The first chapter of this book charts the constitutional development of the Fianna Fáil party in the Irish Free State up to 1933.1 It considers why the Irish Free State Constitution failed both politically and legally. The constitutional arguments advanced by Fianna Fáil until they achieved a parliamentary majority in 1933 were characterised by one unifying thread: they were unsuccessful. Nonetheless, it is not possible to fully appreciate the successful activities of the 1930s without considering the failures which preceded them.
The Failure of the Constitution ofthe Irish Free State
The Constitution of the Irish Free State was passed on 25 October 1922 by the Third Dáil.2 It was underpinned by the Articles of Agreement for a Treaty between Great Britain and Ireland, commonly known as ‘the treaty’, and attracted the support of both the pro-treaty Cumann na nGaedheal party and the Labour Party . Kevin O’Higgins, Minister for Home Affairs, believed that the Constitution ‘should be prized by the people’ because of the degree of autonomy it gave them over their own affairs.3
It did not, however, attract the support of the anti-treaty forces. In the 1930s, the antipathy of the anti-treaty deputies in Dáil Éireann was to prove fatal to the 1922 Constitution. The demise of the 1920s political settlement was, however, aided by a number of structural features of the Constitution itself, these structural features provided ideological as well as legal succour to the anti-treaty deputies in the 1930s.
The major structural impediment to the viability of the Free State project is, by now, well understood. The 1922 Constitution provided, by virtue of Article 50, a majority legislative amendment power of the Constitution which was limited only by the terms of the Anglo-Irish treaty of 1921.4 This power was interpreted by the courts to allow amendments by express and implied statutory provisions.5 Such a wide power undermined the ability of the courts to judicially review legislation on the grounds of constitutional invalidity.6
It is not, however, the case that simply because judicial review proved ineffective that the Free State Constitution was doomed. Countries such as the United Kingdom and New Zealand have survived with a similarly broad constitutional power. In those countries, the only limit on the powers of the legislature are political ones.7 The continued vitality of those political settlements indicates that consensual political limits can also provide a durable, albeit malleable, constitutional structure. There was, therefore, a second failure in the Free State political system—the failure to provide the means of political expression to those hostile to the treaty settlement within the constitutional structure of the Free State. The first, perhaps insurmountable, difficulty was the refusal of the anti-treaty deputies to accept the treaty to the extent of fighting a civil war. It is not clear that such expression could be trammelled within the boundaries of the Constitution itself, given that acceptance of the treaty was the sine qua non of the 1922 Constitution. The second, related, failure was that the experience of the 1920s was that the Constitution would be amended by Cumann na nGaedheal in order to protect the treaty settlement. The attempt by Fianna Fáil to bend the machinery of the Constitution to its aim in 1927 was ultimately scuppered by this political reality. Moreover, although the Cumann na nGaedheal government was singularly impressive in its contributions to the imperial conferences from 1926 onwards, it failed to negotiate significant constitutional advances within the rubric of the treaty with the British government , particularly in relation to the right of appeal to the Judicial Committee of the Privy Council .8 The potential for a political constitutional settlement foundered on the antipathy of the Fianna Fáil party to the treaty, the intransigence of Cumann na nGaedheal on the treaty, and the truculence of the British administration relating to proposed changes. We will consider each of these elements in turn.
Political Settlement and the Free State Constitution
Sinn Féin was an abstentionist party which refused to take its seats in the Free State Parliament. In March 1926, Éamon de Valera , president of the anti-treaty Sinn Féin party, proposed that if the oath of allegiance to the king were abolished then abstentionism would become a matter of policy, not principle. This motion was defeated and on 23 March 1926 de Valera founded a new party, Fianna Fáil, in the La Scala theatre.
Fianna Fáil’s first manifesto set out a National Programme of 22 points;9 the first six were constitutional. The party would:
- 1.Assert the right of the nation to its complete freedom.
- 2.Oppose all claims of any foreign power to dictate to them or to interfere in any way in the government of Ireland.
- 3.Repudiate any assent to the partition of Ireland, and strive resolutely to bring partition to an end.
- 4.Remove from the assemblies of the people’s representatives all acts of subservience to the United Kingdom, all oaths of allegiance and all political tests.
- 5.Bring together in one national assembly all the parliamentary representatives of the people.
- 6.Replace the Free State Constitution, with its articles dictated by England, by a Constitution freely framed by the representatives of the people.
This National Programme formed the basis of constitutional action for the Fianna Fáil government in the 1930s.10 De Valera used his first three addresses to the party’s annual ard-fheiseanna, or party political conference, to adumbrate the deficiencies of the Free State Constitution.11 De Valera repeatedly emphasised the importance of having majority rule to determine national policy. He believed that the oath of allegiance prevented the establishment of majority rule in the country because it excluded abstentionist representatives. He also repeatedly stated his wish for the removal of all forms of external interference with the government of the country. The most important Fianna Fáil document in terms of constitutional analysis in the period establishing the party, however, was the pamphlet, King and Constitution, written by the journalist Frank Gallagher .12
In 1926, Fianna Fáil circulated the first of what were to be four pamphlets on policy matters. The second of these pamphlets was the one written by Gallagher .13 The aim of the pamphlet was to prove the case for the principle laid out in Fianna Fáil’s ‘Programme for Action’, that is, to ‘[r]eplace the Free State Constitution with its articles dictated by England by a Constitution freely framed by the representatives of the Irish People’. Constitutional governance ‘must, if it is to have popular support, conform to the tradition shared by the people or, at the very least, must in no way conflict with it’.14 This principle was defined within the nationalist tradition as follows:
The freed peoples, having been made wise by long suffering, see into the future and know that the first act of a liberated democracy must be to lay securely the foundations of a free national life. The laying of these foundations is completed when a Constitution is drafted and made law having the real consent of the people, expressing the national faith, and giving unbridled scope to the national genius.15
Needless to say, the Constitution of the Irish Free State was seen as failing this test. Gallagher referred to the ‘Preamble’ as establishing the Constitution subordinate to the Anglo-Irish treaty, which was signed under the threat of ‘immediate and terrible war’.16 Gallagher’s main argument against the 1922 Constitution was that Griffith took a Constitution to London which he believed was consistent with the Anglo-Irish treaty but that this document was revised to comply with British objections:
[W]e find of the 83 original clauses, every clause that was not merely technical was altered, thirty being practically re-written. For instance, in the Draft Constitution there is no Oath, no recognition of the British King, no Governor-General. There is no supremacy given over the Irish courts to the British Privy Council, no recognition of Partition, no acceptance of imperial citizenship . There is no ‘co-equality’ with English colonies, no limitation of Ireland’s international statue, no summoning and dissolving of Parliament in the English King’s name, no involve...