Constitution

On 16 June 1922, the same day as the general election that was inter alia intended to ratify it, the Provisional Government published the constitution of the Irish Free State. A committee of legal and other experts, formally headed by Michael Collins, had drafted the constitution. The document reflected a diverse range of influences, including the constraints of the 1921 Anglo-Irish Treaty, the Westminster model of government, the European and American constitutional traditions, conservative populism, and the radical contribution to the revolution.

In many respects the 1922 constitution was a conventional liberal-democratic document of its time. Despite the inclusion of the Crown (and the governor general as the Crown's representative) in the structure of government, and despite the incorporation of the treaty itself—insofar as legislation repugnant to the treaty was to be repugnant to the constitution—the constitution declared that all power derived from the people. It established a bicameral legislature, consisting of Dáil and Senate, with the government responsible to the Dáil, and the separation of powers between legislature and judiciary.

However, these structures also contained unique elements that reflected the perceived realities of Irish political life. The necessity (under the treaty) and the desire to give adequate representation to minorities led to the introduction of voting by proportional representation (single transferable vote) and of a partially nominated Senate with the power to delay legislation. The belief (ultimately inaccurate) that two-party politics would not develop and that there should be a comparatively unmediated relationship between government and the popular will led to the introduction of extern ministers and the powers of referendum and initiative. Extern ministers were not subject to collective cabinet responsibility and might not be members of the Dáil. They were appointed sporadically in the early years of the Cumann na nGaedheal administration. The powers of initiative and referendum were intended to allow a degree of popular control over legislation. In practice Cumann na nGaedheal bypassed these powers, which became obsolete.

The 1922 constitution also guaranteed a limited range of rights. The investment of the state with rights to the country's natural resources and the right of citizens to a free elementary education derived from the 1919 Democratic Programme of the Dáil. The main body of individual rights—such as the rights to freedom of expression, freedom of assembly, and habeas corpus—stemmed from the liberal-democratic tradition. Religious rights were confined to an assertion of the freedom to practice any religion.

Significantly, the government retained the power to amend the constitution without referendum beyond what had been initially intended to be a transitory period; this power was inherited by Fianna Fáil in 1932. In consequence the 1922 constitution was changed beyond recognition by the passage of public-safety and other legislation under various governments, and more particularly by de Valera's legislative assault on the treaty.

In April 1935 de Valera commenced drafting a new constitution. It was a personal project, carried out in consultation only with a few hand-picked civil servants, notably John Hearne of the Department of External Affairs, and with members of the Jesuit community in Dublin.

Bunreacht na hÉireann, ratified on 1 July 1937, reflected de Valera's desire to replace a dictated constitution with one that would require little adjustment if and when partition ended; this established a form of government that more closely approximated the demands of republicans and that was attuned to Irish—in reality, nationalist and Catholic—values.

With partition in effect and with a view to maintaining links with the British Commonwealth, which he saw as necessary to persuade Ulster Unionists to enter a thirty-two-county state, de Valera declined to declare a republic. Nonetheless, his constitution set out a fundamentally republican form of government, with a president replacing the monarch as internal head of state. Though the powers of the president were limited and largely ceremonial, the office was responsible for the defense of the people and the constitution against arbitrary government—an essential role from the perspective of the international environment of the 1930s.

The question of partition was dealt with directly in Article 2, which defined the national territory as the whole island of Ireland (thereby establishing a constitutional claim to jurisdiction over Northern Ireland), and in Article 3, which restricted this jurisdiction to the twenty-six-county area, "pending the re-integration of the national territory."

The forms of government and the guaranteed rights in the constitution differed little from those of its predecessor and reflected a continuity of the same traditions. The bicameral legislature was reinstated—the Senate having been abolished temporarily in 1936—although the non-nominated members of the Senate were henceforth to be elected by vocational panels rather than directly.

However, the constitution also reflected de Valera's commitment to Gaelic and Catholic values. The state was renamed "Éire," and Irish was adopted as the first national language. Article 44, on religion, referred to the "special position" of the Catholic Church, and the constitution was deeply influenced by Catholic social teaching. De Valera was motivated by the social principles set out in the encyclical Quadragesimo Anno promulgated by Pope Pius XI in 1931. The underlying philosophy of the encyclical was the quest for a middle road between socialism and capitalism through the reorganization of society on vocational lines and according to the principle of subsidiarity, or decision-making at the lowest possible level. These principles suggested the method of election to the Senate and informed the social provisions and directives of the constitution, the existence and nature of which mark the most significant difference between the two constitutions.

The social provisions included a reference to the family as "the fundamental unit group of society" (Article 41). Following from this, the rights of the state in educational matters were circumscribed (Article 42) and the introduction of divorce legislation was prohibited (Article 41). Article 41 also acknowledged the contribution made to the state by woman "by her life within the home," which led to a feminist protest in 1937 against the introduction of a gendered concept of citizenship.

Although the explicitly Catholic tenor of the constitution was subjected to increasing criticism from the 1960s onward, it aroused little antipathy when it was written. Article 44 represented a characteristic de Valera compromise between Catholic absolutism and pluralism and was drafted in consultation with leaders of all faiths. The social provisions were admired internationally, and they later provided a model for the constitutions of newly independent nations such as India and Pakistan.

Amendments to the constitution require a referendum and have generally reflected a changing political and social environment rather than a desire to alter the structure of government. Attempts by Fianna Fáil in 1959 and 1968 to abolish proportional representation were rejected. Among the most significant referenda have been those removing the "special position" of the Catholic Church (1972); permitting entry into the EEC (1972) and ratifying subsequent treaties; removing the ban on divorce (1995); and establishing and modifying the right to life of unborn children (1983 and 1992), thereby imposing a ban on abortion. In 1998, in the wake of the Good Friday Agreement, Articles 2 and 3 were replaced by articles emphasizing the common nationality of citizens of both parts of the island and of the Irish diaspora.

Constitution

Bibliography