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Constitution of Ireland

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The Constitution of Ireland is the founding legal document of the state known today as the Republic of Ireland. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy, and guarantees certain fundamental rights. The constitution was adopted in 1937 by referendum, and may only be amended in the same manner. It is also widely referred to in English by its Irish language title, Bunreacht na hÉireann1.

Contents

Historical origins

Background

The Constitution of Ireland replaced the Constitution of the Irish Free State which had been in effect since the southern state became independent from the United Kingdom in 1922. There were two main motivations for replacing the old constitution in 1937. Firstly, the old constitution was indelibly associated with the controversial Anglo-Irish Treaty. Those opposed to the treaty initially boycotted the institutions of the new Irish Free State but in 1932 were elected into power as the Fianna Fáil party. Since 1922 many of the provisions of the Free State constitution demanded by the Anglo-Irish Treaty had been dismantled piece by piece under the doctrine of "constitutional autochthony" or legal nationalism. So, for example, amendments had removed references to the Oath of Allegiance, appeals to the Privy Council, the British Crown, and the Governor General. Nevertheless, the Fianna Fáil government, led by Eamon de Valera, still believed it desirable that a new, entirely native constitution replace one that had been the partial imposition of the British government.

The second motive for replacing the old constitution was that since its adoption it had been subjected to a great many, often rather ad hoc amendments. After 1922 the government of the Free State regularly exploited a provision of the constitution that allowed it to be amended by a simple act of parliament. Sometimes a normal act of parliament would contain within it a blanket provision stating that, if it were found to be incompatible with the constitution, the act should be interpreted as an implicit amendment to it. For these reasons, as well, many saw it as desirable that the old constitution be abandoned entirely, in favour of a clean slate.

Drafting process

Eamon de Valera, oversaw the drafting of a new constitution
Enlarge
Eamon de Valera, oversaw the drafting of a new constitution

The Bunreacht was the work of Eamon de Valera, President of the Executive Council (prime minister) of the Irish Free State. It was actually drafted in two languages, Irish and English: in Irish by Micheál Ó Gríobhtha, who worked in the Irish Department of Education, and in English by John Hearne, legal advisor to the Department of External Affairs (now called the Department of Foreign Affairs). De Valera served as his own External Affairs Minister, hence the use of the Department's Legal Advisor, with whom he had previously worked closely, as opposed to the Attorney-General or someone from the Department of the President of the Executive Council.

Though many presumed that the constitution was drafted in English and merely translated into Irish, in reality it was in effect written in both languages almost simultaneously, with each co-author borrowing from the other's work. The result unfortunately is that at a number of points the texts clash. In the event of such a clash, the Irish language, though ironically the less well worded legally, given that its author was not a lawyer, takes precedence.

Though controversial, de Valera's work has received international praise. Notwithstanding its actual contents, it is widely seen as a model constitution in terms of its clear legal language, order and structure. It has often been compared to the 1958 Constitution of the French Fifth Republic, which is generally seen by political scientists as inferior in terms of clarity and structure. The Bunreacht has been studied worldwide, for example in Nehru's India and Mandela's South Africa. Its office of President of Ireland was one of six studied closely by Australia's Republic Advisory Committee as Australia considered becoming a republic. The Constitution is currently being reviewed by the All-Party Oireachtas Committee on the Constitution.

Enactment

Bunreacht na hÉireann was passed by Dáil Éireann (the sole house of parliament) on 14 June and then approved narrowly in a plebiscite of voters on 1 July, 1937. It came into force on 29 December, 1937. Among the groups who voted against it were supporters of the Fine Gael and Labour opposition parties, Unionists, supporters of the Commonwealth and women. Its main support came from Fianna Fáil supporters and republicans. The question put to voters was simply "Do you approve of the Draft Constitution which is the subject of this plebiscite?".

