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
29 December 1937 (1937-12-29)
Do you approve of the Draft Constitution which is the subject of this plebiscite?
Results
Choice
 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 Dáil Constituency

Background

The Constitution of Ireland replaced the Constitution of the Irish Free State, which had come into force on 6 December 1922, marking the establishment of a separate dominion within the British Commonwealth of Nations.

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%

The enactment of the Constitution of Ireland in 1937 has been described as a “legal revolution”.[17] The Irish Free State government was bound by the 1922 Constitution of the Irish Free State. The 1922 Constitution was made subject to the Anglo-Irish Treaty. Dáil Éireann (there was no Seanad Éireann at the time) did not have the power under article 12 of the Treaty to enact a new constitution.[18] That was for a new constituent assembly only. The government chose to ignore these restrictions. The draft constitution was published on 1 May 1937, and only approved by Dáil Éireann on 14 June 1937. On 2 June 1937, the Oireachtas had enacted the Plebiscite (Draft Constitution) Act 1937. That statute made provision for a plebiscite on the draft constitution “throughout Saorstát Éireann” defined in Irish law as excluding Northern Ireland.[19] The plebiscite on 1 July 1937 (as opposed to its organization) was not constitutional, which is why enactment by the people was a legal revolution.[20]

Article 48 of the new Constitution provided for the repeal of the Irish Free State constitution, from the date of coming into operation of the new constitution. Under article 62, this was either after an interval of 180 days, or sooner if the Dáil so decided. The Irish Free State government chose not to have the Dáil (operating under the 1922 Constitution) decide, and the new Constitution came into operation on 29 December 1937 (without legal challenge to its validity).[21]

Consequential acts were passed between July and December 1937 to provide for the establishment of, and holding elections for, the new Seanad[22] and the Presidency,[23] as well as for other adaptations.[24] The Presidential Establishment Act 1938 was passed after the Constitution had come into effect but before the first President, Douglas Hyde, took office.[25]

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".[26] Its protest took the form of a communiqué on 30 December 1937 in which the British stated:[27][28]

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."[29]

Ireland, a successor state?

Given that there is little doubt about statehood in Ireland in 1937, was Ireland a successor state to the Irish Free State? The answer would appear to be yes.[30] Ireland was treated as a successor state in its international relations.”[31] That the Department of External Affairs merely notified foreign governments only of the change of name and did not re-accredit diplomats as it could have done is not decisive.[32]

References

Sources
Draft Constitution Dáil debates, 1937
Other primary sources
  • Second House of the Oireachtas Commission (1936). Report (PDF). Official publications. Vol. 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

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. Archived (PDF) from the original on 20 December 2017. Retrieved 23 April 2018.
  3. "Constitution of Saorstát Éireann Bill 1922 (Bill 1 of 1922)". Dáil Éireann debates. 25 October 1922. Archived from the original on 28 July 2020. Retrieved 5 June 2018.
  4. "Constitution of the Irish Free State (Saorstát Eireann) Act 1922". Irish Statute Book. Archived from the original on 28 September 2013. 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. Archived from the original on 20 October 2020. 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. Archived from the original on 23 September 2015. 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. Archived from the original on 31 December 2013. 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. Sinnott, Richard (1995). Irish voters decide: Voting behaviour in elections and referendums since 1918. Manchester University Press. p. 13. ISBN 9780719040375.
  14. "Referendum Results 1937–2015" (PDF). Department of Housing, Planning and Local Government. 23 August 2016. p. 19. Archived (PDF) from the original on 20 December 2017. 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. Austen Morgan Belfast Agreement: A Practical Legal Analysis, The Belfast Press, 2000
  18. Austen Morgan Belfast Agreement: A Practical Legal Analysis, The Belfast Press, 2000
  19. Austen Morgan Belfast Agreement: A Practical Legal Analysis, The Belfast Press, 2000
  20. Austen Morgan Belfast Agreement: A Practical Legal Analysis, The Belfast Press, 2000
  21. Austen Morgan Belfast Agreement: A Practical Legal Analysis, The Belfast Press, 2000
  22. Irish Statute Book: Seanad Electoral (University Members) Act 1937 Archived 11 September 2013 at the Wayback Machine, Seanad Electoral (Panel Members) Act 1937 Archived 9 May 2013 at the Wayback Machine
  23. Irish Statute Book: Presidential Seal Act 1937 Archived 11 May 2013 at the Wayback Machine, Local Government (Nomination of Presidential Candidates) Act 1937 Archived 24 February 2014 at the Wayback Machine, Presidential Elections Act 1937 Archived 10 January 2014 at the Wayback Machine, Defence Forces Act 1937 Archived 22 October 2013 at the Wayback Machine
  24. Irish Statute Book: Constitution (Consequential Provisions) Act 1937 Archived 10 September 2013 at the Wayback Machine, Interpretation Act 1937 Archived 7 July 2013 at the Wayback Machine, Electoral (Chairman of Dáil Eireann) Act 1937 Archived 26 March 2018 at the Wayback Machine
  25. "Presidential Establishment Act, 1938". Irish Statute Book. Archived from the original on 27 September 2013. Retrieved 4 August 2013.
  26. "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. Archived from the original on 22 July 2018. Retrieved 22 July 2018.
  27. "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)". Archived from the original on 10 January 2016. Retrieved 3 August 2013.
  28. The Manchester Guardian, 30 December 1937 Britain accepts new name for the Free State Archived 23 July 2011 at the Wayback Machine. Full text of British Government's communiqué cited in Clifford, Angela, The Constitutional History of Eire/Ireland, Athol Books, Belfast, 1985, p153.
  29. "The Canberra Times – Thursday 13 January 1938". Archived from the original on 22 September 2021. Retrieved 24 April 2017.
  30. Austen Morgan Belfast Agreement: A Practical Legal Analysis, The Belfast Press, 2000
  31. Austen Morgan Belfast Agreement: A Practical Legal Analysis, The Belfast Press, 2000
  32. "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. Archived from the original on 5 March 2016. Retrieved 4 August 2013.

Further reading
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