Voting in Ireland (Part 2)

De Valera and his Constitution

In the second part of this series I am taking you, the reader, on a tour of Ireland’s Constitution, or “de Valera’s Constitution” as it is sometimes known. That unofficial label contains a big clue to the Constitution’s origins, as this commentator explains:

The extent to which Bunreacht na hÉireann [the Irish Constitution] was the brainchild of [Éamon] de Valera can have few parallels in the history of constitution making. He personally presided over its preparation and drafting.¹

For that reason our tour will also include Dev himself. But first things first. What exactly is a Constitution as it applies to a modern country like Ireland? Here is one definition:

[It is] a document enunciating the fundamental framework of government and the basic principles by which a country should be governed.²

Ireland’s Constitution came into force in 1937. But our story begins two decades earlier in the aftermath of the Easter Rising, before Ireland as a distinct and separate country even existed. When Patrick Pearse and the other leaders of the rebellion were executed for their trouble, Éamon de Valera was left as the most senior survivor.

Pearse and his companions seemed to exist on a different plane to everyone around them. They were like a ‘mystical brotherhood’ whose beliefs and doctrines few outsiders could understand completely. Even someone as close to the centre of Irish nationalism as de Valera never seems to have penetrated that inner circle. Yet, while he may have had an imperfect understanding of his comrades’ philosophy, their raison d’etre as it were, he always carried a bit of their mystique around with him. Is that why Dev came to be regarded by political allies and ordinary people as “the virtual personification of nationalist Ireland”?³ Maybe so. I tend to think of him as the ‘runt of the litter’. But what a litter - and what a runt!

Whether in or out of public office, de Valera wanted to protect Ireland and its people from danger. Among the potential threats he perceived were: Britain during the 1930s, a resurgent Germany in 1940, and the embryonic European superstate de Valera saw developing in the 1950s. That impulse to keep the country ‘pure’ was evident throughout his political life.

In 1928, during a parliamentary debate on a Cumann na nGaedheal finance bill, de Valera invited his listeners to imagine that Ireland was “surrounded by a wall”. As he delivered his contribution, de Valera mused on Ireland’s place in the world.

[Our] objective should be not to take international values, but to take the conditions of our country and see what we are able to produce, what are the needs of our population, try to supply these needs at home and forget, as far as we can, what are the standards prevalent in countries outside this. We will, unfortunately, not be able to cut ourselves completely off.⁴

If he had his way, I think Dev would have liked Ireland to separate completely - not just from Britain - but from the rest of the world too.

Later on, when his Fianna Fáil party replaced Cumann na nGaedheal in government, de Valera tried to build a ‘legal’ wall around Ireland by spearheading a new Constitution for the country. In addition to its other characteristics, de Valera’s Constitution was designed to function as a bulwark against political encroachment, from outside (or indeed inside) the country.

Unlike its US equivalent, the Irish Constitution stipulates that any amendment has to be approved by the people in a national referendum. During the 1950s and 1960s three referendums were held to consider government proposals to alter the terms of the Constitution. In each case that government was led by Fianna Fáil. Even though de Valera himself was the first leader of that party, all three amendments were rejected by the electorate.

On 10 May 1972 the people were asked by the government (Fianna Fáil again) to vote in a fourth constitutional referendum. This remains arguably the most important national poll in Ireland’s existence as an independent state. It would decide if Ireland should join the European Economic Community (EEC).⁵ However, if the country were to take this monumental step, de Valera’s Constitution would have to be dealt with.

The problem, as EEC proponents would have seen it, was that the Constitution might get in the way of the Treaty of Rome, the founding document of the EEC signed by the original six member states. Potential obstacles included Article 6.1 (“all powers of government, legislative, executive and judicial, derive, under God, from the people.”) and Article 15.2.1 (“the sole and exclusive power of making laws for the state is hereby vested in the Oireachtas [National Parliament]: no other legislative authority has power to make laws for the state.”).

It would have been virtually impossible to identify in advance every constitutional barrier to the smooth working of the EEC in Ireland. Even if such an exercise were practicable, how could the necessary changes be made through a single referendum? So an ingenious solution was found. The Irish Constitution would be neutralised through the addition of a sub-section to the document. The proposed addition was presented to voters in two legalistically-framed sentences. The sting is in the second of these:

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.⁶

In other words, no matter what the Constitution said about anything, Irish law would always be trumped by EEC law, if there was any difference between the two.

On the face of it, popular acceptance of this amendment was by no means assured. Thirty-five years after the Constitution itself was approved, and a mere half-century since the first Free State election, the people were being asked to put their faith in a document devised by some of Europe’s most notorious colonisers - Belgium, France, and Italy for instance. Within living memory Ireland itself had been a colonised country, so the Irish people knew a lot about life under external control. Secondly, many elderly electors would have been eligible to take part in the earlier plebiscites held in 1922 and 1937. Indeed, some of them must have voted in favour of the Free State and/or the new Constitution, both significant markers of Ireland’s sovereignty. Lastly, the people had demonstrated in the three previous referendums I mentioned that their support could not be taken for granted, even if that meant going against the wishes of Dev’s own political party.

Considering these factors alone, the proverbial visitor from Mars might have expected a resounding ‘no’ from the Irish electorate. Yet, as we all know, the result of the 1972 referendum was a massive majority in favour of the new Article 29.6.1. Thus, Ireland could and did join the EEC.

As early as 1962, when there was a lot of talk about Ireland and the EEC, economist and farmer Raymond Crotty stated that:

[It is] all the more remarkable that a people renowned for their centuries-long struggle for independence should be now ready to surrender a large measure of this independence.⁷

That is exactly what happened ten years later. As I wrote recently about the decisive 1972 vote:

We had swapped the seemingly abstract principles of national sovereignty for the immediate benefits of EEC membership.⁸

The EEC referendum effectively killed the Irish Constitution as a legal protection against would-be predators. It might be argued that Crotty resuscitated the ‘corpse’ in 1987 when, in a legal challenge, he succeeded in restoring the people’s right to be consulted about any move to tighten the EEC’s grip on Irish affairs. However that resuscitation was illusory. At most, the constitutional polls that followed the big one in 1972 irritated the powers-that-be in Europe. But that is all each of these referendums was, an irritation to them - and a temporary one at that.

De Valera lived to see his 1937 Constitution replaced by the Treaty of Rome. Not long before he died in 1975, he is said to have confided to a family member:

You know I’m probably the last President of an independent Irish Republic.⁹

As I write these words we are living in a post-covid hiatus where, like the winter snows melted by the warmth of the sun, the ‘old normal’ is gradually giving way to something else. If that “something else” does not include the familiar ‘security blanket’ of governments and constitutions, what of it? The last four years have taught us that we don’t need either.

1. Basil Chubb, The politics of the Irish constitution (Dublin 1991), p. 21.

2. Ibid, p. 4.

3. T. Ryle Dwyer, Éamon de Valera, the man and the myths (Dublin 1991), p. 7.

4. Dáil Éireann debate - 13 Jul 1928, Vol. 25 No. 4 [https://bit.ly/3WBqyvE], 10 May 2024. (emphasis added)

5. In 1993 the European Economic Community (EEC) was renamed the European Union (EU).

6. Department of Housing, Planning and Local Government, Referendum Results 1937–2019 (Dublin), p. 26.

7. Irish Times, 10 May 1962.

8. James P. Bruce, Into the Memory Hole: Despatches from the “world of lies” (2023), p. 39.

9. Tim Pat Coogan, Éamon de Valera: Long Fellow, Long Shadow (London, 1993), p. 668.