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Review of The Origins of the Irish Constitution 1928-1941, Gerard
Hogan (Dublin: Royal Irish Academy, 2012)
Dr Laura Cahillane
Until relatively recently, there was little known about the drafting process
which led to the creation of our current Constitution. Myths, such as the idea that the
Constitution was the sole creation of Eamon de Valera, abounded. The pioneering work
by Dermot Keogh1 and his more recent collaboration with Andrew McCarthy2 began
the process of enlightenment. The Origins of the Irish Constitution 1928-19413 by Gerard
Hogan continues and adds substantially to this process.
This book is a key output of a project initiated by the Royal Irish Academy,
following on from the success of their Documents on Irish Foreign Policy Series4 and
involved the input of the Office of the Attorney General and the National Archives of
Ireland. The book consists of an introduction and 14 chapters, each of which contain
substantial documentary material from the archives, including drafts, correspondence
and memoranda and in addition, there is further material available on a dedicated
website www.irishconstitution.ie which consists of material which had to be excluded
from the book due to lack of space.
While the whole project is centred on this documentary material, of which the
majority is quite revealing and contains some fascinating insights, much of the value of
this work is actually in Hogan’s commentary and analysis at the beginning of each
chapter. However, it is unfortunate that some chapters have very little commentary

Lecturer in Law, University College Cork.
D. Keogh “The Irish Constitutional Revolution: An Analysis of the Making of the Constitution” in F. Litton,
ed., The Constitution of Ireland 1937-1987 (Dublin: Institute of public Administration, 1988)
2 D. Keogh, & A. McCarthy, The Making of the Irish Constitution 1937 (Cork: Mercier Press, 2007).
3
G. Hogan, The Origins of the Irish Constitution 1928-1941 (Dublin: Royal Irish Academy, 2012)
[hereinafter Hogan, Origins of the Irish Constitution].
4 See http://www.ria.ie/publications/books/research-series/documents-on-irish-foreign-policy.aspx (last
accessed: 30 April 2013).
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compared with others. Nevertheless, most of the chapters do contain a sufficient
explanation of the documentary material and are most instructive.
Before the Introduction, there are some short biographical notes, which are
useful in keeping track of the many characters who are mentioned throughout. The
introduction then begins with a brief summary of the tenor of the 1922 Constitution and
Hogan points out that the additions insisted upon by the British were “essentially
symbolic constraints on Irish sovereignty which, with the benefit of hindsight, can fairly
be described as a faint endeavour on their part to camouflage the extent to which a new
independent State was being created.”5 He then goes on to explain the downfall of that
document, beginning with the problems with Article 50, the addition of Article 2A, the
case of State(Ryan) v. Lennon6 and the Statute of Westminster. All of this material is
intended as background context against which the subsequent material is to be
understood. However, the title of Chapter 1 is The Irish Free State Constitution
Undermined and while it begins with the removal of the referendum and initiative from
the 1922 Constitution, it ends abruptly and does not provide a full picture of how the
1922 Constitution was dismantled. If the material in the introduction had been merged
with Chapter 1, and if certain important cases, such as R. (Cooney) v. Clinton7 and Attorney
General v. McBride8 were added and a more thorough examination of the Ryan case
provided (this is actually given later), this would have provided a much better platform
for the later material.
Chapter 2 considers the Committee set up in 1934 to consider the possibility of a
new Constitution. There is great detail provided on the thinking at this stage and
Hogan notes that:
... the entire tenor of the 1934 Report was essentially two-fold. It first
emphasised the necessity to protect fundamental rights via a written
Constitution and a system of judicial review. It secondly stressed the
desirability of maintaining continuity where possible with the existing 1922
Constitution. The Report clearly took the view that the better features of that
Hogan, Origins of the Irish Constitution, supra note 3 at 1.
[1935] 1 I.R. 170.
7 [1935] I.R. 245.
8 [1928] I.R. 451.
