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DRAFTING
THE IRISH
CONSTITUTION,
1935–1937
TRANSNATIONAL
INFLUENCES IN
INTERWAR EUROPE
Donal K. Coffey
Palgrave Modern Legal History
Series Editors
Catharine MacMillan
The Dickson Poon School of Law
King’s College London
London, UK
Rebecca Probert
School of Law
University of Exeter
Exeter, UK
This series provides a forum for the publication of high-quality mono-
graphs that take innovative, contextual, and inter- or multi-disciplinary
approaches to legal history. It brings legal history to a wider audience by
exploring the history of law as part of a broader social, intellectual, cul-
tural, literary, or economic context. Its focus is on modern British and
Imperial legal history (post 1750), but within that time frame engages
with the widest possible range of subject areas.
vii
viii ACKNOWLEDGEMENTS
2 The Preamble 41
5 Institutional Structure 145
Conclusion 281
ix
x Contents
Bibliography 307
Index 309
Introduction
The Irish judiciary have long held that the 1937 Constitution of Ireland
‘is written in and construed in the present tense’.1 As a statement of con-
stitutional interpretation, this proposition is not without its merits.2
Nonetheless, the Constitution is also a historically embedded document.
It came into being in a period of intense historical significance, when the
liberal democratic regimes of Europe were crumbling. Moreover, it was
passed at a time when the involvement of the country in the British
Commonwealth of Nations was fraught. The relationship between Ireland
and its larger neighbour, legally based on the 1921 settlement, was strained
by the legal framework of the Commonwealth, which was perceived by the
Irish Government to constrain the political wishes of the Irish people as
expressed in the general elections of 1932 and 1933.
It is not possible to understand the constitutional history of Ireland in
the 1930s without due regard to this international context. The constitu-
tional changes which occurred between 1932 and 1936 were influenced
by the Commonwealth dimension. Successive constitutional changes were
designed to remove the possibility of external influence. The drafting of
the Constitution itself, particularly the provisions relating to the presi-
dency, was influenced by this relationship.
1
Brian Walsh, “200 Years of American Constitutionalism—A Foreign Perspective,” Ohio
State Law Journal 48 (1987): 769. See also McCarthy J, Norris v Attorney General [1984]
IR 36, 96.
2
It is not clear what other tense would be appropriate to write a constitution in.
xi
xii INTRODUCTION
3
This method of interpretation is most often associated in a judicial context with Antonin
Scalia. See A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton
University Press, 1997), 37–47. See also, for example, Keith E. Whittington, Constitutional
Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas: University of
Kansas Press, 1999).
4
On the plurality of legitimate methods of constitutional interpretation in the US context,
see Philip Bobbitt, Constitutional Interpretation (Oxford: Oxford University Press, 1991). A
similar view was advocated briefly in an Irish context by Hardiman J in Sinnott v Minister for
Education [2001] IESC 63, [294].
INTRODUCTION
xiii
Bibliography
Bobbitt, Philip. Constitutional Interpretation. Oxford: Oxford University Press,
1991.
English, Richard. ‘Directions in historiography: History and Irish Nationalism.’
Irish Historical Studies 37 (2011): 447–460.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton:
Princeton University Press, 1997.
Walsh, Brian. ‘200 Years of American Constitutionalism—A Foreign Perspective.’
Ohio State Law Journal 48 (1987): 757–771.
Whittington, Keith E. Constitutional Interpretation: Textual Meaning, Original
Intent, and Judicial Review. Kansas: University of Kansas Press, 1999.
5
Richard English, “Directions in Historiography: History and Irish Nationalism,” Irish
Historical Studies, 37 (2011): 454.
CHAPTER 1
1
See Laura Cahillane, Drafting the Irish Free State Constitution (Manchester: Manchester
University Press, 2016), 87–88; Leo Kohn, The Constitution of the Irish Free State (London:
George Allen & Unwin, 1932), 112–116.
THE DRAFTERS OF THE 1937 CONSTITUTION 3
ferred 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 con-
stitutional 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, ulti-
mately, 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 pre-
dominantly 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 differ-
ence between them was the resilience that a democratic framework pro-
vided. 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 diplo-
matic purposes. The decolonisation movement of the post-War period was
2
Cahillane, 47–65.
