Western Constitutionalism: History, Institutions, Comparative Law 3031408713, 9783031408717

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Andrea Buratti

Western Constitutionalism History, Institutions, Comparative Law Third Edition

Western Constitutionalism

Andrea Buratti

Western Constitutionalism History, Institutions, Comparative Law Third Edition

Andrea Buratti School of Law University of Rome Tor Vergata Rome, Italy

ISBN 978-3-031-40871-7    ISBN 978-3-031-40872-4 (eBook) https://doi.org/10.1007/978-3-031-40872-4 1st edition: © G.  Giappichelli Editore srl 2016 with the original title "Western Constitutionalism. An Introduction". © Springer Nature Switzerland AG and G.Giappichelli Editore 2016, 2019, 2023, corrected publication 2024 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

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Preface In this book, I analyze the theoretical origins, historical foundation, political meaning, and legal development of western constitutionalism, as well as the structure and transformations of constitutional law in the Western World. Although several complex issues will be taken into account, the main aim of this book is to handily introduce constitutional studies to university undergraduate and graduate students. In the European Modern Age, between the fifteenth and seventeenth centuries, extraordinary transformations of the political landscape took place. The closing of the Middle Ages led to the birth of new political and legal institutions: the nation states conquered the center of the scene, triggering processes of unification of the fragmented orders typical of the Middle Ages, and rationalization of the legal system. In the field of private law, the legal orders of the new nations, moving from the common foundations of Roman law, progressively undertook different paths, evolving into the traditions of Common law and Civil law. In the field of public law, we witness the growth of a rational administration, aimed at organizing the public functions in the vast territory of a state. The settlement of national monarchies also redefined the basic features of sovereignty as conceived in the Roman and Middle Ages. This led to the emergence of a brand-new model of international relations, a Jus Publicum Europaeum destined to regulate the relationships among the states for centuries and to shape the basis and the principles of modern and contemporary international law (Grotius 1625). These political phenomena, and the related transformations of the legal institutions, allowed for the demarcation of a broad space, synthetized at the beginning with the idea of Europe, characterized by common religious roots, economic transactions and mutual cultural influences, common principles of politics, common legal values, and mutually acknowledged methods of international relations (Schmitt 1950; Chabod 1995). With the colonization of the American lands by the European powers, the area of the Jus Publicum Europaeum also broadened within the new American colonies. Hence, on the two sides of the Atlantic Ocean, a western society was developing. It is in this institutional framework—the nation state—and in this geopolitical landscape—the Atlantic world—that the doctrine of constitutionalism was elaborated (Matteucci 1976; De Martino 2022). Here, starting from the age of the modern revolutions (1689–1789), constitutionalism was established, triggering a historical path, which is still in progress today. This book starts by providing an explanation of the theoretical roots and historical premises of constitutionalism (7 Chap. 1). I then examine the foundation of constitutional law in western countries since the age of the revolutions (7 Chap. 2) and in the nineteenth century (7 Chap. 3), underlining the different paths undertaken by western constitutional tradition. Moreover, starting from the end of the First World War, I describe the transformations of constitutional law brought by the transition toward pluralistic societies (7 Chap. 4). Thereafter, by focusing on  

 

 

 

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Preface

the contemporary age, I analyze the political and legal features of constitutional democracies, taking into consideration several constitutional experiences in the environment of the contemporary state. In 7 Chap. 5, I examine the Anglo-­ American experience and constitutional law as experienced in Commonwealth countries. In 7 Chap. 6, the focus is on the European countries. In 7 Chap. 7, I discuss the process of internationalization affecting contemporary constitutional law in the twentieth century, with an emphasis on the development of a European constitutional space. Finally, I discuss the worldwide expansion of the pattern of western constitutionalism (7 Chap. 8) and the contemporary challenges that constitutionalism and constitutional democracy face in the age of globalization. A few remarks on the methodology followed in this book: since modern and contemporary constitutions are the outcomes of a combination of legal and political institutions shaped within the common experience of western constitutionalism, the best way to introduce the study of constitutional law is through a comparative and historical approach. Constitutionalism—both as a political doctrine and as a legal practice—is, indeed, a traveling idea. It has crossed national boundaries by way of boats, merchants, books, chronicles, and newspapers; constitutionalism develops as a process of comparative learning. Therefore, only after having achieved a general knowledge of the fundamental design of constitutionalism as a transnational tradition, it is possible to study and understand national constitutional law, as provided by the constitutions and the constitutional sources of law of any specific country. Moreover, in the global age, law created and applied within nation state borders is affected by processes of opening, convergence and mutual learning, along with the competition of supranational, overlapping legal orders. Hence, the use of the historical and comparative approach is most suitable in order to understand our society and to reveal the traditions to which our legal orders belong and the transitions underway (Glenn 2000; Legrand 2016). Lastly, the historical method also allows for a better understanding of the existing relationships between the development of the legal institutions and the historical background, as determined by the political struggles, the social and economic claims, and the cultural transformations that took place in the Western World. Thanks to this method, it will be shown that constitutional law and constitutional structures are more so the products of history rather than the rational outcome of abstract categories (Cervati 2009). Constitutional law, indeed, does not mirror a closed and rational system, but rather it reflects living, evolving norms and legal institutions in their cultural contexts (Häberle 1996), dependent on social dynamics and political struggles (Muir Watt 2000). Constitutional studies must encompass this broad field of historical experience and cultural background in order to enlighten the nature and the functions of constitutional law in contemporary societies (Ridola 2021). This new, third, edition of Western Constitutionalism stems from the daily dialogue with students, who have studied with passion the former editions of the book throughout the years of their academic career, pointing out its fragilities, conceptual and terminological difficulties and inconsistencies, and the desire of a deeper  

 

 

 

VII Preface

analysis of specific subjects. I hope I have treasured students’ lessons: after all, this book is written for them. At the same time, I’ve had the opportunity to benefit from the ongoing dialogue with many friends and colleagues, who have commented on the book and discussed problems and complexities of constitutional studies with me. It is not possible to mention all of those who have contributed to the beginning of this work, from the adoption of the first edition of the book, in 2016. However, I will try to mention, at least, those who have contributed the most to this revision: Alberto Clerici, Marina Eugenia Costa Ferreira, Alessandra Di Martino, Marco Fioravanti, Arina Lopukhina, Giuseppe Martinico, Francisco Pereira Coutinho, Giorgio Repetto, Francesco Saitto, and Angelo Schillaci. A brilliant law student, Cayla Savoca—who has attended my courses and studied the former edition of this book—has worked as editor. I would like to dedicate the book to my mentor, Paolo Ridola, professor emeritus of comparative public law in the University of Rome La Sapienza: he has taught me to approach constitutional studies as an exploration of history, cultures, and society, well before that as an exercise of explanation and classification of technical instruments. References 55 Cervati AA (2009) Per uno studio comparativo del diritto costituzionale. Giappichelli, Torino 55 Chabod F (1995) Idea d’Europa e politica dell’equilibrio. Il Mulino, Bologna 55 De Martino (2022) Repubbliche atlantiche: una storia globale delle pratiche rivoluzionarie, 1776-1804. Raffaello Cortina, Milano 55 Glenn P (2000) Legal Traditions of the World. Oxford Univ. Press, Oxford 55 Grotius U (1625) De iure belli ac pacis 55 Häberle P (1996) Verfassung als öffentlicher Prozess. Duncker & Humblot, Berlin 55 Legrand P (2016) Le droit comparé. PUF, Paris 55 Matteucci N (1976) Organizzazione del potere e libertà. Il Mulino, Bologna 55 Muir Watt H (2000) La function subversive du droit comparé. Revue International de Droit Compare 52:503 55 Ridola P (2021) Gorla, Toqueville e la comparazione. Rivista Italiana per le Scienze Giuridiche 12:3 55 Schmitt C (1950) Der Nomos der Erde. Duncker & Humblot, Berlin Andrea Buratti

Rome, Italy

IX

Contents 1

The Forge of Constitutionalism........................................................................................  1

1.1 1.2

Constitutionalism: A Definition...................................................................................................  2 The Contribution of Ancient Constitutionalism: Jusnaturalism, Mixed Government, and Contractarianism.............................................................................    3 The Doctrine of Sovereignty and the Foundation of the Nation State in the Modern Age...........................................................................................................................    9 The Minority Paths of Constitutionalism in the Age of Absolute Sovereignty........... 15 References................................................................................................................................................. 17

1.3 1.4 2

Achievements: Constitutionalism in the Age of the Modern Revolutions.................................................................................................................................... 19

2.1 2.2 2.3

 Triggering the Constitutional Experience................................................................................ 21 The Origins of English Constitutionalism................................................................................ 22 The Foundation of Constitutionalism in Great Britain: Republicanism and Liberalism...................................................................................................................................   26 The First and Second English Revolutions: The Settlement of the Constitutional Monarchy..................................................................................................   28 The Bill of Rights of 1689 and the Rights of First Generation...........................................  32 American Constitutionalism: Foundations..............................................................................  36 The American Revolution.............................................................................................................. 37 From Independence to the Philadelphia Convention: The Revolutionary Decade.................................................................................................................................................   41 The Philadelphia Convention....................................................................................................... 43 The Federal Constitution............................................................................................................... 44 The Ratification Process and the Bill of Rights....................................................................... 58 The Emergence of the Judicial Review of Legislation.......................................................... 60 Constitutionalism in the French Revolution: Historical and Theoretical Premises.............................................................................................................................................. 63 The Summer of 1789: From the Constituent Assembly to the Declaration of Rights.............................................................................................................................................. 66 1789–1799: French Revolutionary Constitutions.................................................................. 71 Western Constitutional Traditions: Convergence or Divergence?................................... 75 References................................................................................................................................................. 79

2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 2.12 2.13 2.14 2.15 2.16 3

The Different Paths of Western Constitutional Law in the Nineteenth Century................................................................................................... 81

3.1 3.2

 Constitutionalism in the Liberal State....................................................................................... 82 British Evolutionary Constitution: From the Constitutional Monarchy to Parliamentary Government.....................................................................................................   84 The Progress of American Constitutional Law in the Nineteenth Century: From the Early Republic to the Civil War..................................................................................   87 Liberal Constitutionalism in Nineteenth Century Europe.................................................. 93

3.3 3.4

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Contents

3.5 3.6 3.7

 European Constitutions of the Liberal Age............................................................................. 97 The Development of Public Administration in the Liberal State.....................................104 Principle of Legality and Rule of Law........................................................................................107 References.................................................................................................................................................112

4

Constitutionalism in the Age of Democratization...............................................115

4.1 4.2 4.3 4.4 4.5 4.6 4.7 4.8

 Constitutionalism and Democracy at the Beginning of the Twentieth Century........116 The Evolution of the American Constitution..........................................................................118 The United Kingdom Between the Two World Wars.............................................................126 The Irish Independence and the Constitution of 1937........................................................ 130 European Constitutions in the Aftermath of the First World War....................................132 A European Invention: The Centralized Review of the Legislation.................................136 The Weimar Constitution...............................................................................................................140 Toward the Catastrophe.................................................................................................................145 References.................................................................................................................................................148

5

Framing Constitutional Democracy: The Anglo-­American Experience......................................................................................................................................151

5.1 5.2 5.3 5.4 5.5

 From the British Colonial Empire to the Commonwealth...................................................152 The Constitutional Order of Canada..........................................................................................154 The Constitutional Orders of Australia and New Zealand..................................................157 The Evolution of the British Constitution Between the Human Rights Act, Devolution, and Constitutional Reform Act............................................................................  162 The United States Constitution, from Post-world War II Until Modern Times.............172 References.................................................................................................................................................188

6

Framing Constitutional Democracy: The European Experience.................191

6.1 6.2 6.3 6.4 6.5 6.6

 New Beginning: Liberal-Democratic Constitutions in Europe......................................192 A The General Features of Contemporary European Constitutionalism...........................195 The Italian Constitution of 1948.................................................................................................. 213 The German Basic Law of 1949.................................................................................................... 220 The French Fifth Republic Constitution (1958)......................................................................230 The Consolidation of Constitutional Democracy in Europe: Democratic Transitions in Greece, Portugal and Spain...............................................................................  241 References.................................................................................................................................................249

7

The European Constitutional Space: The European Convention on Human Rights and the European Union..............................................................253

7.1 7.2 7.3

 The Transformations of International Law in the Post Second World War....................255 From the Open Constitutional State to the European Constitutional Space...............260 The European Convention on Human Rights: (a) The Catalogue of Rights and the Court of Strasbourg.........................................................................................................  262 The European Convention on Human Rights: (b) The Relevance of the Convention in Domestic Legal Orders......................................................................................  267 The European Union: Origins of the Integration Process...................................................272

7.4 7.5

XI Contents

7.6 7.7 7.8 7.9 7.10 7.11

 The New System of the Treaties and the Ambivalent Identity of the EU.......................273 The “Democratic Life” in the Union and the Institutional Framework of the EU........275 The Sources of Law of the European Union and their Effects in Domestic Legal Orders.......................................................................................................................................  282 The Court of Justice of the European Union...........................................................................287 The Protection of Fundamental Rights in the European Union.......................................290 The European Union Between Integration and Resistance...............................................294 References.................................................................................................................................................297

8

The Worldwide Expansion of Constitutional Democracy................................299

8.1 8.2 8.3 8.4 8.5

Trends of Expansion........................................................................................................................300 Decolonization and Constitutionalism in Asia.......................................................................301 Decolonization and Constitutionalism in Africa....................................................................307 Constitutionalism in Latin America............................................................................................309 The Ambivalent Expansion of Constitutionalism in Eastern and Central Europe After the Fall of Communism........................................................................................  315 Western Constitutionalism in the Global Landscape...........................................................318 References.................................................................................................................................................322

8.6

Correction to: The Different Paths of Western Constitutional Law in the Nineteenth Century........................................................................................................................................C1

1

The Forge of Constitutionalism Contents 1.1

Constitutionalism: A Definition – 2

1.2

 he Contribution of Ancient Constitutionalism: T Jusnaturalism, Mixed Government, and Contractarianism – 3

1.3

 he Doctrine of Sovereignty and the Foundation T of the Nation State in the Modern Age – 9

1.4

 he Minority Paths of Constitutionalism in the Age T of Absolute Sovereignty – 15 References – 17

© Springer Nature Switzerland AG and G.Giappichelli Editore 2023 A. Buratti, Western Constitutionalism, https://doi.org/10.1007/978-3-031-40872-4_1

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Chapter 1 · The Forge of Constitutionalism

1.1 

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Constitutionalism and liberalism

Constitutionalism and democracy

Constitutionalism: A Definition

The notion of “constitutionalism” identifies a political and legal doctrine that first appeared in England during the seventeenth century, and quickly spread throughout North America and Western Europe, becoming the leading ideological background of the three revolutions of the Modern Age of the Western World. Under a theoretical perspective, constitutionalism represents the political and legal dimension of liberalism, with which it shares not only philosophical premises, but also political goals: fighting monarchical absolutism and transforming the political, legal and economic structures of the Ancien Régime according to the interests and the objectives of a social class, the bourgeoisie, that was rapidly increasing its social and cultural hegemony. With the aim of preventing any form of concentration of power, and seeking to establish a government founded on a sound and balanced legal framework, constitutionalism pursued the goal of limiting political power through the definition of three main legal means: (1) the adoption of a written constitution, prescriptive toward the institutions of the state and suitable to act as paramount law over its acts; (2) the separation of power of the state among the different branches of government; and (3) the legal protection of a wide range of individual rights (Grimm 2016). In line with the goals of liberalism, constitutionalism promoted the affirmation of the principle of the rule of law (as known in the Anglo-American experience) and the état de droit (as known in the French and continental context), according to which the political power should not depend on the arbitrary will of the sovereign, but rather must follow established procedures and legal forms. Yet, a more comprehensive and historically accurate analysis requires us to highlight the existing connections between the liberal doctrine of constitutionalism—with its emphasis on the priority of individual liberties and limited government—and the innovative understanding of the legitimacy of political power devised in the framework of constitutional thought (Ridola 2005): constitutionalism proposed a contractarian explanation of the source of political sovereignty, according to which political power derives from the consent of the people, and is delegated to institutions representative of the people (representative

3 1.2 · The Contribution of Ancient Constitutionalism: Jusnaturalism…

government) (Manin 1996). Such a reliance on the idea of popular sovereignty allowed constitutionalism to incorporate projects and demands of popular movements, with their claims for legal equality, political empowerment and social justice: popular movements played, indeed, an important role in the achievements of the revolutions, blending their demands for equality, political participation and social justice with goals and means elaborated within the environment of bourgeois liberalism (Skinner 2012). In conclusion, liberalism, with its emphasis on the constraints on government and the guarantee of individual liberties and democracy, and its purpose of favoring equality in political participation and bolstering social improvements, merged during the age of the revolutions, enriching the meaning of and set of values within constitutionalism (Bobbio 1995): starting with this moment, the development of constitutionalism has been strictly intertwined with the process of democratization, that in the Western World took concrete shape between the nineteenth and twentieth century, and with the inclusion of all social classes in the area of political participation. The constitutions of the Modern and Contemporary Ages are the outcome of this multifaceted doctrine: as an evolution of these seminal purposes, contemporary liberal-­ democratic constitutions set rules to shape the design of the government in order to grant separation and balance among its several branches, grant the rights of men and ensure equality, regulate the democratic participation of the people, prevent discrimination and promote social justice.

1.2 

 he Contribution of Ancient T Constitutionalism: Jusnaturalism, Mixed Government, and Contractarianism

The doctrine of constitutionalism places its roots in ancient political and philosophical thought, in which not only the need for limitation of political power was present, but the proposals and discussions of many of the legal tools cultivated by modern constitutionalism were exhibited, as well. Scholars are used to speaking about an “ancient constitutionalism”, different from but strictly

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The theory of natural law

connected to modern, western constitutionalism (McIlwain 1939). A look into the features of this “ancient constitutionalism” allows for a better understanding of modern constitutionalism. Due to upheavals and political turmoil that used to affect Greek polis, in Greek philosophy of the classic age, the reflection on the best form of government has always been linked with the aspiration to establish constraints on political authority. Since the Hellenistic age, the idea of a higher law— shaped by nature, human reason, or given by God—that binds all men, began to appear. In Sophocles’ tragedy Antigone, the young heroin refuses to obey Creon’s commands:

»» It was not God’s proclamation, that final Justice that

rules the world below makes no such laws. Your edict, King, was strong, but all your strength is weakness itself against the immortal unrecorded laws of God. They are not merely now: they were, and shall be, operative forever, beyond man utterly.

However, it is only with Christian and Roman philosophy that this doctrine would be fully defined, assuming the features of what is today commonly acknowledged as jusnaturalism. The theory, despite its several sources, each varying from one another, generally claims the existence of a natural, rational limit to the law of men. In Cicero’s De Republica, we find a precise explanation of the bounds to the law of men represented by the law of nature:

»» True law is right reason in agreement with nature; it sum-

mons to duty by its commands, and averts from wrongdoing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vain, though neither has any effect on the wicked. It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws in Rome and in Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will one master and ruler, that is, God, over us all, for he is the author of this law, its promulgator, and its enforcing judge.

5 1.2 · The Contribution of Ancient Constitutionalism: Jusnaturalism…

In Christian political theory, developed throughout the years in which Christians were a persecuted minority, natural law, based on the will of God, represented the main constraint to the doctrine of unbounded sovereignty, which was expressed by leading political and legal thought in the age of the Roman Empire. Per Origen, a Christian theologian living in the third century AD,

»» As there are, then, generally two laws presented to us, the

one being the law of nature, of which God would be the legislator, and the other being the written law of cities, it is a proper thing when the written law is not opposed to that of God, for the citizens not to abandon it under pretext of foreign customs; but when the law of nature, that is, the law of God, commands what is opposed to the written law, observe whether reason will not tell us to bid a long farewell to the written code, and to the desire of its legislators, and to give ourselves up to the legislator God, and to choose a life agreeable to His word, although in doing so it may be necessary to encounter dangers, and countless labours, and even death and dishonor. For when there are some laws in harmony with the will of God, which are opposed to others which are in force in cities, and when it is impracticable to please God (and those who administer laws of the kind referred to), it would be absurd to condemn those acts by means of which we may please the Creator of all things, and to select those by which we shall become displeasing to God, though we may satisfy unholy laws, and those who love them.

