Ireland’s Wars: Bunreacht Na hEireann

Eamon de Valera was elevated to the leadership of the Irish Free State on the back of a commitment to dismantle the disliked elements of the Anglo-Irish Treaty, protect the Irish economy at a time of huge financial uncertainty and forward the cause of Irish sovereignty and Irish unification. In the course of the 1930’s his Fianna Fail party had a measure of success in all of these areas, though doubtless not enough to satisfy detractors. But de Valera was unsatisfied to continue his efforts purely through the framework that he had inherited from W.T. Cosgrave, in the form of the Irish Free State and its constitution. In 1937 he moved to enact his own constitution, and in so doing fundamentally alter the legal basis for a self-governing Ireland, something that would affect Irish society, culture and politics from top to bottom. And this new constitution would carry with a great deal to discuss in relation to matters military, diplomatic and strategic.

For de Valera, the creation of a new constitution was a natural next step. Key elements of the Anglo-Irish Treaty as it pertained to the governance of the Free State had been removedalready, things such as the Oath of Allegiance and, after the Abdication Crisis of 1936, references to the British monarchy. Others, like the role of the Governor-General, had been diminished to the point of total irrelevancy. Now de Valera and Fianna Fail wanted to go much further, and re-write things from top to bottom, taking advantage of the Statute of Westminster to essentially make the Irish Free State a completely sovereign country in nearly every respect, and to usher in this symbolic state of affairs in a document that was more “Irish” than the equivalent constitution for the Irish Free State, not least because its primary form was going to be through the Irish language.

The drafting of the thing was a lengthy enough process. De Valera did plenty of work himself, creating a document that was to his own liking on many matters political, symbolic and his own societal preferences. Other people heavily involved including legal minds from the Department of External Affairs and most notably John Charles MacQuaid, then the Dean of Blackrock College and the future Archbishop of Dublin. McQuaid’s involvement in the project has long been at least somewhat controversial, with many feeling that de Valera allowed the document to have too much of a religious, and specifically Roman Catholic, flavour, though this is hardly surprising given his own background. It is not the purview of this series to comment too much on the relationship between church and state in this period and after, but it is undeniable that Roman Catholic teachings and preferences factored in hugely to much of the governments legislative agenda and longer-term projects like the Constitution. The appropriateness of this is very much up for debate, as is the reality that de Valera submitted the draft constitution to the Vatican City for its approval: taking the Vatican City as its own sovereign state, it seems strange that de Valera felt it necessary to seek its opinion, when so much of the point was to strengthen Irish sovereignty. The Vatican, diplomatically, didn’t offer an opinion one way or the other, though it is unlikely they would have been displeased by a document that heavily emphasised the primacy of Roman Catholicism in Irish life and society.

Let’s now take a look at a select number of articles from the Constitution as it went to the Irish people, as they pertain to Ireland’s military history and current status, its diplomatic place in the world, and in how it attempted to frame Ireland’s strategic position and interests.

The Preamble section contains what we can only call some fairly obvious nods to certain aspects of the Proclamation of the Irish Republic from the Easter Rising, specifically in its acknowledgement of how the Catholic religion “sustained our fathers through centuries of trial”, with the text just about deciding not to bring up 1916’s claim of seeking independence six times over the previous three centuries. The independence struggle is described as “heroic and unremitting” in pursuit of the “rightful” freedom of the nation. It’s hardly surprising that the Constitution would attempt to venerate past revolutionaries in this way, and to match 1916 in portraying the struggle as a continuous one that is only now coming to its natural conclusion. The Preamble also makes the first of many controversial claims that one of the primary aspects of the Irish state will be the effort to secure the political unification of the island.

Articles 1 and 5 make no bones about Ireland’s place as a completely free nation, claiming that Ireland’s “right to choose its own form of government”, to determine “its relations with other nations” among other things is “inalienable, indefeasible and sovereign”. The “inalienable” is a nod to the United State of course, the “indefeasible” again points to Irish resiliency in times of struggle and the “sovereign” is the first of many instances wherein de Valera’s document sheds any hint of self-government under the auspices of London or “Free State”. Article 5 merely repeats this, dubbing Ireland “sovereign, independent, democratic” as a state. Interestingly, the Constitution does not use the word “Republic” here, as many would have expected: de Valera would claim the declaration of a republic was omitted owing to the status of Northern Ireland, with such a movement only to be contemplated with the political unification of the island. It was a kick-the-can mentality that other politicians on the opposite side of the Dail chamber would not share.

