The Irish Constitution of 1937

Irish Free State - Scott #68 (1922)
Irish Free State – Scott #68 (1922)

On December 29, 1937, the Constitution of Ireland (Bunreacht na hÉirean) came into effect. The state was named Ireland (Éire in the Irish language), and a new office of President of Ireland was instituted in place of the Governor-General of the former Irish Free State. The Constitution of 1937 is the fundamental law of the Republic of Ireland. It asserts the national sovereignty of the Irish people. The new constitution claimed jurisdiction over all of Ireland while recognizing that legislation would not apply in Northern Ireland. Articles 2 and 3 were reworded in 1998 to remove jurisdictional claim over the entire island and to recognize that “a united Ireland shall be brought about only by peaceful means with the consent of a majority of the people, democratically expressed, in both jurisdictions in the island”.

The constitution falls broadly within the tradition of liberal democracy being based on a system of representative democracy. It guarantees certain fundamental rights, along with a popularly elected non-executive president, a bicameral parliament based on the Westminster system, a separation of powers and judicial review.

Previously, the Irish Free State (Saorstát Éireann) had been established on December 6, 1922, as a Dominion of the British Commonwealth of Nations under the Anglo-Irish Treaty of December 1921. That treaty ended the three-year Irish War of Independence between the forces of the self-proclaimed Irish Republic, the Irish Republican Army (IRA), and British Crown forces. It comprised 26 of the 32 counties of Ireland. Northern Ireland, which comprised the remaining six counties, exercised its right under the Treaty to opt out of the new state.

The Free State government consisted of the Governor-General, the representative of the king, and the Executive Council (cabinet), which replaced both the revolutionary Dáil Government and the Provisional Government set up under the Treaty. W. T. Cosgrave, who had led both of these governments since August 1922, became the first President of the Executive Council (prime minister). The legislature consisted of Dáil Éireann (the lower house) and Seanad Éireann, also known as the Senate. Members of the Dáil were required to take an Oath of Allegiance, swearing fidelity to the king. The oath was a key issue for opponents of the Treaty, who refused to take the oath and therefore did not take their seats. Pro-Treaty members, who formed Cumann na nGaedheal in 1923, held an effective majority in the Dáil from 1922 to 1927, and thereafter ruled as a minority government until 1932.

In 1931, with the passage of the Statute of Westminster, the Parliament of the United Kingdom relinquished its remaining authority to legislate for the Free State and the other dominions. This had the effect of making the dominions fully sovereign nations. The Free State thus became the first internationally recognized independent Irish state.

In the first months of the Free State, the Irish Civil War was waged between the newly established National Army and the anti-Treaty IRA, who refused to recognize the state. The Civil War ended in victory for the government forces, with the anti-Treaty forces dumping their arms in May 1923. The anti-Treaty political party, Sinn Féin, refused to take its seats in the Dáil, leaving the relatively small Labour Party as the only opposition party. In 1926, when Sinn Féin president Éamon de Valera failed to have this policy reversed, he resigned from Sinn Féin and founded Fianna Fáil. Fianna Fáil entered the Dáil following the 1927 general election, and entered government after the Irish general election, 1932, when it became the largest party.

De Valera abolished the Oath of Allegiance and embarked on an economic war with Britain. In 1937 he drafted a new constitution, which was passed by a referendum in July of that year. The Irish Free State came to an end with the coming into force of the new constitution on December 29, 1937.

There were two main motivations for replacing the 1922 Constitution in 1937. Firstly, the 1931 Statute of Westminster granted parliamentary autonomy to the six British Dominions (now known as Commonwealth realms) within a British Commonwealth of Nations. This had the effect of making the dominions sovereign nations in their own right. The Irish Free State Constitution of 1922 was, in the eyes of many, associated with the controversial Anglo-Irish Treaty. The anti-treaty faction, who opposed the treaty initially by force of arms, was so opposed to the institutions of the new Irish Free State that it initially took an abstentionist line toward them, boycotting them altogether. However, the largest element of this faction became convinced that abstentionism could not be maintained forever. This element, led by Éamon de Valera, formed the Fianna Fáil party in 1926, which entered into government following the 1932 general election.

After 1932, under the provisions of the Statute of Westminster, some of the articles of the original Constitution which were required by the Anglo-Irish Treaty were dismantled by acts of the Oireachtas of the Irish Free State. Such 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. Nevertheless, the Fianna Fáil government still desired to replace the constitutional document they saw as having been imposed by the British government in 1922.

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 Gaelic nomenclature.

De Valera personally supervised the writing of the Constitution. It was drafted initially by John Hearne, legal adviser to the Department of External Affairs (now called the Department of Foreign Affairs). It 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 Irish Department of Education. 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 The Rt Rev. John Charles Monsignor McQuaid, the then President of Blackrock College, on religious, educational, family and social welfare issues. Monsignor McQuaid later became, in 1940, the Catholic Archbishop of Dublin. Other religious leaders who were consulted were: Archbishop Edward Byrne (Roman Catholic), Archbishop John Gregg (Church of Ireland), Rev. William Massey (Methodist) and Dr James Irwin (Presbyterian).

There are a number of instances where the texts in English and Irish clash, a potential dilemma which the Constitution resolves by favoring the Irish text even though English is more commonly used in the official sphere.

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 Eugenio Cardinal Pacelli, the future Pope Pius XII, said of the final amended draft: “We do not approve, neither do we disapprove; We shall maintain silence.” 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.

The text of the draft constitution, with minor amendments, was approved on June 14, 1937, by Dáil Éireann (then the sole house of parliament, the Seanad having been abolished the previous year).