Electorate Total poll (%) Spoilt (%) For (%) Against (%)
1,775,0551,346,207 (75.8)134,157 (10)685,105 (56.5)526,945 (43.5)

Legal continuity

Main article: Legality of the enactment of the Constitution of Ireland

At the time the Bunreacht was adopted there was uncertainty as to whether its enactment amounted to a 'legal' amendment of the Free State constitution or a violation of its terms. If the enactment of the Bunreacht were considered to be illegal in this way it could be considered an act of peaceful revolution. De Valera's government insisted that, owing to the principle of popular sovereignty, provided it was approved by the people in a plebiscite it was not necessary for the new constitution be adopted legally under the terms of the old. Nonetheless, in order to avoid a challenge to the new constitution in the courts, senior judges were required to make a formal declaration that they would uphold the constitution in order to be permitted to remain in office once the Bunreacht had come into force.

Main provisions

Structure

The official text of the constitution consists of a Preamble and fifty articles arranged under sixteen headings. Its overall length is approximately 16,000 words. When adopted, it also included a number of Transitory Provisions. However these are now likely to be of no legal effect and have been omitted from all official texts since 1941. The headings are:

Preamble (full text)

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 Éire,
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.

Characteristics of the nation and state

  • National sovereignty: The constitution declares the right of the Irish people to self-determination (Article 1). The state is declared to be sovereign and independent (Article 5).
  • United Ireland: Article 2 states that everyone born on the island of Ireland has the right "to be part of the Irish Nation", and grants citizenship to all such people (if at least one of their parents are Irish). Article 3 declares the will of the Irish people to create a united Ireland, provided this occurs peacefully, and with the consent of the people of Northern Ireland.
  • Name of the state: The constitution declares that the name of the state is "Éire, or, in the English language, Ireland" (Article 4). The term Republic of Ireland has been widely used since the adoption of Republic of Ireland Act in 1949 but, so as not to violate the constitution, was at that time declared to be merely the official description of the state.
  • National flag: The national flag is defined as the Irish tricolour (Article 7).
  • Capital city: The Houses of the Oireachtas (parliament) must usually meet in or near Dublin (Article 15), and the President's official residence must be in or near the city (Article 12).
  • Popular sovereignty: It is stated that all powers of government "derive, under God, from the people" (Article 6).

National language

Irish is declared as "the national language" and "the first official language", and English as "a second official language" (Article 8). However, the constitution leaves the government largely free as to what degree of recognition it gives either language in practice. The Irish text of the constitution takes precedence over the English text (Articles 25 and 63). However, the second amendment included changes to the Irish text to bring it in line with the English text. In practice the Supreme Court tries to find an interpretation compatible with both versions. The constitution provides for a number of Irish language terms that are to be used even in English speech. The terms Éire for the state, and Taoiseach for the head of government appear first in the Bunreacht. The terms Oireachtas, Dáil Éireann and Seanad Éireann had also featured in the Free State constitution.

Organs of government

Main article: Politics of the Republic of Ireland

The Constitution establishes a government under a parliamentary system. It provides for a directly elected, ceremonial President of Ireland (Article 12), a head of government called the "Taoiseach" (Article 28) and a national parliament called the "Oireachtas" (Article 15). The Oireachtas has a dominant, directly elected lower house known as "Dáil Éireann" (Article 16). There is also an independent judiciary under a Supreme Court (Article 34).

National emergency

Under Article 28, the constitution grants the state sweeping powers during a "time of war or armed rebellion", which may include an armed conflict in which the state is not a direct participant. In such circumstances a "national emergency" may be declared to exist by both houses of the Oireachtas (parliament). During such a period the Oireachtas may pass laws that would otherwise be unconstitutional and the actions of the executive cannot be found to be ultra vires or unconstitutional provided they at least "purport" to be in pursuance of such a law. However, the constitutional prohibition on the death penalty is absolute and it may not be introduced during a "time of war". Two national emegencies have existed since 1937: an emergency declared in 1940 to cover the threat to national security posed by World War II, and an emergency declared in 1976 to deal with the threat to the security of the state posed by the Provisional IRA.

International relations

  • European Union: Under Article 29 EU law takes precedence over the constitution in the event of a conflict. The Supreme Court has ruled that any EU treaty that substantially alters the character of the Union must be approved by a constitutional amendment. For this reason separate provisions of Article 29 permit the state to ratify the Single European Act, Maastricht Treaty, Amsterdam Treaty and Nice Treaty.
  • International law: Under Article 29 international treaties to which the state is a party are not considered part of the domestic law of the state unless the Oireachtas (parliament) decides otherwise. The article also declares that "Ireland accepts the generally recognised principles of international law", but the High Court has ruled that this provision is merely aspirational and is not enforceable in a court of law.

