Adoption of the Constitution of Ireland

The current Constitution of Ireland came into effect on 29 December 1937, repealing and replacing the Constitution of the Irish Free State, having been approved in a national plebiscite on 1 July 1937 with the support of 56.5% of voters in the then Irish Free State.[1][2] The Constitution was closely associated with Éamon de Valera, the President of the Executive Council of the Irish Free State at the time of its approval (and who assumed the position of Taoiseach on its adoption).

Plebiscite on the Constitution of Ireland
Do you approve of the Draft Constitution which is the subject of this plebiscite?
Results Votes % Yes 685,105 56.52% No 526,945 43.48% Valid votes 1,212,050 90.03% Invalid or blank votes 134,157 9.97% Total votes 1,346,207 100.00% Registered voters/turnout 1,775,055 75.84%
Results by county   Yes     No
Constituency results from the referendum

Background

The Constitution of Ireland replaced the Constitution of the Irish Free State, which had come into force on 6 December 1922, marking 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.[3][4] 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 Parliament of the United Kingdom 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.[5]

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 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, some of the articles of the original Constitution which were required by the Anglo-Irish Treaty were dismantled by acts of the Oireachtas, as permitted in British law by the Statute of Westminster 1931. These 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.[6] 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 desire to replace the Constitution of the Irish Free State was motivated largely by the association of the existing constitution with the Anglo-Irish Treaty, and a belief that it had been imposed upon Ireland by the government of the United Kingdom. The main opponents of the Treaty had been elected to power as Fianna Fáil under Éamon de Valera in 1932, and a commitment was made to replace the constitution of the Free State.[7] So closely tied to the policies of Fianna Fáil was the proposed new constitution that the 1937 referendum has been described as a vote of confidence in the republican government.[8] After a new constitution was drafted by John Hearne, supervised by de Valera, the draft was accepted by the Oireachtas. The Oireachtas passed the Plebiscite (Draft Constitution) Act 1937, which allowed for a plebiscite to be held so that the people of Ireland could either accept or reject the new constitution.[1]

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-language 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."[9][10] 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.

Dáil debate

The draft constitution was approved by the Oireachtas 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 became law on the signature of the Ceann Comhairle.

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 "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 during these stages; notably, the name of the state was changed from Éire to "Éire, or in the English language, Ireland".

Positions on Draft Constitution

A Fine Gael poster from 1937 advocating that people should vote against the proposed new constitution.

Supporters of replacing the Irish Free State Constitution were largely sympathetic to the Fianna Fáil party, or republicans who believed in removing the remaining constitutional and legal links to the British state. Opponents of the new constitution included a coalition of supporters of Fine Gael and the Labour Party,[11] and former unionists who were concerned about permanently losing the last vestiges of Britain's influence on the institutions of Irish government. The National University Women Graduates' Association opposed the new constitution on the basis that it could undermine women's rights and privacy in the home.[12]

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 on 2 June 1937 passed the Plebiscite (Draft Constitution) Act 1937, which mandated the holding of a plebiscite on the draft constitution on the same date as the next general election. The Dáil was dissolved as soon as it had approved the draft constitution on 14 June 1937. The ensuing general election was held on 1 July 1937, and the plebiscite was held in parallel.

It was the only statewide plebiscite or referendum to take place in the Irish Free State.[13] (The term referendum is used in Irish law where the question is enactment of a bill; plebiscite is used for other questions.) The question put to voters was:

Do you approve of the Draft Constitution which is the subject of this plebiscite?

It was passed with 56.5% of those voting in favour, comprising 38.6% of the total electorate.

The number of invalid or blank votes was high, at almost 10% of the total votes cast. The 'Yes' vote won a majority in all but five of the thirty four constituencies, representing a solid level of support across Ireland. In a further six constituencies (Cavan, Cork North, Cork South-East, Leitrim, Roscommon, and Wexford), the majority for 'Yes' was less than the number of spoilt votes (spoilt votes also exceeded the 'No' majority in four of the five constituencies that voted 'No', the exception being Dublin Townships). Geographically, the 'No' vote was strongest in the constituencies of Dublin County and Wicklow, and in Cork West. The draft constitution had least support in Dublin Townships, and gained most support in Galway West, where three-quarters of voters backed the proposal.[14] The plebiscite vote was heavily influenced by party political loyalties.[15] Fianna Fáil voters overwhelmingly voted 'Yes', while Fine Gael voters and Protestants largely voted 'No'. The bulk of Labour voters supported the new constitution, despite the opposition of the party leadership.[16]

Results by constituency[14]