The draft constitution was then put to a plebiscite on July 1 (the same day as the 1937 general election), when it was passed by a plurality. 56% of voters were in favor, comprising 38.6% of the whole electorate. The constitution formally came into force on December 29.

Among the groups who opposed the constitution were supporters of Fine Gael and the Labour Party, Unionists, and some independents and feminists. The question put to voters was simply “Do you approve of the Draft Constitution which is the subject of this plebiscite?”.

When the draft new constitution was published, the Irish Independent described it as one of Mr. de Valera’s “finest tributes to his predecessors”. The Irish Times criticized the constitution’s assertion of a territorial claim on Northern Ireland, and the absence in its text of any reference to the British Commonwealth. The London-based Daily Telegraph included in its criticism the special position assigned to the Church of Rome under the new constitution. The Sunday Times concluded it would only help to “perpetuate division” between Dublin and Belfast. The Irish Catholic concluded it was a “noble document in harmony with papal teachings”.

When the new constitution was enacted, the British government, according to The New York Times, “contented itself with a legalistic protest”. Its protest took the form of a communiqué on December 30, 1937, in which the British stated:

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 recognise 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 other governments of the British Commonwealth countries chose to continue to regard Ireland as a member of the British Commonwealth.[14] A proposal by the Northern Ireland government that Northern Ireland be renamed “Ulster” in response to the new Irish constitution was aborted after it was determined that this would require Westminster legislation.

The Irish government received a message 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.”

Any part of the Constitution may be amended, but only by referendum. The procedure for amendment of the Constitution is set out in Article 46. An amendment must first be passed by both Houses of the Oireachtas, then be submitted to a referendum, and then finally must be signed into law by the President.

Amendments are sometimes proposed to address a new social problem or phenomenon not considered at the time of the Constitution being drafted (e.g. children’s rights, marriage equality), to address out-moded provisions in the Constitution (e.g. special position of the Roman Catholic Church, prohibition on abortion), or to attempt to reverse or alter an interpretation of the court through a corrective referendum (e.g. Oireachtas enquiries). Usually referendums are only proposed when there is wide political support for the proposed change.

The constitution begins with words “We, the people of Éire“. It then declares, in Article 4, that the name of the state is “Éire, or, in the English language, Ireland”. The text of the draft constitution as originally introduced into the Dáil had simply stated that the state was to be called Éire, and that term was used throughout the text of the draft constitution. However, the English text of the draft constitution was amended during the parliamentary debates to replace “Éire” with “Ireland”. The only exceptions were the preamble, in which “Éire” is used alone, and Article 4, which was amended so as to refer to both “Éire” and the alternative English language name of “Ireland”. The name of the state was the subject of a long dispute between the British and Irish governments which has since been resolved.

In 1949, the Irish state abandoned its few remaining constitutional ties with the British monarchy and it was declared by an Act of the Oireachtas that the term “Republic of Ireland” could be used as a “description” for the Irish state. However, there is debate as to whether or not the state was a republic in the period 1937–1949; between these dates the state was not described in any law as a republic. The current text of the Constitution does not mention the word “republic”, but does for example assert that all power is derived, “under God, from the people” (Article 6.1).

Debate largely focuses on the question of whether, before 1949, the head of state was the President of Ireland, or King George VI. The Constitution did not directly refer to the King, but also did not (and still does not) state that the President was head of state. The President exercised most of the usual internal functions of a head of state, such as formally appointing the Government, and promulgating laws.

In 1936, before the enactment of the existing Constitution, George VI had been declared “By the Grace of God, of Great Britain, Ireland and the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India” and, under the External Relations Act of the same year, it was this King who formally represented the state in its foreign affairs. Treaties, for example, were signed in the name of the King, who also accredited ambassadors and received the letters of credence of foreign diplomats. Representing a state abroad is seen by many scholars as the key characteristic of a head of state. This role meant, in any case, that George VI was the Head of State in the eyes of foreign nations.

However, the removal of the King’s constitutional position within Ireland was brought about in 1948 not by any change to the Constitution, but by ordinary law (the Republic of Ireland Act 1948). Since the Irish state was unambiguously a republic after 1949 (when the 1948 Act came into operation), and the same Constitution was in force prior to that time, some have argued that the Irish state was in reality a republic from the Constitution’s enactment in 1937.

Scott #68 was the first stamp issued by the Irish Free State, released on the date of its establishment, December 6, 1922. A number of British stamps had been overprinted beginning on February 17, 1922, by the Provisional Government of Ireland (Rialtas Sealadach na hÉireann) overprints were initially issued on February 17, 1922. British stamps were also overprinted by the Irish Free State between December 11, 1922, and 1937. For a little more on the overprints, please see my ASAD country profile about Ireland.

Following the overprints, a regular series of definitive stamps was produced by the new Department of Posts and Telegraphs, using domestic designs. These definitives were issued starting on December 6, 1922; the first was a 2-pence stamp, depicting a map of Ireland (including Northern Ireland, which remained a part of the United Kingdom). The first twelve stamps, the low values up to 1 shilling, were issued during 1922–1923, while the three high values, 2/6, 5/- and 10/-, did not appear until September 8, 1937. Designs included: Sword of Light, Map of Ireland, Celtic Cross, Arms of the Four Provinces and St. Patrick. Watermark and extra values were made until new designs, known as the Gerl definitives, using early Irish art motifs, were produced in 1968.

The Map of Ireland stamps were designed by J. Ingram and printed using typography by the Government Printing Works in Dublin using plates made by the Royal Mint in London, Scott #68 — the 2-penny deep green stamp — is perforated 15×14 on paper bearing an “Es” watermark. A number of varieties exist including sideways, inverted and reversed watermarks. A booklet pane of six stamps is listed as Scott #68a.

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