The Constitution as originally enacted

The Irish Constitution is necessarily a product of it's time; the immediate post-revolutionary period of Irish history. To a greater extent than is perhaps generally appreciated, the 1937 Constitution re-enacted that of 1922 with a re-ordering of the contents which served partially to disguise its provenance. 1 The long term historical context of Bunreacht na hEireann 1937 is the whole Irish parliamentary tradition stretching back to the middle ages.

That tradition is part of Ireland's British heritage, absorbed into, and given distinctive shape by, the Irish experience, particularly in the nineteenth century. Well before that period, however, the constitutional debate was centrally concerned with the question, in one form or another, of what should be the Irish polity's relationship with the British crown. In the modern revolutionary period and after, say from 1919 to 1949, that question was bitterly contested before being finally resolved, the "crown" being meanwhile extended to include "empire" and "commonwealth".

Though (or perhaps because) the 1937 Constitution made no reference to these controversial terms ( nor to the emotionally charged "republic" word), it provided the largely acceptable answer to the long standing question. 2 THE ANGLO-IRISH TREATY 1921 The Anglo-Irish Treaty of December 6, 1921 was the foundation stone of an independent Ireland. By virtue of that instrument the legislative union which had existed between Ireland and the United Kingdom was dissolved, and the new Irish Free State was to have the status of a self-governing dominion, like that of Australia, Canada, New Zealand and South Africa.

This meant virtually total independence, a great deal more than Britain had ever previously been willing to concede. The Union of 1800 wrote finis tot the separate Irish parliament that had existed since medievil times. Originally this Parliament's legislative power was restricted since, in addition to the royal veto applicable to Irish as to British Bills, the British Privy Council had the right to alter or amend Irish legislative proposals.

Moreover the Westminster Parliament claimed power to legislate for Ireland. In 1782-83, however this situation was modified; the Irish Parliament acquired a greater measure of liberty and Westminster renounced its claim to legislate for Ireland. But " Grattan's Parliament" still had many limitations. The Irish Executive was not responsible to it but to London so that the Lord Lieutenant and other office-holders could not be removed from office by an adverse vote in the Dublin parliament.

In addition the Irish Parliament was quite unrepresentative; its members, like its electorate, were totally Protestant, in a country where over two thirds of the population was Catholic. The birth of this Treaty began on October 11th , 1921 when negotiations between British Government and Sinn Fein representatives were held "with a view to ascertaining how the association of Ireland with the community of nations known as the British Empire may best be reconciled with the Irish national aspirations.

" This conference ended with the signature on December 6 "Articles of agreement for a treaty between Great Britain and Ireland. " This treaty split the Dublin cabinet and led to the civil war of 1922-1923; but its terms were approved by the Dail on January 7, 1922 by 64 votes to 57. 3 Dr. Kohn summarised what the treaty offered as follows: "….. full internal, unrestricted financial autonomy, the right to maintain an Irish Police Force and an Irish Army subject only to the control of the Irish Parliament.

In the sphere of external relations it involved the concession of the new international status of the British Dominions, the right to enter into agreements with Foreign states, freedom from obligations arising from treaties not specifically approved by the Irish Parliament, full discretion in the matter of Irish participation in British wars, and, lastly, membership of the League of Nations. "4 On March 31, 1922 the Westminster Parliament passed the Irish Free State (Agreement) Act, which inter alia gave the Anglo-Irish Treaty legal force.

In Dublin a constitution was being prepared and a draft was taken to London by Arthur Griffith in May 1922. there was no legal obligation to consult the British Government in this matter but since the Constitution had to be confirmed by Westminster legislation, it was prudent to ensure that the British Government accepted it as a proper implementation of the Treaty. In fact that government took objection to many of the provisions as being too republican and alterations had to be undertaken. On June 16, 1922 there was a general election for the third Dail, which was to sit as a constituent assembly to enact the Constitution.

Because the civil war had broken out the constituent assembly did not meet until September 9 1922. the Constitution Bill was introduced on September 18 and was considered by the constituent assembly on a stage by stage basis, in accordance with what was to become normal legislative procedure. It was finally approved by the constituent assembly on October 25, 1922. On December 5, 1922 the Westminster Parliament enacted the Irish Free State Constitution Act and the Irish Free State (Consequential Provisions) Act, the latter incorporating modifications of the Government of Ireland Act 1920.

the need for these was plain by December 7, when the Northern Ireland Parliament exercised its right to opt out of the Free State. By virtue of Article 83, contained within the constitution itself and the Westminster I. F. S Constitution Act, the Constitution came into operation by royal proclamation on December 6 1922. 13 THE 1922 CONSTITUTION The Constitution of the Irish Free State ( Saorstat Eireann) Act 1922, consisted of a preamble, three brief sections and two schedules. The first being the text of the Constitution, the second that of the Treaty.

Section 1 of the Act gave the Constitution annexed the force of the law. Section 2 declared that the Constitution should be construed with reference to the Treaty, which was likewise given the force of law, and continued "……. and if any provision of the said Constitution or any amendment thereof or of any law made thereunder is in any respect repugnant to any of the provisions of the Scheduled Treaty, it shall, to the extent only of such repugnancy, be absolutely void and inoperative……….

" Thus the Treaty was locked in as the keystone of the constitutional arch as the British Government had required. But the preamble did not acknowledge any British authority proceeding on the view that the power to enact the Constitution came to the constituent assembly from the people, under God. The same theme was taken up in Article 2, which declared that all powers of government and all authority, legislative, executive and judicial in Ireland were derived from the people.

This was entirely at odds with British constitutional theory, under which these powers derived from the monarch. But although that monarch was, by virtue of the Treaty, to make an appearance in the Constitution he was to do so, in Dr. Kohn's words, " as a functionary of the Irish people ……. 5. And throughout the Constitution the symbols of Commonwealth membership necessitated by the Treaty settlement were neutralised by specific dispositions. Indeed the Constitution in Article 1 refers to the " Commonwealth" whereas the treaty had used the term "Empire".