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6
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Constitution should be retained, while at the same time paving the way for
innovatory improvements.9
The documentary material in this chapter also provides some interesting
snippets. In a Memorandum from the Department of Justice, Stephen Roche writes:
“[o]n the sentimental side, I suppose the majority of our people would say that as
between ‘the Faith’ and ‘the Language’ the former is the more important, but we don’t
say anything about it in the Constitution”.10 On the topic of the Irish Language, the
opinion of the 1934 Committee is interesting:
[w]hile in our opinion this Article [Article 4, 1922] is not fundamental in the
sense that it safeguards democratic rights, we recognise that from the National
point of view it is important because of the status which it gives to the Irish
language. We realise, however, that in course of time it may be found desirable
to modify the recognition which it accords to English as an equally official
language throughout the State ...11
Obviously the dream of a Gaelic Ireland was still alive and well in 1934. Another
possibly surprising conclusion of the Committee is that they did not consider the right
to trial by jury as fundamental.
Chapter 3 concentrates on the State (Ryan) v. Lennon12 and the question of appeals
to the Privy Council. While situated here for chronological purposes, this would have
been better suited with the introductory material, in order to explain the dismantling of
the 1922 Constitution. Furthermore, it is a pity that this Chapter does not explore more
deeply the difference of opinion in Ryan and Moore v. Attorney General13 as to where the
1922 Constitution drew its authority from.
Chapter 4 is concerned with Drafting a new Constitution, 1935. It examines the
famous Square paper draft and Hogan posits that because of the legal language used and
references to the possibility of a constitutional court and the influence of the Weimar
Hogan, Origins of the Irish Constitution, supra note 3 at 47.
Ibid. at 63.
11 Ibid. at 91.
12 [1935] 1 I.R. 170.
13 [1935] 1 I.R. 473.
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Constitution, this draft was more likely “imparted by Hearne to de Valera rather than
the other way around.”14 There is plenty of interesting footnote material in this chapter,
for example, note 20 on page 156 explains how the British Government complained that
the amendment which removed all references to the Crown from the 1922 Constitution
amounted to a breach of the 1921 Treaty but that they were prepared to treat the
change as not amounting to a fundamental change in the status of the Irish Free State!
In Chapter 5, dealing with the abolition of the Seanad, it is remarkable that the
Second House Commission, which was set up to examine the possibility of reestablishing the Seanad, appeared to recommend a House almost identical to that
originally proposed in 1922. Chapter 6 deals with Submissions from Religious Bodies and
Discussions with the Churches. This is a preferred subject of Hogan (and also Keogh) and
thus contains much detail. Conversely, the following chapter is noticeably pithy by
comparison. While a substantial discussion might have been expected in Chapter 7 on
External Relations and Abolishing the Office of the Governor General, in fact there are only
three pages.
Chapter 8 examines the resumption of drafting in 1936 and contains some
fascinating insights. For example, in discussing the early drafts of Article 40, Hogan
states:
[w]hile many have doubted whether the enumerated rights doctrine had ever
been foreseen by the drafters, the language of Hearne’s first draft of what was
to become Article 40.3 provides some – admittedly fragmentary evidence to
suggest that it was intended to protect a category of rights other than those
identified in the text (‘... those that are inalienable, indefeasible and antecedent
to positive law, as well as those that have been by law granted and defined
...’).15
He comes back to this point again in Chapter 9 and opines that the language in the early
draft of Article 40.3,
14
15
Hogan, Origins of the Irish Constitution, supra note 3 at 152.
Ibid. at 278.
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... would nevertheless seem to provide some evidence that the personal rights
referred to in Article 40.3.1 had not been intended – by Hearne, at least – to be
confined to those rights actually enumerated elsewhere in the Constitution. It
is clear from the language of the earlier draft ... that it was here intended to
protect all rights deemed to be sufficiently fundamental by the courts,
irrespective of whether such rights were elsewhere expressly enumerated in the
Constitution.16
Hogan also laments the fact that there seems to be no memorandum or other
explanation of what was intended by the provision.
The above mentioned Chapter 9, on Observations of the Draft Constitution, is one of
the most valuable in terms of analysis and revelation of the opinion of those involved at
the time. There is also some very interesting information contained in the footnotes, for
example, the concerns about the possible interpretation of Article 42.4 in relation to the
provision of free primary education, which have been borne out by recent cases.17 The
reaction to the retention of the judicial review provision may come as a surprise: J.J.
