Constitutional Drafting and Contemporary Debates

Coffey, Donal K.

doi:10.1007/978-3-319-76237-1_4

Donal K. Coffey⁴

Part of the book series: Palgrave Modern Legal History ((PMLH))

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Abstract

The 1937 Constitution was drafted on the basis of a series of overlapping theories of constitutionalism. These were the Commonwealth model of constitutionalism, liberal democratic theories of the head of state, and Catholic constitutional ideas of fundamental rights. The mix of these factors can be most clearly seen in the individuals responsible for the drafting process. The Constitution was drawn up and revised by a relatively small circle of people. This makes it possible to consider the views of individuals in relation to discrete questions such as the judicial review of legislation, constitutional courts, American constitutionalism and Catholicism.

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Notes

1.
This material overlaps with Drafting the Irish Constitution 1935–1937, but is necessary here in order to give clarity on the historiographical points considered later.
2.
See Laura Cahillane, Drafting the Irish Free State Constitution (Manchester: Manchester University Press, 2016), 87–88; Leo Kohn, The Constitution of the Irish Free State (London: George Allen & Unwin, 1932), 112–116.
3.
Cahillane, 47–65.
4.
The State (Ryan) v Lennon [1935] 1 IR 170. On this case, see Donal K. Coffey, “The Judiciary of the Irish Free State,” Dublin University Law Journal 33, no. 2 (2011): 70–73.
5.
For a fuller exposition of the drafting chronology, see Drafting the Irish Constitution 1935–1937.
6.
Michéal Ó Gríobhtha was seconded from the department of education to the department of the president of the executive council on 19 October 1936 to translate the English draft into Irish. He worked on it until the Dáil approved it on 14 June 1937; see UCDA: P122/103.
7.
Eugene Broderick , John Hearne: Architect of the 1937 Constitution of Ireland (Dublin: Irish Academic Press, 2017).
8.
Dermot Keogh , The Vatican, the Bishops and Irish Politics, 1919–1939 (Cambridge: Cambridge University Press, 1986), 208: ‘But who was most responsible for contributing to the formulation of the new document over the two-year period? The central figure in the process was unquestionably John Hearne—an able and knowledgeable civil servant who had once been a student for the priesthood.’
9.
Brian Kennedy, “The Special Position of John Hearne,” The Irish Times, 8 April 1987. Brian Kennedy, “John Hearne and the Irish Constitution,” (1937)’, Éire-Ireland 24, no. 2 (1989): 121. See also Dermot Keogh , “The Irish Constitutional Revolution,” 8–11.
10.
Broderick , John Hearne, 88 (endnotes omitted).
11.
Broderick , 88–91.
12.
UCDA: P150/2370.
13.
UCDA: P150/2370; ‘Eire’ is struck through.
14.
Hearne to Moynihan , 7 November 1963 (UCDA: P122/105).
15.
UCDA: P150/300. The notes of these meetings were not exhaustive. O’Connell’s 1936 diary extended to the first week in January and she made a note of a meeting with Hearne at 4.30 p.m. on 1 January 1937. In her diary for 1937, however, O’Connell noted two meetings with Hearne on 1 January, at 4.30 p.m. and 11.30 a.m. (UCDA: P150/302).
16.
UCDA: P150/300.
17.
UCDA: P150/300.
18.
UCDA: P150/302.
19.
Irish Independent, 6 January 1937.
20.
Irish Independent, 16 January 1937.
21.
UCDA: P150/2370.
22.
Keogh , The Vatican, the Bishops and Irish Politics, 1919–1939, 207.
23.
Details are taken from the Dictionary of Irish Biography.
24.
Keogh , The Vatican, the Bishops and Irish Politics, 1919–1939, 207.
25.
Iveagh House was donated to the State in 1939 and the department of external affairs moved there afterwards.
26.
The extension number was 62321.
27.
Sean-Pól MacCárthaigh, Portrait of a Mind: Maurice Moynihan and the Irish State, 1925–60 (MPhil thesis, University College Cork, 2004), 34–52.
28.
UCDA: P150/300.
29.
National Archives of Ireland (hereafter ‘NAI’): Taois s.9715.
30.
NAI: Taois s.9748.
31.
