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Constituting a Polity

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The Centenary of the Irish Free State Constitution

Part of the book series: Palgrave Modern Legal History ((PMLH))

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Abstract

The creation of a new state and construction of a new constitution is often a very divisive moment in a state’s history. The creation of the Irish Free State and the drafting of the 1922 Constitution is no different; it was a very turbulent period of Irish history with many parts of the population refusing to accept the new status quo. Many others were also disappointed that the status which had been achieved was less than what had been desired but pragmatically felt that it would be better to work within the new polity to try to achieve more. The 1922 Irish Free State Constitution is therefore understandably always viewed within the context of that division. The over-riding attitude surrounding the 1922 Constitution has primarily been negative. However, on the 100th anniversary of the document it is only right to ask whether that portrayal of the Constitution is a fair and accurate one. This chapter argues that scholarship on the Constitution should look beyond the ‘failure’ and the controversial elements to discover the true impact and lasting legacies of the document.

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Notes

  1. 1.

    See Chap. 5, Thomas Mohr, “Opposition to the Constitution of the Irish Free State in 1922”.

  2. 2.

    See Tom Ginsburg, James Melton & Zachary Elkins, The Endurance of National Constitutions, (Cambridge: Cambridge University Press, 2009).

  3. 3.

    See Laura Cahillane, “The Origins of Popular Sovereignty in Ireland: Theory and Reality”, in Maria Cahill, Colm Ó Cinnéide, Seán Ó Conaill, Conor O’Mahony (eds) Constitutional Change and Popular Sovereignty: Populism, Politics and the Law in Ireland (Oxford: Routledge 2021).

  4. 4.

    For details on the drafting, see Laura Cahillane, Drafting the Irish Free State Constitution (Manchester: Manchester University Press 2016); on the Committee in particular, see Chap. 1. See also Laura Cahillane, “An Insight into the Irish Free State Constitution”, American Journal of Legal History, Volume 54, Issue 1, (2014): 1–38.

  5. 5.

    See Wilfred Ewart, A Journey in Ireland (London: G.P. Putnam, 1922), Tom Garvin, The Evolution of Irish Nationalist Politics (Dublin: Gill and Macmillan, 1981), and Tom Garvin 1922: The Birth of Irish Democracy (Dublin: Gill and Macmillan, 2005).

  6. 6.

    The British took issue with a number of the more independent or experimental provisions. Many which were seen as ‘Republican’ or even ‘Bolshevik’ were removed at the insistence of the British team. See Cahillane (n 4), 47–64.

  7. 7.

    The Committee was influenced by the ideas contained in the writings of those such as Wolfe Tone, James Fintan Lalor, John Mitchel and Thomas Davis, who espoused similar ideas.

  8. 8.

    Agnes Headlam-Morley, The New Democratic Constitutions of Europe; A Comparative Study of Post-War European Constitutions with Special Reference to Germany, Czechoslovakia, Poland, Finland, The Kingdom of the Serbs, Croats & Slovenes and the Baltic States (Oxford: Oxford University Press 1928), 89–90.

  9. 9.

    See Darrell Figgis, The Gaelic State in the Past and Future (Dublin: Maunsel 1917).

  10. 10.

    Kohn’s phraseology. Leo Kohn, The Constitution of the Irish Free State (London: George Allen & Unwin Ltd. 1932) 116.

  11. 11.

    Dáil Deb 5 October 1922 vol 1 col. 1211 (Kevin O’Higgins, Minister for Home Affairs).

  12. 12.

    The Fianna Fáil Party had decided to petition for the setting up of the initiative, as a means to remove the parliamentary Oath from the Constitution. The petition was signed by 96,000 voters and was submitted to the Dáil on 3 May 1928. However, Article 48 did not set out the procedure to be followed when a petition was brought before the Dáil and this led to a debate as to the correct procedure to be adopted. Eventually, the Dáil decided to postpone the issue until the proper procedure had been decided on. Apparently, it was intended to establish a Joint Committee to consider the procedure. However, before this ever happened, the government introduced a bill, which had been incubating for some time, which provided for the abolition of the need for referendum and the initiative.

  13. 13.

    See, for example, Andrew E Malone, “Party Government in the Irish Free State” Political Science Quarterly, 44, no 3, (1929) 363. See also David Kenny’s chapter in this volume.

  14. 14.

    Letter to the Provisional Government from the signatories of Draft B, 8 March 1922, file 2, Papers of EM Stephens, MSS 4235, Trinity College Dublin Archives.

  15. 15.

    See National Archives of Ireland, Department of the Taoiseach S8953.

  16. 16.

    See Patrick Fay, “The Amendments to the Constitution Committee, 1926”, Administration 26 no 3 (1978), 331–351.

  17. 17.

    See Alan J Ward, “Challenging the British Constitution”, Parliamentary History 9 (1990), 116 at 125.

