Enactment of the Constitution of Ireland

The current Constitution of Ireland came into effect on 29 December 1937, having been enacted by a national plebiscite on 1 July 1937 of voters in what was then the Irish Free State. The Constitution was closely associated with Éamon de Valera, the President of the Executive Council of the Irish Free State at the time, who was personally eager to replace the Constitution of the Irish Free State.

Background

The Constitution of Ireland replaced the Constitution of the Irish Free State, whose coming into force on 6 December 1922 marked the state's independence from the United Kingdom.

1922 Constitution

Main article: Constitution of the Irish Free State

The original text of the 1922 Constitution was a schedule to the Constitution of the Irish Free State (Saorstát Eireann) Act, 1922, passed by the Third Dáil sitting as a "Constituent Assembly" on 25 October 1922. This Act has subsequently been regarded by Irish courts as sufficient in itself to bring the Constitution into effect. However, the view of the British government at the time was different, and the UK Parliament passed on 5 December 1922 its own act, the Irish Free State Constitution Act 1922, with the entire Irish Act as a schedule, to give effect to the Constitution in British law.

Under the 1922 Constitution amendments were governed by Article 50. Article 50, at the time the 1937 Constitution was adopted, provided that constitutional amendments could be enacted by the Oireachtas (parliament) under the same procedure used for the adoption of ordinary laws. De Valera's government repudiated the 1922 Constitution as an unrepublican, foreign imposition and so deliberately provided that the new constitution would be adopted by in a manner outside the terms of the 1922 Constitution.

Motivation for change

There were two main motivations for replacing the constitution in 1937. Firstly, the Irish Free State constitution of 1922 was, in the eyes of many, associated with the controversial Anglo-Irish Treaty. The largest political group in the anti-treaty faction, who opposed the treaty initially by force of arms, had boycotted the institutions of the new Irish Free State until 1926. In 1932 they were elected into power as the Fianna Fáil party.

After 1932, under the provisions of the Statute, some of the articles of the original Constitution which were required by the Anglo-Irish Treaty were dismantled by acts of the Oireachtas. Such amendments removed references to the Oath of Allegiance, appeals to the United Kingdom's Judicial Committee of the Privy Council, the British Crown and the Governor General. The sudden abdication of Edward VIII in December 1936 was quickly used to redefine the royal connection via the Executive Authority (External Relations) Act 1936. Nevertheless, the Fianna Fáil government, led by Éamon de Valera, still desired to replace the constitutional document they saw as having been imposed by the UK government in 1922.

The second motive for replacing the original constitution was primarily symbolic. De Valera wanted to put an Irish stamp on the institutions of government, and chose to do this in particular through the use of Irish nomenclature.

Drafting process

De Valera as President of the Executive Council personally supervised the writing of the Constitution. It was drafted initially by John Hearne, legal adviser to the Department of External Affairs. De Valera served as his own External Affairs Minister, hence the use of the Department's Legal Advisor, with whom he had previously worked closely, as opposed to the Attorney General or someone from the Department of the President of the Executive Council. He also received significant input from John Charles McQuaid, the Catholic Archbishop of Dublin, on religious, educational, family and social welfare issues. The text was translated into Irish over a number of drafts by a group headed by Micheál Ó Gríobhtha (assisted by Risteárd Ó Foghludha), who worked in the Department of Education.

A draft of the constitution was presented personally to the Vatican for review and comment on two occasions by the Department Head at External Relations, Joseph P. Walsh. Prior to its tabling in Dáil Éireann and presentation to the Irish electorate in a plebiscite, Vatican Secretary of State Cardinal Eugenio Pacelli, the future Pope Pius XII, said about the final amended draft, "I do not approve, neither do I disapprove; We shall maintain silence." The quid pro quo for this indulgence of the Catholic Church's interests in Ireland was the degree of respectability which it conferred on De Valera's formerly denounced republican faction and its reputation as the 'semi-constitutional' political wing of the 'irregular' anti-treaty forces.

Oireachtas

The government desired that the document be approved by the people's elected representatives before being put to a vote. The Free State Oireachtas was originally bicameral, consisting of the Dáil and the Seanad or Senate, as well as the Governor-General, who gave royal assent to bills to enact them. However, the Seanad and Governor-General had been abolished in 1936, so that once passed by the Dáil a bill was automatically enacted by the Oireachtas and became law.

The Constitution was not presented as a bill for enactment by the Oireachtas. Instead, the standing orders of the Dáil were changed so that it could pass a resolution by which it merely "approved" the draft constitution without it therefore immediately becoming law. The draft Constitution was introduced in Dáil on 10 March 1937, and was processed in the same manner as a bill, with first and second stages, committee and report stages, and a final stage on 14 June. Some amendments were made; notably, the name of the state was changed from Éire to "Éire, or in the English language, Ireland".

Plebiscite

Main article: Constitution of Ireland plebiscite

The framers of the 1937 Constitution decided that it would be enacted not by an elected body but by the people themselves by means of a plebiscite. The preamble to the 1937 Constitution is thus written in the name not of the legislature but of "We, the people of Éire". The Oireachtas passed the Plebiscite (Draft Constitution) Act 1937, which provided for the holding of a plebiscite on the draft constitution. The plebiscite was held on 1 July 1937 (the same day as the 1937 general election). The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?". It was passed by a plurality. 56% of voters were in favour, comprising 38.6% of the whole electorate.