Throughout the Middle Ages, this doctrine was kept alive and continued to be developed by many philosophers and Christian theologians—among whom were John of Salisbury and Thomas Aquinas—for whom it represented the consequence of their religious vision of political obligation, as well as a powerful tool of resistance against secular power and its attempts to reduce the political leverage and the liberties of the Christian Church (Troeltsch 1912). In the specific context of England, the belief in the intangibility of natural law merged with the quest for the rule of law, a doctrine defended by the jurists of the Middle Ages, aimed at establishing boundaries of the power of the King to legislate and govern. These boundar-

The rule of law in England

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Chapter 1 · The Forge of Constitutionalism

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The theory of mixed government

ies were found in natural law and human reason, as well as in the customary law rooted in the historical tradition of the country (lex terrae). According to Bracton, the rule of law limits the political authority of the King to shape the law: whereas the Monarch has absolute authority over the political choices of the kingdom (gubernaculum), his power is bound by the rule of law as to the administration of justice and the enforcement of the law (iurisdictio) (McIlwain 1939). While the doctrine of jusnaturalism was reliant on moral grounds, the doctrine of mixed government represented a purely pragmatic theory of the necessity for constraints on political authority. Attempting to counterbalance democratic radicalism realized by Pericles in the polis of Athens, Aristotle’s Politika addresses the question of the best form of government in an innovative, original way. The philosopher, indeed, refuses monarchy—government by one man—as it could easily become a tyranny; he also refuses aristocracy—government by the richest part of society—since it could easily become an oligarchy; and also refuses democracy, which he conceives as government by the majority. Democracy, according to Aristotle, could lead to a government of the popular class, and thus it would boost only the interests of the poorest against the other social classes. As an alternative, he proposes a mixed form of government, where all the social classes are represented and share powers through different institutions, which are intricately linked to one another. He calls this balanced form of government “Politeia”. Throughout the centuries, Aristotle’s theory influenced other philosophers and politicians. During the Roman Age, the most important of those was Cicero. As a member of the aristocracy, he fought against both the desire of the tribunes—representatives of the plebs—to acquire more power, and the attempts to confer all political power to one man. To this end, he proposed the same idea as Aristotle, i.e. a mixed and balanced form of government, that he called “Republica” (Commonwealth). This form of government, theorized by Cicero in De Republica, had its most significant historical expression in the institutional framework of the Roman Republic of the second century BC. Here, the main features of the three traditional forms of government (monarchy, aristocracy and democracy) were present, being represented respectively by the consuls, the senate, and the different kinds of legislative

7 1.2 · The Contribution of Ancient Constitutionalism: Jusnaturalism…

1

assemblies (De Martino 1974). Among the latter, notably, the plebeian council deserves a special acknowledgement, as it was the main popular assembly of the ancient Roman Republic, in charge of the election of the tribunes of the plebs. Cicero clearly explains the theoretical as well as the practical reasons for the preference accorded to the mixed form of government:

»» The regal form of government is in my opinion much to

be preferred of those three kinds. Nevertheless, one which shall be well tempered and balanced out of all those three kinds of government, is better than that; yet there should be always something royal and pre-eminent in a government, at the same time that some power should be placed in the hands of the better class, and other things reserved for the judgment and will of the multitude. Now we are struck first with the great equability of such a constitution, without which a people cannot be free long; next with its stability. The three other kinds of government easily fall into the contrary extremes: as a tyrant grows out of a king; factions from the better class; and mobs and confusion from the people.

Several features of these doctrines are linked to specific elements of the cultural and political landscape of the Ancient Age: both Aristotle’s and Cicero’s doctrines are strictly connected to the historical and social conditions of their times and to their main political project—the need to achieve political peace and social stability (Rimoli 2011). According to them, this goal could only be reached as a result of a mixed form of government, in which all the powers are shared and divided. Furthermore, similar to the philosophy of the Ancient Age, the two philosophers based their theories on a specific interpretation of the social body: the political community is comparable to a human body, in which all of its parts are connected, and no single part is more important than another, regardless of the function performed by each. Such a general view of the political community is linked to a static and organicist interpretation that can’t be adapted to modern societies. Nonetheless, in these doctrines we can find the first assertions of the relevance of a mixed government, whence the modern doctrine of the separation of powers stems (Vile 1967). A third contribution to modern constitutionalism comes from the doctrine of contractarianism. As we will

The theory of contractarianism

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Chapter 1 · The Forge of Constitutionalism

see in the next chapter, the idea that the state and its political institutions were born on the basis of a social compact among free men is a fundamental pillar of modern constitutionalism. This doctrine had already been introduced by several philosophers and politicians in the Ancient Age in addition to the Middle Ages. Also in this case, Christianity played a pivotal role in consolidating such doctrine, because the idea of the contract had already been largely addressed in the Bible, exemplifying the foundation of the alliance between God and men. The theoretical framework of contractarianism was also developed by the legal practice during the Middle Ages, through the affirmation of a new social and economic pattern—feudalism. In the feudal landscape, the contract was the typical model of setting the relationships among individuals and among communities, both in the realm of work and of production, as well as in the political sphere. Focusing on political power, the feudal contract was based on a pact of submission and assistance between individuals, legitimizing the political authority of the lord over the people. In the practice of feudal law, moreover, contract theory was applied by the courts of justice as a means to resolve disputes arising from the violation of agreements and mutual duties, as well as by groups and communities rebelling against the lord and attempting to claim their independence (De Benedictis 2001). In European history, therefore, contractarianism was much more than a political doctrine: it was a fundamental legal framework for the organization of social and political relationships. At the beginning of the Modern Age, feudal contractual practice and contractual theories of the Middle Ages—mainly based on a religious vision of the social compact—were rethought and canalized into a modern doctrine of contractarianism, conceived as the very foundation of political obligation and state legitimacy. The idea that political obligation follows and depends on a compact among individuals, in which the government finds the very reason of its existence and its boundaries, was an essential contribution to a theory of limited political power. It introduced indeed some of the basis of modern constitutionalism: the idea of equality of men; the existence of a superior legal framework to be respected by the government; and the need for a just government to rest upon the consent of the people.

9 1.3 · The Doctrine of Sovereignty and the Foundation of the Nation…

Furthermore, whereas the doctrine of natural law was mainly connected to religious beliefs and religious visions of the world, contractarianism permitted a secular view of the boundaries of political power (Gough 1957). In the Modern Age, where a vehement process of secularization took place (Hazard 1935), this feature of contractarianism helped define the theoretical elements of the doctrine of constitutionalism. In conclusion, although created via different paths, jusnaturalism and contractarianism led to the affirmation of superior and intangible limits to the commands of the political power of men. This also brought on a radical outcome: the theorization of a right of resistance against the political authorities, in the form of disobedience to unjust commands and norms, as well as in the form of rebellion against the tyrant. As we will see in 7 Sect. 1.4, the claims for a right of resistance were the ideological tools of minority groups, which catered to the continued existence and preservation of the tradition of constitutionalism throughout the centuries of absolutism (Buratti 2006).

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The theory of the right of resistance

 

1.3 

 he Doctrine of Sovereignty T and the Foundation of the Nation State in the Modern Age

Despite such refined theories widespread within ancient and medieval political thought, the actual development of political institutions followed divergent directions. In Western Europe, indeed, the Roman Imperial Age, the Middle Ages and the first centuries of the Modern Age were characterized by the affirmation and consolidation of a completely different doctrine about political obligation, based on the idea of absolute sovereignty. This doctrine supported the growth of the Empire and, later on, national monarchies. Within the intellectual landscape of those time periods, only a minority of theorists and communities considered constitutionalism as a sound political doctrine (7 Sect. 1.4). The idea of political power as absolute was consolidated in the context of the Roman Empire: at the end of the Roman Republican Age, the weakening of the Senate and the tribunes gave the Emperor the right to act as superior to and not bounded by the law, identifying the law with his own will (quod principi placuit legis habet vigorem).

The doctrine of absolute sovereignty in Europe

 

The role played by the Civil law legal system

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Chapter 1 · The Forge of Constitutionalism

In the following centuries, these doctrines shaped the codification of law led by Emperor Justinian, according to whom, “the imperial majesty should be armed with laws as well as glorified with arms”. A relationship of mutual support exists between the consolidation of the doctrine of absolute sovereignty and the growth and development of the Civil law legal system, throughout the last Imperial Age and Middle Ages, based on the codification of law. Roman law of the late Imperial Age was characterized by the prevalence of written, enacted, sources of law responding to the will of the sovereign and able to prevail on norms resulting from customs and opinions of lawyers. The development of the European civilian legal system follows these premises, building hierarchical relationships among the sources of law, over which the enacted law, issued by the monarch, rests. Accordingly, the role of the courts of justice was strictly limited to the application of the provisions within enacted law. Legal Tools and Keywords: Legal Orders, Sources of Law, Legal Systems “Ubi societas ibi ius”. This Latin formula easily explains the common awareness of the relationship existing between law and human societies. Whenever a group of men reaches a certain level of stability and organization, institutions and norms start to exist with the function of regulating the relationships among individuals, developing and protecting shared interests, and maintaining the society itself. At first glance, therefore, the legal order can be conceived as a set of institutions and norms regulating the forms of collective organization and the rules of a civilization. The legally binding norms in a legal order derive from sources of law. Sources of law are any acts or facts that the legal order acknowledges as valid forms of normative production. In complex societies, the law is produced by several sources of law: in the evolution of modern western law, the main sources of law acknowledged are enacted legislation, jurisprudence and customary law. This pluralism of the source of law implies an organization of the relationships among sources, in order to avoid normative conflicts. The set and the methods of organization of the sources of law take the name of the legal system.

11 1.3 · The Doctrine of Sovereignty and the Foundation of the Nation…

In ancient societies, where tradition played a fundamental political role, customary law had the prominent position in the hierarchy of the sources of law ­(traditional or customary legal systems). Though, with the development of more complex societies, the importance of customs in legal systems has progressively diminished. Jurisprudence (or case law) is the set of decisions made by the courts (judicial branch of a legal order) adopted at the time of ruling on cases brought to their jurisdiction. Enacted legislation means any written, normative, published act created by a political body according to a specific procedure. Starting with the Modern Age, the legal orders of the states in the Western World are organized according to two distinct legal systems. In the Civil law legal system, the enacted legislation occupies the key role: the courts are bound by the enacted law, they only retain a power of interpretation of the norms. In the Common law legal system, instead, the main source of law is the jurisprudence of the courts, according to the rule of the precedent (the respect of the previous decisions taken in similar cases by a superior court) (David and Jauffret-­ Spinosi 1993; Losano 2000).

During the Middle Ages, the collapse of the Roman Empire resulted in an extreme political fragmentation in Europe, with the affirmation of local lords and communes as new political authorities. Such a radical transformation from the imperial model, which was characterized by legal uniformity and political hierarchy, brought on the emergence of different legal systems: local customs and local traditions came back to life, overlapping with the commands of new local lords. Legal fragmentation was a typical feature of the Middle Ages’ legal systems, only partially limited by the effort of courts’ jurisprudence to foster the consolidation of a jus commune—the expression for a universalistic vision of politics—made of principles of Justinian Law and maxims of legal interpretation delivered by lawyers. During the fifteenth century, with the settlement of the monarchies in France, Great Britain, Spain and Portugal, a process of reorganization of the political institutions took shape. The outcome was the foundation of a new political organization, the state—a political organization

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1

The foundation of the nation state in modern Europe

spread over a vast territory, driven by a centralized governmental authority, and imposing a homogeneous legal order on the people. The state-building process followed common paths throughout Europe, with the emergence of an aristocrat’s ability to predominate over his peers and progressively centralize fundamental public functions, such as: maintaining armies and granting internal security; raising revenues; imposing regulations on commerce; organizing jurisdiction and granting the enforcement of its rulings (Hirschmann 1977; Poggi 1978). The affirmation of the modern state implied the elaboration of a theoretical legitimacy of the concentration of power in the figure of the monarch. Therefore, the doctrine of absolute sovereignty was revitalized and stressed: political power was thought to be legitimized by God and granted by him to his representative on Earth. The French philosopher Bodin is considered the father of this stream of thought. This divinity attributed to the sovereign led to extremism in the views of his value, glorifying him with illusions of mysticism and sanctity (Kantorowicz 1957). Accordingly, the political power of the sovereign was considered to be indivisible and illimitable. The theorists of absolute political power fought against all doctrines aimed at establishing boundaries to the power of the sovereign to legislate: from their perspective, the prince was “legibus solutus”. According to them, the sovereign’s role was to abolish jurisdictional authority of the territorial lords, as well as to modify ancient legal traditions and privileges of the cities, communities, guilds and nobles, which were widespread in the medieval legal order. The spreading of the Civil law legal system in continental Europe, with its rational and centralized hierarchical structure, fostered the development of the modern nation state, the settlement of a centralized authority able to bind all the local powers existing in the fragmented legal order of the Middle Ages, as well as the twilight of the jus commune. These achievements occurred thanks to the acquisition of the power by the monarch to produce normative acts and introduce normative innovations: a radical change when compared to the medieval legal order, which conceived the law as customary and eternal, and the role of political authority as strictly limited to enforcing the law. With the Peace of Westphalia (1648)—which brought an end to a long-lasting conflict between France and

13 1.3 · The Doctrine of Sovereignty and the Foundation of the Nation…

England, also based on religious grounds after the Anglican Reform—the form of the modern state was finally acknowledged. The Treaty of Westphalia recognized the exclusive sovereignty of the state over its population: other institutions, such as the church, were not allowed to supersede the state within its boundaries. Transformations to the form of political obligation brought by Westphalia are easily understandable through the analyses of three basic elements of the modern state, which distinguish it from previous forms of political organization. The first factor is territory: During the Middle Ages, territory was conceived in terms of heritage, as property belonging to the feudal lord, and the obedience to the sovereign’s command was due because of a personal obligation based on the feudal compact; in the new environment of the modern state, territory represents an asset of the state as an abstract subject: in this framework, state’s boundaries identify the space in which the state’s legal order is in force. The identification of the effectiveness of the legal order through the state’s boundaries meant first of all the overcoming of the Middle Ages’ model of overlapping political sovereignties and social communities; then, it entailed a process toward an equal application of law over the people (Di Martino 2010). The second element to be taken into consideration is the people: modern state is different from any other organization exactly for extending itself to a polity, i.e. to a community of people who share a political belonging and are subject to the same political obedience. With the Revolutions and the emergence of democratic theories of political legitimacy, this idea allowed for the rise of the notion of citizenship, a status defined by conditions set forth by the law aimed at identifying the members of the society, that is the source of both duties toward the community as well as rights of political participation (Costa 1999). The third element is sovereignty: the modern state does not allow the recognition of other authorities within its boundaries and over its people; it claims the exclusive and legitimate use of force, the power to produce norms, to enforce them, and to judge controversies and crimes. Modern sovereignty also owns an external dimension. The state is “superiorem non recognosens” both as well as in foreign affairs: in regard to the relationships between nation states, each state is equally legitimated to stand,

The basic elements of the modern state

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negotiate and join treaties. This allowed for the birth of the Jus Publicum Europaeum (Schmitt 1950), a term which refers to the first conceptualization of global international law, founded on the beliefs of formal equality of sovereign states and mutual acknowledgement. The states were the protagonist of the development of international law, which is mainly the outcome of the set of treaties and agreements between the states, aimed at regulating the relationships among each other. At the same time, the relationships among the states also create a base for the foundation of a transnational legal order, made up of customary rules and commonly acknowledged principles (e.g. the pacta sunt servanda principle), which progressively builds up the legal framework of international law and international relations. With the transition from the Middle Ages to the Modern Age, the same doctrine of contractarianism changed in meaning, supporting the consolidation of absolutism. This shift in definition can be more easily understood when comparing two famous artistic allegories of political obligation: Ambrogio Lorenzetti’s “Effects of Good Government”, a fresco of the late Middle Ages (1338) lying in the Civic Museum of Siena, shows the sovereign bound by a rope held by citizens: here, the lord is equipped with the traditional hallmarks of command, but is submitted to the constant check by the people. The second image projects us in the middle of the Modern Age: it is the famous cover illustration of the “Leviathan” by Thomas Hobbes (1651), a book rightly considered a pillar of the doctrine of absolutism. In Hobbes’view, the power of the state can be compared to that of a biblical monster, the Leviathan, created by a social contract with the duty to protect the polity: it is illustrated as a giant who embodies within himself the citizens, thus representing the people as a whole. His will does not meet any sort of constraints, because he simply gives voice to the will of the people. The comparison between these two well-known images, suggests that, with the passage to the Modern Age, social contract is no more—as it was in the Ancient and Middle Ages—a mutual obligation, a source of bounds and duties for the sovereign, but rather now this contract is conceived as a pact of obedience, providing the sovereign with a representative characteristic which places him above the laws. Obviously, the concrete organization of the absolute state in the Modern Age, and the structure of the Ancien Régime society, were more complex than what was envis-

15 1.4 · The Minority Paths of Constitutionalism in the Age…

1

aged by the theoretical doctrines of absolutism: in some countries, the aristocracy was able to preserve portions of authority, and the judicial courts often played a role in constraint of the government. Furthermore, the monarchs had to deal with the parliaments of the Modern Age—collective bodies representative of the different classes of the Ancien Régime society, where general political issues were debated and revenues’ collection authorized (Hofmann 1974). However, against the political orders of the Middle Ages, the modern state was able to overcome feudal and local peculiarities and privileges, organizing the political power through a centralized administrative and judicial system. Moreover, the affirmation of the modern state helped in the overcoming of religious conflicts, endemic in European society after the fall of the Roman Empire and further exacerbated by the religious schisms of the sixteenth century, by imposing a sole religion on citizens, and limiting the role of the church in politics, thus enforcing a separation between church and state, which is at the origin of the modern concept of secularism.

1.4 

 he Minority Paths of Constitutionalism T in the Age of Absolute Sovereignty

Against the hegemony of the doctrine of absolute sovereignty, and the related consolidation of the modern state, at the beginning of the Modern Age the theoretical roots of ancient constitutionalism were resumed, brought back to life and reconceived in the light of the new modern political age by philosophers, minority groups and local communities (Wolzendorff 1916). In many countries, aristocracy resisted the attempts to affirm a centralized monarchy through the imposition of charters of rights: compacts drafted in the typical form of a feudal pact, in which the aristocrats acknowledged the legitimacy of the monarchy, and the king would confirm privileges, immunities and prerogatives of the lords. In all of these charters, the pacts were granted through the codification of the right of resistance, allowing aristocrats to resist, rebel and remove the sovereign in the case of violations of the charter. The English Magna Carta Libertatum (1215) was assumed to be the pattern for such documents. These charters are hardly comparable to modern constitu-

Aristocratic resistance

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The resistance of religious minorities

tions and modern bills of rights: they were only aimed at protecting privileges of the aristocratic social class, rather than individual rights, and their design is more easily comparable to compacts between lords and vassals typical of the feudal system (Brunner 1968); at the same time, ­however, the aristocratic charters of rights contributed to the settlement of the conception of individual rights as constraints to the political power of the monarchs, and established a contractarian pattern as the legal framework for the protection of rights, seminal for what would become constitutional documents. Opposition to the modern concept of political sovereignty was also carried out by the religious minorities persecuted by the monarchs all over Europe. According to the main theorists of these groups (Hotman, Theodore Beza, Calvin, among others), political power derived from a compact with the people. Therefore, in any case in which the government becomes unjust and oppressive, the people should always have the power to resist and remove the tyrant. At the same time, these authors refused the binding authority of Roman law, deemed to be the source of the absolutist doctrine of sovereignty. A sound political system, instead, should have been based on a system of constraints over the power of the monarch, consisting of the traditional institutions of the country and of other innovative institutions entrusted with competences to check the monarch’s powers (Zancarini 2001). Additionally, the politics of the Italian Renaissance exhibit relevant connections to ancient constitutionalism: though far from the premises of modern constitutionalism, Machiavelli, in his Discourses on the First Decade of Titus Livius (1513–1519), magnified the institutional structure of the Roman Republic, and most of all, the role played by the tribunes, described as fundamental to the prevention of abuse of power by the Senate (Skinner 1978). The insurgency of the United Provinces of the Netherlands against the Habsburg Empire, known as the Dutch Revolt (1581–1588), laid the foundation for the consolidation of these doctrines—supported by the Calvinist religion spread in those territories—and for the settlement of the Republic, an institutional organization setting the first form of power-sharing (Clerici 2004). This broad set of theories, claims and episodes of political fights contributed to shaping the doctrine of resistance against political power. Clearly, during the

17 References

Middle Ages and the Modern Age, these doctrines were still a minority and were largely scattered as opposed to the widespread absolute sovereignty theory. Nevertheless, this slight circulation of the ancient constitutionalism doctrine granted its survival and recall at the moment of growth of the insurgencies against absolutism. The tradition of the right of resistance was the forge in which ancient constitutionalism and modern political philosophy merged. The theoretical justification of the claims of resistance to political obligation was the catalyst for modern constitutionalism.

