What the Drafters Learnt in 1937 from the 1922 Experience

The author contends that, with the benefit of hindsight, it was clear that the 1922 Constitution was doomed from the start. This was in part because the Constitution was shackled to the Anglo-Irish Treaty of December 1921—itself the cause of the Civil War 1922–1923—but also because a last-minute drafting change allowed that Constitution to be amended by ordinary legislation. This proved to be the undoing of that Constitution. This was the principal lesson learnt by the drafters in 1937 inasmuch save for a short transitional period, the Constitution could henceforth be amended only by way of referendum. In addition, the organisation and drafting of the 1937 Constitution is better and much that was novel and new in 1937—enhanced judicial review, an extended catalogue of fundamental rights, provisions dealing with international law and the office of the Presidency—has weathered well. The only qualification is that the 1937 Constitution reflected more faithfully the Irish nationalist and Catholic Zeitgeist of the period in a way that was not true of the Constitution of the Irish Free State. This was reflected in original provisions such as the recognition of the “special position” of the Catholic Church, the ban on divorce, and the claim on Northern Ireland in Article 2 and Article 3. As that Zeitgeist began to change—and ultimately, to change dramatically—the existence of these provisions tended to obscure the real achievements of 1937. It is only as the process of what might be termed constitutional secularisation began with the referendum in December 1972 to delete the “special position” clause that over time the real merits of 1937 were there for all to see. We now have a document which at every turn reinforces democracy, the rule of law, fundamental rights, effective judicial protection, and the ultimate Grundnorm of popular sovereignty.