Maurice Moynihan , ed. Speeches and Statements by Eamon de Valera 1917–73 (Dublin: Gill & Macmillan, 1980).
32.
Moynihan , xxvii–xxviii.
33.
Ronan Fanning , “Mr. de Valera drafts a Constitution,” in De Valera’s Constitution and Ours, ed. Brian Farrell (Dublin: Gill & Macmillan, 1988), 36.
34.
Fanning , 37 (endnotes omitted).
35.
UCDA: P150/2374.
36.
UCDA: P150/300. The diary also shows an executive council meeting on 27 October but does not expressly link it with the Constitution. It seems possible that this meeting also discussed the Constitution but, in the absence of clear evidence for this, I have not included it in the main text.
37.
2 April, 3 April, 4 April (UCDA: P150/300).
38.
UCDA: P122/76.
39.
UCDA: P150/2379.
40.
J.J. Lee , Ireland 1912–1985: Politics and Society (Cambridge: Cambridge University Press, 1998), 202.
41.
MacCárthaigh, Portrait of a Mind, 149.
42.
The Irish Press, 6 November 1936; Irish Independent, 6 November 1936.
43.
The Irish Press, 6 November 1936.
44.
Seán Faughnan, “The Jesuits and the Drafting of the Irish Constitution of 1937,” Irish Historical Studies 26, no. 101 (1988): 79. See also Keogh , “The Irish Constitutional Revolution,” 11–19; Keogh and McCarthy, The Making of the Irish Constitution 1937 (Cork: Mercier Press, 2007), 94–105; and Finola Kennedy, “Two Priests, the Family and the Irish Constitution,” Studies 87 (1998): 353. The following account draws on Faughnan’s analysis. The author has examined the Jesuit archives and the de Valera papers and concurs with Faughnan.
45.
UCDA: P150/2393.
46.
Keogh , “The Irish Constitutional Revolution,” 17.
47.
‘I have, in drawing up the drafts which I am sending you, availed myself of the advice and assistance of three or four others, some of whom have made a special study of these matters; others, although not specialists, are pretty well informed on them, and are men on whose judgment I have confidence.’
48.
Keogh, “The Irish Constitutional Revolution,” 11.
49.
Keogh , 11.
50.
Keogh, 18–19.
51.
Dermot Keogh , “The Role of the Catholic Church in the Republic of Ireland 1922–1995,” in Building Trust in Ireland (Belfast: Blackstaff Press, 1996), 122.
52.
Kennedy, “Two Priests, the Family and the Irish Constitution,” 355–356.
53.
Kennedy, 348.
54.
It is clear, however, that he was regarded as being ‘singular’ by members of the Jesuit order; see Dermot Keogh , “The Jesuits and the 1937 Constitution,” Studies 78 (1989), 86–88.
55.
Earl of Longford and T. O’Neill, Eamon de Valera (Dublin: Gill & Macmillan, 1970), 295.
56.
At the Fianna Fáil ard-fheis, de Valera said he had hoped ‘that we would have a draft ready so that we might have it introduced in the Dáil and published generally to-morrow, but I am afraid I have to admit that my anticipation was some weeks in advance; however, one does not make a Constitution every day.’ The Irish Press, 4 November 1936. This intention had been generally known; see The Irish Times, 31 October 1936.
57.
Edward Cahill , The Framework of a Christian State: An Introduction to Social Science (Dublin: M.H. Gill & Son, 1932). See Kennedy, “Two Priests, the Family and the Irish Constitution,” 362–364.
58.
Keogh , “The Jesuits and the 1937 Constitution,” 122.
59.
Keogh , 91–92.
60.
Keogh , 94.
61.
Longford and O’Neill, Eamon de Valera, 295–296, and Faughnan, “The Jesuits and the Drafting of the Irish Constitution of 1937,” 90.
62.
Dictionary of Irish Biography Volume 2 (Cambridge: Cambridge University Press, 2009), 241.
63.
The Irish Press, 15 October 1936.
64.
UCDA: P150/2393.
65.
Dermot Keogh , “Church, State and Society,” in De Valera’s Constitution and Ours, ed. Brian Farrell (Dublin: Gill & Macmillan, 1988), 107.
66.
Keogh and McCarthy, The Making of the Irish Constitution 1937, 106–122; Cathal Condon , An Analysis of the Contribution Made by Archbishop John Charles McQuaid to the Drafting of the 1937 Constitution (MA thesis, UCC, 1995); Diarmaid Ferriter, Judging Dev (Dublin: Royal Irish Academy, 2007), 198–200.
67.
Don O’Leary, Vocationalism and Social Catholicism in Twentieth-Century Ireland: The Search for a Christian Social Order (Dublin: Irish Academic Press, 2000), 58.