Comprehension Check and Tasks 1. What are the doctrines that contributed to the development of the idea of “higher law” in ancient constitutionalism? (7 Sect. 1.2) 2. What is the role played by the Civil law legal system in the evolution of the doctrine of sovereignty? (7 Sect. 1.3) 3. Explain the notion of “source of law” (7 Sect. 1.3) 4. Why is the Peace of Westphalia recognized as a turning point in the development of the modern state? (7 Sect. 1.3) 5. What were the antagonists of absolutism in the beginning of the Modern Age? (7 Sect. 1.4)  

 

 

 

 

References Bobbio N (1995) Eguaglianza e libertà. Einaudi, Torino Brunner O (1968) Neue wege der verfassungs  – und sozialgeschichte. Vandenhoeck & Ruprecht, Göttingen Buratti A (2006) Dal diritto di resistenza al metodo democratico. Giuffrè, Milano Clerici A (2004) Costituzionalismo, contrattualismo e diritto di resistenza nella rivolta dei Paesi Bassi. Franco Angeli, Milano Costa P (1999) Civitas. Storia della cittadinanza in Europa. I: Dalla civiltà comunale al Settecento. Laterza, Roma David R, Jauffret-Spinosi C (1993) Les grands systèmes de droit contemporains. Dalloz, Paris De Benedictis A (2001) Politica, governo e istituzioni nell’Europa moderna. Il Mulino, Bologna De Martino F (1974) Storia della costituzione romana. Jovene, Napoli Di Martino A (2010) Il territorio, dallo Stato-nazione alla globalizzazione. Giuffrè, Milano

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Gough JW (1957) The social contract. Clarendon Press, Oxford Grimm D (2016) Constitutionalism. Past, present and future. Oxford Univ. Press, Oxford Hazard P (1935) La crise de la conscience européenne. Boivin & Cie, Paris Hirschmann AO (1977) The passions and the interests: political arguments for capitalism before its triumph. Princeton Univ. Press, Princeton Hofmann H (1974) Repräsentation. Studien zur wort– und begriffsgeschichte von der antike bis ins 19. Jahrhundert. Duncker & Humblot, Berlin Kantorowicz E (1957) The King’s two bodies. Princeton Univ. Press, Princeton Losano MG (2000) I grandi sistemi giuridici. Laterza, Roma and Bari Manin B (1996) Principes du gouvernement representatif. Champs Flammarion, Paris McIlwain CH (1939) Constitutionalism and the changing world. Cambridge Univ. Press, Cambridge Poggi G (1978) La vicenda dello Stato moderno: profilo sociologico. Il Mulino, Bologna Ridola P (2005) Il costituzionalismo. Itinerari storici e percorsi concettuali. In: Scritti in onore di Gianni Ferrara, vol III. Giappichelli, Torino Rimoli F (2011) L’idea di costituzione. Una storia critica. Carocci, Roma Schmitt C (1950) Der Nomos der Erde. Duncker & Humblot, Berlin Skinner Q (1978) The foundations of modern political thought. Cambridge Univ. Press, Cambridge, MA Skinner Q (2012) Liberty before liberalism. Cambridge Univ. Press, Cambridge, MA Troeltsch E (1912) Die Soziallehren der christlichen kirchen und gruppen. Mohr Siebeck, Tübingen Vile MJC (1967) Constitutionalism and the separation of powers. Oxford, Clarendon, Oxford Univ. Press Wolzendorff K (1916) Staatsrecht und naturrecht in der lehre vom widerstandsrecht des volkes gegen rechtswidringen ausübungen der staatsgewalt. Marcus, Breslau Zancarini J (2001) Le Droit de résistance. XII-XX siècle. ENS, Lyon

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Achievements: Constitutionalism in the Age of the Modern Revolutions Contents 2.1

Triggering the Constitutional Experience – 21

2.2

The Origins of English Constitutionalism – 22

2.3

 he Foundation of Constitutionalism in Great Britain: T Republicanism and Liberalism – 26

2.4

 he First and Second English Revolutions: T The Settlement of the Constitutional Monarchy – 28

2.5

 he Bill of Rights of 1689 and the Rights of First T Generation – 32

2.6

American Constitutionalism: Foundations – 36

2.7

The American Revolution – 37

2.8

 rom Independence to the Philadelphia Convention: F The Revolutionary Decade – 41

2.9

The Philadelphia Convention – 43

2.10

The Federal Constitution – 44

2.11

The Ratification Process and the Bill of Rights – 58

2.12

 he Emergence of the Judicial Review T of Legislation – 60

© Springer Nature Switzerland AG and G.Giappichelli Editore 2023 A. Buratti, Western Constitutionalism, https://doi.org/10.1007/978-3-031-40872-4_2

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2.13

 onstitutionalism in the French Revolution: C Historical and Theoretical Premises – 63

2.14

 he Summer of 1789: From the Constituent Assembly T to the Declaration of Rights – 66

2.15

1789–1799: French Revolutionary Constitutions – 71

2.16

 estern Constitutional Traditions: Convergence W or Divergence? – 75 References – 79

21 2.1 · Triggering the Constitutional Experience

2.1 

Triggering the Constitutional Experience

In the first chapter, I introduced the theoretical roots of constitutionalism, and their mutual overlap and blending paths. The revolutions of the Modern Age in Europe and North America (England 1689, United States 1776, France 1789) were the occasions for consolidating the ideology of constitutionalism, for linking this doctrine to other compelling social and political claims, and for establishing a legal framework consistent for all. Therefore, the three revolutions of the Modern Age represent the foundation of the western constitutional experience, promoting the adoption of constitutional acts and declarations of rights, and triggering the transformation of political institutions according to the principle of separation of powers. Although originating from the common tradition of constitutionalism, national experiences gave shape to different constructions, mainly influenced by the perceived idea of state and sovereignty, driven by the respective national culture. Indeed, at the moment of their actual transposition into legally binding constitutional norms, the common principles and leading ideas of separation of powers and individual rights were forced to adapt themselves to political needs and social structures, at times undertaking diverging paths. Starting with these historical breakpoints, constitutionalism—which in the first Modern Age had been the main theoretical framework of political opposition to an absolute political authority, and a source of legitimacy of the revolutions—was contained in its most subversive principles, and became a doctrine instrumental to legitimize the revolutionary achievements. Therefore, revolutionary constitutions of the Modern Age are the contact point between constitutionalism’s adversarial attitude, with its emphasis on the limitation of political power, and its propensity to legitimize a new legal order, based on separation of powers, representative government, and the priority of individual liberties.

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2.2 

2

Society and institutions in England

The Parliament of Westminster

The Origins of English Constitutionalism

England was the first country where the modern doctrine of constitutionalism appeared and took concrete form. The early success and circulation of constitutionalism must be explained in regard to peculiar social and institutional features, which made England the ideal place for its affirmation. Since the Middle Ages, the longstanding conflict between the Crown and the aristocracy has represented a deterrent to the potential growth of the monarchical power. Following the Norman invasion and conquest of Great Britain (1066), the King tried to alter the previous feudal order, based on the equality among feudal lords, and to establish a more centralized monarchy. The lords, however, resisted this process, claiming the recognition of their prerogatives as “peers” of the King. In 1215, through the Magna Carta Libertatum, the King formally recognized aristocrats’ traditional privileges and assumed the commitment of respecting their guarantees and immunities. In this framework, since the beginning of the Modern Age, we witness the economic growth of a young and dynamic bourgeoisie—whose wealth depended on the development of the trade and manufacturing industries— increasingly aware of its social and economic role, and striving for the assertion of its political values. Aristocrats and the bourgeoisie, both antagonists of the process of centralization of the political power, found their operative instrument in the Parliament of Westminster—an institution established in the Middle Ages as a council meant to support the King and express the consent of the feudal lords to his main purposes and deliberations. As with the other parliaments in Europe, the Parliament of Westminster was initially composed of representatives of the traditional social classes (the aristocracy and the clergy); with the late Middle Ages, representatives of municipalities and counties were added to the Parliament. Since the fifteenth century, as a consequence of the growing influence of new social classes, Parliament has been divided into two Houses, labeled the House of Commons and the House of Lords, therefore assuming the architecture that it owns nowadays. While the lords and the representatives of the clergy were selected according to their status and served for life, the representa-

23 2.2 · The Origins of English Constitutionalism

tives of the Commons were selected through elections at a local level: the elected representatives in the Commons were linked to their electors by a mandate, a typical feature of all the representative assemblies of this age. The mandate is what drove the representatives’ votes and behavior, essentially limiting their freedom to vote at free will (Hofmann 1974). The powers of Parliament were reinforced over the years, through a slow and constant evolution. In the Middle Ages, parliamentary functions were limited to the approval of tax revenues requested by the King. In the sixteenth century, its powers increased, especially thanks to the growing economic relevance of the bourgeoisie. In those years, Parliament reduced the area of the competences that the King was entrusted to carry out without its consent. Above all, it obtained the power to make laws, depriving the King of this prerogative: namely, while during the Middle Ages, Parliament could only raise a petition to the King, moving into the sixteenth century now gave Parliament a comprehensive lawmaking power, to pass bills destined to be approved by the King and become statutes, thus leaving the King with only the power to reject a bill passed by the two Houses. Furthermore, Parliament attained the power of impeachment of the Ministers of the Crown in case of treason or other illicit conducts, submitting them to a parliamentary trial. The progressive growth of Parliament’s predominance in English politics can also be observed from the angle of the affirmation and acknowledgement of the entitlements of the members of Parliament and the independence of Parliament itself. During the fifteenth and sixteenth centuries, Parliament fought against the King to: (1) impose regular elections of the Commons; (2) exclude the interference of sheriffs in the election procedures; (3) claim an exclusive, independent power to check the validity of the elections; (4) impose on the King frequent meetings of Parliament; (5) exclude any power to arrest members of Parliament and infringe on their personal liberty; and (6) grant broad freedom of speech to the members of Parliament: a set of claims that the monarchs were compelled to slowly acknowledge, as a consequence of the growing influence of Parliament. As we will see in the next paragraph, the fragile equilibrium of powers reached throughout the centuries was destabilized in the seventeenth century, because of Stuarts

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Chapter 2 · Achievements: Constitutionalism in the Age of the Modern Revolutions

The Common law legal system

monarchs’ attempts to strengthen the Crown’s rights and marginalize the parliamentary political influence. So far, we have analyzed the social and institutional actors who reacted to the concentration of powers, paving the way to constitutional momentum. We must now turn our attention to another component of English constitutionalism, i.e., the Common law legal system. The role played by the courts of Common law was indeed crucial in setting the boundaries of the political power of the King through the affirmation of general principles of Common law, granting individual rights that the Government could not infringe on. The role played by the English Common law legal system must be contextualized within a more general process of separation from the Roman legal tradition, as practiced in continental Europe throughout the Middle Ages: such a process had brought English courts to develop a peculiar legal practice, based more on local customs than on Roman codes and their constructions by the jurists. Customary law of the land was administered by feudal local courts, mainly dependent on feudal lords: a pluralistic system of justice that increased legal heterogeneity and resulted in difficulties of enforcement. Since feudal courts were largely ineffective and represented a further means of local and aristocratic resistance to a centralized political power, the growth of monarchical power in the thirteenth century also implied a centralization of the judicial function into a new judiciary system. This goal was realized through the making of the Common law courts. The courts were indeed committed to applying common principles to the entire kingdom, removing the legal particularism inevitably linked to political fragmentation and pluralism in the administration of justice (Van Caenegem 1988). In the process of building up a unitary body of legal principles, the courts of Common law needed to establish the prevalence of their judgments over local customs: in order to achieve this goal, they shaped a new legal system, characterized by a different set of relationships among sources of law. This legal system strongly differed from the Civil law system, spread throughout continental European countries. Specifically, while in the Civil law legal system, based on the Roman law tradition, the enacted norm was recognized as the main source of law, instead, in the Common law legal system the main source of law became the case law of the courts. According to this method, the

25 2.2 · The Origins of English Constitutionalism

precedents set by the courts (more precisely, the principles which lead the judicial decision in the resolution of a case: ratio decidendi) must be followed by the other courts of the kingdom when judging cases with similar grounds ­(principle of stare decisis). As the monarchy strengthened, the Common law legal system began to consolidate. The courts developed a proper organization, based on the preeminence of the three Courts: Common Pleas, King’s Bench and Exchequer, which progressively improved their independence from the King. With the development of the system, and the creation of hierarchically organized courts, a differentiation in the binding force of precedents was established, acknowledging binding effects only to principles and precedents of the higher courts (Mattei 2014). Although created to support the process of unification of the state, in the Modern Age the Common law legal system resulted in a means to counterweight the peril of centralization of political power in the King’s hands. Starting with the sixteenth century, the courts of Common law established a strategic alliance with Parliament in order to tackle the strengthening of the absolute power of the monarchy. In this struggle, the doctrine of constitutionalism became their means of resistance. During this time, indeed, the judges of courts of Common law declared the supremacy of the principles of Common law over the government, recalling the ancient theory of the rule of law, according to which no power can be exerted beyond what is provided by the law: Common law precedents assumed the function to express and concretize the “law of the land”, consisting in higher and unchangeable principles of reason and customs rooted in society to be respected as superior law, prevailing over royal decrees as well as over parliamentary statutes passed by the Parliament of Westminster. In the Bonham’s case (1610), Justice Edward Coke wrote:

»» [I]t appears in our books, that in many cases, the common

law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.

As we will see in the next paragraphs, these are the origins and the basis of the judicial review of legislation—the power of the courts that today represents the main legal application of constitutionalism (McIlwain 1939).

Common law as an instrument of legal check

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2.3 

2

Republicanism and liberalism as sources of British constitutionalism

John Locke’s contribution to the doctrine of constitutionalism

 he Foundation of Constitutionalism T in Great Britain: Republicanism and Liberalism

Throughout the first Modern Age, the ongoing political struggle against absolutism fostered the rediscovery of the ancient doctrines of mixed government, jusnaturalism and contractarianism, which together with the ancient idea of the rule of law, contributed to the construction of the theory of modern constitutionalism and promoted the Glorious Revolution of 1688. In the sixteenth century, during the most trying time of absolutism, the ancient roots of constitutionalism were resumed and collected by a line of thought, shared by several philosophers, that took the name of republicanism. James Harrington was a primary founder of this school of thought: in his book The Commonwealth of Oceana (1656), Harrington presents the Republic as the best form of government for granting political stability and social justice. Although resuming the ideas of Aristotle and Cicero, Harrington’s main source of inspiration was the Italian thinking of the Renaissance, and especially Machiavelli, who had magnified the balance achieved by the institutional structure of the Roman Republic as an alternative to the concentration of political power (Pocock 1975). The second line of thought that contributed to the theorization of constitutionalism in England was liberalism. Even though a concrete establishment of the doctrine of liberalism was reached only by the eighteenth century, in the age of the Glorious Revolution we witness the development of all the premises of this doctrine, mainly through John Locke’s works and his reflections on individualism and individual rights. His fundamental political work, The Two Treatises on Government, was published immediately after the Glorious Revolution, and it played an essential role in legitimizing the Revolution. As in the republican ideology, Locke emphasizes the necessity of separation of powers: in order to prevent a tyrannical regression, a sound government should divide the power to legislate and the power to execute legislation—this latter including both administrative and judicial execution—and confer them to different and separated authorities. Notwithstanding this clear statement, since Locke’s intent was that of legitimizing a parliamentary revolution; he reached the conclusion of an inherent supe-

27 2.3 · The Foundation of Constitutionalism in Great Britain…

riority of the legislative branch over the executive, affirming the right of parliament to check the behavior of the executive body, and remove executive officials from power when necessary. Moreover, Locke’s contribution to the development of modern constitutionalism also includes a renewed doctrine of natural rights of individuals, that the government must acknowledge and protect. Locke’s explanation relies on the ancient theoretical assumption of the state of nature, an ideal original condition elaborated to explain the foundation of societies and political institutions. According to Locke, individuals are born free, in a state of nature in which they live in a condition of whole liberty. They shape the government through a contract among themselves, which clearly defines the goals that the government must pursue: above all, the protection of individual rights, namely life, property and freedom. In Locke’s view, however, the foundation of the government through a compact is not intended to annul the right of the people to control the government’s behavior and deliberations. On the contrary, the people continue to maintain the power to oversee the legitimacy of the acts of the government and their consistency with the wellness of the people and the protection of their freedom: the people retain the power to control the rationality of the government and the correctness of the relationships among its several branches. From Locke’s perspective, the government rests upon and depends on the consent of the people: the people always have the power to resist a corrupt government that crosses the limits of its functions, as defined by the compact. Consequently, he declares and justifies resistance as a means of assuring the protection of the fundamental rights of men:

» But though men, when they enter into society, give up the

equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure everyone’s property, by providing against those three defects above mentioned, that made

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the state of nature so unsafe and uneasy. And so whoever has the legislative or supreme power of any commonwealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws; and to employ the force of the community at home, only in the execution of such laws, or abroad to prevent or redress foreign injuries, and secure the community from inroads and invasion. And all this to be directed to no other end, but the peace, safety, and public good of the people […]. And where the body of the people, or any single man, is deprived of their right, or is under the exercise of a power without right, and have no appeal on earth, then they have a liberty to appeal to heaven, whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have, by the constitution of that society, any superior power, to determine and give effective sentence in the case; yet they have, by a law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, viz. to judge, whether they have just cause to make their appeal to heaven.

Locke is, therefore, not only the creator of a new theory of individual rights, consistent with the values and interests of the bourgeoisie and the doctrine of liberal individualism, but is also the author of a perfect synthesis among contractarianism (the idea of a social compact establishing the political community and political institutions, with an emphasis on the consent of the people and the right to create a new government whenever it breaks the conditions of the compact), jusnaturalism (the idea of “a law antecedent and paramount to all positive laws of men”) and the modern claims for individual liberties.

