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100 years December 6, 2022

Posted by WorldbyStorm in Uncategorized.
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Since:

On 6 December 1922, the Constitution of the Irish Free State came into effect. It was endorsed by both the Dáil and the British parliament in Westminster.

The endorsement was not a formality. It meant that the new Irish Free State could begin to govern itself, by rules and laws it had written itself.

 

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1. Tomboktu - December 6, 2022

The Saorstát constitution was invoked in the Court of Appeal as recently as 2015.

In the two challenges to the referendum on marriage equality, one of the lay litigants argued that the 1937 constitution had not been adopted in accordance with the rules for amending the Saorstát constitution, and therefore the amendment to the 1937 constitution on marriage equality was invalid.

Michael McDowell was senior counsel for the state in the appeal. When he engaged with that aspect of the litigant’s case in an rather wandering speech, he produced a copy of the Saorstát constitution to quote copiously from it. I lost the thread of his argument, but I suspect one of the judges lost patience with it, because she interrupted him to ask him a question with pointed wording that wondered if he intended to court to take the standards in the Saorstát constitution as the benchmark against which they should hear the appeal. He quickly wrapped up that part of the argument.

I got back early after lunch (to get a seat nearer the front in order to hear better); McDowell arrived back early too and chatted with me before others arrived, and produced from his satchel a second copy of the Saorstát constitution that he’d gone home to look for. This copy was special to him: he bought when he was 14 from Greene’s bookshop on Clare Street.

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sonofstan - December 6, 2022

I guess had the case been lost, McDowell’s citizenship amendment would also have gone down in flames.

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Tomboktu - December 7, 2022

Well spotted.

(I think the judge was concerned at the, eh, “appalling vista” of the whole structure of Irish constitutional jurisprudence since 1937 being thrown away if McDowell went too far in his analysis.)

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Miguel62 - December 7, 2022

It was an odd argument to advance. The whole point of the 1937 Constitution was that it was self-standing and the bedrock of its legitimacy was its adoption by the people (26 counties anyway) in referendum. It didn’t need any prior constitutional or legislative architecture in order to assert its authority. It didn’t therefore NEED to be adopted in accordance with the Saorstat Constitution, although in practice, it probably was anyway, and any argument to the contrary should get short shrift!

On the other hand, the Saorstat Constitution was passed as an Act of Dáil Éireann – aka the Parliament of Southern Ireland – and was explicitly stated to be subservient to the Anglo-Irish Treaty. As such its authority ultimately derived from Westminster via the Dáil/Parliament exercising a power conferred upon it by Westminster in accordance with the Treaty. The Constitution was to be read in conjunction with the Treaty, and any part of it that was found to be incompatible with the Treaty was null and void.

Quite a difference. Although in fairness, it wasn’t a bad effort in the circumstances of the day.

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WorldbyStorm - December 7, 2022

+1

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