‘The Supreme Legislative Authority Speaking as the Mouthpiece of the People’: Constituent Power and the Irish Free State

This chapter argues that constituent power—the power to create a constitution that is usually considered to be vested in ‘the people’—is an overlooked concept in Irish constitutional thought. This is evident from key moments in the history of the Irish Free State; in particular, the seminal case of the State (Ryan) v Lennon. That stated, this chapter further argues that there is a proto-understanding of constituent power as vested in the people latent in the famous dissenting judgment of Kennedy CJ although this has been overshadowed by the aspects of his judgment focusing on natural law. This is most clearly identifiable in regard to the competing perspectives in the judgments as to the role of the people both in the exercise of constituent power that created the Free State Constitution and within this constitutional order its exercise created. The chapter concludes with a brief discussion of how a better understanding of constituent power may influence and shape constitutional debates on the island of Ireland today.