2.4 

 he First and Second English T Revolutions: The Settlement of the Constitutional Monarchy

The fierce contrast between the monarchy, on one side, and the counter powers represented by the Parliament of Westminster and the courts of Common law, on the other,

29 2.4 · The First and Second English Revolutions: The Settlement…

intensified with the beginning of the seventeenth century, when Stuart’s dynasty succeeded to Tudors. Both James and Charles Stuart deepened the efforts to establish an absolute monarchy, by directly contesting parliamentary prerogatives and the realm of Common law’s courts’ jurisdiction, thus threatening the fragile equilibrium among institutions reached during the reign of Elizabeth Tudor. In particular, they refused to regularly convene Parliament and interfered with the Commons’ elections. With regard to the jurisdiction, they supported the growth of courts of equity—a special jurisdiction, directly under the Crown’s authority, authorized to adjudicate cases on the basis of principles of equity rather than on Common law precedents. Although the original affirmation of such an alternative legal system was aimed at circumventing the rigidity of Common law’s forms of action, which could result in a limitation to the access to justice, its development and consolidation in Stuart’s England represented a further attempt of taking the judicial function away from the Common lawyers, and returning it to the monarch. The Civil War that brought on the first Revolution was an attempt of Parliament and the courts to resist the settlement of an absolute monarchy. Parliament, and especially the Commons, instituted the New Model Army, supported by a large part of the Nation. The ideological base of parliamentary resistance against the Stuarts was founded in the republican thought of Harrington and Milton, among others: in the lively political debate triggered by the Civil War, constitutional claims for a balanced government met social claims set forth by radical democratic movements, such as the Levellers, striving for the equality of men and proposing a constitution based on popular sovereignty (Hill 1961). At the end of the Civil War (1651), Oliver Cromwell, leader of the New Model Army, became the Chief of the Republic of the Commonwealth of England. Cromwell promoted the enactment of England’s first written constitution, the Instrument of Government (1653): it acknowledged a moderate form of separation of powers, entrusting Parliament with the power to legislate and conferring the executive power to a Lord Protector—a charge covered by Cromwell himself. However, Cromwell’s protectorate raised more perplexities than consensus by the same republicans who

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From the First Revolution to the Commonwealth

The Instrument of Government

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2

The Glorious Revolution

s­upported his venture: with the passage of time, many started to see him as a tyrant striving to establish personal power rather than as a leader of a republican commonwealth. That is why, after Cromwell’s death, a parliamentary Convention restored the Monarchy and abrogated the Instrument of Government. Although short-lasting and divisive in English society, the Instrument of Government represented a symbol of the republican resistance against the Monarchy, and was adopted as a source of inspiration by the Founding Fathers in North America after the Independence from the mother country. With the restoration, the conflict between Parliament and the King quickly returned, exasperating the people. The second “Glorious” Revolution of 1689 was triggered by the King’s attempts to enlarge his powers over Parliament and his threat to restore the Catholic religion in England. Parliament, led by the Whig Party, decided to rebel against the Crown: One of the most considerable institutional innovations that marked this watershed moment of the constitutional history of England was the establishment of the Convention Parliament in January of 1689. This assembly debated the features of the new pattern of government and argued over who should assume the Crown after the abdication of James II. The Convention transferred the Crowns of England, Scotland and Ireland from James II to William III, who was the Stadtholder of the United Provinces of the Netherlands. John Locke’s theory served as the political legitimacy for the deposition of the King and for the establishment of a new deal between the Crown and Parliament. A further, fundamental result reached by the Convention Parliament was the drawing up of the Declaration of Rights. This document contained a list of the wrongs committed by the former King James II, followed by 13 clauses clarifying the limits of royal power and authority. Although the acceptance of the Declaration was not a condition of the acceptance of the Crown by William III, the latter swore to govern according to “the statutes in Parliament agreed on”. Thereafter, the King dissolved the Convention and summoned a new Parliament, approving the Crown and Parliament Recognition Act of 1689, which ratified the acts of the Convention Parliament. As for the Declaration of Rights, its statements were later enacted in an Act of Parliament,

31 2.4 · The First and Second English Revolutions: The Settlement…

the Bill of Rights, approved in December of 1689 (see 7 Sect. 2.5). The importance of the Convention Parliament, not only for the constitutional history of England, but for the general development of modern western constitutionalism, lies in the fact that it represented the first example of a representative constituent assembly in Europe. Indeed, the Convention Parliament would be taken, nearly a century later, as a model “instrument of transition” by the Thirteen Colonies in North America, whose conventions in turn would represent a prelude to the Philadelphia Convention of 1787, which drafted the Constitution of the United States of America. The Glorious Revolution paved the way to the affirmation of a new pattern of government—the constitutional monarchy, based on a balance of powers between legislative and executive branches. Although inspired by the principle of separation of powers, the new frame of government mirrored the new parliamentary leadership in the constitutional framework. The Revolution, therefore, definitively established and constitutionally guaranteed the powers of Parliament to legislate as well as control the executive’s activity to an extent.  

Legal Tools and Keywords: Parliamentary Prerogatives and Privileges in Modern Constitutionalism The Glorious Revolution was the occasion to outline a set of prerogatives of Parliament concerning its internal organization. This development was a sign of the institutional role gained by the Parliament of Westminster in the new constitutional monarchy, especially toward the monarch, whose royal authority was equally reduced as a result of the rise of parliamentary privileges. This set of prerogatives affected all aspects related to the functions, the activities and the organization of the parliamentary assemblies. It included, among others: 55 Regular and free parliamentary elections; 55 The autonomy of the chambers of Parliament as to the verification of the results of the elections and the validity of the election of its members; 55 The power of each chamber to approve its internal rules of procedure (“standing orders”);

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55 The exclusive power to syndicate the acts of its internal bodies (interna corporis), without any interference from external authorities and powers; 55 The unlawfulness of any act of the regal authority intended to suspend, dispense or execute laws without consent of Parliament; 55 The unlawfulness of the imposition of any taxes by the Crown without the approval of Parliament.

2

Together with parliamentary prerogatives, privileges and immunities of members of Parliament were affirmed, with the aim to grant their independence from the other branches: 55 The freedom of speech of members of Parliament, and the ban on any prosecution or questioning of their debates before courts; 55 Partial immunity of members of Parliament from prosecution, which requires that, before prosecuting a member, the immunity be removed by the Assembly itself; Since the end of the seventeenth century, parliamentary prerogatives and privileges arisen in England have become an inspiring model for all modern constitutions: indeed, they largely influenced the development of parliamentary rights in the Western World.

2.5 

The Bill of Rights in the English constitutional tradition

 he Bill of Rights of 1689 and the Rights T of First Generation

The main outcome of the Glorious Revolution was the Bill of Rights of 1689. This document was not a constitution as to the meaning this word has assumed in the history of constitutionalism: it did not outline general values and goals of the society, nor provide a comprehensive legal framework of the organization of government; rather, it aimed at codifying a certain set of rights and liberties belonging to individuals, mandatory for the Government to abide by. In line with the English tradition, the Bill of Rights was not intended to create new rights, but rather to confirm and reaffirm “certain ancient rights and liberties” already pres-

33 2.5 · The Bill of Rights of 1689 and the Rights of First Generation

ent in English legal history and acknowledged in previous legal documents, starting with the Magna Carta and the Petition of Rights—a declaration of rights adopted in 1628, at the beginning of the harsh conflict between Parliament and the Stuarts. In the Bill of Rights, one can find the responses to the requests and claims made by Protestants against the Crown in the years of the r­ evolution, such as the right to bear arms for their defense, and rights of individuals related to criminal prosecutions (habeas corpus).

Legal Tools and Keywords: Habeas Corpus The expression habeas corpus literally means “that you have the body”, but in fact it is the abbreviation for “[we command] that you have the [detainee’s] body [brought to court]”. Habeas corpus has been described either as a “right”, a “procedural right” or a “remedy”. In Common law, indeed, remedies often precede and pave the way to the emergence of a right. Habeas corpus is in fact a Common law action (writ), through which a person could report an unlawful detention or imprisonment to a court, to trigger its review. The writ of habeas corpus is addressed to the person who holds a prisoner in custody, ordering the former to bring the body of the latter before the court, in order to verify if the detention was unlawful or arbitrary. This remedy has deep roots in English legal history: Article 39 of the Magna Carta stated that: “No freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land”. Nonetheless, habeas corpus originated before the Magna Carta, having its roots in a set of writs that the courts already employed during the twelfth century in order to hold custodians and jailers accountable before justice. In modern times, the procedure for issuing a writ of habeas corpus was firstly codified in the Habeas Corpus Act of 1679. The importance of habeas corpus in English constitutional history lies also in the fact that, beginning with Sir Edward Coke, this method of judicial review of custody

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and imprisonment has gradually become connected to the concept of “due process of law”, which Coke equated with “law of the land,” referring to the right of anyone to a fair judicial trial before an independent judge: therefore, many other rights individuals own in case of being submitted to a criminal prosecution stem from habeas ­corpus.

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Rights of first generation

If compared to other declarations of rights of the Modern Age, the Bill of Rights might appear to be significantly more narrow and less comprehensive. Far from the universal and philosophical approach taken in other constitutional texts, such as the American or French declarations, the Bill of Rights is, instead, deeply rooted in the English tradition of declarations of rights and remedies: its meaning, therefore, can only be framed within the peculiar development of English constitutional tradition, where the medieval legacy of charters of rights, the set of remedies elaborated by Common law courts, and the political demands of the Parliament are inextricably entangled with one another, forming a body of rights enforceable before the courts. At the same time, its general relevance should be looked at from a different standpoint: the Bill of Rights inaugurated the tradition of constitutionalism to grant a constitutional guarantee to individual rights through the expansion of a written declaration with legal constitutional norms aimed at protecting them and limiting the powers of the state. It settled a practice destined to be reproduced in the development of western constitutionalism. In legal theory, liberty rights enumerated in the Bill of Rights are defined rights of “first generation”, because of their early affirmation in the Declarations of Rights of the three revolutions of the Modern Age. Rights of first generation aim at affording a legal protection to individual liberties: they can also be regarded as “negative rights”, an expression that emphasizes their function, as demands of non-intervention of the state in the realm of individual liberties (for definitions and classifications of constitutional rights, see 7 Sect. 4.7). Different from the ancient conception of liberty, which highlighted the power of the citizens to participate in the government of the community, the modern idea of liberty was meant to preserve areas of freedom from the interfer 

35 2.5 · The Bill of Rights of 1689 and the Rights of First Generation

ence of the state. Writing immediately after the revolutionary events in France, the philosopher Benjamin Constant tried to summarize this approach:

»» Ask yourselves what an Englishman, a Frenchman, and a

citizen of the United States of America understand today by the word “liberty”. For each of them it is the right to be subjected only to the laws, and not to be arrested, imprisoned, put to death or maltreated in any way by decision of one or more individuals; the right of each person to express his opinion, choose a profession and practice it, dispose of his own property and even to misuse it; the right to come and go without permission, and without explaining what one is doing or why; the right of each person to associate with other individuals, whether to discuss their interests, or to join in worship, or simply to fill the time in any way that suits his fancy; and each person’s right to have some influence on the administration of the government by electing all or some of the officials, or through representations, petitions, or demands that the authorities are more or less obliged to take into consideration (Constant 1819).

If we analyze the rights affirmed by the declarations of rights of the seventeenth and eighteenth centuries, we can appraise their profound coherence with the liberal approach and the strict adherence to individualism. According to those systems, men are born free and endowed, well before the creation of the political community, with certain natural rights: since rights and liberties do not depend on, and are neither granted by, legal provisions, the role of the state—artificially established by men—is just that of preserving their integrity, avoiding interference or infringement as much as possible. It appears evident that the structure of rights of first generation was modelled on the paradigm of the right to property. Indeed, the right to property is characterized by the establishment and defining of personal space where one has dominance over their individual rights, preventing any external intrusion. It is not by chance that Locke actually labeled the rights to life, liberty and property with the overarching term of “property” (Gough 1936). According to the bourgeoisie approach, the individual claims security and protection of his private properties, he demands the right to initiate commercial and economic activities in a regime of a free and unregulated market; he calls for guarantees against public authority in cases of

Property rights as the paradigm of first generation’s rights

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criminal trials; he claims liberty of religion, assembly and expression of his own thoughts. Those are the common foundations of the rights of the first generation, which sum up the values and aspirations of the legal liberal approach. In the liberal way of thought, therefore, individual rights perform the function to separate the sphere of individual and social autonomy—where the spontaneous interplay among men gives shape to a social order and determines a progress embracing the society as a whole— from that of the state.

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2.6 

The religious roots of American constitutionalism

Colonial institutional framework

American Constitutionalism: Foundations

Beginning with the second half of the seventeenth century, due to the religious persecutions suffered in Great Britain, and in search of economic fortune, many Englishmen emigrated toward the eastern coast of North America, where England had settled its colonial dominions. In the first wave of the emigration flow, many migrants were Puritans, a religious minority who had been heavily persecuted after the affirmation of Anglicanism in England. They were willing to flee from this persecution and to establish colonies, in which evangelical values of justice and ethics would be acknowledged. The famous Mayflower Compact (1620)—signed by the first pilgrims before landing in America—reflects the religious foundation of the American idea of democracy. Moreover, it shows the significance conferred by Puritans to codes and contracts as a higher law of the political community: in the Puritans’ mindset, indeed, the theory of contractarianism as the origin of political authority was consistent with their religious vision of human societies, based on the ideal model of the compact between God and men, and with their political belief in an inherently limited political power. All of these ideas would play a relevant role in American constitutionalism and culture, especially in New England (Miller 1983; Berman 2006). In some cases, the same colonists adopted written constitutions, in the attempt to form political communities, anticipating the organization of the colonial government. This is what happened, for instance, with the enactment of the Fundamental Orders of Connecticut (1639), adopted

37 2.7 · The American Revolution

by a group of Puritans led by Thomas Hooker: a document considered by many scholars to be the first written constitution of the Western World. Colonial legal orders presented features destined to influence the progress of American constitutionalism. In each colony, a written charter existed, providing the frame of government for that colony. Although there was not a general model for the administration of the colonies, and each colony had a proper legal order more or less linked to and bounded by the mother country, it is possible to point out three main common patterns in the government of the colonies belonging to the British colonial empire: firstly, the dominions of the Crown, administered through a governor appointed by the King; secondly, the colonies given in concession to private commercial companies and administered by the company according to a charter granted by the King; thirdly, the colonies whose land belonged to an individual landowner, who was at the same time the main administrator of the colony. In all the colonies, self-government assemblies, representing freemen, promptly appeared, even though they did not have effective powers when compared to the powerful governors of the colonies. Colonial American society was not at all comparable to Social background of European societies of the Modern Age, characterized by North America in the the rise of an enterprising bourgeoisie able to link its own colonial age economic interests and vision of society with the doctrine of constitutionalism. Notwithstanding that, American colonial society became the scenario of the affirmation of a peculiar kind of constitutionalism, in which religious Puritan grounds, egalitarianism, radical liberalism and democracy came together. The religious grounds of American communities, together with the existence of self-­ governing institutions and the connections with English republican thought of the sixteenth century and English Whig Party of the seventeenth century, shaped an intellectual environment ready for sustaining a radical political fight for independence and self-government (Bailyn 1992).

2.7 

The American Revolution

In the second half of the eighteenth century, the 13 colonies presented a wealthy economic system, mainly relying on the trade of a huge agricultural product: in the South, the

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2 Thirteen Colonies’ insurgence

Political and constitutional debate in revolutionary years

framework of landownership was based on plantation—a vast ownership of land cultivated by slaves; in the North, instead, land was allocated in small dimensions, and a process of urbanization was beginning, due to the development of ports, factories, and of an entrepreneurial spirit. Though, Great Britain would soon raise taxes, as it became increasingly expensive to maintain the colonies’ defense against Native American tribes, as well as the French and Spanish. The mother country also aimed to stop the pioneers’ expansion towards western Natives’ lands, thus fueling the protest of American Colonies. However, economic claims were not the only reasons boosting the colonies to rebel, but rather there were also political issues at stake. Against the oppressive policies adopted by the Parliament of Westminster, the rebels claimed full respect of their rights as already recognized by their respective colonial charters. The famous motto of the American Revolution—“no taxation without representation”—points out in a very clear way the relation existing between economic claims and the demand of the American people for political participation. During the years before independence, a wide political debate, based on radical arguments and directed against the fiscal policy adopted by the mother country, developed in the colonies. The debate quickly extended into political and constitutional complaints, and included grievances of the corrupted English system of government, the demand for political autonomy of the elected self-government assemblies, and the resistance against the concentration of power in the hands of the governors. The rebels’ discourse was thus relying on an ideal image of the colonial empire, based on equality between the motherland and provinces (Onuf 1987): at the beginning, indeed, the aim of the rebels was not that of renovating the existent political order, but that of reestablishing the principles of English constitutionalism, as set up in the aftermath of the Glorious Revolution and as embedded in the imperial order (Arendt 1963). Notwithstanding that, the rebellion against the mother country triggered a vivid debate, which quickly went beyond the initial assumptions and called for independence (Wood 2001). Thomas Paine and Thomas Jefferson were two of the most brilliant protagonists of American republican thought in the years of the intellectual preparation of American independence, and were able to gather growing consent by the colonial society: their claims, initially based

39 2.7 · The American Revolution

on the need to restore the rights of the colonies against England, soon embraced the recognition of the principle of equality of men and the quest for popular sovereignty and self-government, affirming the right of any generation to adopt its own constitution. The Declaration of rights of Virginia, adopted in the summer of 1776 and paving the way to the formal Declaration of Independence, very clearly affirms the American view of rights of men. It represented the first written protection of individual rights in America during the revolutionary period:

» That all men are by nature equally free and independent

and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable to them. That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration. And that, when any government shall be found inadequate or contrary to these purposes, a majority of the community has an indubitable, inalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal. […] That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

A few weeks later, the Declaration of Independence of the 13 states (1776), drafted by Thomas Jefferson under the inspiration of Virginia’s Declaration, reaffirmed these

The Declaration of Independence

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principles in words destined to shape American constitutional tradition. In the Declaration, the delegates of the 13 colonies focused on the recognition of the equality of men, and the existence of the fundamental rights of men: life, freedom, the pursuit of happiness, the right to a government based on the consent of the people, and the right of the people to change and rebel against an unjust government.

2

» When in the course of human events, it becomes neces-

sary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The Articles of Confederation

This document is considered one of the milestones of American constitutionalism: here we find, on the one side, elements of the modern theory of natural law, learned by the colonists through the works of Locke and in coherence with Puritan values, and, on the other side, the foundation of democratic theories. Together with the Declaration of Independence, the delegates of the 13 states resolved to adopt a treaty, the Articles of Confederation (1777): it built a Confederation among the 13 states with the duty to lead the army in the war against the mother country and manage their foreign affairs. The fate of American independence depended now on the result of the military campaigns.

41 2.8 · From Independence to the Philadelphia Convention…

2.8 

 rom Independence to the Philadelphia F Convention: The Revolutionary Decade

During the War of Independence and the decade following the Revolution, three fundamental steps of development of American constitutionalism took place. The first regards the settlement of the constitutional orders of the new 13 independent states: indeed, each of them adopted a new republican constitution, based upon the model of Virginia’s Constitution, which was the first to be enacted. These state constitutions were divided into two sections: the first contained the frame of government; the second was the Declaration of Rights. The sections outlining the structure of government of each state was designed to provide rules regarding the relationship between the institutions and the branches of government. In the state constitutions, the frames of government were widely inspired by the Instrument of Government of Oliver Cromwell, and were generally aimed at settling a radical democratic institutional framework. Indeed, as a reaction against the excessive power assigned to the governors during the years of the colonial empire, the constitutions were rooted in the affirmation of deep-seated democratic ideals, which resulted in a peculiar interpretation of the principle of separation of powers. In American state constitutions of the revolutionary decade, parliaments were the very core of the political system, and executive branches were submitted in several aspects to legislatures. This quickly brought a lack of balance and stability among the institutions, and determined a general distrust for parliamentary sovereignty. Such concerns about the concentration of powers in the legislative assemblies played a relevant role in Philadelphia, at the moment of the drafting the Federal Constitution. The Declarations of Rights were drafted according to the model of the Declaration of Independence and the English Bill of Rights; they enshrined, therefore, the rights to life, liberty and property, habeas corpus rights, the right to a fair trial consistent with due process of law, and freedom of religion and of the press. In the same Declarations, one could also find the assertion of the equality of men,

The states’ constitutions

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2

The organization of the western frontier

The inconsistencies of the Articles of Confederation

their right to a democratic and representative government, based on regular elections and separation of powers. Altogether, the American Declarations of Rights were much more progressive than the English Bill of Rights: indeed, being rooted in the jusnaturalistic mindset of American political philosophy, they envisaged a universal doctrine of individual rights, preexisting and superior to the law of the state, linked to the natural liberty of men (Jellinek 1895). The paradox of such jusnaturalistic grounds inspiring a legal order where slavery was acknowledged as an institution worth of legal protection is of striking evidence. The second step towards the development of American constitutionalism was the initiation of legal order in the western frontier. The victory of the War of Independence and the signature of the Treaty of Paris (1783) allowed the United States to extend its dominion up to the Mississippi River, thus doubling the territory of the Union. This also meant the extension of the American rule of law over the land owned by the Natives’ tribes, causing problems of coexistence between Natives’ customs and organization and the new legal order of the United States: tensions and ambiguities arose which brought, first, unjustified limitations of Natives’ rights, and then, a violent strategy of intimidation, massacres and removals of the tribes (Douglas Hurt 2002). The institutional order of the territories was provided by the Northwest Ordinance of 1787, which organized the Government and the settlement of the territories northwest of the Ohio River, and provided the procedures through which the people of the western territories could achieve statehood and join the Union, on an equal footing with the founding states (Onuf 1987). The third step was triggered by the crisis of the Articles of Confederation. The Articles, indeed, had demonstrated to be too fragile of an organization, only embracing a very limited area of competences, which resulted in a weak central authority: the Articles lacked a proper governmental framework; its only institutional actor, Congress, could at most adopt resolutions binding the states’ governments, who maintained the exclusive power to conform their legal orders. In this context, states—northern and southern, small and large, coastal and inland—could simply not agree with one another, and this led to a deep crisis of the Union, with the risk of breaking the Union itself. In order

43 2.9 · The Philadelphia Convention

to avoid this from happening, a congressional meeting of the delegates from the 13 states was convened: they met in Philadelphia in the summer of 1787.