Individual rights

Under 'Fundamental Rights' title

  • Equality before the law: Guaranteed by Article 40.1.
  • Prohibition on titles of nobility: The state may not confer titles of nobility and no citizen may accept such a title without the permission of the Government (in practice this is usually a mere formality) (Article 40.1).
  • 'Personal rights': The state is bound to protect "the personal rights of the citizen" and in particular to defend the "life, person, good name and property rights of every citizen" (Article 40.2).
  • Prohibition of abortion: Prohibited by Artice 40.3, except in cases in which there is a threat to the life of the mother.
  • Habeas Corpus: Guaranteed by Article 40.4. The Defence Forces are exempt from habeas corpus during time of rebellion or war. Since the Sixteenth Amendment it has also been constitutional for a court to deny bail to someone charged with a crime where it suspects they may commit an offence.
  • Inviolability of the home: The state may not forcibly enter someones home unless permitted to do so by law (Article 40.5).
  • Freedom of speech: Guaranteed by Article 40.6.1. However this may not be used to undermine "public order or morality or the authority of the State". Furthermore, the constitution explicitly requires that the publication of "blasphemous, seditious, or indecent matter" be a criminal offence.
  • Freedom of assembly: Guaranteed by Article 40.6.1, but only when exercised "peaceably and without arms" and not a "nuisance to the general public".
  • Freedom of association: Article 40.6 protects this right but states that it may be regulated by the state "in the public interest", provided it is not regulated in a manner which is discrimminatory.
  • Family and home life: Under Article 41 the state promises to "protect the family" and its "imprescriptable rights, antecedent and superior to all positive law". Under the same article the state must ensure economic circumstances do not oblige a mother to work outside of the home. The provision also guarantees that in the event of divorce adequate financial provision must be made for any children and for both spouses.
  • Education: Article 42 guarantees parents the right to determine how their children shall be educated, provided a minimum standard is met. Under the same article the state must provide free primary level education. Currently Irish law also guarantees free second and third level education.
  • Private property: Guaranteed subject to "social justice" and the "common good" (Article 43).
  • Freedom of worship: Guaranteed subject to "public order and morality" (Article 44.2.1).
  • Prohibition of establishment: The state may not endow any religion (Article 44.2.2).
  • Religious discrimination: The state may not discriminate on religious grounds (Article 44.2.3).

Under other provisions

  • Prohibition of the death penalty: The Oireachtas (parliament) may not enact any law allowing for the imposition of the death penalty (Article 15), even during a time of war or armed rebellion (Article 28).
  • Prohibition of ex post facto laws: The Oireachtas may not enact ex post facto criminal laws (Article 15).
  • Trial by jury: A trial for a serious offence must usually be before a jury (Article 38). However, in certain circumstances a trial without a jury may occur before a military tribunal or "special court".
  • Sexual discrimination: The sex of an individual cannot be a reason to deny them the right to nationality and citizenship (Article 9), or to vote for or be a member of Dáil Éireann (Article 16).

Directive Principles of Social Policy

Article 45 outlines a number of broad principles of social and economic policy. Its provisions are, however, intended solely for the guidance of the legislature and cannot be enforced by a court of law. In the 21st century, the Directive Principles of Social Policy feature little in parliamentary debates. However, no proposals have been made for their repeal or amendment. They require, in summary, that:

  • Justice and charity must inform national institutions.
  • The free market and private property must be regulated in the interests of the common good.
  • The state must prevent a destructive concentration of essential commodities in the hands of a few.
  • The state should ensure efficiency in private industry and protect the public against economic exploitation.
  • Everyone has the right to an adequate occupation
  • The state must supplement private industry where necessary.
  • The state must protect the vulnerable, such as orphans and the aged.
  • No one must be forced into an occupation unsuited to their age, sex or strength.

