EIGHTY years ago today, the world greeted a new nation, or rather a new name for an ancient country. The constitution of Ireland formally came into effect on December 29, 1937, almost six months after the population of the Irish Free State approved its adoption in a July 1 referendum. One of the biggest changes brought by the new constitution was that the name of the nation changed to Eire, or Ireland in English. Achieving the Irish Free State of 26 counties took armed conflict, the war for independence and the Irish Civil War, but by the 1930s there was a general determination in the Free State that constitutional advances would be achieved by democratic and peaceful means.


WITHOUT delving too much into the history of the island of Ireland, in the early 20th century it can be said that the 1937 constitution, consisting of 16,000 words and which can be read online, had always seemed inevitable after Eamon de Valera formed the Fianna Fail party in 1926 and won the right to form a government in the 1932 general election.

After the Anglo-Irish Treaty brought about the creation of the Irish Free State in 1922, with Northern Ireland opting out of the Irish Dominion, the new Free State split in a bloody civil war between those who favoured the Treaty and those who opposed it – broadly speaking the Free State government against those who wanted a united Ireland above all. De Valera was one of the leaders of the anti-treaty faction which lost the war in 1923, and he elected to follow a more gradual path to power.

On forming the minority government in 1932, De Valera began to move swiftly against the Free State constitution. He was helped by the fact that the UK Parliament had rather helpfully passed the Statute of Westminster the previous year, ensuring that no laws for Ireland could be passed in London without the approval of the Oireachtas, the Irish Free State legislature that consisted of the lower house, the principal chamber, the Dail Eireann, and the Free State senate, the Seanadd Eireann. In effect, it made the Free State – and Australia, Canada, New Zealand , Newfoundland and the Union of South Africa – self-governing sovereign nations bound to the UK monarch within a commonwealth of nations. De Valera wanted to change that status for the Free State.

With Fianna Fail backed by the Labour Party that had been co-founded by Edinburgh-born James Connolly, De Valera stealthily began the process of “republicanising” the Free State and used its new powers to start dismantling links to Westminster. In 1933, Fianna Fail called a snap election and won 77 seats in the Dail to keep them in power, though without an overall majority. It was the signal for change.

By votes in the Oireachtas, out of the Free State’s constitution went references to the British crown, the oath of allegiance and the right of legal appeal to the privy council’s judicial committee, and by 1936 De Valera was able to abolish the office of governor-general, having rendered it almost laughable – the incumbent, Domhnall Ua Buachalla, had no power except to sign proclamations by the De Valera government. The effect of De Valera’s actions was to render the Free State Constitution ineffective and out of date. De Valera proved this during Edward VIII’s abdication crisis when he told the outgoing king he was bringing in a new constitution with a president and new name for the Free State, namely Eire.


ABOVE all else, De Valera was determined to ensure that the sovereignty of the Irish people was enshrined in law. As early as 1934 he got together a constitutional committee of senior civil servants and set them to work drafting a new constitution. They were led by John Hearne, the legal adviser at the department of external affairs which De Valera himself controlled.

Hearne’s original draft said the new constitution should include unassailable fundamental human rights that could only be suspended in an emergency and should “contain machinery for effectively preserving public order during any such emergency”. There should be a presidency for the state, eliminating the governor-general and superseding the king in internal matters, while retaining the latter in international relations.

So far, so good, but De Valera wanted more, and is said to have written the constitution’s claim for a united Ireland himself. He also particularly wanted the “special position” of the Roman Catholic Church recognised and it is known that he was in contact with the Vatican’s secretary of state, Cardinal Eugenio Pacelli, later Pope Pius XII.

In the constitution, the national flag of green, white and orange was approved and Irish became the official first language. There would be a president as head of state and Taoiseach (prime minister), but divorce was prohibited – abortion was already illegal – though De Valera did ensure freedom of religion, a brave move in those anti-Semitic times.

Nevertheless the quasi-religious nature of the final document can be seen from its preamble: “In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Éire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ ... ”

Interestingly, given Brexit, the number of articles in the final constitution was 50. It was still a divisive document – the referendum on the constitution approved it by just 56.52 per cent to 43.48 per cent.


THE first and most important lesson that can be learned is that constitutional matters within these islands are not set in stone. Campaigners for Scottish independence have set themselves on the peaceful path to change, with a second referendum the preferred way forward. As independence is now more likely than ever given the way the Tory government is handling Brexit, it would seem sensible to start preparing a constitution that could be put to the people of Scotland, maybe even at the same time as the first post-indy election.

One of the biggest gains for Eire was that it could declare itself neutral in the Second World War. It also meant that when the Irish government felt ready to do so, Eire was declared a republic in 1949. A new constitution could give Scotland the choice of a monarchy or republic, or having Trident or not.