Structure As enacted, the Constitution proper consisted of 83 separate articles, totalling around 7,600 words. The
Constitution of the Irish Free State (Saorstát Éireann) Act 1922 consisted of only a short preamble and three short sections, but was a far longer document because, as noted above, it included as schedules the full text of both the constitution proper and the Anglo-Irish Treaty. The articles of the Constitution proper were not grouped together under headings, save for the final ten articles (which came under the title of "Transitory Provisions"). However, divided by subject matter the articles of the Constitution broke down roughly as follows: • Introductory provisions (Arts. 1–4) • Fundamental rights (Arts. 5–10) • Legislature (Arts. 13–46) • Dáil Éireann (Arts. 26–29) • The Senate (Arts. 30–34) • Initiative and referendum (Arts. 47–48) • Constitutional amendments (Art. 50) • Cabinet (Arts. 51–59) • Governor-General (Art. 60) • Regulation of state finances (Arts. 61–63) • Courts (Arts. 64–72) • Transitory Provisions (Arts. 73–83)
Preamble The constitution itself had no preamble. However, the
Constitution of the Irish Free State (Saorstát Éireann) Act 1922 began with the following words:
Characteristics of the state •
Commonwealth membership: Article 1 stated that the state would be a "co-equal member" of the British Commonwealth. •
Popular sovereignty: It was stated that the "all powers of government... are derived from the people of Ireland" (Article 2). •
Citizenship: The constitution provided that those living in the state at the time of its coming into force who had been born in Ireland, had parents born in Ireland or had been resident in the state for seven years would become citizens. However anyone who was the citizen of another state could choose not to become an Irish citizen (Article 3). •
National language: It was provided that Irish was the "National Language" but English was "equally recognised as an official language" (Article 4). The constitution included the terms
Saorstát Éireann (as one name for the Irish Free State),
Oireachtas (for the legislature), and
Dáil Éireann and
Seanad Éireann (for the houses of the legislature), all of which were intended for use even in English speech.
Individual rights Unlike the then constitutions of Australia and Canada, the constitution included a
bill of rights, in Articles 6–10. Rights were also protected by a number of provisions contained in other articles. •
Prohibition of titles of nobility: It was provided that no title of honour, including
knighthoods and
peerages, could be conferred on an Irish citizen in respect of any services rendered in or in relation to the Irish Free State without the consent of the Executive Council (Article 5). • '
Liberty and habeas corpus'''
: Article 6 provided that no-one could be deprived of liberty except in accordance with the law, and that habeas corpus'' would be upheld. The military forces were granted an exemption from this article during time of war or rebellion. •
Inviolability of the home: The home could not be entered except in accordance with the law (Article 7). •
Freedom of conscience and worship: Protected by Article 9 subject to "public order and morality" (Article 8). •
Prohibition of establishment: The state could not "endow" any religion (Article 8). •
Religious discrimination: The state could not discriminate on religious grounds (Article 8). •
Freedom of speech, assembly and association: All guaranteed subject to "public morality". Laws regulating freedom of assembly and association could not be discriminatory (Article 9). •
Right to education: Free elementary education guaranteed to all citizens (Article 10). •
Trial by jury: Guaranteed by Article 72, which granted an exemption for minor offences and offences triable by
court martial. The constitution empowered the courts to strike down laws they found to be unconstitutional. However judicial review of legislation was made largely meaningless by the ease with which the Oireachtas could alter the constitution. Furthermore, as the state had only recently seceded from the UK, Irish judges were trained in British jurisprudence. To this tradition, founded on deference to the legislature and
parliamentary sovereignty, constitutional review was an alien concept. This meant that despite the adoption of a new, more rigid constitution in 1937, constitutional review did not become a significant feature of Irish jurisprudence until the 1960s. During the entire period of the Free State, only two pieces of legislation were declared by the courts to be unconstitutional. The Free State had significant problems with public order in early years. It was founded during the
Irish Civil War which did not come to an end until May 1923, and thereafter there were continuing problems of public disorder and subversive activities by the
Irish Republican Army (IRA). This situation led to an erosion of civil rights in the new state. During the Civil War a law provided the death penalty for the crime of unlawful possession of a
firearm, and more than seventy people were executed for the offence. Strong security measures continued to be used after the war's conclusion; these included internment of former rebels and the punishment of
flogging for arson and
armed robbery, introduced in 1924.
Article 2A In 1931, acting in response to IRA violence, the Oireachtas adopted Amendment No. 17 of the constitution. This added a sweeping set of provisions called Article 2A to the constitution. Article 2A was very large, consisting of five parts and 34 sections. Among other provisions it granted powers of arrest, detention and trial of people before military tribunals not bound by normal rules of evidence, despite the fact that many crimes triable before the tribunals carried a mandatory death sentence. To protect itself from being undermined by the courts, Article 2A was drafted to state that it took precedence over all other provisions of the constitution (save Article 1). The provisions for military tribunals were challenged in 1935 in the case of The State (Ryan) v. Lennon. In this case the majority of the Supreme Court reluctantly held that, because Amendment No. 17 had been duly adopted in accordance with the correct procedure, it was not open to the judges to strike it down. However Chief Justice Kennedy disagreed, arguing, in a dissenting opinion, that the Article 2A violated
natural law.