68.
Keogh and McCarthy, The Making of the Irish Constitution 1937, 109.
69.
The Q drafts seem to have been appended by de Valera to indicate which drafts were to be sent to McQuaid.
70.
See Keogh and McCarthy, The Making of the Irish Constitution 1937, 107.
71.
Dublin Diocesan Archives (hereafter ‘DDA’): AB8/A/V/48. The de Valera equivalent is contained in UCDA: P150/2385.
72.
15 March 1937 (DDA: AB8/A/V/53).
73.
See, for example, Cathal Condon , Contribution by McQuaid, 16.
74.
Condon , 40.
75.
UCDA: P150/2373.
76.
UCDA: P150/2406. Although this memorandum is undated it must have post-dated 30 April 1937 as it was only at this point that the article became Article 40.
77.
67 Dáil Debates (2 June 1937) cols. 1591–1592.
78.
2 January 1937 (NAI: Taois s.9481). The memorandum was forwarded to Hearne on 5 January 1937.
79.
Golding had speculated that Gavan Duffy was part of the drafting process; G.M. Golding, George Gavan Duffy 1882–1951 (Dublin: Irish Academic Press, 1982), 50–51.
80.
22 February 1937 (UCDA: P150/2396). The other likely author, Matheson, made his comments in the first person while the author of the memorandum did not.
81.
UCDA: P150/2397.
82.
On Matheson, see Brian Hunt, “The Origins of the Office of the Parliamentary Draftsman in Ireland,” Statute Law Review 26, no. 3 (2005): 175, 177–181.
83.
Longford and O’Neill, De Valera, 290.
84.
Keogh , The Vatican, the Bishops and Irish Politics, 9.
85.
NAI: AGO/2001/49/82.
86.
20 February, 24 February, 27 February, 1 March, 3 March, 10 March 1937.
87.
2 March, 3 March, 4 March, 6 March 1937.
88.
A memorandum on miscellaneous points raised by the literal translation is headed ‘Handed one carbon to the President 24/2/37’ (NAI: AGO/2000/22/796). Matheson met de Valera on 16 and 20 February so it was likely at one of these meetings that de Valera sought his help and provided a copy of the literal translation of the Irish text (which may be found in the same folio).
89.
UCDA: P150/2397.
90.
NAI: Taois s.9748.
91.
On these, see Gerard Hogan , The Origins of the Irish Constitution, 1928–1941 (Dublin: Royal Irish Academy, 2012), Chaps. 9–11.
92.
J.M. Kelly , The Irish Constitution, 2nd ed. (Dublin: Jurist Publishing, 1980), xxvii.
93.
J.M. Kelly, Fundamental Rights in the Irish Law and Constitution (Dublin: Allen Figgis & Co, 1961), 33.
94.
Kelly , Fundamental Rights in the Irish Law and Constitution, 33, footnote 2. See also Kelly, The Irish Constitution, xxx.
95.
Bill Kissane, New Beginnings: Constitutionalism and Democracy in Modern Ireland (Dublin: University College Dublin Press, 2011), 88.
96.
See Leo Kohn, The Constitution of the Irish Free State (London, 1932), 172: ‘Of the declarations embodying a programme of social, economic or educational reform, which are so characteristic of modern Continental constitutions, the Irish Constitution contains only two.’
97.
Kissane, New Beginnings, 59.
98.
See Gerard Hogan , “Some Thoughts on the 1937 Constitution,” in Lawyers, the Law and History, ed. Felix Larkin and Norma Dawson (Dublin: Four Courts Press, 2013); Gerard Hogan, “De Valera, the Constitution and the Historians,” Irish Jurist 40 (2005): 303–306.
99.
Eugene Broderick , John Hearne: Architect of the 1937 Constitution of Ireland (Newbridge: Irish Academic Press, 2017), 176–181.
100.
Hogan , “De Valera, the Constitution and the Historians,” 317.
101.
J.H. Whyte, Church and State in Modern Ireland, 51.
102.
Kieran Mullarkey, “Ireland, the pope and vocationalism: the impact of the encyclical Quadragesimo Anno,” in Ireland in the 1930s: New Perspectives, ed. Joost Augusteijn (Dublin: Four Courts Press, 1999), 106.
103.
Dermot Keogh , “Church, State and Society,” 106.
104.
12[?] October 1936 (UCDA: P150/2373). The use of a question mark in square brackets here is based on the sequential model of draft dating outlined in Drafting the Irish Constitution 1935–1937. This provides a speculative date assigned in a chronological order so that the drafting process can be more clearly mapped.
105.
