactment shall be subject to the provisions respecting ordinary legislation or
amendments of the Constitution as the case may be’.
140 France (n 42) 356.
141 Kissane (n 79) 50-5.
142 Constitution (Amendment No. 10) Bill, 1928. De Valera’s anti-treaty Sinn Féin, now renamed Fianna
Fail, obtained the requisite number of signatures to secure an initiative to hold a referendum on the
oath to the king, which had been part of the treaty with Britain in 1921. The Government moved legislation to abolish the initiative before this could happen.
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direct democracy provisions of the 1922 Constitution, de Valera did not reintroduce
the Initiative when drafting its successor, the 1937 Irish Constitution.
Parenthetically, it is clear that France also believed in extending the initiative to
local government.143 Shortly before returning to the US, he contributed to a discussion in the Jesuit journal Studies on the future of local government in the Irish Free
State. The ‘democratic temperament of the Irish’, France claimed, would be better
served by popularly elected City Commissions.144 He acknowledged his interlocutors’ opinion that city administration is ‘a complex. . .gigantic business’, but maintained that ‘it is, after all, public and not private, and I believe public business, to be
well done, must feel daily the pulse of the Body Politic. All its transactions must be
open - while in a private business its transactions are largely closed to the public
eye’.145 France’s ideas, drawing on his experience of the National Municipal League
of America, inspired local groups such as the Greater Dublin Movement and the
Cork Progressive Association.146 Here too, however, successive Irish governments
opted instead to centralize authority in the executive, thereby creating the most centralized democratic state in Europe.147
If political decision-making remained remarkably centralized, the wider political
economy that France had identified in his contributions to the drafting process also
remained entrenched. Successive governments’ deference to labour-extensive grazier
production for the UK and the associated interests of large farmers and banking cartels effectively countered attempts at industrialization and welfare state expansion.
These structural priorities survived Fianna Fail’s comparatively cautious attempts to
re-orient the state towards protectionism and indigenous manufacturing in the
1930s.148 Even in the altered global circumstances after World War Two, the state
remained a straggler in terms of socio-economic development. By the late 1950s, living standards remained closer to those of 1920s Ireland than contemporary standards in the UK or United States.149 Ultimately, the state ‘modernised’ in the 1960s
by pursuing foreign direct investment and joining the European common market,
not by uprooting the rentier economics of the unearned increment.
RETURN TO RHODE ISLAND
Clemens France returned to the US in the summer of 1922. There he emerged as an
extraordinarily active and ultimately more successful proponent of social legal
143 The archives do not indicate whether or not France proposed this measure to the drafting committee. It
is notable, however, that the State Constitution of Washington outlined how certain cities could provide
in their charters for the recall of elective officers and for direct legislation by the initiative and referendum. Constitution of the State of Washington (1911), Chapter 17, section 2.
144 France (n 42) 358.
145 France (n 42) 357-8.
146 Edward Sheehy, ‘City and County Management’ in Mark Callanan and Justin Keogan (eds), Local
Government in Ireland: Inside Out (IPA 2003) 123-142, 127.
147 Tom Garvin, ‘The Dail Government and Irish Local Democracy’ in Mary Daly (ed), County and Town:
One Hundred Years of Local Government in Ireland (IPA 2001).
148 O’Hearn (n 12) 116-8.
149 Tom Garvin, Preventing the Future: Why was Ireland so poor for so long? (Gill and Macmillan 2004); Mel
Cousins, Explaining the Irish welfare state: an historical, comparative, and political analysis (Edwin Mellen
Press 2005).
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thought. During the Great Depression of the 1930s, he worked for five years as
Chairman of the Unemployment Compensation Board for Rhode Island.150
Subsequently, between 1936 and 1948, he was the Director of the State Department
of Social Welfare of Rhode Island, where he was a ‘leader in prison reform’ and a vigorous advocate for social security.151 During World War Two, the Massachusetts
State Federation of Labor highlighted France’s efforts to extend general assistance on
a universal basis to all those unable to earn a livelihood or engage in work relief.152
In 1946, France was introduced to a US Congress House Committee on Ways and
Means as having been largely responsible for Rhode Island’s developing one of the
most comprehensive social security programmes in the Union.153
France’s statement to the US House Committee in 1946 was remarkably similar
to the ‘Document 24’ he drafted for the Irish Constitution Committee in 1922.
