Ireland’s 1937 Constitution: popular approval and a new constitutional order

The 1937 constitution emerged as the Irish Free State progressively transformed its 1922 constitutional arrangements. Éamon de Valera’s government removed the oath of allegiance to the British monarch during the 1930s and abolished the former Senate and office of Governor-General in 1936. It then placed a newly drafted constitution before Irish voters. The text named the state Éire in Irish and Ireland in English, declaring it sovereign, independent and democratic.

Drafting extended across several years. A constitutional committee examined the old constitution article by article in 1934. De Valera outlined initial ideas in 1935, and John Hearne worked on early drafts. Work resumed in autumn 1936, with Hearne and parliamentary draftsman Arthur Matheson making further revisions in early 1937. A March draft went to government departments and some members of the judiciary for comment. A drafting committee followed, including Maurice Moynihan, Michael McDunphy, Philip O’Donoghue and Hearne.

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After publication in May 1937, the draft entered debate in the Dáil in Dublin. Presidential powers, women’s status and courts’ authority to review legislation were among the issues contested. Deliberations restored an arrangement under which the High Court could hear constitutional challenges to legislation, with appeals to the Supreme Court. De Valera also negotiated the religious provisions with different churches.

The Plebiscite (Draft Constitution) Act of June 2 established the voting procedure. The Dáil-approved draft would go to voters on the same day as the general election, using the same constituencies, voter qualifications and secret-ballot facilities. On July 1, 685,105 voted in favor and 526,945 against, with approval accounting for approximately 56.5 percent of valid votes. The constitution took effect on December 29.

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The constitution provides for a directly elected president serving a seven-year term, renewable once. A poll is unnecessary if only one candidate is nominated. Most presidential powers are exercised on government advice. The head of government, the Taoiseach, is nominated by the Dáil and appointed by the president; the cabinet is collectively responsible to the Dáil. Day-to-day executive power therefore remains with a government supported by parliament.

The national parliament consists of the president, the Dáil and the Seanad. Dáil elections use proportional representation by the single transferable vote. The new Seanad has sixty seats: eleven nominees of the Taoiseach, six elected by universities and forty-three elected from vocational panels. The High Court can review legislation for constitutional compliance. Under Article 26, the president may also consult the Council of State and refer eligible bills to the Supreme Court for review before signing.

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Original Article 2 defined the national territory as the whole island of Ireland, its islands and territorial seas. Article 3 nevertheless provided that, pending reunification, laws of the new parliament would have the same territorial scope as Free State laws. The claim to unity consequently did not extend the government’s actual jurisdiction into Northern Ireland. Irish was designated the first official language and English the second.

Article 40 establishes equality before the law, personal liberty and rights of expression, assembly and association, subject to limitations concerning public order and morality. Article 43 protects private property while allowing legal restrictions on its exercise for social justice and the common good. Article 45 sets out principles of social policy, expressly leaving their implementation to parliament and excluding them from direct judicial adjudication.

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Original Article 41 regards the family as society’s fundamental unit. It specifically acknowledges women’s role in the home and directs the state to endeavor to prevent mothers being driven by economic necessity to work at the expense of their domestic duties. It also prohibits legislation permitting the dissolution of marriage. These provisions placed contemporary ideas about the family in the highest law and became a focus of debate about women’s status after the draft’s publication.

Original Article 44 recognizes the Roman Catholic Church’s special position as the faith of the majority of citizens. It also names the Church of Ireland, Presbyterian Church, Methodist Church, Religious Society of Friends, Jewish congregations and other existing religious denominations. The same article guarantees freedom of conscience and religious practice and prohibits discrimination on religious grounds, placing religion’s public position alongside individual religious freedom.

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Article 48 repealed the former constitution, while Article 50 retained existing laws compatible with the new one. The Constitution (Consequential Provisions) Act of December 17 addressed administrative continuity. References in old laws to the Irish Free State were to be read as Ireland under the new system, while the President of the Executive Council and his department became the Taoiseach and his department. Provisions also carried forward seals, document forms and financial assets. Transitional clauses kept the government, Dáil and civil service functioning through the change of state name.

Article 46 establishes parliamentary introduction and popular approval as the general amendment procedure. Original Article 51, however, allowed parliament to amend provisions other than Articles 46 and 51 during the three years following the first president’s entry into office; the president could still require a referendum first. The first two amendments, in 1939 and 1941, occurred during this transitional period. Establishing the 1937 order thus involved enduring rules alongside specific arrangements for institutional succession and early adjustment.

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