Donal Coffey

The Rise of Fianna Fáil and the Failure of the Constitution of the Irish Free State

The question of the establishment of the 1937 Constitution is inextricably linked to the failure of the 1922 Constitution. The failure to entrench the 1922 Constitution, either as a matter of legal or political constitutionalism, undermined its theoretical underpinnings as a form of higher law—a fact that was appreciated at the time. The rise of the nationalist Fianna Fail government coincided, and indeed prompted, this erosion of constitutional norms in the Free State. Notwithstanding this erosion, in their first year in office, Fianna Fail were to find themselves institutionally frustrated in the controversies relating to the governor-general and the oath of allegiance.

Citizen and State

The legal relationship between the citizen and the state is one of the most problematic to define in a new constitution. This was complicated in the Irish context by four further aspects: the constant feature of republican violence in Ireland meant that the civil service were concerned to ensure the balance did not tip too far in favour of rights; the relatively strict amendment process meant it had to be correct the first time; the relative paucity of human rights provisions in the 1922 Constitution meant that further rights had to be guaranteed; and the intellectual currents meant that the extension of these rights would tend towards a Catholic interpretation of the relationship between the individual and the state.

Nation and State

The inter-war period was one of a burgeoning interest in the nation. To take one example, Article 16 of the 1921 Constitution of the Kingdom of the Serbs, Croats and Slovenes stipulated that ‘the State shall encourage the fostering of nationality’. The question of nationality and nationalism was to be dealt with in the preliminary articles of the 1937 Constitution. This was complicated by the manner in which nationalism and republicanism had played a part in Ireland’s struggle for independence. The establishment of the state was also a more complicated matter than it had been in 1922—the question of the nature of the state and the relationship between the state and the citizen were permeated by issues such as religious teaching, which are present in other elements of the document.

Advancing the Republican Project

The institutional structures of the 1922 Constitution had prevented the nationalist Fianna Fail government from pursuing their aims in 1932. The general election in 1933 changed the political outlook. Its new political mandate allowed the returned Fianna Fail government to successively undermine the institutions of the state. This brought the Irish government into conflict with the British and Commonwealth governments. It was during this time period that the government determined to craft a new Constitution.

The Head of State

The governor-general had been viewed as a sign of imperial authority in the Irish Free State. Attempts to abolish the office had failed in 1932, but the abdication crisis in 1936 provided de Valera with the opportunity to remove the office from the constitution. It had been clear for some time that the intention was to replace the governor-general with a president. The question of what role and powers the president would have were, however, unclear. The president could, for example, be constructed on the lines of the American president, as head of the executive branch. The drafting process of the Irish presidency, however, discloses that the basis of the office was to be the ‘suspensory veto’. This idea, imported from continental constitutions, essentially provided the president with powers to suspend an action from taking effect until another body determined its suitability. The presidential articles also disclose the hitherto unappreciated key role that political actors such as the cabinet played in crafting the 1937 Constitution.

The Reception of the Irish Constitution: May–July 1937

The fact that the Constitution was drawn up by a small group meant that it was unclear how it would be treated when it was released to the wider world. The other parties in the Free State perceived it as a party measure and opposed it. Significantly, the provisions relating to women prompted a feminist response and a campaign for equality in the Constitution. Notwithstanding this opposition, the measure passed. The document was inspired by continental constitutions, and the reaction of countries in Europe and internationally is also assessed here.

The Abdication of King Edward VIII

The abdication of Edward VIII was constitutionally significant for the development of Irish constitutionalism in the 1930s. It allowed the Fianna Fail government to excise the governor-general from the Constitution, essentially removing the monarchical elements of the 1922 Constitution. The fact that British constitutional law meant that the assent of the Irish Free State was necessary to pass legislation meant that a compromise solution had to be reached. This cleared the way for a republican form of government to be inserted into the 1937 Constitution. The actions of the Irish Free State and South Africa also undermined a key element of one theory of the British Imperial Constitution.

Constitutional Drafting and Contemporary Debates

The 1937 Constitution was drafted on the basis of a series of overlapping theories of constitutionalism. These were the Commonwealth model of constitutionalism, liberal democratic theories of the head of state, and Catholic constitutional ideas of fundamental rights. The mix of these factors can be most clearly seen in the individuals responsible for the drafting process. The Constitution was drawn up and revised by a relatively small circle of people. This makes it possible to consider the views of individuals in relation to discrete questions such as the judicial review of legislation, constitutional courts, American constitutionalism and Catholicism.

The Drafters of the 1937 Constitution

The 1937 Constitution of Ireland is a melange of different, and sometimes conflicting, influences: nationalism, Catholicism, inter-war liberalism and the British parliamentary tradition. These influences have been considered in a number of recent volumes, but the drafting process has remained obscure. This book aims to clarify it by applying a sequence to the process: this method is set out here and, more fully, in the drafting appendix. It allows us to use 52 drafts to consider how drafting progressed. Before turning to the articles themselves, it is necessary to provide a brief overview of the various individuals involved in the drafting process and the intellectual arsenal that they had available to them in 1937.

Constitutional Transitions and Alterations

Constitutional drafting is often a technical exercise, but these technicalities come to assume a larger legal importance over time. Considering how to make an effective transition from one legal regime to another raises the question of the extent to which one wishes to carry over features of the prior legal regime. This was the case, for example, in relation to the royal prerogative in 1937. The transitional period, once fixed, would be then subject to the question of an amendment procedure. This was significant in 1937 as the question of whether certain articles should be protected from amendment had been a consistent one throughout the 1930s.