Invoking ‘the Creator’ and Christian principles, he claimed that an enlightened social
security programme was on ‘the right side of history’.154 He advocated universal
coverage as benefitting citizens and employers alike, and proposed a qualitative transformation of charitable ‘relief’ into ‘social security’ as necessary to transform conditions of individual demoralization into ones of rehabilitation. In 1946 as in 1922,
social legal thought was deemed necessary to stave off socialism. France cited
William Beveridge, the British social reformer and welfare state architect, to argue
that ‘a well-rounded system of social security was the greatest insurance which a capitalistic system of free enterprise, with economic competition, could have as against
the growing trend all over Europe toward a socialist state’.155
After World War Two, as anti-Communist hysteria mounted during the Cold
War, France gave lively support to progressive causes and to defending civil liberties.
In 1948, he resigned from the State Department to run for Governor of Rhode
Island on the Progressive party ticket. He was unsuccessful. Now in his 70s, this was
to be his last try for public office. Thereafter, France maintained a law office in
Providence until his retirement in 1953. He supported Albert Einstein’s Emergency
Committee of Atomic Scientists whose aims were to warn the public of the dangers
associated with the development of nuclear weapons, and to promote the peaceful
use of nuclear energy. In a letter to Einstein, France promised his support and argued
that atomic scientists and social scientists should work together on providing nationwide information and education on atomic energy.156 He also joined the National
Lawyers Guild and the Committee for the Protection of the Foreign Born.
150 ‘Guide to the American Association for Social Security Records: 1909-1944’, Kheel Center for LaborManagement Documentation and Archives, Cornell University Library <http://rmc.library.cornell.edu/
EAD/htmldocs/KCL05002.html> accessed 30 November 2015.
151 Obituary (n 35). See also Paul J. Spencer, ‘Observances of the Centennial of Butler Hospital’ (1945) vol
IV (1) Rhode Island History 7-11, 11.
152 Massachusetts State Federation of Labor, Report of the Executive Council (AFL 1942) 50.
153 US Congress House Committee on Ways and Means, Amendments to Social Security Act, House of
Representatives, Seventy-ninth Congress, second session, on social security legislation. (U.S. Govt. Publications
1946) 829-838.
154 US Congress (n 153) 829.
155 US Congress (n 153) 829.
156 ‘Clemens France Letter’, Special Collections and Archives Research Center, <http://scarc.library.oregon
state.edu/omeka/files/original/7eaa63b9de526291f4959c8661caed6d.jpg> accessed 8 December 2015.
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In 1951, France was appointed chairman of the Committee to Aid Constitutional
Challenges of the McCarran Act, a law mandating government registration of
Communists and members of Communist front organizations. In 1953, France became Chairman of the Emergency Committee of the Arts and Professions to Secure
Clemency for Julius and Ethel Rosenberg, two American citizens who were ultimately executed for conspiracy to commit espionage. Notably, from 1955 to 1957,
Clemens France was one of the three officially approved correspondents with
Elizabeth Gurley Flynn, the former organizer for the Industrial Workers of the
World and then official with the Communist Party of the USA, during her imprisonment at Alderson Penitentiary, West Virginia.157 In 1959, at the age of 82, France
died of a heart attack at his summer home in Sebec Lake, Maine.158 He was survived
by two daughters.