2.9 

The Philadelphia Convention

At the time of their meeting in Philadelphia, the delegates of the 13 states were divided by several factors. The first cause of divide was between the largest and the smallest states of the Union. The largest states were advocating for a stronger Union: they (mainly Virginia and New York) were arguing that the Confederation was a weak institution, not able to pursue American interests in international politics, i.e. protecting economics and trade and ensuring its territorial expansion. According to the Articles of Confederation, the Confederation had no power over economics, neither in domestic improvements (roads, channels, etc.), nor in relations with Native tribes and over the territories acquired by the Union after the war. There was a need to broaden the competences of the Union, reduce those of the states, and prevent the states from legislating, conflicting the interests of the Union. As for the smallest states, they feared that by taking measures aimed at reinforcing the Union, this would strengthen the role played by the largest states. Virginia and New York, with their growing wealth and population, could have quickly obtained a leading role and the control over all American politics, thus limiting the autonomy of the smallest states. A second divide was between the northern and the southern states. The states northern to the Mason-Dixon line shared an economic system based on maritime trade, fishing, small farms and a young—and still fragile—industry. Southern states’ economy, instead, was based on the plantation system, whose fundamental resource was slave labor. Slavery, therefore, became one of the elements of opposition between northern and southern mindsets: not only because of the northern public opinion of the equality of men, but also because of economic issues: slavery allowed for plantations, and plantations provided the immense production of tobacco, cotton, wheat and corn. This huge production relied on exportation to European markets, and therefore required low tariffs on imported goods in order to foster international trade. Contrary to

The main cleavages among the states in the preparation of the Convention

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the southern states, the north was characterized by a young industrial system, requiring protection from importation from Europe; therefore, they supported the adoption of high tariffs on imported goods, in order to reduce prices of American goods in national markets. The largest states arrived in Philadelphia with a plan for the constitution, drafted by James Madison, delegate of Virginia. The Virginia Plan advocated for a strong federal government, holding several legislative competences and entrusted with the power to nullify state laws. ­According to this plan, the federal legislature should have been bicameral, and elected according to the population of the states—a solution that would have put the control of the legislature in the hands of the largest states. In opposition to the Virginia Plan, the New Jersey Plan, soon drafted by the delegates of the smallest states, proposed to maintain the structure of the Congress at the time of the Confederation, articulated in a single House composed of a single delegate for each member state, independently from its respective population. Despite these contrasts, the delegates who gathered in Philadelphia were able to achieve a compromise and adopt a constitution, which was approved by the Convention on the 17th of September, 1787.

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2.10 

The creation of the Federal Government

The Federal Constitution

The Constitution of Philadelphia aimed at strengthening cohesion among the states through the creation of a new Federal Government of the Union, with its proper institutions elected by the people and a wide set of legislative, executive and judiciary competences. With the invention of federalism, the Framers aimed at establishing a balanced method of distribution of powers among the governments of the member states and a central government of the Union. The Federal Government substituted the weak structure of the Confederation system established in 1776: entrusted with very limited competences, the Confederation was allowed to assume decisions only on the basis of a broad consensus among the states; the new federal organization, instead, assigned a wider set of powers to the Union; and the new frame of government marginalized the eventual interferences from a small group of states, allowing the Union to take its proper direction in politics.

45 2.10 · The Federal Constitution

Let us begin the analysis of the United States Constitution examining its frame of government, which has represented and still represents the paradigm of the presidential government.

Legal Tools and Keywords: Patterns of Government According to the regulation provided by: (1) the constitutions; (2) other relevant statutes, and (3) the evolution of the political practice, it is possible to classify the systems of government in the context of western constitutionalism. The classification of systems of government is based on the set of relationships existing among the branches of government and the institutions sharing political power in a specific legal order. Therefore, the classification of governments mainly focuses on the relations existing between the legislative and executive branches. The presidential government, established for the first time in the Federal Constitution of the United States of America (1787), is based on a rigid separation between the legislative and the executive branches: not only do they not have tools for interfering with each other, but they also derive their political legitimacy from different sources (dualist government). Indeed, both branches are elected by the people with different, independent elections. The parliamentary government appeared in the United Kingdom during the nineteenth century as a transformation of the constitutional monarchy settled by the Glorious Revolution (see 7 Sect. 3.2), and then spread throughout Europe. Contrary to a presidential government, it is based on the cooperation between the legislative and the executive branches. Both branches draw the source of their political legitimacy from the popular election of the parliament (monistic government). Indeed, on the basis of the parliamentary elections, the Head of the State (the monarch or the president of the republic) appoints the cabinet (composed of the prime minister and ministers). The cabinet leads the executive branch and directs the administration. The relationship between the legislative and the executive branches is called “relation of confidence”: the majority of the parliament approves the appointment of the cabinet with a  

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vote of confidence, declaring their trust in the executive branch, and in case of political conflicts, it can pass a motion of no confidence, which forces the cabinet to resign. The semi-presidential government—adopted by some constitutions in the twentieth century, starting with the German (1919) and the Irish (1937)—presents elements of both patterns introduced above. Indeed, the president of the republic is directly elected by the people, as in a presidential government; however, the executive function mainly belongs to a cabinet of ministers, who are appointed by the president following the outcome of parliamentary elections, because of the need for a relationship of confidence with the parliament. Despite the possibility to lay down such a theoretical classification, it is important to be aware that the specific condition of national political systems and the influence of political culture and historical contexts determine a wide distance between abstract categories and the actual organization and functioning of the governments.

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The House of Representatives

In the United States’ Constitution, legislative power rests in the Congress, which, following the British model, is divided into two chambers, the House of Representatives and the Senate. The members of the House of Representatives are elected by the citizens every 2 years. Regarding the election of the House, the Convention has broadly debated about the ratio of parliamentary seats that each state should have: if only the male white citizens (those enjoying the right to vote) were to be counted, the southern states would have suffered a limitation of seats in the Assembly; on the contrary, counting the population as a whole would have meant giving a strong relevance to slaves, who were present only in southern states and, in any case, did not have the right to vote. At the end of a difficult compromise, a rule was established: in the definition of the exact number of seats available for each state, slaves (“other persons”, as the Constitution denominated them in order to hide their actual condition) would have counted as three fifths of a white free male. The three fifths compromise, as it was immediately called, was a pragmatic solution of this long-debated question. However, it left the slavery issue

47 2.10 · The Federal Constitution

open: a controversy that would soon come back to affect the Union. The upper chamber of the Congress is the Senate. We can affirm that the Senate was the true invention of the delegates gathered in Philadelphia, for its architecture and powers allowed for the resolution of the apparently insoluble struggle between small and large states. The Senate, certainly, was organized in order to allow the sharing of the main political powers of the Union among all the member states. Each state is represented in the Senate on an equal footing, regardless of its population, by two senators. In the design of Philadelphia, the two senators were appointed by the legislative bodies of the member states; it was only with the Seventeenth Amendment of 1913 that the Constitution expressly affirmed the popular election of the two senators. The term limit for senators is 6 years, but the Assembly is renewed every 2 years for one third of its members. Therefore, the Congressional seats are renewed every 2  years: entirely, for the House, and one third, concerning the Senate. The special composition of the Senate, aimed at representing and promoting the interests of the member states of the Union, also explains its competences and its special position within the institutional framework of the Union. It is true that the Senate not only shares the legislative power with the House of Representatives, but also carries out several functions mainly related to checking the executive power. In the area of legislative functions, the Senate has a power completely equal to that of the House of Representatives: a bill must be approved by both chambers in order to be sent to the President for the signature. If the House and Senate approve a different bill, due to some disagreements, then a Conference Committee composed of members from each chamber, with the duty of coming to an agreed upon bill, may be appointed. However, if negotiations fail, the bill meets its end in the legislative process. As for other functions that only the Senate carries out, the Constitution assigns to the Senate: the power to approve and ratify—with a two thirds majority—the international treaties signed by the President; furthermore, the Senate is entrusted with the power to approve the appointments of federal officials made by the President: in the Founding Fathers’ view, therefore, the Senate was the more

The Senate

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The executive branch

Presidential elections

appropriate chamber, as equal for each state, to lead the nation’s politics and check presidential initiatives. The organization of the executive branch absorbed much of the business of the Philadelphia Convention: many delegates, still remembering the abuses committed by the governors during the colonial age, were firmly convinced of the need to avoid a strong executive power, and to confirm the institutional framework adopted in the state constitutions, based on the parliamentary predominance over the executive branches. On the contrary, other delegates and influential political leaders—such as Alexander Hamilton and John Adams—felt the need to resume a method of government based on the balance of powers among the branches of government, and to consolidate the independence of the executive power, according to the model of the Constitution of Massachusetts. The main issue was the composition of the executive branch. The delegates were divided between two alternatives: the setup of a college of ministers, as present in many state constitutions, or the choice of a unitary presidency. Finally, the second option was approved. According to the Constitution, the President of the United States is elected for a term of 4 years, together with a Vice President, poised to substitute for him in the case of an early interruption to the presidency. Formally speaking, the presidential election could appear as an indirect election: citizens enjoying the right to vote elect a restricted number of electors (presidential electors), who gather in an electoral college, whose only role is to elect the President and the Vice President (Art. 2, Sect. 1, U.S. Const.). In the early republic, coinciding with the first decades of the constitutional experience, the presidential electors were not rigidly dependent on the popular vote, but rather they owned a margin of discretion at the moment of a presidential election. However, with the progressive growth of democratic participation and the role of political parties in clearly supporting presidential candidates, the mandate of presidential electors turned into a mandatory duty to vote according to the popular vote, with some, but very few, exceptions (see 7 Sect. 3.3): this transformation makes the presidential election in essence a direct election. In each state of the Union, the citizens vote for a number of presidential electors corresponding to the amount of members they are entitled to in Congress. This entails that, although being not exactly proportional to the population of the states, the distribution of presi 

49 2.10 · The Federal Constitution

dential electors among the states of the Union still gives major importance to most populous states. With the affirmation of the principle of tied mandate of presidential electors, the candidate who obtains more votes in the state, wins all of the electoral votes available for the state. In the case that none of the candidates achieve the absolute majority of votes cast by the Electoral College, the House of Representatives shall elect the President (12th Amendment U.S. Const.): this last circumstance happened once in the Early Republic, in 1824. The President is not only the Chief of State, but also the leader of the executive branch, and therefore is entrusted with the power to appoint the officials of the Federal Government (under the advice and consent of the Senate), and to lead the federal administration. After having analyzed, separately, the legislative and the executive branches of the federal government, we can now try to frame the relations existing between the branches. According to the vision of the Founding Fathers, the frame of government of the new Constitution should have been inspired by the principle of separation of powers: executive and legislative branches were elected with two different proceedings, and had no means of influencing each other. Separation of powers was not only a basic tenet of the doctrine of constitutionalism, but rather its affirmation was also instrumental to avoiding legislative encroachments, which had affected political life in the 13 states in the years immediately following the Revolution. Nonetheless, the rigidity of the principle of separation of powers is mitigated thanks to the provision of a system of “checks and balances” among the branches of government (Fisher 2014). By making the principle of separation of powers more flexible, which characterizes the American frame of government, checks and balances grant stability between the legislative and executive branches through mutual checks, opposition and cooperation. In particular, the Constitution foresees: a) presidential power to veto laws and other bicameral resolutions of Congress (Art. 1, Sect. 7, U.S. Const.); b) impeachment, i.e., the power of the House of Representatives to indict, and of the Senate to judge, the President, Vice President, civil officers and judges, removing them from office (Art. 2, Sect. 4, U.S. Const.); c) the power of the Senate to advise on and consent to international treaties made by the President, and appointments of high officials of the government and judges of the fed-

Checks and balances

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eral courts, which fall within the competences of the President (Art. 2, Sect. 2, U.S. Const.). American constitutional culture, with all of its facets, agreed on an idea of the Constitution as a system of mutual checks capable of preserving the balance between the branches of government, and thus protecting individual rights and preventing concentration of powers and degeneration into tyranny (Vile 1967). The debates of the Philadelphia Convention demonstrate the new awareness of the fact that the principle of separation of powers should seek to balance the powers and consist of a means of check, opposition and cooperation (Buratti 2021). This opinion was widely shared by the delegates, but it was Madison who formulated it with the greatest comprehensiveness:

»» If a constitutional discrimination of the departements on

paper were a sufficient security to each against encroachments of the others, all further provisions would be superflouous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the theory in the Constitution that each department ought to be separate and distinct, it was proposed to add a defensive power to each which should maintain the theory in practice. In so doing we did not blend the departments together. We erected effectual barriers for keeping them separate (Madison, Philadelphia Convention, July 21st).

In the Federalist Papers, after contesting simplistic interpretations of Montesquieu’s thought, and demonstrating the implausibility of an absolute separation of powers, Madison applies his theory of human interests and passions to the government. As in society, even political institutions move by interests and passions, which the system of government should regulate and neutralize:

»» The great security against a gradual concentration of the

several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others (Madison, Federalist Papers n. 51).

We have now to turn our attention to the three means of checks and balances set up by the Constitution.

51 2.10 · The Federal Constitution

Let’s begin with impeachment. In England, during the age of limited monarchy, impeachment was a trial carried out by the chambers of Parliament for crimes committed by the ministers of the Crown. Throughout English history, however, impeachment lost its role, substituted by the emergence of the relation of confidence between Parliament and ministers, and the political responsibility of the ministers for their actions. The Framers of the American Constitution decided to confirm the possibility of impeachment of the President, Vice President and other high officials of the Federal Government, also for its consistency with their ideal of moral responsibility of those who are in charge of public ­functions. In the Convention, a deep debate took place between those who would have liked to provide a limited area of impeachable crimes, granting an ample discretionary power to the President and the executive branch and limiting the area of Congressional control, and those who would have wanted to allow impeachment not only for crimes, but also for maladministration, creating a sort of congressional check upon the political and administrative action of the President. Had this second solution been approved, the separation of powers would have been strongly limited. The delegates in Philadelphia decided to acknowledge an impeachment on “treason, bribery, and other high crimes and misdemeanors”. While treason and bribery are typical crimes clearly identified in Common law tradition, misdemeanors are a concept not exactly defined, and open to several constructions. Impeachment is a competence of the House of Representatives; during its investigations, the House enjoys the same powers and limits of judicial authority. The House formalizes any allegations, approving the articles of impeachment, by the majority of those present and voting. Subsequently, the Senate tries the accused, and the official is convicted if a majority of two thirds of those present is met. If the President is impeached, the Chief Justice presides over the Senate (Gerhardt 2000). Due to its outcome, i.e., removing the head of the executive branch from office by way of a procedure wholly managed by the legislative branch, impeachment represents the most effective exemption to the principle of separation of powers in the American constitutional system.

Impeachment

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Presidential veto

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Advice and consent

A second instrument of checks and balances provided by the American Constitution is the presidential veto on the bills passed by Congress. Also in this case, the Framers had the opportunity to draw inspiration from the constitutional model set up by the Glorious Revolution, where the King had a share in the legislative function through his royal assent to the legislation. In Philadelphia, the delegates who wanted to set up a system of government with a prevalence of Congress did not accept a veto power of the executive branch: after independence, the state constitutions rejected this power due to its systematic abuse by the governors against the acts passed by the assemblies of the colonies. On the contrary, those who wanted a strong executive saw the veto power as a check upon vicious legislation, a means of moderation of political decisions and a tool for the protection of the Constitution against parliamentary statutes. A compromise on this point was reached. Absolute veto power was rejected, but a qualified veto power was recognized: if the President were to veto a bill passed by Congress, Congress could override the presidential veto with a two thirds majority in both Houses. In such a case, the President would be compelled to sign the bill (Spitzer 1988). According to Art. 1, Sect. 7, of the Constitution, the President must sign or veto a bill within 10 days from the presentment of the bill by Congress. In case of inaction, the bill is considered tacitly approved and is enacted. However, in cases in which the 10  days overlap with the conclusion or the adjournment of the congressional session, the President’s inaction provokes the rejection of the bill without any avenue for reappearance: such a case is defined as a pocket veto. Finally, we analyze the “advice and consent” procedure: according to Art. 2, Sect. 2, of the Constitution, the President of the United States has the power to create international treaties, which are enacted into law and binding only after a two thirds majority Senate approval. It is worth mentioning that the Articles of Confederation granted Congress treaty-making power: however, the treaties were subject to approbation by at least 9 of the 13 member states: advice and consent on international treaty represents, therefore, a remnant of original states’ sovereignty (La Pergola 1969). The same provision entrusts the President with the power to appoint the high officials of the Federal

53 2.10 · The Federal Constitution

Government, as well as ambassadors and federal judges, with the advice and consent of the Senate, with a simple majority. As one can see, advice and consent procedures entrust the Senate with the power of check and constraint over fundamental choices related to the presidential agenda and policy, either in foreign and domestic policy, including appointments to the judicial branch, thus envisaging tools of cooperation between the branches. During the Philadelphia Convention, the organization of the judicial branch of the Union received little consideration: indeed, the Founding Fathers believed that federal courts should be subject to the general rules of Common law and did not require any specific regulation. Moreover, in the Founding Fathers’ perception, the federal courts were destined to play just a residual role, because of their coexistence with the already existing states’ judiciary systems, intended to play the main role in the judicial function. For all of those reasons, the detailed organization of the federal courts was not regulated in the Constitution but reserved for a successive federal statute to be approved by Congress. Art. 3 of the Constitution directly regulates the jurisdiction of the federal judiciary branch and the establishment of a Federal Supreme Court. The jurisdiction of the federal judiciary branch was defined by the Constitution itself in order to avoid risks of overlapping with states’ judiciary systems: according to Art. 3, the federal courts’ jurisdiction embraces the cases related to the application of the Federal Constitution, the federal statutes or international treaties made by the United States, as well as the cases arising among citizens of different states of the Union (so-called diversity jurisdiction). In any other matter, the jurisdiction belongs to the states’ courts. With regard to the organization of the Supreme Court, Art. 3 provides that its judges, as all the federal judges, stay in charge “during good behavior”—a clause that meant a life-long tenure. However, the Constitution also foresees the possibility of removal in case of impeachment. In the beginning, according to the Judiciary Act, the Court was composed of six judges, but starting from the second half of the nineteenth century, this number changed to nine (eight associate justices and the Chief Justice). Their appointment is determined by the President, as with any other federal judge and official, but in this case

The judicial branch

Composition and organization of the Supreme Court

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Jurisdiction of the Supreme Court

The structure of American federalism

the advice and consent of the Senate is strict. The decisions of the Court are assumed by a majority of judges, and dissenting, as well as concurring, opinions can be delivered. In the history of the Supreme Court, the practice of drafting and attaching dissenting opinions to the opinion of the majority has in many cases facilitated the development of broad debates in public opinion, has forced clear and effective legal reasoning, and has offered alternative solutions that could come to be adopted as opinions of the majority in the future (Di Martino 2016). In all of the cases falling within federal jurisdiction, the Supreme Court can receive appeals from the inferior federal courts, in order to affirm, reverse, or modify their decisions (so called appellate jurisdiction). Furthermore, the Supreme Court also has a competence involving cases arising among the states of the Union, foreign states and ambassadors, and cases in which the United States are a party to. All these special cases gave life to the so-called “original jurisdiction” of the Supreme Court, which the Supreme Court judged directly, giving it the right to hear a case as a court of first instance. Up to this point, I have analyzed the framework of the Federal Government. We should now turn our attention to the legal structure of federalism. According to the constitutional culture of the Framers and to the constitutional practice of the period, the key issue regarding federalism and setting the relationships between the member states and the Federal Government was the method of distribution of the legislative competences. After having considered the organization of the Congress, Article 1 of the Constitution sets out the legislative powers of the Congress, separating them from the legislative competences left to the states. In Section 8, indeed, we find a list of subject matters falling within the competences of federal legislation, while a final clause states that all the matters not enumerated in this section, nor in other provisions of the Constitution, are in the realm of the states’ legislative capacity. This technique—i.e. enumerating the competences of the Union and leaving the residual ones to the states—was considered a guarantee against federal encroachments over states’ rights, and, together with the design and the role of the Senate, was another useful element which pushed the reluctant states to accept the new Constitution. In American federalism, administrative and judicial functions follow the same division of competences pro-

55 2.10 · The Federal Constitution

vided for legislative function. Indeed, the federal executive branch carries out administrative activities related to federal legislation, and, as we have seen, the federal judiciary branch extends its jurisdiction over cases arising under a federal statute or code. Legal Tools and Keywords: Federal Preemption On a general basis, and with few exceptions, the federal competences listed in Art. 1, Sect. 8, of the U.S. Constitution are not exclusive competences, i.e. they do not impede states regulations in those fields. Indeed, while the Federal Government cannot legislate in any subject matter which is not listed in Sect. 8, thus leaving to the states the right to decide whether and how to regulate the subject, the states, instead, can legislate over the subject matters listed in Sect. 8, as long as states’ legislation is consistent with federal law: however, in any case of conflict between state and federal regulation in the subjects falling within Sect. 8, federal law preempts state law, which is therefore considered void and disregarded at the moment of its application: this process takes the name of federal preemption.

