The Centenary of the Irish Free State Constitution: Constituting a Polity? (Palgrave Modern Legal History)

This book deals with the role, development, and legacy of the first Constitution of independent Ireland within the wider context of the establishment of the State. After decades of relative neglect, the 1920s have been receiving increased attention from historians recently thanks to the centenary of the States foundation. This book continues this trend of re-examination of this period and looks at key themes, such as the establishment of institutions under the Irish Free State Constitution and the focus on the ideals of popular sovereignty and democracy. It does so from novel and cross-disciplinary perspectives, and it also looks at areas which have received little to no previous attention; from individual aspects like property rights, the Irish language and environmental rights to aspects such as opposition and partition. Foreword Contents Notes on Contributors Chapter 1: Introduction Chapter 2: Constituting a Polity Vision and Identity Sovereignty and Democracy A Fair and Democratic Political System Judicial Review Re-assessment; Appreciation, Identity and Legacy References Chapter 3: The Partition of Ireland and the 1922 Constitution Introduction Two Households, Both Alike in Dignity? Siege Mentality The Border and Security The Customs Border Reach Across ‘Voting Out’ of the Free State Conclusion References Chapter 4: ‘The Supreme Legislative Authority Speaking as the Mouthpiece of the People’: Constituent Power and the Irish Free State Introduction Constituent Power on These Islands The British Neglect of Constituent Power Constituent Power and The Irish Free State Constitutional Supremacy Subverted: The State (Ryan) v Lennon The Majority Kennedy CJ’s Dissent The People of The Irish Free State as Possessors of Constituent Power Conclusions: The After-Life of Constituent Power in Ireland References Chapter 5: Opposition to the Constitution of the Irish Free State in 1922 Introduction Sources of Opposition to the 1922 Constitution of the Irish Free State (a) Opposition to Particular Provisions of the Constitution (b) Pro-Treaty Opposition to the Constitution (c) Unionist Opposition to the Constitution (d) “Abject Surrender”—The Reaction of Opponents of the Treaty Anti-Treaty Legal Arguments Against the 1922 Constitution (a) Challenging the Third Dáil Éireann (b) The 1919 Constitution of Dáil Éireann (c) The Treaty and Repugnancy Clause (d) Perceived British Legal Origins Diversity Within the Anti-Treaty Response to the Constitution Conclusion References Chapter 6: The Representative of the Crown and the Governor-General of the Irish Free State: Text and Context Introduction The Crown, the Treaty, and the Constitution The Powers and Terms of the Governor-General The Abolition of the Governor-General Conclusion References Chapter 7: The National Language and Article 4 of the 1922 Constitution Introduction The Historical Context and Drafting of Article 4 The Legal Status of Irish Prior to Independence Drafting Article 4 Legislative and Judicial Applications of Article 4 The Courts of Justice Act 1924 Article 4 Before the Courts Tongue Tied: Navigating Symbolism and Substance References Chapter 8: A New Constitution; a New Language? How the New Courts Talked About the Free State Constitution 1922 Introduction R(O′ Brien) v Military Gov NDU Internment Camp R (Cooney) v Clinton Attorney General v McBride State (O′ Duffy) v Bennett Lynham v Butler (No. 2) State (Ryan) v Lennon References Chapter 9: ‘Environmental Stewardship’ and Article 11 of the 1922 Constitution Introduction I – The Drafting of Article 11 of the 1922 Constitution II – Judicial Interpretation of Article 11 (and Article 10) III – A State Duty of ‘Environmental Stewardship’? Conclusion References Chapter 10: The 1922 Constitution as a Failed Attempt to Break with Westminster Tradition Introduction Part I: The 1922 Constitution’s Parliamentary Model and Irish Political Thought Part II: Experimental Elements of the 1922 Constitution A. Proportional Representation by Single Transferable Vote B. The Seanad C. Direct Democracy D. Functional/Vocational Councils E. External Ministers Part III: A Failed Experiment Conclusion References Chapter 11: Property Rights and Democratic Decision-Making: Lessons from the 1922 Constitution Introduction Options for Property Rights Protection in 1922 Internal Property Debates Unearned Increment Compensation for Expropriation Conclusions References Chapter 12: The Civil War, the Constitution and the Collapse of the Rule of Law The Execution Policy Fisher, Gaffney, Twohig, and Cassidy Erskine Childers Spooner, Farrelly, Murphy, and Mallin Mellows, O’Connor, Barrett, and McKelvey Trial by Army Committee Post 1922 The Legacy References Chapter 13: Revisiting the Legacy of the Amendment Procedure Thresholds of Turnout and Approval Transitory Period of Amendment by Legislative Means Risk of Extra-Parliamentary Politics Amendments Towards Sovereignty Repeal of the 1922 Constitution Conclusion References Chapter 14: What the Drafters Learnt in 1937 from the 1922 Experience I. II. IV. V. References Chapter 15: The Afterlife of the Constitution of the Irish Free State: Constitutional Echoes in South Asia Partition and Citizenship Language Article 11 of the Constitution of the Irish Free State State (Ryan) v Lennon and Constitutional Autochthony Constitutionalism Conclusion References Index