3
The State (Ryan) v Lennon [1935] 1 IR 170. On this case, see Donal K. Coffey, “The
Judiciary of the Irish Free State,” Dublin University Law Journal 33, no. 2 (2011):
70–73. See also Constitutionalism in Ireland, 1932–1938 Chaps. 1–2. The material outlined
here overlaps with chapter 4 of that volume.
4 D. K. COFFEY
4
See Keogh and McCarthy, The Making of the Irish Constitution 1937: Bunreacht na hÉire-
ann (Cork: Mercier Press, 2007), 78: ‘It is difficult to trace in detail the calendar of events
in mid 1936.’
THE DRAFTERS OF THE 1937 CONSTITUTION 5
papers, which offer the most complete set of drafts, are not all dated. This
presents a difficulty for a comprehensive understanding of the drafting
process. It is possible, however, to present a chronological ordering of the
majority, though not all, of the drafts in the de Valera papers. This has
been accomplished by tracking the textual changes that various articles
undergo from one draft to another. These drafts may then be listed sequen-
tially until they eventually link with a dated draft, of which there are 37.
The draft dating proceeds in this fashion:
drafting, but the English was the base text from which the Irish was trans-
lated.5 The sole exception to this appears to be a literal translation from an
Irish draft into English that was carried out in February 1937. Further
work on the Irish drafts will certainly enhance our understanding of the
drafting process, but this work focuses on the English drafts for two rea-
sons. First, the English version was the core text. Second, an analysis of the
Irish version requires an ability to understand and analyse Irish legal
terminology.
This is not to say that the method outlined here does not introduce a
further problem. By focusing on the sources that can be sequentially
ordered, there is always the possibility that existing drafts can be added to
the order, that the order itself could be questioned or re-ordered, or that
hitherto undiscovered drafts may be added. There is no way around this
difficulty in relation to the approach outlined here; in fact, such develop-
ments are to be welcomed when they occur.
As noted, the de Valera papers present the most valuable resource for
the drafting process, in particular the early drafts. However, other archival
sources also exist in the national archives and the John Charles McQuaid
papers. The chronology presented below and in the drafting appendix
indicates where there is overlap between these sources and the de Valera
papers.
The method used to select the relevant articles to analyse was predi-
cated on the draft dating method outlined above and contained in the
drafting appendix. The drafts were analysed to ascertain those in which
significant changes had occurred during the drafting process. If no changes
had occurred between the initial and final drafts, then there is little value
in a historical analysis of the relevant section. Those elements of the
Constitution which had undergone significant change, however, are
self-evidently the most interesting from a historical point of view. This
volume contains the material on the articles that underwent the most sig-
nificant change between October 1936 and the final draft.6 The one excep-
tion to this is Article 44, which deals with religion. The reason that this has
been omitted is straightforward. The drafting of this article was substantially
The method used to determine this was to compare the drafts of 19[?] October 1936
6
(University College Dublin Archives [hereafter ‘UCDA’]: P150/2385) and 2 March 1937
(UCDA: P150/2387) with the Constitution as enacted. Those provisions that disclosed
significant changes during the drafting process were then analysed.
THE DRAFTERS OF THE 1937 CONSTITUTION 7
The Drafters
The most useful way to track the input of the different parties is chrono-
logical. It may be useful first, therefore, to set out a skeleton timeline
when considering the influence of the various actors:8
7
Dermot Keogh, “The Irish Constitutional Revolution: The Making of the Constitution,”
in The Constitution of Ireland 1937–1987, ed. Frank Litton (Dublin: Institute of Public
Administration, 1988), 4–84.
8
For a fuller exposition of the drafting chronology, see the drafting appendix.
9
Michéal O Gríobhtha was seconded from the department of education to the department
of the president of the executive council on 19 October 1936 to translate the English draft
into Irish. He worked on it until the Dáil approved of it on 14 June 1937; see UCDA:
P122/103.
8 D. K. COFFEY
John Hearne
A recent biography of John Hearne by Eugene Broderick traces his career
as a supporter of the Irish Parliamentary Party and his attainment of the
offices of assistant parliamentary draftsman in 1923, legal adviser to the
department of external affairs in 1929 and primary draftsman of the Irish
Constitution in 1937.10 Hearne’s memoranda on the foundations of the
Irish Free State were important in the constitutional changes made in the
1930s, and in 1934 he sat as a member of the Constitution Review
Committee. Hearne’s drafting background and legal training made him
the natural candidate to be entrusted with the drafting of the 1937
Constitution.
