Understanding the Constitution

Concept of a Constitution

• It is the supreme legal norm within a legal system.
• It sits at the top of the normative pyramid.
• It regulates the creation of laws, fundamental rights, and the organization of the State.
• It establishes the foundation of the political system and guarantees rights.
• In a broad sense, it can be understood in two ways:
• A generic constitution exists wherever there are rules that organize society.
• A normative constitution is a structured set of rules and principles.

Broad Concept of the Constitution

• All societies need norms to organize and ensure the exercise of power.
• Power must be institutionalized to be effective.
• From a legal standpoint:
• Law is not a collection of isolated norms.
• It forms a structured legal system.
• This system establishes how laws are created, applied, and interpreted.
• There are two types of norms:
• Conduct norms regulate citizen behavior.
• Organizational norms determine how norms are created and applied.
• Hans Kelsen defines the Constitution as the supreme norm.
• From a political standpoint:
• The State is not just a legal system but a unit of power with specific ends.
• States need to guarantee peaceful coexistence through legitimate monopoly of violence.
• States need a historical destiny and institutions acting in their name.
• Essential questions to answer:
• Who exercises power?
• How is power exercised?
• What are the limits of power?
• What is the purpose of exercising power?
• Carl Schmitt defines the Constitution as key political decisions made by a people.

Strict Concept of the Constitution (Rational-Normative)

• Arises with the American and French Revolutions.
• It is the product of specific philosophical and political ideas.
• Purpose is to organize the State and establish a clear political entity.
• Key characteristics:
• It is a written and unitary document.
• It has specific content based on fundamental rights and organization of power.
• It is the supreme norm that regulates the legal system.
• It is the product of a concrete political philosophy.

The Evolution of Constitutionalism

• It is a historical phenomenon.
• It is linked to the evolution of the State and its power structures.

Key Historical Milestones of Constitutionalism

• English Constitutionalism:
• Did not produce a written constitution.
• It set limits on monarchical power.
• Examples include the Magna Carta (1215) and the Glorious Revolution (1688).
• American Revolution (1776):
• Gave rise to the U.S. Constitution of 1787.
• First written constitution with judicial review.
• French Revolution (1789):
• Inspired the Declaration of the Rights of Man and of the Citizen.
• It established national sovereignty and separation of powers.
• It marked the end of absolutism and the start of constitutional states in Europe.
• The Constitution of 1791 established national sovereignty, separation of powers, and rights declaration.
• Political instability led to Napoleon's dictatorship.
• Cádiz Constitution (1812):
• Influenced Latin America.
• It was the first Spanish constitution that limited the king's power, establishing national sovereignty.
• Inspired many Latin American constitutions.
• It failed to consolidate due to the absolutist restoration under Ferdinand VII.

Philosophy of Constitutionalism

• Modern constitutionalism is based on three fundamental philosophical principles:
• Rationalism: the organization of the State should respond to rational principles.
• Individualism: the individual is the center, possessing inalienable rights.
• Liberalism: seeking to guarantee the separation of powers and limiting state power.

Functions and Application of the Constitution

• A constitution regulates the organization of power and the application of norms.
• It establishes rights and principles.
• Compliance with the Constitution is guaranteed through:
• Constitutional Courts interpreting the Constitution.
• The annulment of laws that contradict it, like the U.S. Supreme Court in Marbury vs. Madison (1803).
• The principle of constitutional supremacy requires:
• All laws and political decisions conform to the Constitution.
• Jurisdictional guarantees include:
• Creation of bodies that ensure constitutional stability and respect for fundamental rights.

Importance of Constitutional Sentiment

• A Constitution is both a normative text and a social pact.
• It needs backing from citizens and political forces.
• It refers to collective adherence to the values and principles it represents.
• Factors reinforcing it include:
• Political consensus.
• Civic education.
• Citizen participation.
• Institutional stability.

Revolutionary Origin of the Constitution

• Modern constitutions came during a period of social and political change.
• It was impelled by revolutions seeking to limit absolute power.
• The American (1776) and French Revolutions (1789) marked the start of modern constitutionalism.

Main Constitutional Revolutions

• U.S. Independence (1776-1787): created a federal system with a separation of powers and its Constitution of 1787 is the oldest still in effect.
• French Revolution (1789-1791): a monarchy transformed into a system based on national sovereignty and citizens’ rights.
• Constitution of Cádiz (1812): the first attempt to establish a constitutional monarchy in Spain, influencing Latin America.
• Independence Revolutions in Latin America: inspired by European and U.S. principles, creating new nations with their own constitutions.
• The bourgeoisie and other social sectors sought greater political representation and protection of their rights.

The Constitution as a Power-Limiting Norm

• One of the main objectives of constitutionalism is avoiding power concentration.
• The Constitution establishes:
• Separation of powers.
• Recognition of fundamental rights.
• Popular sovereignty.

How Legitimacy of Power Changed

• Before constitutionalism, power was justified by divine right.
• With the French Revolution and U.S. Independence, sovereignty passed to the people.
• "We the People" in the U.S. Constitution symbolizing this new legitimacy.
• Article 16 of the Declaration of the Rights of Man and Citizen states that
• "A society in which the guarantee of rights is not assured, nor the separation of powers determined, has no Constitution."
• In an absolutist state: Power was legitimized in a top-down manner.
• In a constitutional State: Legitimacy is bottom-up.
• Constitutional courts play a vital role in:
• Ensuring laws and political decisions respect the principles established in the Constitution.

Fundamental Characteristics of a Constitution

• Supreme legal norm.
• Guarantee of fundamental rights.
• Separation of powers.
• National sovereignty.
• Jurisdictional guarantee.
• Aggravated amendment procedure.
• Stability of the political system.
• Openness and flexibility.

The Constitution in the Present

• Constitutions have evolved to adapt to social and political changes.
• Still fulfilling the role of:
• Limiting state power.
• Guaranteeing rights and liberties.
• Establishing a framework for democratic coexistence.
• Example: The Spanish Constitution of 1978.
• It includes two reform procedures: ordinary and aggravated.

Constitutional Amendments and Their Importance

• A Constitution must allow for changes to guarantee stability.
• Reforms can be:
• Ordinary: Modifying an aspect that is not essential.
• Aggravated: Reforming fundamental aspects.
• In Spain, Article 168 states:
• To change the form of the State or fundamental rights, a 2/3 majority in Congress and Senate is needed.
• Reforms maintain stability, respond to new challenges, and reflect popular will.

Interpretation and Application of the Constitution

• For its effectiveness, must be correctly interpreted and applied, which is carried out through:
• Constitutional Courts.
• Why is a Constitutional Court necessary?
• The Constitution is only effective if there is a mechanism to enforce it.
• The Constitutional Court has two main functions:
• Control of constitutionality.
• Guarantee of fundamental rights.
• The Constitution is applied through:
• Legislative Power.
• Executive Power.
• Citizenship.
• Methods of constitutional interpretation are:
• Literal.
• Historical.
• Systematic.
• Teleological.

Constitutionalism in the 21st Century

• Faces new challenges.
• These include:
• The crisis of national sovereignty.
• The protection of digital rights.
• Climatic and environmental challenges.
• The expansion of multilevel constitutionalism.
• Greater citizen participation.