The Supreme Court has flatly contradicted itself on the significance of Articles 2 and 3 of the Cons

It is hardly surprising that there is public confusion about the meaning and significance of Articles 2 and 3 of the Constitution, given that the Supreme Court has given directly contradictory judgements on them. There is confusion also on several other related aspects of the Constitution.

When the Constitution was first published in draft form, it was not Articles 2 and 3 that caused the British and the unionists concern. The then Northern Ireland Prime Minister, Lord Craigavon, did find Articles 2 and 3 “very objectionable”, but said it would be a mistake to take too much notice of them. The British Attorney General's view was that these Articles were “without legal result”, a view with which the legal adviser to the Stormont government concurred.

The British were more concerned about Article 4, which stated that the name of the State in the English language was “Ireland”. The British Prime Minister, Malcolm MacDonald said that to fail to take the “gravest objection” to this Article (not Articles 2 and 3) would be “tantamount to a recognition of the claim… to the whole of the island” (c.f. “DeValera and the Ulster Question” by John Bowman).

But even the issue of the name of the State was ambiguous. The Preamble refers uses the term “Eire” in reference to the people who are giving themselves the Constitution. Article 4 itself is confusion, stating that “The name of the State is Eire or, in the English language, Ireland”. The Supreme Court has held that the State can be referred to properly, in English, only as “Ireland”, although the Constitution would appear to offer the alternative “Eire”.

There is confusion also about the meaning of the term “nation”. The affirmation “hereby”, in Article 1 of the sovereign right of the nation to chose its own form of government etc, could be seen to limit the nation to just the 26 counties - for only the people of the 26 counties participated in the enactment of the Constitution.

The Constitution clearly intends to differentiate between the “nation” and the “state”, as represented by the different headings of Articles 1 - 3 and Articles 4-11. The Supreme Court has held that “the State” is the political entity that replaced Saorstat Eireann.
Thus it could appear that the State refers only to the 26 counties. If that is so, then the name “Ireland” refers only to the 26 county entity.
(Incidentally “Republic of Ireland” is not the name of the State. It is merely the “description” of the State under the Republic of Ireland Act 1948.)

In 1976 the Supreme Court said that Articles 2 and 3:

“Can be understood only if their background of law and political theory is appreciated…. One of the theories held in 1937 by a substantial number of citizens was that a nation, as distinct from a State, had rights; that the Irish people living in what is now called the Republic of Ireland and in Northern Ireland formed the Irish Nation; that a Nation has a right to unity of territory in some form… that the (Westminster) Government of Ireland Act 1920, though legally binding was a violation of that national right to unity which was superior to positive law. The national claim to unity exists not in the legal but in the political order”

One of the leading figures of the Supreme Court, which delivered that judgement, was the late Mr Justice John Kenny. In an address, delivered subsequently in Belfast, he said: “A nation, as distinct from the legal entity called the State, has rights even though these are not recognised by law”. He was re-emphasising that Articles 2 and 3 of the Constitution professed merely a political claim, not a legal one.

However, that view was reversed by the Supreme Court in 1990. It then stated:

“The re-integration of the national territory is a constitutional imperative. Article 2 of the Constitution consists of a declaration of the extent of the national territory as a claim of legal right….”

At least one member of the present Supreme Court, Mr Justice Donal Barrington, would appear to disagree with the 1990 Supreme Court view. In an RTE Thomas Davis Lecture broadcast in early 1988 (and published in “deValera's Constitution and Ours”, edited by Brian Farrell), he said:

“Whatever political doctrine is stated in Article 2, the State… has pledged (in Article 29) to respect its international obligations and the peaceful settlement of international disputes. Article 3 accordingly prohibits it from attempting to legislate for Northern Ireland. Had Article 2 stood without Article 3, it might have amounted to a claim by the south to territory that was, in international law, part of the United Kingdom… The Constitution has not got a particular meaning in Article 2 and a different meaning in Article 29. It is one document and has only one meaning”.

It is clear from Article 9 however that citizenship is defined by law and not by the Constitution. Therefore constitutional changes to Articles 2 and 3 would make no difference to citizenship, which is governed mainly by the Irish Nationality and Citizenship Act 1956.

If a North-South body is given executive powers that have any meaning, then Article 28.2 of the Constitution would have to be amended to permit that. Indeed a test of whether the powers given to any North-South body are of any executive consequence is whether an amendment to Article 28.1 is required.

Bunracht na hEireann 

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,
We, the people of Eire,
Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, who sustained our fathers through centuries of trial,
Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,
And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,
Do hereby adopt, enact and give to ourselves this Constitution.

The Nation
Article 1:
The Irish nation hereby affirms its inalienable, indefeasible, and sovereign right to choose its own form of Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.

Article 2:
The national territory consists of the whole island of Ireland, its islands and the territorial seas.

Article 3:
Pending the re-integration of the national territory, and without prejudice to the right of the Parliament and Government established by this Constitution to exercise jurisdiction over the whole of that territory, the laws enacted by that Parliament shall have the life, area and extent of application as the laws of Saorstát Éireann and the like extra-territorial effect.

The State
Article 4:
The name of the State is Éire, or in the English language, Ireland.

Citizenship
Article 9:
1.1 On the coming into operation of this Constitution any person who was a citizen of Saorstát Éireann immediately before the coming into operation of this Constitution shall become and be a citizen of Ireland.
1.2 The future acquisition and loss of Irish nationality and citizenship shall be determined in accordance with law.
The Government
Article 28.2:
The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.

International Relations
Article 29:
1. Ireland affirms its devotion to the ideal of peace and friendly cooperation amongst nations founded on international justice and morality.
2. Ireland affirms its adherence to the principles of the pacific settlement of international disputes by international arbitration or judicial determination.
3. Ireland accepts the generally recognised principles of international law as its rule of conduct in its relations with other States.