Éamon de Valera - de Valera's New Constitution

De Valera's New Constitution

During the 1930s, de Valera had systematically stripped down the Irish Free State constitution that had been drafted by a committee under the nominal chairmanship of his rival, Michael Collins. In reality, de Valera had been able to do that only due to three reasons. First, though the 1922 constitution originally required public plebiscite for any amendment beyond eight years after its passage, the Free State government under W. T. Cosgrave had amended that period to sixteen years. This meant that, until 1938, the Free State constitution could be amended by the simple passage of a Constitutional Amendment Act through the Oireachtas. Secondly, while in theory the Governor-General of the Irish Free State could reserve or deny the Royal Assent to any legislation, in practice the power to advise the Governor-General so to do as and from 1927 no longer rested with the British Government in London but with His Majesty's Government in the Irish Free State, which meant that in practice, the Royal Assent was automatically granted to legislation; the government was hardly likely to advise the Governor-General to block the enactment of one of its own bills. Thirdly, in theory the Constitution had to be in keeping with the provisions of the Anglo-Irish Treaty, the fundamental law of the state. However, that requirement had been removed only a short time before de Valera gained power. Thus, with all the checks and balances that had been provided to preserve the Treaty settlement neutralised, de Valera had a free hand to change the 1922 constitution at will.

The Oath of Allegiance was abolished, as were appeals to the Judicial Committee of the Privy Council. The opposition-controlled Senate, when it protested and slowed down these measures, was also abolished. And finally in December 1936, de Valera used the sudden abdication of King Edward VIII as king of his various realms including King of Ireland to pass two Bills; one amended the constitution to remove all mention of the King and Governor-General, while the second brought the King back, this time through statute law, for use in representing the Irish Free State at diplomatic level.

In 1931, the British parliament had passed the Statute of Westminster, which established the legislative equal status of the self-governing dominions of the British Empire, including the Irish Free State, and the United Kingdom. Though many constitutional links between the Dominions and the United Kingdom remained, this is often seen as the moment at which the Dominions became fully sovereign states. In July 1936, de Valera as constitutionally the King's Irish Prime Minister, wrote to King Edward in London indicating that he planned to introduce a new constitution, the central part of which was to be the creation of an office de Valera provisionally intended to call President of Saorstát Éireann, which would replace the governor-generalship. The title ultimately changed from President of Saorstát Éireann (Uachtarán Shaorstát Éireann) to President of Ireland (Uachtarán na hÉireann), but it still remained the central feature of his new constitution, to which he gave the new Irish language name Bunreacht na hÉireann (meaning the Constitution of Ireland). The text of the 1937 Constitution of Ireland is available as amended to 2004.

The constitution contained a number of reforms and symbols intended to assert Irish sovereignty. These included:

• a new name for the state, "Éire" (in Irish) and "Ireland" (in English);
• a claim that the national territory was the entire island of Ireland, thereby challenging Britain's partition settlement of 1921;
• the removal of references to the king of Ireland and the replacement of the monarch's representative, the Governor-General, with a popularly elected President of Ireland, who takes "precedence over all other persons in the State and who shall exercise and perform the powers and functions conferred on the President by this Constitution and by law";
• recognition of the "special position" of Roman Catholicism;
• a recognition of the Roman Catholic concept of marriage which excluded civil divorce;
• the declaration that the Irish language was the "national language" and the first official language of the nation although English was also included as "a" second official language;
• the use of Irish language terms to stress Irish cultural and historical identity (e.g., Uachtarán, Taoiseach, Tánaiste, etc.); and

Criticisms of some of the above constitutional reforms include that:

• the anti-partition articles needlessly antagonised Unionists in Northern Ireland, while simultaneously attracting criticism from hardline republicans by recognising the de facto situation.
• similarly, the recognition of the "special position" of the Catholic Church was inconsistent with the identity and aspirations of northern Protestants (leading to its repeal in the 1970s), while simultaneously falling short of the demands of hardline Catholics and the Church for Catholicism to be explicitly made the state religion.
• the affirmation of Irish as the national and primary official language neither reflected contemporary realities nor led to the language's revival
• though the King was removed from the text of the constitution, he retained a leading role in the state's foreign affairs, and the legal position of the President of Ireland was accordingly uncertain; there was also concern that the presidency would evolve into a dictatorial position
• elements of Catholic social teaching incorporated into the text, such as the articles on the role of women, the family and divorce, were inconsistent both with the practice of the Protestant minority and with contemporary liberal opinion

As Bew (2007) concludes, in the Constitution of 1937 he was "trying to placate left-wing Republicans with national phrases and pious people with expressly Catholic bits" and "patriarchal Catholicism."