Articles 2 and 3 were easily the most controversial of the new Constitution. 2 declared bluntly that the “national territory” included “the whole island of Ireland, its islands and the territorial seas”. It was an explicit rejection of Northern Ireland as its own legitimate state, and of the legitimacy of partition as it has existed up to that point. In essence, the Constitution laid a territorial claim on land that the state did not control. In the context of events happening on the continent in terms of claims of land in the control of other nations, such things could only be seen as an aggressive diplomatic posture, that was bound to inflame tensions between Dublin and Belfast and Dublin and London, even if the Article just put into writing what was a long-running contention of de Valera and his government. Article 3 gives a small fig-leaf by maintaining that the laws of the government and the Constitution will apply only to the territory currently in its control, though this is explicitly offered without denying the state’s continued claim on the six counties.

Article 4 changes the name of the nation, with the disliked – by de Valera and others anyway – “Irish Free State” moniker now abandoned in favour of “Eire, or, in the English language, Ireland”. There was a larger significance to this than just semantics. By combining the name of the state with the geographical designation for the whole island, Article 4 was another reemphasising of the territorial claim to the whole island that the Constitution was making. Because of this the British government would explicitly use the term “Eire” in the coming years, preferring the term “Ireland” only when used in a geographical sense.

Articles 12 and 13 outline the role and function of the new executive, the office of the Presidency. This person, elected every seven years, was to have the role of Commander-in-Chief, or “supreme command” as the Constitution puts it, of the Irish Defence Forces. This will be “regulated by law” of course, and all officers will hold their commission from the President. It’s always been a bit of a curio of the Constitution to me that the Presidential role of Commander-in-Chief is not defined clearly in any way as ceremonial, though that is what it always was intended to be and has always been carried out as such: the most we can interpret is other sub-articles that say the President can only carry out his/her powers, unless otherwise stated, “on the advice of the government”. More important symbolically is what the President was replacing, with no room in the Constitution for any hint of the British monarchy or any form of crown representative. This caused some consternation, as the text did not explicitly refer to the President as “Head of State”, with that role seemingly still filled by the crown, then in the form of George VI.

Article 15 outlines the role of the “National Parliament” which is “The sole and exclusive power of making laws for the state” with “no other legislative authority” to be recognised. This would seem to be a rebuke to any pretensions that anyone else has about representing the democratic will of the country, most especially those members of the Second Dail opposed to the Irish state who still deemed themselves the only legitimate representation of “the Republic”. This article attempts to de-legitimise them, and pre-emptively de-legitimise any other body who would attempt to claim legislative power in Ireland.

Similarly, this Article makes clear that only the Oireachtas has the power “to raise and maintain military or armed forces” and no other such force can be raised “for any purpose whatsoever”: a fairly clear effort to de-legitimise the IRA and any other entity in Ireland which aimed to project military power for political objectives. There was nothing new or surprising in these Articles, but enshrining them in the highest legal document of the land insured that it was as cast-iron a commitment as possible, and a far cry from Fianna Fail’s legalisation of the IRA only five years before.

Article 28 gets a bit more specific about war, and what powers the government has in the event of a war. Firstly, the state will not declare a war, and will not participate in any war, without the assent of the Dail. However, this does not cover what the state is supposed to do in the event of an unprovoked invasion, and if that happens “the Government may take whatever steps they may consider necessary for the protection of the state”, with the Dail to be summoned on the matter only on “the earliest practicable date”. Further, this article states that the Constitution cannot be invoked to validate any law passed by the government for “public safety and the preservation of the State” in a time of “war or armed rebellion”. Essentially, this means that the government can do largely what it wants in a military emergency, with any rights enshrined in the Constitution meaningless in the face of such a crisis. It’s a very dangerous element of the document in many respects, as the declaration of such an emergency appears to lie in the hands of the very government that would then benefit from the unassailable powers such a state of affairs would grant. This aspect of the document is re-emphasised later in Article 40, wherein fundamental rights are again noted as not being above “any act of the Defence Forces during the existence of a state of war or armed rebellion”.

Article 28 also defines the new role of Taoiseach, an Irish word meaning “Chief” or “leader”, that takes preference over the English equivalent of Prime Minister. This is to replace the President of the Executive Council as the head of government, and to be the real seat of power in Ireland. It was a role that de Valera was obviously earmarked to step into automatically, and would carry with it a bit more power than the President of the Executive Council on legislative and procedural matters.