McElligott objected to judicial review and referred to it as “the doctrine of
repugnance”,18 Stephen Roche also expressed “serious concerns about the potential for
judicial activism which the new Constitution would afford.”19 In relation to the question
of whether the extent of judicial review was ever intended, Hogan points out, in support
of an argument he has long championed, that: “[i]f, therefore, de Valera had not
intended to give such a prominent role to the courts in relation to these matters, it
cannot be said that he had not received adequate advance warning about the direction
which the draft Constitution might have been taking.”20 Later he notes:
[t]he key point in all of this is that whatever the merits and demerits of the
structure of judicial review which the drafters were considering (such as a
Constitutional Court, the Article 26 procedure and the plan for an exclusive
constitutional jurisdiction for the Supreme Court), this entire protracted debate
Ibid. at 354.
F.N. v. Minister for Education [1995] 1 I.R. 409, D.B. v. Minister for Justice [1999] 1 I.R. 29, Sinnott v.
Minister for Education [2001] 2 I.R. 545, T.D. v. Minister for Education [2001] 4 I.R. 259, O’Carolan v.
Minister for Education [2005] I.E.H.C. 296, O’C. v. Minister for Education [2007] I.E.H.C. 170.
18 Hogan, Origins of the Irish Constitution, supra note 3 at 327.
19 Ibid. at 332.
20 Ibid. at 335.
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would surely have been an empty exercise had not the drafters been serious
about the potential impact of judicial review of legislation.21
Another interesting point contained in this Chapter, which has previously been
noted by David Gwynn Morgan,22 is that Article 15.2.1° was really only concerned with
Westminster – making it emphatic that its reach no longer extended to Ireland – rather
than the separation of powers doctrine.23
In relation to the drafting process, Hogan points out that:
[t]he fact that the drafting committee consisted entirely of pro-Treaty
supporters helped to ensure continuity with the 1922 Constitution, but also,
generally speaking, probably operated as a moderating force. ... De Valera was
fortunate in his drafting team, for if he did not have the benefit of such a skilled
and broad-minded committee, it is more likely that both the content and design
of the Constitution would have suffered accordingly.24
In the documentary material in this chapter, a point appears from J.J.
McElligott, which does not seem to have been concentrated upon at the time:
[t]he possibility of reprisals of an economic or other character following the
enactment of the Constitution have not been dealt with. It is conceivable that it
may be held to deprive us automatically of any preferences we enjoy in the
British and Dominion markets. Even if no consequences of the kinds mentioned
were to follow it may be necessary for us to undertake the entire cost of our
own defences by sea, on the coast and otherwise, and this would add
considerably to what will, in any case, be a heavier bill presented by the new
Constitution to the taxpayer.25
The material here also contains opinions and comments from many parties.
George Gavan Duffy, who also made comments at the drafting stage of the 1922
Constitution, expressed many opinions on the Draft Constitution. In particular, he was
against the one judgment rule for constitutional decisions:
Ibid. at 353.
D. Morgan, The Separation of Powers in the Irish Constitution (Dublin: Roundhall Sweet & Maxwell,
1997) at 261-263.
23 Hogan, Origins of the Irish Constitution, supra note 3 at 335-338.
24 Ibid. at 359.
25 Ibid. at 387.
21
22
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[t]he silencing of dissenting opinions comes from the British Privy Council,
where its purpose is to conceal dissent from India and African nations, and
from the Court of Criminal Appeal, where the purpose is to conceal dissent
from the criminal. Surely it would be most undemocratic to apply the same
policy to judicial opinions on the Constitution, and the people are entitled to
know what their judges think. This would give an artificial sanction to the
opinion of 3 judges against 2, and those 2 are fully entitled to be heard,
especially as they may be right.26
Chapter 10 does not contain any commentary but includes 74 pages of
memoranda, letters and other documentary material on the subject of Revising the Draft
Constitution, April 1937. In Chapter 11, Reaction to the Constitution, much of the focus is on
the discussion of the time on the treatment of women in the Constitution – a subject
previously examined by Hogan.27 While he gives a good defence of de Valera’s position,
it is a pity that Hogan does not venture an opinion on Yvonne Scannell’s alternative
arguments28 about the possible interpretations of Article 41.2. He quotes her arguments
and then comments: “But no matter how one can be justly critical of de Valera’s oldfashioned paternalism as reflected in Article 41.2, it does not justify some of the more
tendentious criticism which has been levelled against both Article 40.1 in particular and
Article 41 in general.”29
There are some further extracts worthy of note in the documentary material of
this chapter, including the prescient comments of James Hogan in a letter to Alfred
O’Rahilly, where he opines that unless direct provision is made for direct functional
representation it will remain a dead letter.30 He also points out what he believes to be a
fundamental omission, in that the Constitution omits to state what Éire is. He notes:
“[i]n the absence of a constitutional definition of this fundamental point the present
Ibid. at 439.
