The 1937 Constitution of Ireland is a mélange 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 Drafting in the Inter-War Period
The inter-war constitutions are an endangered breed. In Europe, the last remaining constitution from the time is that of Ireland, which was drafted and ratified in 1937. Certain features of it were characteristic of the European trend at the time: popular sovereignty, a head of state wielding a suspensive veto , extensive liberal rights provisions, and provisions relating to economic rights and the organisation of the state were all new features that appeared in liberal democracies after the end of the First World War. The archetype of this new constitutional structure was the 1919 Constitution of the Weimar Republic, although individual features could be seen in the 1918 Constitution of the Russian Socialist Federal Soviet Republic and the 1917 Constitution of the United States of Mexico . That they were inter-war trends can be seen in their absence from, for example, the 1915 Constitution of Denmark and the Constitutional and the Organic Laws of France between 1875 and 1919.
The inter-war years were a time of constitutional experimentation, which was to end in failure in most instances. Nonetheless, in the early 1920s liberal democracies were ascendant in Europe; it was only as the decade progressed that their precariousness was exposed and they were undermined—first in Italy in 1922, then in Poland and Portugal in 1926, and finally in the Kingdom of the Serbs, Croats and Slovenes in 1929 (this state became, in the process, Yugoslavia). The tendency as the 1920s waned and the 1930s dawned was towards greater authoritarian rule, and the constitutions formed in the wake of the change in the political atmosphere reflected that change. When Austria introduced a constitution in 1934, for example, it moved from a liberal constitution written by Hans Kelsen in 1920 to a corporatist dictatorship. This was, in part, influenced by the teachings of the Catholic Church in the 1930s, which emphasised corporatism as a ‘third way’ between communism and laissez-faire economics. The one European exception before 1937 was the admirable but doomed 1931 Constitution of the Second Spanish Republic.
In 1937, the Irish Free State was a member of the British Commonwealth of Nations, and the drafting of the 1922 Constitution bore the traces of this influence. The institutions of state were broadly comparable to those of the other dominions—the Crown was present in all three branches of government. The head of the executive council was the governor-general, who was required to sign legislation, and there still existed the appeal to the Judicial Committee of the Privy Council in 1922 . These provisions were gradually removed, until in 1936 all traces of the Crown had been removed from the Free State Constitution. The Irish Free State’s time as a constitutional monarchy had drawn to a close. This Commonwealth constitutionalism was in tension with the other underpinning element of the 1922 Constitution: popular constitutionalism.1 The tension between these concepts mirrored the division between the Irish and British negotiators of the 1922 Constitution: the Irish preferred the popular constitutional model, while the British preferred the monarchical elements.2 The position in 1936 was a confused one: the monarchical elements of the Constitution had been removed, but the provisions of the Constitution remained subject to the Articles of Agreement for a Treaty between the United Kingdom and Ireland which imposed constitutional limitations on the Free State according to the Irish courts.3
It was in this maelstrom of constitutionalism that the Irish Constitution was drafted in 1937. It bears the traces of these constitutional debates and is situated at the cross-currents of European constitutionalism at the time. The institutions of state that were established were that of a broadly liberal democracy , although with the possibility of corporatism if that was, ultimately, what the people wanted. In 1922, the Irish Free State Constitution enshrined a series of liberal rights. This was expanded in 1937 to include provisions relating to social and economic rights. The drafting of these new articles again reflects the tensions to which the 1937 Constitution was subject: the expansion of rights proceeded along the lines of the liberal constitutions, but the examples drawn upon for the articulation of those rights were derived primarily, at least in the first instance, from illiberal regimes—from Portugal and Poland in particular. Constitutional courts , corporative chambers, territorial questions—all were of this time, and all were wrestled with in the drafting process. The success of the Irish Constitution may be said to derive from its institutional resilience—it is notable that the provisions establishing the organs of state were not predominantly the product of the authoritarian tradition. This was to prove important in terms of the viability of the Constitution in the longer term. It is notable, for instance, that the constitutions of Portugal and Spain which survived the inter-war period both collapsed in the 1970s as a result of their reliance on authoritarianism. Both of these constitutions, and the Irish, were influenced substantively by Roman Catholicism—one difference between them was the resilience that a democratic framework provided. Another difference that should not be forgotten was the colonial nature of many of the European constitutions of the time. Article 1 of the Portuguese Constitution of 1933 included references to ‘West Africa’, ‘East Africa’, ‘Asia’ and ‘Oceania’, and continued in Subsection 2 that the only territory that could be acquired by a foreign country was for diplomatic purposes. The decolonisation movement of the post-War period was to place considerable pressure on the constitutional structures of those countries with colonies. Ireland obviously had no overseas territories. It is notable, however, that the territorial claim that Ireland did make, through Articles 2 and 3, to Northern Ireland, was removed as part of the Good Friday Agreement in the 1990s.
The institutional resilience of the Irish Constitution is significant in the sense that the institutions were framed by the earlier liberal democratic constitutions of this period. The suspensive veto and judicial review of legislation are the best examples of this. The Irish Constitution was, ultimately, a mixture of four broad trends: Commonwealth constitutionalism; popular constitutionalism; the liberal democratic constitutionalism in the immediate aftermath of the First World War; and Catholic corporate thought. The first, Commonwealth constitutionalism, is a shadow of its importance in the Irish Free State Constitution . As already outlined, t...