Constituency	Electorate	Turnout (%)	Votes		Proportion of votes
			Yes	No	Yes	No
Athlone–Longford	38,295	77.9%	15,648	11,367	57.9%	42.1%
Carlow–Kildare	48,536	75.8%	18,745	14,407	56.5%	43.5%
Cavan	47,008	80.5%	17,412	16,508	51.3%	48.7%
Clare	62,551	79.5%	29,279	16,454	64.0%	36.0%
Cork Borough	53,019	73.3%	20,765	15,392	57.4%	42.6%
Cork North	47,822	82.3%	17,458	16,350	51.6%	48.4%
Cork South-East	41,669	76.9%	13,764	12,733	51.9%	48.1%
Cork West	67,017	80.4%	19,741	24,668	44.5%	55.5%
Donegal East	48,975	75.4%	18,680	13,041	58.9%	41.1%
Donegal West	38,532	71.7%	14,160	11,086	56.1%	43.9%
Dublin County	83,457	70.5%	26,901	28,840	48.3%	51.7%
Dublin North-East	50,323	72.7%	18,651	16,496	53.1%	46.9%
Dublin North-West	69,174	68.9%	26,095	19,210	57.6%	42.4%
Dublin South	82,659	69.6%	32,669	21,504	60.3%	39.7%
Dublin Townships	52,664	71.6%	14,810	21,336	41.0%	59.0%
Galway East	49,476	70.0%	21,273	10,049	67.9%	32.1%
Galway West	42,796	61.1%	17,836	6,234	74.1%	25.9%
Kerry North	48,621	73.1%	21,292	10,857	66.2%	33.8%
Kerry South	35,390	74.4%	13,658	9,573	58.8%	41.2%
Kilkenny	40,900	82.1%	16,926	13,746	55.2%	44.8%
Leitrim	36,368	75.8%	12,583	8,429	59.9%	40.1%
Laois–Offaly	60,945	79.3%	25,654	17,717	59.2%	40.8%
Limerick	81,397	81.2%	35,187	21,954	61.6%	38.4%
Louth	38,570	78.6%	16,326	11,688	58.3%	41.7%
Mayo North	38,170	67.9%	15,900	8,247	65.8%	34.2%
Mayo South	59,999	70.3%	22,225	15,734	58.6%	41.4%
Meath–Westmeath	61,654	79.6%	27,586	18,704	59.6%	40.4%
Monaghan	36,469	86.4%	16,189	12,107	57.2%	42.8%
Roscommon	42,103	76.4%	15,481	12,910	54.5%	45.5%
Sligo	36,516	78.0%	10,780	11,916	47.5%	52.5%
Tipperary	82,727	81.8%	34,776	28,041	55.4%	44.6%
Waterford	51,596	79.8%	22,118	16,578	57.2%	42.8%
Wexford	61,486	78.7%	23,129	20,391	53.1%	46.9%
Wicklow	38,171	78.3%	11,408	12,678	47.4%	52.6%
Total	1,775,055	75.8%	685,105	526,945	56.5%	43.5%

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.[17] 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. However the Judicial Committee of the Privy Council had ruled in Moore v. Attorney General of Ireland (1935) that following the Statute of Westminster (1931) it had gained 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.[18]

Coming into force

The date of the coming into operation of the Constitution was contained in Article 62, a transitory provision of the Constitution which is omitted from the official published text.[19] Article 48 provides that the Constitution of the Irish Free State is repealed as of that date.[20]

ARTICLE 48
The Constitution of Saorstát Éireann in force immediately prior to the date of the coming into operation of this Constitution and the Constitution of the Irish Free State (Saorstát Éireann) Act, 1922, in so far as that Act or any provision thereof is then in force shall be and are hereby repealed as on and from that date.

[…]

ARTICLE 62
This Constitution shall come into operation

i. on the day following the expiration of a period of one hundred and eighty days after its approval by the people signified by a majority of the votes cast at a plebiscite thereon held in accordance with law, or,

ii. on such earlier day after such approval as may be fixed by a resolution of Dáil Éireann elected at the general election the polling for which shall have taken place on the same day as the said plebiscite.

No resolution of the Dáil was passed by the 9th Dáil, which was elected the same day as the plebiscite on the Constitution, and the Constitution came into force on 29 December 1937, 180 days after the plebiscite. Consequential acts were passed between July and December to provide for the establishment of, and holding elections for, the new Seanad[21] and the Presidency,[22] as well as for other adaptations.[23] The Presidential Establishment Act 1938 was passed after the Constitution had come into effect but before the first President, Douglas Hyde, took office.[24]

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".[25] Its protest took the form of a communiqué on 30 December 1937 in which the British stated:[26][27]

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 messages 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."[28]

References

Sources

Draft Constitution Dáil debates, 1937

• 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

Other primary sources

• Second House of the Oireachtas Commission (1936). Report (PDF). Official publications. P.2475. Dublin: Stationery Office. Retrieved 20 April 2020.
• Plebiscite (Draft Constitution) Act 1937: Statute: Debates
• Constitution (Consequential Provisions) Act 1937: Statute: Debates

Secondary sources

• Coffey, Donal K. (2012). "The Need for a New Constitution: Irish Constitutional Change 1932–1935". Irish Jurist. 48: 275–302. ISSN 0021-1273. JSTOR 44027504.
• Hogan, Gerard W.; Kinsella, Eoin (2012). The Origins of the Irish Constitution: 1928–1941. Royal Irish Academy. ISBN 9781904890751.
  • The Origins of the Irish Constitution project of the Royal Irish Academy with documents covering the period 1929 to 1941.
• Keogh, Dermot; McCarthy, Dr. Andrew (1 January 2007). The Making of the Irish Constitution 1937: Bunreacht Na HÉireann. Mercier Press. ISBN 9781856355612.
• Ó Cearúil, Mícheál (1999). "Introduction: Text and Context" (PDF). Bunreacht na Éireann: A study of the Irish text. Official publications. Pn 7899. Dublin: Stationery Office. ISBN 0-7076-6400-4. Archived from the original (PDF) on 8 November 2015.