C O N CL U S I O N
Legal life writing has an important role to play in shedding light on the apparently
anonymous globalization of legal ideas and institutions. In the present instance, reconstructing Clemens France’s unexpected journey from Seattle through Dublin to
Rhode Island illustrates the mutual interpenetration of biography, social structure,
and historical transformation. Certainly, France’s contributions to constitutionmaking in Dublin in the 1920s or social security legislation in Rhode Island in the
1940s cannot be understood adequately without acknowledging the contemporary
wars, revolutions, and social transformations that ushered in the post-war ‘market society’ and social compact in Europe and North America.159 Equally, however,
France’s thought was not a mechanical response to seminal world events but owed
significantly to his ethico-political interpretation of changed circumstances. It is not
without significance that France consistently encouraged his interlocutors to take
bold stands on ‘basic principles of natural right and justice’.160 In fact, by delineating
his childhood and early professional development, this article has indicated how a
fairly consistent set of principles informed his thinking throughout his life.
Retracing the transatlantic life and legal thought of Clemens France reminds us of
the potential to reconceive apparently discreet or self-contained legal debates as part
of a transnational or global migration of legal institutions and ideas. France was an
exemplary advocate of what Duncan Kennedy has described as ‘social legal thought’.
The goal of rethinking law as a purposive activity, to be designed for ‘society’ and the
‘common good’, consistently underpinned France’s political interventions from the
Municipal League in Progressive-era Seattle to his Directorship of Social Welfare in
post-war Rhode Island. Politically, what was at stake here was a logic of continuation
by adaptation, of drawing popular support from revolutionary projects while saving
laissez-faire capitalism from its worst excesses. Only superficially might we agree with
Royal Wilbur’s assessment of his brother as ‘a dyed-in-the-wool radical’.161 Rather,
157 Rosalyn Fraad Baxandall, ‘The Papers of Elizabeth Gurley Flynn: Introduction’ in Women’s Lives:
Primary Source Microfilm. (Thomson Gale 2005).
158 Obituary (n 35).
159 Karl Polanyi, The Great Transformation (Beacon Press 1944).
160 C.J. France, ‘Document 24’, Hugh Kennedy Papers, UCDA P4/320.
161 France (n 5) 21, 94.
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like the hero of Giuseppe di Lampedusa’s The Leopard, France understood very well
that in order to conserve you must change.
Notably, during the drafting of the 1922 Irish Free State Constitution, France elaborated his ideas for an economic commonwealth. He advocated direct democracy
through referendum, initiative, and urban commission mechanisms with mixed success. In particular, the inclusion of the initiative appears to have been significantly
influenced by his input and the Washington State experience. Uniquely among the
committee members, France also emphasized the the ‘appalling poverty’ he had encountered throughout Ireland and the necessity of an economic foundation for independence. ‘Document 24’ proposed challenging private ownership in natural
resources as the basis for the state to initiate economic modernization in a more
egalitarian manner. These latter proposals were by no means visible in the enacted
constitution while the experimental initiative provisions were abandoned shortly
afterwards. The interpretation of France’s proposals as socialist and their ultimate
discarding indicates the ideological, institutional, and interest-based constraints on
both socio-economic and democratic development in contemporary Ireland. These
constraints proved remarkably enduring.
Today, social legal thought of the kind articulated by Clemens France appears
somewhat alien to contemporary political discourse. As the economic crisis of 2008
made clear, the social compromise between capital and labour that defined postwar
life in Europe and North America is no longer assured or even part of collective conversation.162 The public issues linking socio-economic and democratic development
that France identified nevertheless remain relevant. Collapsed property bubbles in
both Ireland and the US in 2008 compel us to revisit the question of the ‘unearned
increment’ arising through property speculation. Similarly, as evidenced by recent
water charges demonstrations from Detroit to Dublin, the private control of natural
resources and public utilities is not infrequently perceived to be ‘subversive of the
welfare of the general public’. From Occupy Wall Street to Occupy Dame Street, recent anti-austerity and popular movements similarly recall to mind France’s arguments for direct democratic decision-making and the creation of an economic
commonwealth. Inevitably, in our time as in Clemens France’s, whether we choose
to take bold stands on principles of justice remains up to us.
162 Tony Judt, Ill Fares the Land (Allen Lane 2010).