Transitory Provisions

The Transitory Provisions are, or were, Articles 51 to 63. These thirteen articles mandate arrangements for the smooth transition from previous institutions to the newly established state. Article 51 provides for the transitional amendment of the constitution by ordinary legislation. The remaining twelve deal with such matters as the transition and reconstitution of the executive and legislature, the continuance of the civil service, the entry into office of the first president, the temporary continuance of the courts, and with the continuance of the attorney general, the comptroller and auditor general, the Defence Forces and the police.

Under their own terms the Transitory Provisions are today omitted from all official texts of the constitution. The provisions required that Article 51 be omitted from 1941 onwards and the remainder from 1938. However, paradoxically, under their own provisions Articles 52 to 63 continue to have the full force law and so may be considered to remain an integral part of the constitution, even though invisible. This created the anomalous situation that, in 1941, it was deemed necessary, by means of the Second Amendment, to make changes to Article 56 despite the fact that it was no longer a part of the official text.

The precise requirements of the Transitory Provisions were that Articles 52 to 63 would be omitted from all texts published after the day on which the first president assumed office (this was Douglas Hyde, who was inaugurated in 1938), and that Article 51 would be omitted from the third anniverary of this inauguration (1941). Unlike the other articles, Article 51 expressly provided that it would cease to have legal effect once it was removed from the document.

Amendments

Main article: Amendments of the Constitution of Ireland

Any part of the constitution may be amended but only by referendum. The procedure for amendment of the constitution is specified in Article 46. An amendment must first be adopted by boths Houses of the Oireachtas (parliament), then be submitted to a referendum and finally comes into effect on being signed into law by the President. The constitution has been amended more than twenty times since its adoption. Controversial amendments have dealt with such topics as abortion, divorce and the European Union.

Judicial review

Main article: Irish Supreme Court

The constitution states that it is the highest law of the land and grants the Supreme Court authority to interpret its provisions, and to strike down the laws of the Oireachtas and activities of the Government it finds to be unconstitutional. Under judicial review the quite broad meaning of certain articles has come to be explored and expanded upon since 1937. The Supreme Court ruled, prior to their alteration in 1999, that Articles 2 and 3 did not impose a positive obligation upon the state that could be enforced in a court of law. The reference in Article 41 to the "imprescriptable rights, antecedent and superior to all positive law" of the family has been interpreted by the Supreme Court as conferring upon spouses a broad right to privacy in marital affairs. In the 1974 case of McGee v. The Attorney General the court invoked this right to strike down laws banning the sale of contraceptives. The court has also issued a controversial interpretation of Article 40.3, which prohibits abortion. In the 1992 case of the Attorney General v. X (more commonly known simply as the "X case") the Supreme Court ruled that the state must permit someone to have an abortion where there is a danger to her life from suicide.

Issues of controversy

The "national territory"

Main article: Articles 2 and 3

As adopted in 1937 Articles 2 and 3 of the constitution made the controversial claim that the whole island of Ireland formed a single "national territory". These articles offended Unionists in Northern Ireland who considered them tantamount to an illegal extra-territorial claim. Under the terms of the 1998 Belfast Agreement the state amended Articles 2 and 3 to remove reference to a "national territory" and to state that a united Ireland should only come about with the consent of a majority in Northern Ireland, but also to guarantee the people of Northern Ireland the right to be a "part of the Irish Nation" and to Irish citizenship.

Religion

The Constitution of Ireland, particularly in the form in which it was adopted in 1937, has been accused of favouring the Roman Catholic Church and of bias against Protestants. The constitution is not an entirely secular document. It guarantees freedom of worship and forbids the state from creating an established church. However, it also contains a number of explicit religious references, such as in the preamble, the oath sworn by the President and Article 44.1 which reads:

The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

The constitution has also, since 1983, contained a controversial prohibition of abortion. However this does not apply in cases where there is a threat to the life of the mother (including from risk of suicide) and may not be used to limit the distribution of information about abortion services in other countries or the right of freedom of travel to procure an abortion. A number of ideas still found in the constitution reflect the Catholic social teachings current in the 1930s. Such teachings informed the provisions of the (non-binding) Directive Principles of Social Policy and the system of vocational panels used to elect the senate. The constitution also grants very broadly worded rights to the institution of the family.