Citations

1. L. Prakke, C. A. J. M. Kortmann, Constitutional Law of 15 EU Member States, 'Ireland – The Constitution of 1937' (Kluwer, 1 January 2004), 427.
2. "Referendum Results 1937–2015" (PDF). Department of Housing, Planning and Local Government. 23 August 2016. p. 18. Retrieved 23 April 2018.
3. "Constitution of Saorstát Éireann Bill 1922 (Bill 1 of 1922)". Dáil Éireann debates. 25 October 1922. Retrieved 5 June 2018.
4. "Constitution of the Irish Free State (Saorstát Eireann) Act 1922". Irish Statute Book. Retrieved 4 August 2013.
5. 13 Geo.5 sess.2 c.1
6. "Executive Authority (External Relations) Bill, 1936 (Bill 46 of 1936)". 12 December 1936. Retrieved 6 June 2018.
7. Jessie Blackbourn, Anti-Terrorism Law and Normalising Northern Ireland (Routledge, 7 August 2014), 16.
8. Markku Suksi, Bringing in the People: A Comparison of Constitutional Forms and Practices of the Referendum (Martinus Nijhoff Publishers, 1993), 190.
9. "(UCDA P150/2419) Visit to Rome / Constitution from Joseph P. Walshe to Eamon de Valera". Documents on IRISH FOREIGN POLICY. 22 April 1937. pp. Vol.V No.43. Retrieved 5 August 2013.
10. Larkin, Emmet (December 1975). "Church, State, and Nation in Modern Ireland". The American Historical Review. Oxford University Press. 80 (5): 1244–76. doi:10.2307/1852059. JSTOR 1852059.; reprinted in Larkin, Emmet J. (1976). "Church, State, and Nation in Modern Ireland". The Historical Dimensions of Irish Catholicism. CUA Press. pp. 91–130. ISBN 9780813205946. Retrieved 5 August 2013.
11. Fine Gael, 'Say No to the Constitution' advertisement (1937)
12. National University Women Graduates' Association, 'Vote Against the Constitution' advertisement (1937)
13. Richard Sinnott, Irish Voters Decide: Voting Behaviour in Elections and Referendums Since 1918 (Manchester University Press, 1995), 13.
14. "Referendum Results 1937–2015" (PDF). Department of Housing, Planning and Local Government. 23 August 2016. p. 19. Retrieved 23 April 2018.
15. Joseph Lee, Ireland, 1912–1985: Politics and Society (Cambridge University Press, 1989), 210.
16. Michael Forde, David Leonard, Constitutional Law of Ireland (A&C Black, 30 June 2013), 11.
17. Delany, V. T. H. (1957). "The Constitution of Ireland: Its Origins and Development". The University of Toronto Law Journal. University of Toronto Press. 12 (1): 6–8. JSTOR 824397.
18. "Memorandum, Rynne to Walshe from Michael Rynne to Joseph P. Walshe". Documents on IRISH FOREIGN POLICY. Royal Irish Academy. 19 January 1940. pp. Vol.VI No.110. Retrieved 4 August 2013.
19. Constitution of Ireland, Article 62
20. Constitution of Ireland, Article 48
21. Irish Statute Book: Seanad Electoral (University Members) Act 1937, Seanad Electoral (Panel Members) Act 1937
22. Irish Statute Book: Presidential Seal Act 1937, Local Government (Nomination of Presidential Candidates) Act 1937, Presidential Elections Act 1937, Defence Forces Act 1937
23. Irish Statute Book: Constitution (Consequential Provisions) Act 1937, Interpretation Act 1937, Electoral (Chairman of Dail Eireann) Act 1937
24. "Presidential Establishment Act, 1938". Irish Statute Book. Retrieved 4 August 2013.
25. "ULSTER'S INCLUSION BARRED BY BRITAIN; London Protests Claim That Belfast Eventually Must Be Ruled by Dublin; LITTLE CHANGE IS SEEN; Premier of Northern Ireland Attacks Constitution as an 'Affront to His Majesty'". The New York Times. 30 December 1937. p. 2.
26. Circular dated 1 April 1949 from the Canadian Secretary of State for External Affairs to Heads of Post Abroad (Circular Document No.B38, 836. DEA/7545‑B‑40)
27. The Manchester Guardian, 30 December 1937 Britain accepts new name for the Free State. Full text of British Government's communiqué cited in Clifford, Angela, The Constitutional History of Eire/Ireland, Athol Books, Belfast, 1985, p153.
28. The Canberra Times – Thursday 13 January 1938

Further reading

• Coffey, Donal K. (2018). Constitutionalism in Ireland, 1932–1938: National, Commonwealth, and International Perspectives. Springer. ISBN 9783319762371. Retrieved 17 October 2019.