G. Hogan “De Valera, the Constitution and the Historians” (2005) xxxxi Irish Jurist 291; G. Hogan,
Foreword to D. Keogh, & A. McCarthy, The Making of the Irish Constitution 1937 (Cork: Mercier Press,
2007).
28 Hogan, Origins of the Irish Constitution, supra note 3 at 530-531. See also, Y. Scannell “The Constitution
and the Role of Women” in B. Farrell, ed., De Valera’s Constitution and Ours (Dublin: Gill & Macmillan,
1988) 124-5.
29 Ibid. at 531.
30 Ibid. at 545.
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Constitution is on a par with Hamlet without the Prince of Denmark.”31 He goes on to
say that it would be better to “take John Bull by the horns” and simply state that “Éire
or better still Ireland is a ‘sovereign, independent and democractic’ Republic.32
In another letter provided in this chapter, León Ó Broin delivers severe criticism
of the Irish version of the Constitution. He refers to the use of the term “Sacs-Bhéarla”
for English Language as absurd and also criticises the introduction of a new rendering
for common words and phrases. He warns that the consequences in practice could be
“disastrous” and notes that “[i]n an atmosphere that is often not very appreciative of
the difficulties in the way of adapting Irish to current conditions, this business can
become very unpleasant for people trying to ‘push’ Irish.”33
Chapter 12, Preparing to Implement the Constitution, contains almost two pages of
commentary and the documentary material deals mostly with questions on approving
the Constitution and enabling legislation. Chapter 13 is another short but interesting
Chapter looking at the First Amendment of the Constitution Act, 1939.34 The following
and final Chapter 14, Constitutional Challenges and the Second Amendment 1939-41, is the
most detailed and one of the most interesting in the whole book in terms of its
commentary and analysis.
Particularly interesting is de Valera’s reaction to the unexpected result in the
case of State (Burke) v. Lennon.35 As Hogan notes: “[i]ndeed, speaking in the Dáil, de
Valera seemed to hint that the whole system of judicial review might have to be reconsidered if the judiciary were to continue to surprise the Government in this fashion:
... ‘If the Legislature and the judiciary are going to be at loggerheads in that way we
shall have to change the situation.’”36 This seems to undermine Hogan’s earlier
Ibid. at 545-546.
Ibid.
33 Ibid. at 549-550.
34 This Act extended the constitutional definition of “time of war” to include a period during which a war
is occurring but the State is not a direct participant, in order to allow the Government to exercise
emergency powers during World War II (known in Ireland as The Emergency), despite the fact that the
state was neutral. This meant that the State could exercise these powers provided that the Oireachtas
declared a “national emergency”.
35 [1940] I.R. 136.
36 Hogan, Origins of the Irish Constitution, supra note 3 at 683.
31
32
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implication that de Valera was well aware of the impact which judicial review might
have and therefore approved of it. On the contrary, this would seem to indicate that only
at this stage did de Valera realise that the judiciary might pose a problem for him and as
with the Irish Free State Seanad, if that continued he would have to do something about
it. The chapter contains an excellent treatment of the State (Burke) v. Lennon37 and all of
the issues surrounding it, including the issues of State security, tensions between the
legislature and judiciary, the question of a one judgment rule, etc.
As a whole, the book is more detailed and contains much more archival evidence
than any previous work of its kind. The reader would be well advised not to neglect the
footnotes, where many nuggets of information are to be found. Hogan gives a balanced
and discerning commentary. However, given the vast wealth of information contained
in these archives, it seems the author was confronted with a choice as to which areas to
emphasise. This now sets a challenge to others to continue the work and delve into the
areas which were not focussed on, although a very high standard has been set by the
current work. The book is a valuable contribution to the knowledge in this area and a
thoroughly enjoyable read for anyone with an interest in constitutional history.
37
[1940] I.R. 136.