Notwithstanding the accurate organization of the separation of competences between the states and the Federal Government, the Framers took into consideration the possibility of irresoluble disputes over competences, or conflicts regarding general political direction. In order to grant the homogeneity of national politics, especially in foreign relations, and to avoid conflicts between state constitutions and enacted law, and the federal legal order, the Constitution provided for a Supremacy Clause. Art. 6, clause 2, states that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”. Such claim to supremacy must not be interpreted as a revival of the classic idea of sovereignty, as elaborated in the environment of Modern Europe: in American federalism, sovereignty cannot be interpreted according to its original understanding, but rather it remains shared

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between member states and the Union. The idea of the Constitution as the superior law of the land is, rather, the consequence of its rigidity, as set up by the entrenchment clause of Art. 5 of the U.S. Constitution. Legal Tools and Keywords: Constitutional Rigidity The American state constitutions and the American Federal Constitution established one of the main pillars of western constitutionalism, as we know it today: constitutional rigidity. From the perspective of the legal system, the constitution is superior to the other sources of law ­ because of its rigidity. Constitutional rigidity means that amendment of the constitution can happen only through a special, entrenched proceeding, more complex than the proceeding followed for the passage of the other sources of enacted legislation. The complexity of this procedure—foreseen by an entrenchment clause of the constitution itself—gives the constitution an enhanced stability, and makes the constitution the superior source of the legal system. Aimed first of all at granting and confirming the extraordinary and fundamental relevance of the constitution within the legal framework, the outcome of constitutional rigidity will be that of transforming the same organization of the sources of law, establishing a formal hierarchy between constitutional law and parliamentary statutory law. Moreover, in rigid constitutions, not all the provisions of the constitution can be amended: in many constitutional orders, indeed, a set of superior principles of the constitution that cannot be amended at all is identified. Usually, constitutions expressly foresee this set of principles, representing the very fundamental values and principles of the organization of the constitutional order; in other cases, the effort to define the provisions expressing the core constitutional values is made by Constitutional or Supreme Courts, in their case law.

The entrenchment clause of Article 5 of the Constitution regulates the amending procedure to be followed in order to modify, repeal and add provisions to the Constitution

57 2.10 · The Federal Constitution

itself. The state constitutions had already introduced complex procedures for their amendment processes. The same solution was adopted by the Framers of the Federal Constitution. According to this regulation, amendments to the Constitution could only be approved following an entrenched, strengthened, proceeding, divided into two different phases. The first phase consists of the proposal of the amendment, which takes place at the federal level: the proposal can be made directly by Congress, with a vote of both Houses reaching a majority of two thirds; or by a special convention, convened intentionally for proposing the amendment. The choice of this second method is applied if requested by two thirds of the states’ legislatures. The second phase consists of the ratification of the amendment, and takes place at the federated states level; even in this case, two alternative methods can be followed. The first way is the approval by three fourths of the legislatures of the states; the second approach is through the convocation of state conventions, the only duty of which is to discuss and vote on the approval of the amendment. The choice for this second method depends on the Federal Congress, which can request it. Also in this second case, the amendment is adopted if a majority of three fourths of those attending the state conventions has been reached. As one can easily understand, the aim of the provision is twofold: firstly, it aims at avoiding modifications of the Constitution approved only by the political majority, or by just one political party. It follows that the qualified majority, which is always required, assures a broad convergence of Congress and the states in the amendment process. Simultaneously, the provision aims at involving the states in the proceeding, both in the first as well as in the second phase of the process, consistent with federal principle and with the conception of the Constitution as a contract among the states. Furthermore, it must be noticed that the same Art. 5 of the Constitution provides a clause containing an absolute limit to the constitutional amendment power itself: the modification of the principle of equal representation in the Senate for each state, a principle that, as we have seen, can be considered the “golden rule” in the compromise achieved in Philadelphia, is not allowed.

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2.11 

2 The ratification process and the Federalist Papers

 he Ratification Process and the Bill T of Rights

Approved by a large majority of the state delegates at the Philadelphia Convention, in order to come into force, the Constitution had to be ratified by 9 of the 13 states. The ratification process gave birth to a wide national debate that reached a critical point in 1788, when the state of New York, crucial for the achievement of the required majority, decided to call a popular vote on the issue, which ended in approval of the Constitution. The debate was polarized between federalist and anti-­ federalist approaches. In order to convince people to approve the Constitution, Madison, Hamilton and Jay wrote a comprehensive body of essays aimed at introducing the Constitution to the people: those essays were collected in a book, The Federalist Papers, that is still today considered one of the main authorities for the interpretation of the American Constitution. Although striving to bolster the popular consent necessary for the ratification of the Constitution, the Federalist Papers expressed a consistent doctrine of constitutionalism, destined to characterize the American idea of constitutionalism for future generations. Madison, Hamilton and Jay, indeed, shared a common vision of the function of constitutional law, as a set of devices of pre-­commitment and self-restraint (Elster 2000) aimed at protecting individual liberties against any abuses committed by the government: according to the Federalist Papers, a democratic government could not be conceived as a valid political system unless there was a method for the protection of individual and minority rights against the risk of tyranny of the majority:

»» If men were angels, no government would be necessary. If

angels were to govern men, neither external or internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself (Madison, Federalist Papers n. 51).

The Madisonian conception of the Constitution must be contextualized according to the American debate on the ratification. In order to push the people to support the

59 2.11 · The Ratification Process and the Bill of Rights

endorsement of the Constitution, the Federalist Party needed to demonstrate that the Constitution provided limited competences to the Federal Government, in order to ease the people’s fear of a large and dominant central power; the Federalist Papers expressed a shared concern toward the unconstrained political powers that had characterized both the colonial experience as well as the radical democracy experimented in after independence. However, the American constitutional tradition cannot be narrowed to this specific conception of constitutionalism. The roots of American political thought and revolutionary culture also expressed a call for democracy, deeply rooted in the struggle for equality, self-­determination and self-government embedded in the vision of the Founding Fathers. Thomas Jefferson’s constitutional ideology assumed these values as a benchmark for the Republican Party’s agenda, destined to dominate the constitutional construction and political life in the first half of the nineteenth century (Buratti and Martinico 2021). These two conceptions of constitutionalism are sharply intertwined in the American experience, confirming the twofold dimension of constitutionalism, as a doctrine promoting both the constraint of political power together with a new theory on its legitimacy (7 Sect. 1.1). In 1789, after the ratification by the required majority, the Constitution entered into force: the first federal Congress was elected, and George Washington—the General of the Army who fought and won the Independence War—was elected as the first President of the United States. Nonetheless, the constituent moment was not definitively exhausted for quite some time: some states, Virginia above all, imposed the adoption of a Bill of Rights as a condition to the ratification of the Constitution. Indeed, the main objection anti-federalists raised toward the Federal Constitution was the lack of a declaration of rights: although the Framers did not perceive the necessity of a federal declaration of rights overlapping with those already existing at the level of states constitutions, American culture had always considered rights and liberties to be the core goals of constitutions. Therefore, following these requests, the first Federal Congress, elected in 1789, enacted the Bill of Rights, which was attached to the Constitution as its first ten amendments (Levy 1990). The Federal Bill of Rights, drafted on the basis of the Virginia

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The first ten amendments: the Federal Bill of Rights

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Declaration of Rights, affirms rights such as freedom of speech, the right to bear arms, habeas corpus rights, and other rights and liberties already acknowledged by the states’ Bills of Rights. A last amendment reaffirmed the principle that no federal legislation could have been enacted in matters not enlisted in Art. 1, Sect. 8, of the Constitution. In early 1791, after the eventual ratification by all 13 states, the Constitution, including the first ten amendments, was finally entered into force for all.

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2.12 

The historical roots of judicial review

 he Emergence of the Judicial Review T of Legislation

The first years of constitutional practice were of utmost importance for the construction of many provisions of the constitutional text. The main achievement regards the settlement of the judicial review of legislation. Although, in Philadelphia, state delegates did not openly discuss the competence of the federal courts to carry out judicial review of legislation, such a practice was commonly adopted by the courts of the member states, and it was commonly acknowledged by American legal thought that it falls into the competences of the judicial branch to declare null and void an act that does not abide by the Constitution (Corwin 1955). Since the colonial age, American legal thought has been based on the idea of Common law as a superior law, thus retracing the doctrines of British common lawyers of the seventeenth century. The courts of the colonial legal orders tried to apply Common law principles as limits to the laws passed by British Parliament and colonial assemblies, as well as to the orders enacted by the governors. After American independence, judicial review of legislation was immediately adopted by the states’ courts. Here, states’ constitutions and declarations of rights represented norms superior to other laws passed by the legislative bodies: compared to the British tradition, in the United States the codification of constitutional provisions in rigid constitutional acts offered a solid ground for the construction of judicial review of legislation. Indeed, the supremacy of the Constitution compared to ordinary legislation stems from the rigidity of the constitution, as I mentioned earlier, set up by Article 5 of the Constitution.

61 2.12 · The Emergence of the Judicial Review of Legislation

This doctrine of hierarchical supremacy of the constitution, and the power of the judiciary branch to carry out the review of the legislation, declaring null all the laws that do not abide by the Constitution, were clearly stated by the Supreme Court of the United States in 1803. In the famous judgment Marbury v. Madison, Chief Justice John Marshall stated that the courts have the duty to apply the law always considering the Constitution as superior, paramount law.

» The powers of the legislature are defined and limited; and

that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if these limits do not confine the persons on whom they are imposed […]. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

It is important to stress that Marshall did not affirm that judicial review of legislation solely belongs to the Supreme Court. Even though in the judicial system of the United States the Supreme Court is the highest court, and its precedents bind all the other courts, the power to apply judicial review is shared among all the courts of the Union. According to Marshall’s opinion:

The case Marbury v. Madison

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»» It is emphatically the province and duty of the judicial 2

department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

Legal Tools and Keywords: Judicial Review of the Legislation Judicial review is a method of constitutional review of the legislation first established in the United States, and then spread in other countries: it stems from the assumption of the supremacy of the constitution in the legal system, which entails a hierarchical relationship between the constitution and any provisions adopted by other sources of law established and recognized by the constitution itself. The supremacy of the constitution—both in political perspective, as the fundamental law of the country, as well as in legal perspective, as an act whose rigidity entails a primacy in a hierarchical ranking of sources of law— implies the invalidity of any norm inconsistent with it. How do legal systems cope with unconstitutional legislation? Constitutional review of legislation follows two main patterns: judicial and centralized. We will examine centralized review in the following chapters (see especially 7 Sect. 4.6). In the judicial review, all courts of the judiciary branch, when judging a case, are required to assess the constitutionality of a norm and declare a law unconstitutional. The effect of such an assessment is that courts must disregard unconstitutional norms, i.e., refuse their application in the case they are judging. However, they cannot annul or repeal unconstitutional provisions with a general effect. As one can see, judicial review offers a fast and immediate remedy to subjects whose rights are affected on the basis of an unconstitutional provision. However, judicial review shows a fragility: certainly, it is easy to imagine the case of another court judging a similar case and reaching a different conclusion about the consistency of the same provision with the constitution, thus reaching a different judgment. Such a weakness of the system of judicial review— which would affect, at the end, the values of legal certainty and equality—is overcome by the role of the high  

63 2.13 · Constitutionalism in the French Revolution: Historical…

courts of the judiciary branch: in Common law legal systems the jurisprudence of the highest courts is mandatory for the lowest ones to follow (rule of the precedent, or “stare decisis”). Thanks to this principle of the Common law legal system, the homogeneity of the law and the consistency of its application by the courts is granted by the final decisions of the Supreme Court.

2.13 

Constitutionalism in the French Revolution: Historical and Theoretical Premises

The turmoil being experienced in America had a wide echo in France, and contributed to the widespread emotions of criticism against the monarchy and the expectations of a new social and political organization: here, the Revolution exploded in 1789, only 2 years after the drafting of the Federal Constitution in the United States. The French Revolution played a fundamental role not only in French politics and society, but also in the development of constitutionalism in European countries: the war that began between the French Republic—which tried to expand its influence and values throughout Europe—and the allied monarchies of Europe, produced a dissemination of the revolutionary structures of government and the constitutional principles, embracing Belgium, the Netherlands, Italy, and Spain—countries where constitutionalism had not taken roots before. Therefore, the entire history of European constitutionalism is marked by the revolutionary years, during which a peculiar tradition of constitutionalism was elaborated, in France as in other European countries under French influence. In order to understand the causes and the momentous impact of the Revolution, we have to take into account that in France the legal and social structure of Ancien Régime was particularly articulated. Since the seventeenth century, the King could impose himself as the sole power in the nation. This centralization of power, not comparable to what happened in other states in the Modern Age, allowed the monarchy to develop a rational central administration, and in effect a unification of the normative order in the entire nation, an effective fiscal leverage, a central-

The rising of the French Revolution

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French legal Enlightenment

ized army, regulation of public finance and a national economic strategy. At the same time, however, absolutism implied the eradication of any form of limitation on the sovereign’s power: in order to avoid any attempt of opposition or sharing of political power, the aristocracy was continuously downsized in its role and prerogatives, while the Estates General—typical institutions of French Ancien Régime society, ancestors of modern parliaments, representative of the society—were no longer convened by the king. In eighteenth century French society, the only actual antagonists of the monarchical power were the parliamentary courts: despite the name, those institutions are not comparable to modern parliaments, they were rather judiciary courts, with competences related to formally scrutinizing the normative acts of the king. In retaliation against this tremendous development of absolutism, an intellectual movement took shape in France in the last decades of the seventeenth, and during the eighteenth, century, claiming equality and legal certainty, individual rights and guarantees, and a government based on the consent of the people. In the broad philosophical strand of the French Enlightenment—a philosophical movement based on the prevalence of human reason, consistent with the basic ideas of liberalism and jusnaturalism—an intellectual constitutionalism began to be discussed and proposed in society, promulgated by the growth of public opinion and the press (Venturi 1984; Diaz 1986). In this intellectual environment, English constitutional government after the Glorious Revolution was presented as a sound political system (De Lolme); principles such as the state’s duty to respect individual rights, the separation of powers (Montesquieu), the rule of law, people’s sovereignty (Rousseau), government by consent and the right of resistance against a tyrannical government (Mably), were presented and debated, and began to be known and understood by the people. Well beyond its influence in the field of philosophy and culture, the Enlightenment created the basis for the affirmation of a new set of legal principles destined to guide the relationships between the state and individuals, synthesized in the expression “état de droit”.

65 2.13 · Constitutionalism in the French Revolution: Historical…

Legal Tools and Keywords: Legal Enlightenment and état de droit In the environment of legal Enlightenment, many general principles of modern law have been shaped, with the purpose to match new values arising in bourgeois society, where liberty and equality claimed recognition and legal guarantees over the arbitrariness of political power. This movement allowed the Civil law legal system to align with the set of legal guarantees already affirmed in the environment of the Common law legal system, thanks to the judicial elaboration of the “rule of law”. Trying to identify the basic principles of the état de droit, we can begin with the principle of legality in criminal matters, situated at the very core of the western ­system of criminal law. It requires that the prosecution of a criminal offence follows a specific written norm, even providing the penalty classification (nulla pena, nullum crimen, sine lege). Linked to this is the principle of non-retroactivity of the law in criminal matters: no one can be accused and condemned for an act that happened before a provision considered it as a crime. The judge must be impartial: the jurisdiction is provided by the law in advance, according to the matter and not to the personal condition of those who are accused, or by a discretional decision by the authority (natural judge). The judgment must be able to be appealed to another court (right of appeal). The penalty is not only aimed at punishing the guilty, rather it also has the function of reeducating the guilty in the common values. The stress on the principle of equality of men is aimed at avoiding any legal discrimination due to personal conditions (formal equality, or equality before the law). In the environment of the French Legal Enlightenment, the état de droit also identified principles aimed at stressing the centrality of parliamentary legislation in the system of sources of law and in the direction of executive and judiciary functions, according to the principle of legality (see more in detail 7 Sect. 3.7). It also entails the principle of legal certainty, requiring clear, general rules, understandable by the people.  

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The codification of private and criminal law that started in the European countries in the nineteenth century answered the task of building a legal order consistent with those general values.

2

Obviously, the French Revolution did not depend only on intellectual premises. There were serious social causes pushing the people against the Ancien Régime and monarchical absolutism: lower classes in the cities and workers in the countryside were squashed by the local nobility and the fiscal impositions of the clergy; at the same time, the young mercantile bourgeoisie was unsatisfied with the fiscal policy of the Crown and, more in general, with the limited liberties enjoyed by individuals. However, the intellectual preparation of the French Revolution within the framework of the Enlightenment made it possible to spread awareness of the fact that economic claims were not single issues, but elements intertwined in a complex set of broad, social issues, all dependent on the national ­constitutional architecture.

2.14 

From the Estates General to the Constituent Assembly

 he Summer of 1789: T From the Constituent Assembly to the Declaration of Rights

As of the seventeenth century, the King no longer convened the Estates General—the ancient Assembly representative of the three estates of the kingdom: aristocracy, clergy, and third estate. The latter included almost the entire French population: the middle class, the peasantry, and the artisans. After such a long period, and due to the serious crisis in public finances and the need to reform the tax system, King Louis XVI was compelled to convene the Assembly. The calling of the elections of the Estates General triggered a wide public debate among the people. Writing a list of their grievances as well as expectations for the future organization of the nation—the so called cahiers de doléances—the people reiterated what they learned, through books and journals, about the constitutional setting of England and the deeds of the American Revolution, as well as the political beliefs of the legal Enlightenment.