The role of John Hearne was first given detailed treatment by Dermot
Keogh in 1986.11 In 1987, Brian Kennedy devoted two articles exclusively
to the influence of Hearne, published in The Irish Times12 and in Éire-
Ireland.13 These works are, however, not as extensive a treatment of
Hearne’s life as Broderick’s recent volume.
The usefulness of the method pioneered in this monograph is that it
forces us to limit our analysis of the Constitution to a more clearly linear
structure. To give an example of where this approach helps with recent
10
Eugene Broderick, John Hearne: Architect of the 1937 Constitution of Ireland (Dublin:
Irish Academic Press, 2017).
11
Dermot Keogh, The Vatican, the Bishops and Irish Politics, 1919–1939 (Cambridge:
Cambridge University Press, 1986), 208: ‘But who was most responsible for contributing to
the formulation of the new document over the two-year period? The central figure in the
process was unquestionably John Hearne—an able and knowledgeable civil servant who had
once been a student for the priesthood.’
12
Brian Kennedy, “The Special Position of John Hearne,” The Irish Times, 8 April 1987.
13
Brian Kennedy, “John Hearne and the Irish Constitution,” (1937)’, Éire-Ireland 24, no.
2 (1989), 121. See also Dermot Keogh, ‘The Irish Constitutional Revolution,’ 8–11.
THE DRAFTERS OF THE 1937 CONSTITUTION 9
On 30 April and 2 May, de Valera had meetings with John Hearne. A record
of these conversations has been preserved in a document which has come to
be known as ‘the squared paper draft’. This was written in de Valera’s own
handwriting on thirteen pages of a mathematics copy. It was his contempo-
raneous personal record of the conversations between the two men. It was
not a draft of a constitution; rather it was a record of discussions regarding
a proposed draft, an unofficial memorandum of dialogue and instructions.
While, unsurprisingly, de Valera dominated the deliberations, Hearne made
a significant contribution, as is apparent from an examination of the
document.14
14
Broderick, John Hearne, 88 (endnotes omitted).
15
Broderick, 88–91.
16
UCDA: P150/2370.
17
UCDA: P150/2370. ‘Eire’ is struck through.
10 D. K. COFFEY
Broderick’s analysis of the relationship between the two men is rich and
multi-textured, but his view of the importance of this source colours his
subsequent views to a certain extent, particularly in relation to Hearne’s
importance on the constitutional court question. The method used in this
book, however, avoids this problem.
The extent to which Hearne simply reflected the views of de Valera in
his work cannot be clearly gauged. As Hearne himself stated:
18
Hearne to Moynihan, 7 November 1963 (UCDA: P122/105).
19
UCDA: P150/300. The notes of these meetings were not exhaustive. O’Connell’s 1936
diary extended for the first week in January and she made a note of a meeting with Hearne
at 4.30 on 1 January 1937. In her diary for 1937, however, O’Connell noted two meetings
with Hearne on 1 January, one at 4.30 and one at 11.30 (UCDA: P150/302).
20
UCDA: P150/300.
21
UCDA: P150/300.
THE DRAFTERS OF THE 1937 CONSTITUTION 11
22
UCDA: P150/302.
23
Irish Independent, 6 January 1937.
24
Irish Independent, 16 January 1937.
25
UCDA: P150/2370.
26
Keogh, The Vatican, the Bishops and Irish Politics, 1919–1939, 207.
12 D. K. COFFEY
27
Details are taken from the Dictionary of Irish Biography.
28
Keogh, The Vatican, the Bishops and Irish Politics, 1919–1939, 207.
29
Iveagh House was donated to the State in 1939 and the department of external affairs
moved there afterwards.
THE DRAFTERS OF THE 1937 CONSTITUTION 13
De Valera
De Valera remained the leadership figure in the process. Maurice Moynihan
provided a description of de Valera’s ‘almost invariable practice’ in pro-
ducing the final draft of documents in the preface to Speeches and Statements
by Eamon de Valera 1917–73.35 His account is worth quoting extensively:
He did not ignore the efforts of his assistants, but he rarely accepted them
in their entirety or contented himself with few or only minor amendments.