Article 29 outlines Ireland’s position in terms of its international relations. The state commits to peace and peaceful cooperation with its neighbours and other nations, and to adjudication of international disputes through peaceful means. This is essentially an acknowledgement of the Kellogg-Briand Pact previously signed up to be the Cosgrave government.

Article 38 outlines that the state has the right to establish special military tribunals for trying those charged with offences against military law, and also to deal with states of war or armed rebellion. De Valera’s government had made liberal use of military tribunals in the previous few years, and this inclusion helped to maintain them as an option. Article 39 defined the specific offence of treason as consisting “only in levying war against the State or assisting any State or person…to levy war against the State” or conspiring to do the same. Treason is thus tied specifically to military action in the Constitution, and while this is not unusual, it is somewhat odd for this specific crime to be so outlined in a Constitution. Again, this seems to have been an Article taking aim at the IRA and its supporters, as well as any far-right organisations that the government was in conflict with.

Article 44 acknowledges the special position of the Catholic Church in Ireland, the closest to a direct riposte to Craig’s “Protestant state for a Protestant people” position in the North. The Constitution recognises other religious bodies at the same time, but Roman Catholicism is placed above all. In effect, the very identity of the new state, with all of its claims to outside territory and exhortations of sovereignty, goes along with an open declaration of its Catholic ethos. The Irish nation is a Catholic nation.

Finally, Article 61 provides for continuity for the Defence Forces and police of the Irish Free State, who upon the passing of the Constitution into law will retain their roles as the military and police force of Ireland. In essence, this wards off any concerns that may have arisen about the legitimacy of the army and the police in what may constitute a “new” state: as new as it is, there will be no overt change to these key institutions.

The response to the Constitution in terms of its final draft was mixed. The political opposition in the Dail opposed it for various reasons, that were shared by some media sources and other groups: the territorial claim on the North was criticised for inflaming tension, some feared that the Presidential position could lead to a dictatorship, the religious aspects of the document made some uneasy and there were additional concerns related to the draft articles as relating to women and social issues. The British received the document fairly coolly and refrained from loud criticism, though they did issue a communication that essentially rejected Ireland’s claim on the North.

The document passed through the Oireachtas fairly easily, but also needed to be approved by the electorate in a referendum: after all, the text read as being from “We, the people of Eire”. Fine Gael, Labour and other groups campaigned against its ratification, Fianna Fail for: de Valera had chosen his moment well enough, dissolving the Dail and holding a general election on the same date as the referendum. It was a poll that saw the number of seats in the Dail reduced by 15 and both of the main opposition parties had their hands more than full making sure they retained as many seats as they could. On a day when Fianna Fail dropped to 69 seats – exactly half of the re-structured chamber – with Fine Gael taking 48 and Labour 13, the Constitution was approved by a clear majority of 56% in favour. When the Dail re-convened it was under the new system, with de Valera as Taoiseach, Sean T. O’Kelly as his Tanaiste, or deputy, and Aiken retained as Minister for Defence. Despite the loss of seats, Fianna Fail remained in a largely unassailable position in the Oireachtas, and with the passing of the Constitution de Valera now held more power than ever in the beefed-up Taoiseach position.

Within six months the first President would be selected: with cross-party support, the only nominee was Douglas Hyde, the former President of the Gaelic League, a Senator and a well-known academic. Hyde fit the bill on many counts: respected by both de Valera and W.T. Cosgrave, carrying a degree of prestige owing to his background without any stain from the revolutionary period, a man no one would be worried would attempt to seize dictatorial power and, as a sop to those who felt the Constitution was too Catholic, a Protestant. Taking up residence in the re-named Viceregal Lodge – now Aras an Uachtarain, as it remains today – Hyde lived a quiet life as President, not least because of health issues that afflicted him throughout his term, and in terms of military or diplomatic issues left behind a legacy of little notoriety.

With the passing of Bunreacht na hEireann, de Valera could claim a fairly momentous victory. Having gained power in the Free State, he had now largely shaped the political structures to his own design, or at least to a design that pleased him, and much of the rest of the political history of Ireland involves positions, procedures and precedents that he had originated. But the internal aspect of his time in power was only one part of his legacy from those years. In the next entry we will examine de Valera and Ireland’s role on the wider international stage, beyond the Economic War with Britain, as the clouds descended over Europe and other parts of the globe.

To read the rest of the entries in this series, click here to go to the index.