67 2.14 · The Summer of 1789: From the Constituent Assembly…

At the time of the inauguration of the General Estates, in May, the expectations of the majority of the nation for radical reforms were high. The King immediately understood that the aim of the delegates of the Estates General was not limited to the approval of the economic requests of the Crown, but looked at general reforms of the institutions. Therefore, he began to oppose the meetings of the three estates. Due to the resistances of the King to authorize regular meetings, on the 20th of June of 1789, the delegates of the bourgeoisie met in the Jeu de Paume room, declared the dissolution of the Estates General and the creation of a new assembly, named the National Constituent Assembly, and swore to stay united until the establishment of a constitution. The Jeu de Paume Oath is generally considered to have been the beginning of the Revolution: in a few days, most of the aristocracy and the clergy joined the third estate in this new Assembly. The transformation of the Estates General in the Constituent Assembly was not only a tactical move made by the delegates of the third estate with the aim to react to the King’s attempts to stop the work of the Estates. Behind the dissolution of the Estates General, there was also a precise doctrine: the constituent power of the nation, consisting of the people’s right to shape the constitutional framework of the state according to their values and interests. According to Emmanuel Joseph Sieyès—who was the main theorist of this doctrine in the framework of the ideological debate in the age of the French Revolution— constituent power belongs to the nation as a whole, and especially to the bourgeoisie and the third estate, which were the actual leading social classes in France. According to Sieyès’ vision, the third estate had the duty to drive a transformation of the former ancient institutions toward a new constitutional structure, consistent with the claims of the bourgeoisie (Bastid 1970; Goldoni 2009; Rubinelli 2020). According to Sieyès and other protagonists of the revolutionary stage, the power of the nation to design and compel the frame of government, in addition to the principles regarding their liberties, cannot be limited by tradition or historical legal customs. Notwithstanding the different visions among parties and leaders about what the concepts of “people” and “nation” exactly mean, all the revolutionary leaders shared the opinion that political will—as represented by the elected parliamentary assemblies or expressed by the people itself—derives its legiti-

Sieyès’ vision of constituent power

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The affirmation of modern representative democracy

macy directly from the people, and therefore cannot be restricted by the “chains of the past” (Persano 2007). We can find here a relevant divergence between French and Anglo-American constitutionalism: while in the British mindset the constitution was mainly conceived as an evolutionary heritage of principles and conventions that progressively align government and the law with social values (Burke), in France the constitution is the expression of the revolutionary sovereign power of the Nation (Sieyès); at the same time, the idea of the constitution as a legal device aimed at constraining the political power of the government with the sake of protecting liberties, which prevailed in the United States (Madison), is here juxtaposed to a different idea of the constitution, whose main function is giving shape to the fundamental political identity of the community and triggering processes for people’s empowerment. The duty to lead this process was in the hands of the delegates of the third estate. In order to make this revolution possible, the delegates should have acted, in the Assembly, independently from the instructions received by their electors, as delegates of the nation as a whole. This theory implied an express refusal of the representative relationship based on the mandate, typical of the Ancien Régime society. This is why the Assembly had to affirm a new representative relationship as the source of its legitimacy, a model that took the name of political representation: since that moment, it became the basic doctrine of the pattern of representative democracy, as we know it today (Manin 1996). Legal Tools Democracy

and

Keywords:

Representative

Representative democracy is the main method developed in the environment of western constitutionalism through which the people govern themselves through elected officials. Its functioning is founded on the idea that public deliberations—such as constitutional amendments, legislation, decisions authorizing the state’s budget or international treaties—must be assumed by an assembly elected with the aim of representing the citizens: electors confer a representative mandate to their delegates by means of free elections. The delegates’ duty is to represent citizens

69 2.14 · The Summer of 1789: From the Constituent Assembly…

and assume decisions on their behalf within the representative assembly. Such a representative relationship, however, is based on the free mandate principle, according to which, each member of the parliamentary assembly is not a delegate of the specific electors who voted for him/ her, but instead represents the nation as a whole—with the consequence that no mandatory instruction can be imposed by electors on delegates, who assume their decisions and votes based on their opinions, and after parliamentary debate. At the time of the modern revolutions, and throughout most of the nineteenth century, representative government was characterized by limited suffrage, according to which the right to vote and to be elected were submitted to several restrictions based on wealth, property ownership and gender. This tenet of nineteenth century’s liberal society represented a weakness, in the light of the inclusive ideology of constitutionalism, where equality of men played a crucial role. The process of ­democratization happened in the Western World in the 19th and the first half of the twentieth century, allowing the broadening of the right to vote, eventually reaching universal suffrage. In political theory, representative government is often juxtaposed to direct democracy. The expression, usually applied to describe the political experience of the Athenian democracy in the fifth century BC, relates to a method of government in which people decide on policy initiatives directly and all of the citizens take part in decisions dealing with the governing of society.

The people of Paris were the other protagonists of the French Revolution. The delegates of the third estate immediately began to meet amongst themselves and with the people of Paris in clubs and public places, to debate the political issues at hand. An impetuous revolutionary public opinion was therefore triggered, and clubs, newspapers, political parties and popular movements started to influence and lead the Revolution. Through demonstrations and insurgencies against the monarchy, popular movements supported the Assembly: the Storming of the Bastille—the prison hallmark of the monarchy—which took place on the 14th of July, 1789, marked this alliance between the people and the Assembly,

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The Declaration of Rights of Man and Citizen

Art. 16 of the Declaration

and forced the King to accept the establishment of a constitution. The first act of the National Constituent Assembly was the abolishment of the feudal privileges of the aristocracy: at the end of August, it passed the most famous document of the entire history of French constitutionalism: the Declaration of Rights of Man and Citizen (1789). Aimed to be the preamble for the new constitution to be approved, the Declaration acknowledges the basic principles of Jusnaturalism (Art. 1 and 2). The rights acknowledged in this text are those theorized and claimed within the liberal tradition: life, property, economic enterprise, habeas corpus, and freedom of expression. At the same time, however, the Declaration partially diverges from the wording of the American declarations, because it states the supremacy of the will of the nation as expressed by legislation (Art. 6). This construction allows us to better understand a peculiarity of the French constitutional tradition, where the liberties enshrined in the Declaration, rather than imposing themselves as bulwark against the government, are, on the contrary, shaped and limited by statutory law. French revolutionary constitutionalism, ­ indeed, is indebted to Rousseau’s vision of the law: according to Rousseau, the law is the deliberation of the social body, the enactment of a nation’s will; legislation is therefore unlimited, superior to any other source of power, and it will play the crucial role to align demands for individual liberties to the general interest of society. The Declaration, with its emphasis on the creation of a new order, also offers a definition of the constitution, embodying the principles of constitutionalism, destined to influence its future developments. Indeed, according to Art. 16 of the Declaration, those societies in which the protection of rights and the separation of powers are not granted, do not have any constitution. With this statement, the term “constitution” could no longer be used as a generic definition for describing the basic organization of a political community, nor was it any longer suitable to describe any type of government, regardless of its values, principles and goals. On the contrary, the meaning of the constitution became stricter: from a descriptive use, it shifts to a prescriptive use, consistent with the doctrine of constitutionalism (Grimm 2016).

71 2.15 · 1789–1799: French Revolutionary Constitutions

2.15 

2

 789–1799: French Revolutionary 1 Constitutions

Starting from the enactment of the Declaration, we can divide the revolutionary age into three periods, categorized by political framework, constitutional principles and structures of government: they are the Constitutional Monarchy (1791–1792); the French First Republic (1792– 1795); and the French Directory (1795–1799). In 1791, the Constituent Assembly completed its work and the Constitution was enacted: the Constitution of 1791 settled a constitutional monarchy, in which the form of government was mainly aimed at reaching a balance among the different branches. The frame of government set up by this Constitution was largely inspired by the pattern resulting from the Glorious Revolution: while the King was entitled to exercise executive power, also appointing the ministers component of his Cabinet, the Legislative Assembly, elected by a limited suffrage depending on wealth, exerted the legislative function. The consistency of the frame of government of the Constitution of 1791 with the setting of eighteenth century British constitutionalism is the consequence of its influence in the French political environment. During the years of the intellectual preparation of the Revolution, the English experience was assumed as a model to reproduce in order to overcome the Ancien Régime. During the revolutionary days, these ideas were carried out by a small but influential group of members of the Constituent Assembly, led by Mounier, who were named “Anglomans”. At the same time, the debates on the Constitution revealed the existence of a more radical stream of thought within the revolutionary movement, refusing the legitimacy of constitutional constraints existing over the will of the nation, and opposing the adoption of the means for achieving a stable balance of powers: bicameralism, the King’s power to veto legislative deliberations, and the independence of the Cabinet from the Assembly were considered by those delegates as unacceptable burdens over the nation’s will, as interpreted and represented by the Parliament. Resuming and deepening Sieyès’ doctrines about the nation’s sovereignty, but also relying on the American constitutional experience, the left side of the Assembly proposed a different constitutional ideology,

The phase of constitutional monarchy and the Constitution of 1791

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The proclamation of the Republic in 1792

The rise and fall of the Jacobins’ hegemony and the Constitution of 1793

destined to fail in this first phase, but soon to play a leading role. Notwithstanding the balanced government set by the Constitution, the relationships between the Monarch and political parties in the Assembly were conflictive: none of them were satisfied with the compromise achieved in 1791. And this divergence was even aggravated by the outcome of the elections of the Legislative Assembly of 1791, that gave the majority to the Girondins’ faction, supporting democratic visions. The increasing political hatred against the monarchy convinced King Louis XVI to make a dramatic decision: at the peak of the political conflict, he decided to escape from Paris, with the purpose to dissociate himself from the Revolution (Tackett 2004). This attempt failed: the King was recognized along the road, arrested, brought to trial and condemned to death. The institutional consequences of the King’s deposition were momentous: in 1792 the Republic was ­proclaimed, and a new republican constitution was to be instituted: indeed, the Constitution of 1791 had been framed for a constitutional monarchy, as a compromise between the revolutionary movement and the throne: with the proclamation of the Republic, its functions were exhausted. In these months, immediately after the assertion of the First Republic, the Girondins Party, leading the majority of the Assembly, decided to declare war against the coalition of the European monarchies. This decision resulted in a continental war destined to last for years and to expand French control and influence over a broad area of Western Europe. However, on the domestic side, the war brought a deep economic crisis and political discontent, causing the rebellion of the people of Paris against the Girondins themselves. The elections for the new National Constitutional Convention—for the first time based on general male suffrage—were held in September 1792. They gave the majority to democratic factions. The leadership of the Convention was soon gained by the Jacobins Party, a radical democratic group supported by the people of Paris and led by Robespierre, Danton and Marat. Danton, first, and Robespierre, after, guided the Revolution to its most radical phase, called “Reign of Terror”, for the cruel repression of the enemies of the Revolution—aristocrats and politicians loyal to the Monarchy, and even any exponents of political factions not allied to the Jacobins.

73 2.15 · 1789–1799: French Revolutionary Constitutions

The Constitution of 1793 was a genuine democratic Constitution, based on the preliminary affirmation of popular sovereignty (Israel 2014). Jacobin constitutionalism is characterized, first of all, by the emergence of social emancipation as a goal of the state. The Declaration of Rights attached to the Constitution, indeed, differed from that of 1789 for its acknowledgment, along with individual rights belonging to the liberal tradition, of a new category of social rights, aimed at promoting equality in the field of education, health and labor. With reference to the frame of government, the Constitution of 1793 brought on a radicalization of the revolutionary ideology, abandoning the traditional goal of balanced government, and establishing, rather, a system based on the supremacy of the Parliament—elected by general suffrage—over the executive branch. At the same time, however, the Jacobin Constitution drew inspiration from Rousseau’s criticism toward representative democracy—defined by the Genevan philosopher as a mystification of popular sovereignty—and introduced forms of direct democracy, above all the possibility to call popular referendums in the legislative process, to counterbalance the concentration of powers in the hands of representative institutions. The Constitution was approved by the Convention and ratified by a popular referendum the sixth of Messidor of the year I (24th June 1793): the Convention indeed had created a new, revolutionary calendar. However, the Constitution was never implemented, because it was suspended until the end of the war. A blatant demonstration of the overwhelming faith in the centrality of the legislative assembly stems from the decision to provisionally assign the executive power directly to the Convention, through its inner committees, among which was the Committee of Public Safety, which assumed, de facto, the leadership. Several scholars consider the Jacobin experience as a digression within the historical development of the French Revolution, assuming the values and the agenda of the Jacobin Party as inconsistent with the liberal theory of constitutionalism (Furet and Richet 1965). It is evident that Jacobins’ constitutional ideology refused many basic tenets of constitutionalism as we have come to know it, starting with the core idea of balancing powers with the aim of their mutual check. However, we must avoid the misleading idea that western constitutional tradition can be identified with, and reduced to, the legal dimension of

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Thermidorian reaction and the Constitution of 1795

liberalism. On the contrary, the theoretical roots of modern constitutionalism are heterogeneous, and also involve aspirations for popular empowerment and claims for equality of men and social justice. Analyzed under this more comprehensive perspective, the Jacobin project can be framed as a specific constitutional interpretation—still not mature in many aspects—within the overarching tradition of western constitutionalism (Fioravanti 2007). The parable of the Jacobin power was destined to run out quickly: the excesses of the Reign of Terror, and the growing protest of the people, convinced a part of the Convention to rebel against Robespierre. On ninth of Thermidor (27th July 1794): he was arrested and condemned to death. The Thermidorian reaction marks the beginning of a new phase of the Revolution, in which the bourgeoisie tried to stop the radicalism of the mob and to protect the ­achievements of the Revolution in its first years, resulting in a coup d’état. The main outcome of the Thermidorian reaction was the adoption of the Constitution of 1795. The catalogue of rights resumed the principles of 1789, while the frame of government was organized with the main purpose to reintroduce a balance of powers and to secure the stability of the executive branch: indeed, the Cabinet, named the Directory, was elected by Parliament, but it lasted for a fixed term and could not be removed by Parliament. Such a novel pattern of government finds its place within the classification of the patterns of government, assuming the definition of directorial government (7 Sect. 3.4). The political and constitutional debate in the years of the Directory witnessed the increasing exigency, felt in French society, to terminate popular struggles and stabilize the revolutionary achievements (Troper 2006): this is also confirmed by the debate, triggered by the aforementioned Sieyès, on the institution of a form of constitutional review of the legislation. In Sieyès’vision, such a function should have completed the construction of a rigid constitution, and mirrored the basic distinction between pouvoir constituant, as a natural and exceptional power of the people, founding the constitution, and pouvoir constitué, encompassing the whole of the governmental design, inclusive of the same power to amend the Constitution (Schmitt 1928). Sieyès’proposal did not meet the consent of the political actors, confirming the difficulty of French legal culture to accept a form of constitu 

75 2.16 · Western Constitutional Traditions: Convergence…

tional constraint over representative political bodies (Fioravanti 2022). The Directorial regime lasted 4 years, also giving continuity to the war against the monarchies, with relevant military successes. However, the Thermidorians were not able to raise much popular support, because of their intent to restore privileges of the wealthy bourgeoisie, such as limited suffrage. This explains why the people did not react when Napoleon Bonaparte went back to Paris after his military triumphs as the Commander General of French Army, and, with a coup d’état, dissolved the Directorial Government (1799). The establishment of Napoleon’s Consulate—later transformed in the Empire—concluded the Revolution. As the same time, Napoleon said: “Citoyens, la Révolution est fixée aux principes qui l’ont commencée, elle est finie”.

2.16 

Napoleon’s coup d’etat

Western Constitutional Traditions: Convergence or Divergence?

It is now possible to outline a comparison among French, English and American constitutional traditions. We can see at least two ideas, common to all three constitutional traditions: the doctrine of the separation of powers and the acknowledgment of individual rights that have to be protected by the state. In English constitutionalism, these two key principles had been clearly acknowledged by the Glorious Revolution and incorporated into the Bill of Rights and in the practice of government. In the United States of America, individual rights were immediately acknowledged by the Declaration of Independence, the several Declarations of Rights attached to the states’constitutions, as well as by the Federal Bill of Rights, adopted as the first ten amendments to the Constitution. Regarding the separation of powers, if we examine the records of the Federal Convention of Philadelphia, we see that this principle represented the point of reference for the delegates, while the presidential government provided by the Constitution represents its best concretization. These two principles are foundational also in French constitutionalism, as demonstrated by the wording of Article 16 of the Declaration of Rights of Man and Citizen, adopted at the dawn of the Revolution.

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Converging paths of constitutional traditions

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The meanings of the constitution

2

The passage of constitutional ideas from the English mother country to the North American revolutionary context entails a partial shift and enrichment of the meaning of the constitution: while in the British tradition, the constitution is mainly associated with the function of limiting the government through a balance of powers, and thus preserving individual liberties from the state’s interference, in North America, this “defensive” task of the constitution is corroborated by a democratic vision, exemplifying the idea of self-government: the constitution is, in the American culture, the instrument of political autonomy of the polity. The twofold dimension of constitutionalism that I have anticipated in 7 Sect. 1.1—constitutionalism as a means of both limitation and legitimation of political power—is more evident in the American context than in any other experience. With the French Revolution, the notion of constitutionalism made an even further shift: the search of legal means to limit and check political power characterizing the American constitutional framework—such as division of powers, checks and balances, rigidity of the Constitution, and judicial review of legislation—is less intense, when compared to the exigence of establishing a new legitimacy of political power and providing for a frame of government with the ability to channel the will of the nation into the statutes adopted by the representative assemblies of the parliament. Commenting on the French Revolution, Alexis de Tocqueville said that its main performance was the substitution of the ancient sovereignty of the King with the new sovereignty of the nation, but without altering the absolutist nature of sovereignty itself. This key purpose of the French Revolution resulted in two consequences: the supremacy of the legislative body over the other branches of the government—a feature that would characterize the entire history of French constitutionalism—and the supremacy of parliamentary legislation over other sources of law. With regard to the relationship between statutory law and the constitution, while in America the Constitution played the role of paramount law, enabling the courts to review unconstitutional legislation, in France this technique was not permitted. In French revolutionary culture, although deemed the main  

Diverging paths: Parliamentary or constitutional supremacy?

77 2.16 · Western Constitutional Traditions: Convergence…

legal source of the national legal order, and regardless of its rigidity, the Constitution was not conceived as a superior law, determinant of the invalidity of any incompatible legislative act. The reasons for this approach must be evaluated in light of French widespread mistrust toward the judicial branch, in the idea that parliamentary statutes represented the prevalent source of the will of the nation, and, finally, in the lack of a clear doctrine expounding the risks connected with the excessive powers of the majority. From this perspective, English tradition is not comparable to any of the other two experiences. It is true, indeed, that the lack of a written constitution avoided any kind of constitutional review of legislation, as in France, and allowed, rather, the affirmation of the doctrine of ­parliamentary sovereignty (7 Sect. 3.7). However, the supremacy of the legislation of the French experience differs from British parliamentary sovereignty, because the latter must be framed within the overarching idea of the rule of law, which also involves those principles elaborated by the consolidated case law of Common law’s courts, which represent a legal tradition deeply rooted in the nation’s history, and to which the Parliament is traditionally deferent. As we will see in next chapter, throughout the nineteenth century, each of these three constitutional traditions followed their own line of development, influenced by the peculiar conditions of each national circumstance.  