He was scarcely less critical of his own first drafts, and he encouraged his
assistants to criticise these also and to suggest alterations. Every important
document was subject to revision again and again, with scrupulous attention
to exact shades of meaning and great care to foresee and avoid any possible
30
The extension number was 62321.
31
Sean-Pól MacCárthaigh, Portrait of a Mind: Maurice Moynihan and the Irish State,
1925–60 (MPhil Thesis, University College Cork, 2004), 34–52.
32
UCDA: P150/300.
33
National Archives of Ireland (hereafter ‘NAI’): Taois s.9715.
34
NAI: Taois s.9748.
35
Maurice Moynihan, ed. Speeches and Statements by Eamon de Valera 1917–73 (Dublin:
Gill & Macmillan, 1980).
14 D. K. COFFEY
The existing drafts of the Constitution indicate that this method was
also employed in the drafting of the Constitution.
The Cabinet
The influence of the cabinet on the drafting of the 1937 Constitution has
been overlooked. Professor Ronan Fanning highlighted the influence of
de Valera on the drafting process, to the exclusion of the cabinet:
Fanning also notes that the March committee was set up to revise the
draft:
With the new drafting chronology, we have a clearer view of the impor-
tance of the actors in the early drafting process. Cabinet input on the
Constitution was considerable, but it occurred before the drafts were cir-
culated to the departments. In particular, the cabinet meetings in October
36
Moynihan, xxvii–xxviii.
37
Ronan Fanning, “Mr. de Valera drafts a Constitution,” in De Valera’s Constitution and
Ours, ed. Brian Farrell (Dublin: Gill & Macmillan, 1988), 36.
38
Fanning, 37, endnotes omitted.
THE DRAFTERS OF THE 1937 CONSTITUTION 15
39
UCDA: P150/2374.
40
UCDA: P150/300. The diary also shows an executive council meeting on 27 October
but does not expressly link it with the Constitution. It seems possible that this meeting also
discussed the Constitution but, as it does not expressly mention it, I have not included it in
the main text.
41
2 April, 3 April and 4 April (UCDA: P150/300).
42
UCDA: P122/76.
43
UCDA: P150/2379.
44
J.J. Lee, Ireland 1912–1985: Politics and Society (Cambridge: Cambridge University
Press, 1998), 202.
16 D. K. COFFEY
actually taken’.45 There are two points which we can use to measure the
influence of the cabinet on the drafting process. First, the number of
meetings indicates that the cabinet had a considerable degree of input.
Second, there are substantive differences between the drafts which de
Valera brought to cabinet and those that emerged afterwards. This can be
seen most clearly in relation to the provisions on the institutions of state—
in particular the presidency.
On 5 November 1936, the Fianna Fáil parliamentary party discussed
the draft Constitution.46 The Irish Press contains the fullest account of this
meeting. It records that the meeting lasted from shortly after 11 a.m. until
7 p.m., with a break for lunch. The paper noted:
There was a frank and free expression of opinion at the invitation of Mr. de
Valera, who was anxious to have the suggestions of the Deputies particularly
on the method of constituting the new Second Chamber on the lines pro-
posed by the Minority Report of the Second Chamber Commission, which
advocated a House on vocational lines.47
The Jesuits
The leading article on the influence of the Jesuits on the drafting of the
1937 Constitution remains Seán Faughnan’s ‘The Jesuits and the
Drafting of the Irish Constitution of 1937’.48 On 4 September 1936,
Edward Cahill SJ sent a memorandum to de Valera entitled ‘Suggestions
Regarding the General or Fundamental Principles of the Constitution’.
This document was insufficiently precise for de Valera’s purposes. He
45
MacCárthaigh, Portrait of a Mind, 149.
46
Irish Press, 6 November 1936; Irish Independent, November 6, 1936.
47
Irish Press, 6 November 1936.
48
Seán Faughnan, “The Jesuits and the Drafting of the Irish Constitution of 1937,” Irish
Historical Studies 26, no. 101 (1988): 79. See also Keogh, “The Irish Constitutional
Revolution,” 11–19; Keogh and McCarthy, The Making of the Irish Constitution 1937,
94–105; and Finola Kennedy, “Two Priests, the Family and the Irish Constitution,” Studies
87 (1998): 353. The following account draws on Faughnan’s analysis. The author has exam-
ined the Jesuit archives and the de Valera papers and concurs in Faughnan’s judgment.
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