A New Constitution; a New Language? How the New Courts Talked About the Free State Constitution 1922

The enactment of the Constitution of the Irish Free State (Saorstát Eireann) Act 1922 on 6 December 1922 appeared to involve a radical rupturing of the established legal order in the State. But in Article 50, the amendment provision, the new Constitution contained the seeds of its own destruction, culminating in the celebrated, and fascinating, decision of the Supreme Court in State (Ryan) v Lennon. This chapter does not seek to review how the 1922 Constitution operated in practice. Rather, it seeks to discuss how the courts spoke of the Constitution during its lifetime and explore whether the language used by the courts suggests an enthusiastic embrace of it as “the fundamental instrument of the new State” constituting an entirely new legal order or whether the courts effectively approached the Constitution from a positivistic perspective. In truth, the position revealed by a review of the Irish Reports is untidy: the data set is small and Article 50 throws a long shadow over what is there. The reality is that, at least as regards judicial review, the 1922 Constitution was largely stillborn, with an ever-increasing gap between constitutional rhetoric and constitutional reality.