1922 Constitution offered Ireland ‘a different theory of republicanism’

The Free State Constitution of 1922 offered Ireland “a different theory of republicanism” than was offered by many at the time, the Attorney General has told a conference marking the centenary of that constitution.

The theory of republicanism in the 1922 Constitution was based on the “classical theory of government”, not on what historian Tom Garvin describes as “the secular religion of republicanism based on the idea of a moral community created by a single and irreversible plebiscite and satisfied by the blood of martyrs”, Paul Gallagher said.

The 1922 Constitution set Ireland on a path to ultimately becoming “one of the leading and most stable democracies in the world” with “a broad vision of equality, social coherence, social responsibility, commitment to its people and to Europe”.

Irish history might have been “very different” without it. Despite some fundamental flaws, it provided “a framework for compromise” and facilitated the peaceful transfer of power – from a Cumann na nGaedheal to a Fianna Fáil government - in 1932.

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The Attorney was opening a conference at the Shelbourne Hotel in Dublin on Monday marking the centenary of the Free State Constitution on December 6th 1922.

Addressing an audience including judges and constitutional lawyers, he said a legal basis for government and its institutions was clearly required in 1922 but the Free State Constitution was “much more”.

It recognised important fundamental rights, including liberty of the person, free expression of opinion, the right to free elementary education, the entitlement to vote of all citizens without differentiation of sex, judicial independence, and the right of everyone to be tried in due course of law.

On its face, this was a modern Constitution for its time which “deliberately rejected the notion of parliamentary sovereignty” and focused on the sovereignty of the people. It reflected a broader European heritage, favoured the American tradition of judicial review, legitimised the foundation of the State and gave it an internal authority.

The potential of these fundamental rights was, however, never realised and the Constitution suffered from some “fundamental flaws”. These included using Article 50 to permit implied legislative amendment of the Constitution.

Article 50 was clearly creating an exception to the principle of amendment by referendum and in that context, required to be strictly interpreted but the 1922 Constitution suffered from judicial interpretations which provided “a legal basis for completely undermining constitutional protections”.

This undermining had to be seen in the context of the time, including a different legal tradition where, in law and philosophy, the doctrine of parliamentary sovereignty was accepted as supreme, he said.

The crisis of 1922/23 also made Ireland’s leaders “fearful of public consultation” on issues such as the oath of allegiance to the British monarch.

The State was “very weak and inexperienced and rejected by many”. Ireland had just recently been involved in a major struggle for its independence and lacked the “institutional or intellectual environment conducive to the development of a constitutional framework”.

“The new leaders were, by and large, the veterans of guerrilla warfare and their political legitimacy was in dispute.”

In this context, the 1922 Constitution was “a remarkable achievement” and set the new state “on a democratic trajectory from which it has never deviated”.

The Constitution has been criticised for perpetuating a conservative society that did not realise the full potential of possibilities realised in other countries after the First World War, he noted.

Many radical and socialist constitution of other countries did not flourish and some did not last, and much criticism of the 1922 document failed to appreciate the very different social, economic and historical context of the time, he said.

As Ireland became more educated and more developed, the 1922 Constitution could not withstand the passage of time but it made Irish people “accustomed to a constitutional structure” and identified issues which needed correcting in the later Constitution.

The 1937 Constitution explicitly made Ireland a Republic and did so on the basis of building on the norms and institutions created by its predecessor. A “much more sophisticated document”, the 1937 Constitution and carried within it the potential to develop and to embrace changing attitudes in society, albeit not as fast as some wished.

Ireland “can be proud” that, in the turmoil of 1922, we embraced liberal democracy, which has become our final form of government and must be maintained as such, the Attorney said. Liberal democracy, he noted, is under threat in many countries in a way “impossible to imagine” until very recently.