Economic and social rights The drafting committee considered the inclusion of economic and social rights in the Irish constitution. C.J. France proposed provisions to ensure state control of natural resources. He further proposed that the state would capture the "unearned increment" arising from land value increases, thereby checking speculation in land and promoting investment in industrial development. During the parliamentary debates on the constitution, Labour TDs such as Tom Johnson and T.J. O’Connell proposed the inclusion of modest welfare measures as well as provisions to protect children's rights. These proposals met with opposition. The economist, George O’Brien, and Archbishop Harty both questioned the social provisions' economic viability as well as their political viability given their potential to alienate conservative, land-owning supporters of the Treaty. British law officers further objected to the "Soviet character" of the constitution's declaration of "economic sovereignty". The Provisional Government dropped the offending provisions. Ultimately, the 1922 Constitution was limited to two "programmatic declarations" only, one specifying a pre-existing right to elementary education (Article 10) and the other providing for the possibility of state ownership of national resources (Article 11).
Organs of government The constitution provided for a parliamentary system of government. The legislature was called the
Oireachtas, consisting of the
monarch and two houses: the Chamber of Deputies, to be known generally as
Dáil Éireann, was established as the
lower house, and the Senate, to be known generally as
Seanad Éireann, as the
upper house. The Seanad had only limited powers of delay so the Dáil was the dominant house. Executive authority was vested in the King and exercised by the
Governor-General of the Irish Free State, who would appoint an
Executive Council to "aid and advise" him. The Executive Council was headed by a prime minister, the
President of the Executive Council. In practice, however, the President was nominated by the Dáil and formally appointed by the Governor-General. The President then nominated the remaining members of the Executive Council, and designated one of its members as
Vice-President of the Executive Council, or deputy prime minister. The Dáil was empowered to dismiss it by a
vote of no confidence. The Constitution stipulated that executive authority was to be exercised in accordance with the laws and conventions of the
Dominion of Canada. Thus, with few exceptions, the Governor-General was bound by convention to act on the Executive Council's advice. The constitution provided that the
judiciary would consist of the
Supreme Court, the High Court, and any lower courts established by law.
Initiative and referendum As originally adopted the constitution contained (in Articles 47, 48 and 50) innovative provisions for
direct democracy but, owing to constitutional amendments, these provisions were never permitted to come into effect. The provisions stated that the referendum and initiative would operate on the same franchise as the Dáil; this was
universal suffrage beginning at the age of 21. The constitution provided for three forms of direct democracy: •
Constitutional referendum: After an initial period all
constitutional amendments would be subject to a mandatory, binding
referendum. An amendment would not be deemed to have been passed unless at least a majority of registered voters participated in the referendum and the votes in favour were equal to either: (1) a majority
of all eligible voters, or (2) a two-thirds majority of
votes cast. This provision was stricter than the modern Constitution of Ireland, which merely requires a majority of votes cast. •
Veto of legislation: Once a bill had been approved by both houses of the Oireachtas (or just by the Dáil, if it had over-ridden the Senate) its enactment into law could be suspended if, within seven days, either a majority of the Senate or 40% of all members of the Dáil so requested. There would then be a further period of ninety days within which either 5% of all registered voters, or a 60% majority in the Senate, could demand a referendum on the bill. The referendum would be decided by a majority of votes cast. If rejected the bill would not become law. These provisions did not apply to
money bills or bills declared by both houses to be "necessary for the immediate preservation of the public peace, health or safety". •
Initiative: Ordinary citizens would have the right, through an
initiative process, to draft both constitutional amendments and ordinary laws, and insist that they be submitted to a referendum. The constitution provided a general frame-work for how the initiative would work, empowering the Oireachtas to fill in the details with legislation. It required that a proposal could be initiated by a petition of 50,000 registered voters. Once initiated a proposal would be referred to the Oireachtas, but if the Oireachtas did not adopt the law it would be obliged to submit it to a binding referendum. The constitution gave the Oireachtas two years to adopt a law allowing voters to introduce initiatives. However, after this time voters had power to force the issue. This is because the initiative process itself could then by made the subject of an initiative. After two years the introduction of an initiative process would be put to a referendum if demanded by a petition of not less than 75,000 voters on the register (not more than fifteen thousand of whom could be voters in any one constituency). The
Achilles' heel of the direct democracy provisions was contained in Article 50 which provided that, for eight years after the constitution came into force, the Oireachtas could amend the constitution without a referendum. As interpreted by the courts, this even included the power to amend the article itself and extend this period. The Oireachtas did not adopt legislation providing for the initiative within the two years stipulated by the constitution and, eventually, a petition of 96,000 signatures was gathered by the opposition to trigger a referendum forcing the Oireachtas to introduce an initiative process. The Oireachtas responded by removing all provisions for direct democracy from the constitution, save for the requirement that, once the eight-year transitional period had passed, it would be necessary to hold referendums on all constitutional amendments. Then in 1929 the Oireachtas extended this period to sixteen years. This meant that, by the time the constitution was replaced in 1937, the provisions for the constitutional referendum had still not come into force. ==Amendments==