Among the groups who opposed the constitution were supporters of Fine Gael and the Labour Party, Unionists, and some independents and feminists. The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?".

Legal basis of enactment

There were diverging views on whether the 1937 Constitution of Ireland was a revolutionary breach of legal continuity with the 1922 Constitution it replaced. There are two main arguments that it was:

• The method used conflicted with the method set down in the 1922 Constitution. The 1922 Constitution provided that constitutional amendments be enacted in the same manner as ordinary laws, i.e. as Acts of the Oireachtas. However, the 1937 Constitution was not an Act of the Oireachtas. Instead, it was "approved" by the Dáil and then submitted to the people in a plebscite and only deemed to have become law once voters had endorsed it.
• The second and related argument was that the 1937 Constitution purported to repeal the 1922 Constitution even though the 1922 Constitution did not explicitly grant the Oireachtas the power to do so.

The Department of External Affairs notified foreign governments only of the change of name; it did not re-accredit diplomats as would be expected were the post-1937 Ireland a successor state of the previous Irish Free State.

Legitimacy of 1937 Constitution under UK law

It is clear that the 1922 Constitution Act could be amended as far as British law was concerned. In the United Kingdom the 1922 Constitution owed its validity to an Act of the Constituent Assembly established under British law and therefore derived its legitimacy from an Act of the British Parliament: the Irish Free State Constitution Act. In 1931 the British Parliament passed the Statute of Westminster. This Statute renounced the British Parliament's right to legislate for the Irish Free State. It also granted the Oireachtas the authority to amend all laws affecting the State including both of the 1922 Constitution Acts. Thus as far as British law was concerned amendments to the 1922 Constitution Acts could be legitimate. However, that does not necessarily mean that the enactment of the 1937 Constitution could be considered legitimate under British law. This is because the 1937 Constitution was not adopted in accordance with any law. Others have argued that even the adoption of the 1937 Constitution could be considered legitimate under British law because it could somehow be considered an amendment of the 1922 Constitution. Paradoxically, this was a proposition that the 1937 Constitution's sponsors themselves could not accept. To accept this argument would have been to recognise that the law of an alien parliament (the Statute of Westminster) could affect constitutional matters in Ireland.

Coming into force

Neither the Dáil resolution approving the draft Constitution nor the Plebiscite (Draft Constitution) Act 1937 providing for the plebiscite established how the Constitution would come into force. It was the Constitution itself which stated that this would happen 180 days after its approval, and that the 1922 Constitution would simultaneously be repealed. This happened on 29 December 1937, 180 days after the plebiscite on 1 July. Consequential acts were passed between July and December to provide for the establishment of, and holding elections for, the new Seanad and the Presidency, as well as for other adaptations. The Presidential Establishment Act, 1938 was passed after the Constitution had come into effect but before the first President, Douglas Hyde, took office.

New official stamps, seals, and papers marked "Éire" replaced those with "Saorstát Éireann"; in some cases immediately, in other cases after existing stocks had run out.

International response

When the new constitution was enacted, the British government, according to the New York Times "contented itself with a legalistic protest". Its protest took the form of a communiqué on 30 December 1937 in which the British stated:

"His Majesty's Government in the United Kingdom has considered the position created by the new Constitution ... of the Irish Free State, in future to be described under the Constitution as 'Eire' or 'Ireland' ... [and] cannot recognize that the adoption of the name 'Eire' or 'Ireland', or any other provision of those articles [of the Irish constitution], involves any right to territory ... forming part of the United Kingdom of Great Britain and Northern Ireland ... They therefore regard the use of the name 'Eire' or 'Ireland' in this connection as relating only to that area which has hitherto been known as the Irish Free State."

The Eire (Confirmation of Agreements) Act 1938 provided that Eire would be the style in UK law for the Irish state.

The Irish Government received a message of goodwill from 268 United States congressmen including eight senators. The signatories expressed "their ardent congratulations on the birth of the State of Ireland and the consequent coming into effect of the new constitution", adding that "We regard the adoption of the new constitution and the emergence of the State of Ireland as events of the utmost importance."

References

Dáil debates

• Draft Constitution:
  • Application of Standing Orders: March 10
  • First Reading: March 10
  • Second Reading: May 11 12 13
  • Committee Stage: May 25 25 (ctd) 26 26 (ctd) 28; June 1 1 (ctd) 2 2 (ctd) 3 3 (ctd)
  • Report Stage: June 4
  • Committee Stage (return): June 9 10
  • Report Stage (return): June 14
• Plebiscite (Draft Constitution) Act, 1937: First Reading: 25 May; Second Reading: 1 June; Money Resolution: 1 June; Committee and Final stages: 1 June
• Constitution (Consequential Provisions) Act, 1937: First Reading: 24 November; Second Reading: 10 December; Committee Stage: 16 December

External links

• The Origins of the Irish Constitution project of the Royal Irish Academy with documents covering the period 1929 to 1941.