Legality of the enactment of the Constitution of Ireland

There are or have been diverging legal views on whether the 1937 Constitution of Ireland observed "legal continuity" with the 1922 Constitution of the Irish Free State it replaced. One view is that the 1937 Constitution did not observe legal continuity and was a legal revolution. The other view is that legal continuity was maintained and it was merely a legitimate amendment of the 1922 Constitution.

Legal Revolution

The following are the two main arguments raised in favour of the view that the 1937 constitution was a "legal revolution" and not merely an amendment of the 1922 constitution:

*The first argument concerns the the method of enactment of the 1937 Constitution. The method used conflicted with the method set down in the 1922 Constitution. The 1922 Constitution provided that constitutional amendments must be enacted in the same manner as ordinary laws, i.e. as Acts of the Oireachtas. However, the 1937 Constitution was not an Act of the Oireachtas. Instead, it was "approved" by Dáil Éireann (the sole house of parliament) and then submitted to the people in a plebscite and only deemed to have become law once voters had endorsed it.

*The second and related argument was that the 1937 Constitution purported to repeal the 1922 Constitution even though under the 1922 Constitution the Oireachtas did not have any legal authority to repeal it.

Legitimacy of 1937 Constitution under UK law

It is clear that the 1922 Constitution Act could be amended as far as British law was concerned. In the United Kingdom the 1922 Constitution owed its validity to an Act of the Constituent Assembly established under British law and therefore derived its legitimacy from an Act of the British Parliament: the Irish Free State Constitution Act. In 1931 the British Parliament passed the Statute of Westminster. This Statute renounced the British Parliament's right to legislate for the Irish Free State. It also granted the Oireachtas the authority to amend all laws affecting the State including both of the 1922 Constitution Acts. Thus as far as British law was concerned amendments to the 1922 Constitution Acts could be legitimate. However, that does not necessarily mean that the enactment of the 1937 Constitution could be considered legitimate under British law. This is because the 1937 Constitution was not adopted in accordance with any law. Others have argued that even the adoption of the 1937 Constitution could be considered legitimate under British law because it could somehow be considered an amendment of the 1922 Constitution. Paradoxically, this was a proposition that the 1937 Constitution's sponsors themselves could not accept. To accept this argument would have been to recognise that the law of an alien parliament (the Statute of Westminster) could affect constitutional matters in Ireland.

How the 1922 Constitution was adopted

The 1922 Constitution was adopted in a complex manner. This arose from the fact that its enactment coincided with the secession of the Irish Free State from the United Kingdom. The fundamental law of the Irish Free State took the form of three documents, the:

*the Constitution of the Irish Free State
*Irish Free State (Saorstát Éireann) Constitution Act (enacted by the Constituent Assembly); and
*Constitution of the Irish Free State Act (enacted by the British parliament).

Background

Under the 1922 Constitution amendments were governed by Article 50. Article 50, at the time the 1937 Constitution was adopted, provided that constitutional amendments could be enacted by the Oireachtas under the same procedure used for the adoption of ordinary laws. De Valera's government repudiated the 1922 Constitution as an unrepublican, foreign imposition and so deliberately provided that the new constitution would be adopted by in a manner outside the terms of the 1922 Constitution. The preamble to the 1922 Constitution described it as an enactment of the Constituent Assembly. The framers of the 1937 Constitution decided that it would be enacted not by an elected body but by the people themselves by means of a plebiscite. The preamble to the 1937 Constitution is thus written in the name not of the legislature but of "We, the people of Éire". The government desired that the document be approved by the people's elected representatives before being put to a vote. However, instead of it being "enacted" by the Oireachtas in the same manner as a constitutional amendment, the standing orders of the Dáil were changed so that it could pass a resolution by which it merely "approved" the draft constitution without it therefore immediately becoming law.

Before 1936 the Oireachtas was bicameral, consisting of the Dáil and a senate. However by the time the Dáil was considering the 1937 Constitution the Senate had been abolished, and thus, while the Oireachtas and the Dáil (the sole "house of parliament") technically remained separate organs of government, the distinction between them was purely a formality, and every Bill passed by the Dáil automatically became law as an "Act of the Oireachtas". Nonetheless, the 1922 Constitution required that each constitutional amendment take the form of such an Act. In spite of these provisions the 1937 Constitution was not "enacted" by the "Oireachtas" but merely "approved" by "Dáil Éireann". Instead of enacting the 1937 Constitution itself the Oireachtas passed the Plebiscite (Draft Constitution) Act, 1937. This merely provided for the holding of a plebscite on the draft constitution while making no provision for the status of the draft document should it be passed by the electorate. The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?".

Footnotes

fnb|1 Dáil Éireann was at that stage the sole house of parliament, because Seanad Éireann had been abolished the previous year because of its opposition to certain constitutional amendments.

ee also

*History of the Republic of Ireland
*Constitutional amendment

External links

* [http://historical-debates.oireachtas.ie/en.toc.dail.html Historical Dáil debates] from official [http://www.oireachtas.ie Oireachtas website] .