See, for example, Article 199 of the 1919 Constitution of the German Reich: ‘Motherhood has a claim upon the protection and care of the State.’
106.
13[?] October 1936 (ibid.).
107.
12[?] October 1936 (UCDA: P150/2373).
108.
Anthony Coughlan, “The Constitution and Social Policy,” in The Constitution of Ireland 1937–1987, ed. Frank Litton (Dublin: Institute of Public Administration, 1988), 146–147.
109.
Hogan , Origins, 155.
110.
Hogan , Origins, 156.
111.
Broderick , John Hearne, 192.
112.
17 May 1935 (UCDA: P150/2370).
113.
12[?] October 1936 (UCDA: P150/2373).
114.
18 May 1935 (UCDA: P150/2370).
115.
Hogan , Origins, 156.
116.
UCDA: P150/2425. The provenance may be gleaned from the fact that it is marked ‘Hearne’, and shares many phrases in common with the May 1935 preamble and almost no phrases with subsequent drafts of the preamble, indicating common authorship with the May preamble.
117.
Kennedy, “John Hearne and the Irish Constitution,” 125.
118.
Keogh , “The Irish Constitutional Revolution,” 29–59. The analysis that follows draws on Keogh’s account.
119.
Keogh , 30, 36.
120.
Vatican Secret Archives: Arch. Nunt. Irlanda Box 16, fasc 8 ‘Costituzione Irlandese (de Valera)’, MacRory to Robinson , 9 April 1937.
121.
Keogh , 51.
122.
Keogh , 53.
123.
See Gerard Hogan , “John Hearne and the Plan for a Constitutional Court,” Dublin University Law Journal 33 (2011): 76; Hogan, Origins, 152.
124.
Eugene Broderick , John Hearne, 165.
125.
Hogan , “John Hearne and the Plan for a Constitutional Court,” 77.
126.
See Tomás Ó Néill and Pádraig Ó Fiannachta, De Valera (Dublin: Cló Morainn, 1968), 322.
127.
Select Constitutions of the World (Dublin: The Stationery Office, 1922), 393.
128.
Hogan , “John Hearne and the Plan for a Constitutional Court,” 78.
129.
12 December 1935 (UCDA: P150/2370).
130.
These were Austria, Spain, and Czechoslovakia.
131.
Broderick argues on the same lines as Hogan that Hearne was in favour of the idea; see Broderick, John Hearne, 166.
132.
Hogan , “John Hearne and the Plan for a Constitutional Court,” 78–79.
133.
Broderick , John Hearne, 166.
134.
67 Dáil Debates (11 May 1937) cols. 53–54.
135.
UCDA: P150/2392. The need for a canon of interpretation was also noted in UCDA: P150/2379.
136.
(1819) 17 US 316, 421.
137.
See 67 Dáil Debates (13 May 1937) cols. 426–428.
138.
67 Dáil Debates cols. 426–427.
139.
67 Dáil Debates col. 427.
140.
See The Irish Press, 14 October 1982: ‘In the early 1960s [de Valera] privately expressed the view that the courts should use the constitution in the same way as United States courts did the constitution of 1789.’
141.
Donal K. Coffey. “‘The union makes us strong:’ National Union of Railwaymen v. Sullivan and the demise of vocationalism in Ireland,” in Judges, Politics and the Irish Constitution, ed. Laura Cahillane, James Gallen and Tom Hickey (Manchester: Manchester University Press, 2017), 191.
142.
[1933] IR 74, 112. See also R (Cooney) v Clinton [1935] IR 245.
143.
See, e.g., James Comyn, Their Friends at Court (Chichester: Barry Rose, 1973), 81.
144.
Kelly , Fundamental Rights in the Irish Law and Constitution, 17.
145.
Kelly , 17–21.
146.
Cornelius Lucey, “The Principles of Constitution-Making,” 18.
147.
Lucey, 21.
148.
Lucey, 21.
149.
Lucey, 21.
150.
68 Dáil Debates (9 June 1937) col. 217; Kelly , Fundamental Rights in the Irish Law and Constitution, 17.
151.
See Lucey, “The Principles of Constitution-Making,” 34.
152.
68 Dáil Debates (9 June 1937) cols. 215–216 (emphasis added). I attended a talk by Gerard Hogan at ‘The Evolution of the Irish Constitution 1937–2007’ conference in which he made a sustained attack on Kelly along these lines. This paper has, I believe, never been published.
153.
Hogan , Origins, 668–695.

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Coffey, D.K. (2018). Constitutional Drafting and Contemporary Debates. In: Constitutionalism in Ireland, 1932–1938. Palgrave Modern Legal History. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-76237-1_4

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