  18. 18.

    See further Cahillane (n 4), 138–145.

  19. 19.

    Article 56.

  20. 20.

    Article 15.3 Bunreacht na hÉireann 1937.

  21. 21.

    Donal O’Sullivan, The Irish Free State and Its Senate (London: Faber, 1940), 116.

  22. 22.

    Ibid.

  23. 23.

    Letter from Professor Felix Frankfurter from Harvard University to Lionel Curtis, 10 August 1922, as cited by Gerard Hogan, Development of Judicial Review of Legislation and Irish Constitutional Law 1929–1941 (unpublished PhD thesis, Trinity College Dublin, 2001).

  24. 24.

    [1935] IR 170.

  25. 25.

    See Chap. 4, Alan Greene, “‘The Supreme Legislative Authority Speaking as the Mouthpiece of the People’: Constituent Power and the Irish Free State”.

  26. 26.

    Kohn (n 10), 116.

  27. 27.

    See Cahillane (n 4), 106–107.

  28. 28.

    See Chap. 7, Róisín Á Costello, “The National Language and Article 4 of the 1922 Constitution”.

  29. 29.

    Articles 47 and 48.

  30. 30.

    Article 45.

  31. 31.

    Article 55.

  32. 32.

    Articles 65 and 69.

  33. 33.

    Originally, the Draft Constitution did not contain any period of grace in relation to constitutional amendments. All amendments were to be submitted to the people. Of course this was changed during debates in the Constituent Assembly and the new amendment procedure was eventually used to remove the experimental provisions and many other provisions and so render the document dilapidated.

  34. 34.

    For a detailed consideration, see Cahillane (n 4) 154–185.

  35. 35.

    See Chap. 13, William Quill, “Revisiting the Legacy of the Amendment Procedure” for an alternative view of the amendment provision.

  36. 36.

    Kohn’s work (n 10) is a major exception of course, but until the last 15 years or so the principal works considering the Constitution had all been from a historical or political science perspective. See, for example, Brian Farrell, “The Drafting of the Irish Free State Constitution”, The Irish Jurist, 5(1) (1970).

    DH Akenson & FP Fallin, “The Irish Civil War and the Drafting of the Irish Constitution” Éire-Ireland Vol V (1) (1970) 10, Vol V (2) 42, Vol V (4) 28. Alan J. Ward, The Irish Constitutional Tradition (Washington DC: Catholic University of America Press, 1994), Nicholas Mansergh, The Irish Free State: Its Government and Politics (London: Allen & Unwin, 1936).

  37. 37.

    For details on the drafting process, see Cahillane (n 4).

  38. 38.

    Graham Butler also argues in his chapter that the experience of the governor general provided a strong influence on the provisions on the president in the 1937 Constitution. See Chap. 6, Graham Butler, “The Representative of the Crown and the Governor-General of the Irish Free State: Text and Context”.

  39. 39.

    For more detail on the aspects which led to the downfall of the Constitution, see Cahillane (n4).

  40. 40.

    See Chap. 10, David Kenny, “The 1922 Constitution as a Failed Attempt to Break with Westminster Tradition”. See also Laura Cahillane, “Anti-party Politics and the Irish Free State Constitution” Dublin University Law Journal, 35 (2012), 34.

  41. 41.

    See Costello v Government of Ireland [2022] IESC 44. See also Seán Rainford, “Costello v Ireland and an Irish Constitutional Identity”, Irish Judicial Studies Journal Vol 7(1) (2023), 70.

  42. 42.

    See also Chap. 13, William Quill, “Revisiting the Legacy of the Amendment Procedure”.

  43. 43.

    State (Ryan) v Lennon [1935] IR 170, 203.

  44. 44.

    Ibid., 213.

  45. 45.

    It has already been mentioned in two further cases since its initial mention in the Costello case: In the matter of The Adoption Act 2010, Sections 49(1) and 49(3) and in the matter of A (a minor) and B (a minor): Adoption Authority of Ireland v. C and D and the Attorney General [2023] IESC 6; and Heneghan v. Minister for Housing, Planning & Local Government & ors [2023] IESC 7.

References

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Author information

Authors and Affiliations

  1. School of Law, University of Limerick, Limerick, Ireland

    Laura Cahillane

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  1. Laura Cahillane
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Correspondence to Laura Cahillane .

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Editors and Affiliations

  1. School of Law, University of Limerick, Limerick, Ireland

    Laura Cahillane

  2. Maynooth University, Maynooth, Ireland

    Donal K. Coffey

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Cahillane, L. (2024). Constituting a Polity. In: Cahillane, L., K. Coffey, D. (eds) The Centenary of the Irish Free State Constitution. Palgrave Modern Legal History. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-46181-1_2

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  • DOI: https://doi.org/10.1007/978-3-031-46181-1_2

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