Legality of the enactment of the Constitution of Ireland

Legality Of The Enactment Of The Constitution Of Ireland

Legality of the enactment of the Constitution of Ireland

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There are or have been diverging legal views on whether the 1937 Constitution of Ireland observed legal continuity with the 1922 Constitution of the Irish Free State it replaced. One view is that the 1937 Constitution did not observe legal continuity and was a legal revolution. The other view is that legal continuity was maintained and it was merely a legitimate amendment of the 1922 Constitution.

Legal Revolution

The following are the two main arguments raised in favour of the view that the 1937 constitution was a legal revolution and not merely an amendment of the 1922 constitution:

  • The first argument concerns the method of enactment of the 1937 Constitution. The method used conflicted with the method set down in the 1922 Constitution. The 1922 Constitution provided that constitutional amendments must be enacted in the same manner as ordinary laws, i.e. as Acts of the Oireachtas. However, the 1937 Constitution was not an Act of the Oireachtas. Instead, it was "approved" by Dáil Éireann (the sole house of parliament)Dáil Éireann was at that stage the sole house of parliament, because Seanad Éireann had been abolished the previous year because of its opposition to certain constitutional amendments.
and then submitted to the people in a plebscite and only deemed to have become law once voters had endorsed it.

  • The second and related argument was that the 1937 Constitution purported to repeal the 1922 Constitution even though under......
  • ...

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