As adopted in 1937 the constitution included two particular controversial provisions that have since been removed. These were a prohibition of divorce and a reference to the "special position" of the Catholic Church. Article 44, Sections 2 and 3 read:

  • Section 2: The State recognises the special position of the Holy Catholic Apostolic and Roman Church as the guardian of the Faith professed by the great majority of the citizens.
  • Section 3: The State also recognises the Church of Ireland, the Presbyterian Church in Ireland, the Methodist Church in Ireland, the Religious Society of Friends in Ireland, as well as the Jewish Congregations and the other religious denominations existing in Ireland at the date of the coming into operation of this Constitution.

Defenders of the original 1937 text argue that the concept of incorporating Catholic social teaching into law was prevalent in the 1930s, and common to many countries with large Catholic majorities. Divorce, for example was banned in other states such as Italy, which repealed its ban in the 1970s. It is also argued that reference to the Catholic Church's special position was of no legal effect and that there is significance in the fact that the "special position" of Catholicism was held to derive merely from its greater number of adherents, a concept that ran contrary to the Church's view of itself prior to the Second Vatican Council. It is observed that Eamon De Valera resisted pressure from right wing Catholic groups such Maria Duce to make Catholicism an established church or to declare it the "one true religion". It is finally argued that the prohibition of divorce was supported by senior members of the Church of Ireland and that the constitution's explicit recognition of the Jewish community was progressive in the climate of the 1930s. Article 44, Sections 2 and 3 were deleted from the constitution in 1973. The ban on divorce was removed in 1996.

Alleged sexism

The constitution guarantees women the right to vote and to nationality and citizenship. However it also contains a provision that was objected to by women's organisations at the time of the Bunreacht's enactment in 1937. Article 41.2 states:

  • Subsection 1: In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.
  • Subsection 2: The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

A republic?

Main article: Irish head of state from 1936-1949

In 1949 the state was officially declared to be a republic. However there is debate as to whether or not the state was a republic in the period of 1937-1949 (between these dates the state was not referred to as the 'Republic of Ireland' but was known only by its constitutional names, Ireland and Éire). The constitution does not mention the word "republic" but does include provisions stating that sovereignty resides in the people, and prohibiting the granting of titles of nobility or the establishment of a church.

Nonetheless, debate largely focuses on the question of whether prior to 1949 the head of state was the President of Ireland or King George VI. The constitution did not mention the king but nor did it state that the President was head of state. The President exercised certain of the usual roles of a head of state, such as appointing the Government and promulgating the law.

However in 1936 George VI was declared "King of Ireland" and, under the External Relations Act of the same year, it was this king who represented the state in its foreign affairs. Treaties, therefore, were signed in the name of the 'King of Ireland', who also accredited ambassadors and received the letters of credence of foreign diplomats. Representing a state abroad is seen by many scholars as the key characteristic of a head of state. This role meant, in any case, that George VI was the Irish head of state in the eyes of foreign nations. In 1949 the Republic of Ireland Act was adopted. This proclaimed a republic and transferred the role of representing the state abroad from George VI to the President. No change was made to the constitution.

Footnote

  1. Bunreacht na hÉireann may be roughly pronounced by English speakers as "bun-rocht" (with the ch as in loch) "na hair-inn".

Related topics

Further reading

  • Brian Farrell, De Valera's Constitution and Ours
  • Brian Doolan Constitutional Law and Constitutional Rights in Ireland
  • Jim Duffy, "Overseas studies: Ireland" in An Australian Republic: The Options - The Appendices (Republic Advisory Committee, Vol II, Commonwealth of Australia, 1993) ISBN 0644325895
  • Michael Forde, Constitutional Law of Ireland
  • John M. Kelly, The Irish Constitution
  • Tim Murphy & Patrick Twomey, Ireland's Evolving Constitution 1937-1997: Collected Essays
  • Micheál Ó Cearúil, Bunreacht na hÉireann: A Study of the Irish Text (published by the All Party Oireachtas Committee on the Constitution, The Stationary Office, 1999).
  • James Casey, "Constitutional Law in Ireland"

Obtaining copies

Paper copies of the Bunreacht are available from the Irish Government Publications Office in Dublin, and from the Irish Government Stationary Office, Molesworth St, Dublin 2. For electronic copies see below.

External links

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