Comprehension Check and Tasks 1. What are the reasons for the early affirmation of constitutionalism in the English experience? (7 Sect. 2.2) 2. Search on the web for the English Bill of Rights of 1689 and read it. Are you able to point out the provisions aimed at protecting individual rights, and those that protect parliamentary prerogatives and privileges? 3. Why is the affirmation of parliamentary prerogatives and privileges so crucial in the development of English constitutional experience? (7 Sects. 2.4 and 2.5)  

 

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4. What does the expression “negative rights” mean? (7 Sect. 2.5) 5. Search on the web and read the Declaration of Independence of the United States: can you identify the jusnaturalistic grounds of American constitutional ideology? Is there any affirmation that reminds you of the doctrine of the right of resistance? (7 Sect. 2.7) 6. Search on the web for and read Art. 1, Sect. 8, of the U.S. Constitution: can you explain its structure and functioning? (7 Sect. 2.10) 7. What are the checks and balances in the U.S. Constitution? (7 Sect. 2.10) 8. What are the origins of impeachment in the English constitutional evolution? How is it organized in the U.S. Constitution? (7 Sects. 2.2 and 2.10) 9. What does the expression “constitutional rigidity” mean? (7 Sect. 2.10) 10. What is judicial review of legislation? Who is entrusted to carry it out? (7 Sect. 2.12) 11. What is the meaning of Sieyès’ theory of constituent power? Is this doctrine compatible with British and American constitutionalism? (7 Sect. 2.14) 12. Search on the web for and read the French Declaration of Rights of Man and Citizen and point out the role of the law in the definition of the limits of the rights. Is this emphasis on the role of the law present in the American Bill of Rights? Can you explain the specificity of the French Declaration? (7 Sects. 2.14 and 2.16) 13. Make a list of Jacobin constitutionalism’s tenets: what are the main differences with the different models of constitutional organization experimented in Great Britain, in the United States, and in the early stage of French Revolution? (7 Sect. 2.15)  

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79 References

References Arendt H (1963) On Revolution. Penguin Books, London Bastid P (1970) Sieyès et sa pensée. Hachette, Paris Bailyn B (1992) The ideological origins of the American revolution. Harvard Univ. Press, Cambridge, MA Berman HJ (2006) Law and revolution. II: the impact of the protestant reformations on the Western legal tradition. Harvard Univ. Press, Cambridge, MA Buratti A (2021) Design, evolution and interpretation of checks and balances in the American constitution. In: D’Ignazio G (ed) The constitutional system of the United States. Eleven, The Hague Buratti A, Martinico G (eds) (2021) Il costituzionalismo di Thomas Jefferson. In: Rivista di diritti comparati 1:118 Constant B (1819) De la liberté des Anciens comparée à celle des Modernes. Paris Corwin E (1955) The “higher law” background of American constitutional law. Cornell Univ. Press, Ithaca Di Martino A (2016) Le opinioni dissenzienti dei giudici costituzionali. Jovene, Napoli Diaz F (1986) Dal movimento dei lumi al movimento dei popoli. L’Europa tra illuminismo e rivoluzione. Il Mulino, Bologna Douglas Hurt R (2002) The Indian frontier, 1763–1846. Univ. of New Mexico Press, Albuquerque Elster J (2000) Ulysses unbound. Cambridge Univ. Press, Cambridge, MA Fioravanti M (2007) Aspetti del costituzionalismo giacobino. In: Historia Constitucional 8:123 Fioravanti M (2022) Rivoluzione e costituzione. Saggi di storia ­costituzionale. Giappichelli, Torino Fisher L (2014) The law of the executive branch. Oxford Univ. Press, New York Furet F, Richet D (1965) La révolution française. Fayard, Paris Gerhardt MJ (2000) The federal impeachment process. Univ. of Chicago Press, Chicago and London Goldoni M (2009) La dottrina costituzionale di Sieyès. Firenze Univ. Press, Firenze Gough J (1936) The social contract. Clarendon Press, Oxford Grimm D (2016) Constitutionalism. Past, present and future. Oxford Univ. Press, Oxford Hill C (1961) The century of revolution. Norton & Company, New York and London Hofmann H (1974) Repräsentation. Studien zur wort – und begriffsge – schichte von der antike bis ins 19. jahrhundert. Duncker & Humblot, Berlin Israel J (2014) Revolutionary ideas. An intellectual history of the French revolution from the rights of men to robespierre. Princeton Univ. Press, Oxford and Princeton

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Jellinek G (1895) Die erklärung der menschen  – und bürgerrechte. Duncker & Humblot, Berlin La Pergola A (1969) Residui contrattualistici e struttura federale nell’ordinamento degli Stati Uniti. Giuffrè, Milano Levy LW (1990) Origins of the bill of rights. Yale Univ. Press, New Haven and London Manin B (1996) Principes du gouvernement representatif. Champs Flammarion, Paris Mattei U (2014) Il modello di Common Law. Giappichelli, Torino McIlwain I (1939) Constitutionalism and the changing world. Cambridge Univ. Press, Cambridge Miller P (1983) The New England mind: from colony to province. Belknap, Harvard Univ. Press, Cambridge, MA Onuf P (1987) Statehood and union. A history of the Northwest Ordinance. Indiana Univ. Press, Bloomington Persano P (2007) La catena del tempo. EUM, Macerata Pocock JGA (1975) The Machiavellian moment: Florentine political thought and the Atlantic republican tradition. Princeton Univ. Press, Princeton Rubinelli L (2020) Constituent power: a history. Cambridge Univ. Press, Cambridge Schmitt C (1928) Verfassungslehre. Duncker & Humblot, Munchen Spitzer RJ (1988) The presidential veto. Touchstone of the American presidency. State Univ. N.Y. Press, Albany Tackett T (2004) When the king took flight. Harvard Univ. Press, Cambridge, MA and London Troper M (2006) Terminer la révolution. la constitution de 1795. Fayard, Paris Van Caenegem RC (1988) The birth of the English common law. Cambridge Univ. Press, Cambridge Venturi F (1984) Settecento riformatore. IV: La caduta dell’Antico Regime (1776–1789). Einaudi, Torino Vile MJC (1967) Constitutionalism and the separation of powers. Oxford, Clarendon, Oxford Univ. Press Wood GS (2001) The American revolution: a history. Modern Library, New York

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The Different Paths of Western Constitutional Law in the Nineteenth Century Contents 3.1

Constitutionalism in the Liberal State – 82

3.2

 ritish Evolutionary Constitution: From the Constitutional B Monarchy to Parliamentary Government – 84

3.3

 he Progress of American Constitutional Law T in the Nineteenth Century: From the Early Republic to the Civil War – 87

3.4

L iberal Constitutionalism in Nineteenth Century Europe – 93

3.5

European Constitutions of the Liberal Age – 97

3.6

 he Development of Public Administration in the  T Liberal State – 104

3.7

Principle of Legality and Rule of Law – 107 References – 112

The original version of the chapter has been revised. A correction to this chapter can be found at https://doi.org/10.1007/978-3-031-40872-4_9 © Springer Nature Switzerland AG and G.Giappichelli Editore 2023, corrected publication 2024 A. Buratti, Western Constitutionalism, https://doi.org/10.1007/978-3-031-40872-4_3

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3.1 

3

Constitutionalism in the Liberal State

In this chapter, I analyze the development of constitutional law in the nineteenth century, examining the legal and political institutions of the liberal state, and highlighting the different paths undertaken by the Anglo-­ American experience (7 Sects. 3.2 and 3.3) and European countries (7 Sects. 3.4 and 3.5). In the whole of the Atlantic, the nineteenth century was characterized by the consolidation of the liberal state within the architecture of constitutionalism. The stable organization of public power in the environment of the liberal state allowed for the achievement of the main political and social goals set forth in the age of the revolutions: above all, the affirmation of parliamentary control over the political direction of the state and the elaboration of legal guarantees of individual rights. Notwithstanding that, I will try to highlight the inherent tension existing between the political premises and the general goals of constitutionalism, and at the same time, the political project and the legal design of the liberal state. Indeed, after the aforementioned Revolutions, with the consolidation of the bourgeoisie domination not only in social and economic life, but also in the political sphere, the original antagonism that had characterized the doctrine of constitutionalism, allowing the foundation of a vision of state sovereignty alternative to that elaborated in the Modern Age, was marginalized. Facing the swelling of social contention toward the hegemony of the property-owning, middle class, the liberal state reacted by giving precedence to the necessity of order and conservation of the status quo with respect to the inherent aspiration of liberty demonstrated in constitutionalism (Costa 2001). Such an ambiguity was much more relevant in the European constitutional environment than in the Anglo-­ American one. The European liberal state was characterized by the predominance of parliament over the other branches of government and legislation over the other sources of law, partially preventing the full acknowledgment of constitutional principles. All of that mirrored an effective social and political supremacy of the bourgeoisie, which obstructed the way to any democratic improvements. In the Anglo-American environment, the affirmation of liberal constitutionalism provoked less ambivalences.  

 

83 3.1 · Constitutionalism in the Liberal State

In Great Britain, the increasing political predominance of Parliament occurred within the framework of the Common law legal system, where the judicial branch plays a crucial role in the guarantee of rights and in the interpretation of parliamentary statutes. In the United States— where a process of codification started to appear, partially diversifying the legal system from the English tradition of Common law—federalism implied a limitation on the power of the state; moreover, at the federal level the role of Congress was balanced by the functions and entitlements of the other branches of government. Such a pluralistic distribution of political power paralleled a more dynamic society, in which no social class was superior and expanded suffrage would appear, earlier than in Europe. The process of development and organization of public administration followed divergent paths, too: while in continental Europe we witness the consolidation of the ministerial model of administration, able to grant centralization of administrative power, in the Anglo-American environment, administration relied on a model of local self-government, based on the role of municipalities, as in the United Kingdom, and state administrative structures, as in the United States. The European centralization of public administration was also instrumental to the affirmation of a special status of the administrative authority before the courts, while the Common law, also due to the lack of a strict entanglement between central administration and sovereign power, never permitted the raising of a special protection for administrative action before the rule of law (7 Sect. 3.6). The distance between the two main environments in which constitutional tradition took root is, therefore, a significant one, and encompasses: (1) the design of the legal systems and the sources of law; (2) the organization of the government; (3) the organization of public administration and its position in society; (4) the approaches to the protection of individual rights; and (5) the idea of state sovereignty. Most of these differences can be synthesized through a comparison between the basic ideas of “rule of law” and “principle of legality”: these principles represent the very core of liberal constitutionalism on both sides of the Atlantic; however, far from being symmetrical, they differ for many relevant reasons (7 Sect. 3.7).  

 

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3.2 

3

British conventional and evolutionary Constitution

The emergence of the Cabinet

 ritish Evolutionary Constitution: B From the Constitutional Monarchy to Parliamentary Government

In the previous chapter, I left off discussing English constitutional history at a relevant turning point in history: the settlement, by the Glorious Revolution, of a constitutional monarchy, aimed at reaching a stable limitation of the Crown’s powers and a balance of powers between Parliament and the Cabinet. This pattern of dualist government, inspired by a rigid vision of separation of the branches of government, did not stop the growing influence of Parliament over the Crown and the ongoing decline of the power of the monarchy. In fact, emulating the economic and social expansion of the bourgeoisie, and the corresponding decline of the aristocracy, Parliament quickly secured a more relevant role with respect to the King, altering the ideal balance of powers conceived by theorists of the constitutional monarchy. The absence of a written constitution, providing a normative regulation of the frame of government, entailed that changes and transformations of the institutional framework happened over time, following a consistent evolution of rules taking shape through modifications of institutional practices and political conventions among institutions and political parties. This is why scholars describe the British unwritten Constitution as a conventional and evolutionary Constitution (Marshall 1984). The transformations of the frame of government during the eighteenth and nineteenth centuries are fundamental to understanding the current British constitutional system, as well as the development of constitutionalism in other countries, both in Europe and in the area of the Commonwealth. They all must be framed within a more general process of the consolidation of parliamentary hegemony in politics. The main transition in the Government at this time regarded the shift of influence in the political direction of the Country from the Monarch to Parliament: the Cabinet of the ministers, which, according to the pattern of constitutional monarchy, depended on the King both for its appointment as well as for its political direction, quickly began to act independently from the instructions of the King; in the eighteenth century, the Cabinet became a

85 3.2 · British Evolutionary Constitution: From the Constitutional…

strong center of power, composed by the main political leaders of the parties represented in Parliament, with the ministers leading a specific branch of the public administration, with responsibilities for specific tasks of the government. Since the Cabinets of Walpole (1720s and 1730s) a new convention began: the Cabinet and its leader, even if they were still formally appointed by the King, had stable relations with Parliament, introducing bills to be passed by the Houses and requesting parliamentary approval of the national budget (Galizia 1974; Robert 2008). The legal instrument through which this shift happened was the ministerial countersignature of the acts of the King. Since the establishment of the Cabinet, ministers sitting in the royal Cabinet have had to countersign all the acts adopted by the King. This was imposed due to the traditional sense of the King’s irresponsibility. Namely, through the countersignature, the members of the Cabinet assumed the whole responsibility for the consequences of the acts of the Crown. It was not a generic responsibility, or just a political one, but rather they could even have been called to give evidence before Parliament in reference to their acts through the institution of the special proceeding—impeachment. This was a parliamentary procedure for the review of the acts and the conduct of the ministers, which could also have brought a criminal conviction. However, by the eighteenth century, with the increasing role of Parliament and the Cabinet, accompanied by their growing independence from the King, the countersignature changed its function, according to the swing in actual political power: responsibility for the acts brought with it the power, moving the actual political direction of the executive branch from the King to the Cabinet. The acts of the Cabinet were still signed by both the King and the minister, but the role of the King’s signature became merely formal, while the countersignature became the evidence of the actual decision-making. Consequently, the impeachment procedure was transformed: from a judicial trial before Parliament, it became a political debate on the conduct of the ministers, and its conclusion was no longer a sentencing, but merely a political “censure” on the conduct of the Cabinet (Todd 1889). The emergence of the Cabinet as the actual holder of the executive power paved the way to a further, fundamental shift in the structure of government, which occurred at the end of the century: the affirmation of a new pattern of government, the parliamentary government, characterized

3

The evolution of the ministerial countersignature

Cabinet’s political responsibility before the Parliament

The affirmation of parliamentary relationship

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3

The Commons’ leadership of the Parliament

The consolidation of the two-party system

by the organization of a stable relationship of confidence between Parliament and the Cabinet, through which the Houses were able to impose the Cabinet’s political responsibility toward, and its dependence on, Parliament (responsible government). Such a method became a conventional practice in the late eighteenth century: in the new framework of parliamentary monarchy, the King had to appoint as Prime Minister a political leader able to obtain the confidence of Parliament; the Cabinet, therefore, was composed of the leaders of the party who had won the elections and would have thus gained control of the majority of the Parliament. Consequently, the Cabinet was compelled to resign whenever Parliament withdrew its confidence, by voting a motion of no-confidence. In such a case, a new Cabinet could have been created through the reshuffling of men and measures, or the Commons could have been dissolved in order to call for new elections (Birch 1964). A second major transition of British constitutionalism is related to the same structure of Parliament and to the internal distribution of its powers: due to the economic transformations and the declining role of the aristocracy, the House of Commons, directly elected by those social classes representing the richest and most active sector of society, started to prevail over the House of Lords, whose composition was limited to the aristocracy and the high clergy and resulted in an outdated force inconsistent with the actual social forces leading the Country. This passage was further enhanced after the two Reform Bills, passed by Parliament in 1832 and 1867, which enlarged the electoral body to about 30% of males, enfranchising a wide share of urban population: the consequence of those reforms was to strengthen the Commons, the only elective chamber of Parliament. As a result, we witness the conventional affirmation of a new bicameral organization: (1) in the law-making process, the House of Lords was resized to a mere role of interposition: if the House of Lords did not agree on a bill, this would have imposed a new vote in the Commons, with the possibility for the Commons to bypass the Lords’ opposition; (2) in the area of political direction, the Lords were excluded from the relationship of confidence with the Cabinet. The progressive enlargement of suffrage, the growth of public opinion with deep interest in major political issues, and the achievement of a prevalence of the House of Commons in the definition of the political agenda of the

87 3.3 · The Progress of American Constitutional Law in…

nation (both in the legislation as well as in the relation of confidence with the Cabinet) transformed the political struggle within Parliament. The existing clash between parliamentary parties became an organized debate between two main political parties—Tories and Whigs—facing each other in a competitive political system, in which the two parties entered into a continuous struggle for winning the general elections, and gaining control of the majority of the House of Commons and of the Cabinet. In the framework of the new parliamentary government, the role of the Monarch was ultimately limited to a mere honorific function: all of the acts formally remaining within the King’s privileges—among which the appointment of the Prime Minister, the dissolution of the Commons, the signature of bills and acts related to the high administration of the colonies—passed on to the substantive control of the Cabinet and of the Commons. The King only retained the power “to be consulted, to encourage and to warn” (Bagehot 1867).

3.3 

 he Progress of American Constitutional T Law in the Nineteenth Century: From the Early Republic to the Civil War

The adoption of the Federal Constitution and its ratification by the states, as well as the end of the War of Independence against the mother country, allowed American society to develop in a condition of stability. In the years of the Early Republic (1789–1828), the political system was characterized by the struggle between the Federalist and the Republican parties. On the one side, the Federalist Party led by Adams and Hamilton, was supported by the population of northern states and the wealthy social classes. The Party advocated for the achievement of a strong federal government and the improvement of the industrial economy and banking system. On the other side, the Republican Party, led by Thomas Jefferson, had its electoral base in southern states and in the new states of the western frontier. It believed in a small-farmers economy, rather than in a liberal economy; at the same time, it granted its support to the plantation system and the slaveholders, defended states’ rights against a broad federal government, and encouraged west-

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Supreme Court’s broad interpretation of federal competences

3

Federal judicial review of states’ legislation

Westward expansion and constitutional transformations

ward expansion and displacement of the Indian tribes from the eastern to the western lands. The main issue of political tension regarded the constitutional construction of federal legislative competences. According to the Constitution, the list of powers of the Federal Government was limited to the powers enumerated in Art. 1, Sect. 8. Yet, among the enumerated powers, there were also broad clauses, like the “interstate commerce clause”, or the “necessary and proper clause” of the Federation. These clauses were suited for the Federal Government and provided a broad construction of federal competences, potentially encroaching on states’ rights. The Supreme Court played a crucial role in the development of these general provisions. The Early Republic coincided with the presence of John Marshall as Chief Justice of the Court. In its jurisprudence under Marshall’s leadership, the Supreme Court adopted a far-reaching interpretation of these clauses, consistent with the Federalist Party’s views on the Constitution. This allowed, for instance, the creation of the Federal Bank of the United States, an act that the Supreme Court upheld in the judgment McCullock v. Maryland (1819). A further achievement of the Marshall Court was the affirmation of the power of the federal judiciary branch to carry out the judicial review of state legislation and case law: (1) in Fletcher v. Peck (1810), the Supreme Court applied the principle of Marbury v. Madison to state statutory law, enormously enlarging the role of the Court to assess the legislation; (2) in Martin v. Hunter’s Lessee (1816), the Supreme Court asserted its power to review states’ Supreme Court’s case law dealing with matters of federal law. Although influential in orienting the Supreme Court’s constitutional construction, the Federalist Party was soon defeated in several elections, beginning with the election of Jefferson as President in 1800. This election paved the way to a lasting supremacy of the Republican Party in A ­ merican politics. Thus, even if Marshall—leading the Supreme Court—continued to uphold the federalist approach of the Constitution, many of his interpretations came to be limited by the political events of the following years. We have to wait until the Civil War of 1861–1865 for a new expansion of the Federal Government over states’ rights. The supremacy of the Republican Party in the first half of the nineteenth century brought other changes to the American Constitution and its political system. First,

89 3.3 · The Progress of American Constitutional Law in…

it fostered a huge territorial westward expansion. Under Jefferson’s presidency, the United States purchased French Louisiana, thus doubling the territory of the nation. The new territory, spanning from the Mississippi River to the Rocky Mountains, defined the nation as a “continental Empire of Liberty”, as Jefferson himself said. The westward expansion of the frontier had a crucial relevance in the transformation of American constitutional law in the nineteenth century (Buratti 2016). The confrontation with the wild frontier reinforced the spirit of independence and self-determination of the American man, already shaped during the Colonial Age and the Revolutionary War (Turner 1921). These are the roots of the individualistic character of American citizens, which in politics led to a natural suspicion toward the Government and the representative institutions. At the same time, the pioneer communities organized frontier political life according to principles of radical democracy, such as justice based on popular jury, the predominance of elected assemblies over the executive branches, methods of recall of the elected authorities, and the affirmation of white male general suffrage. Those principles penetrated, first, into the Territorial Organic Acts that, modelled on the Northwest Ordinance, organized the Western territories, then, in the same constitutions of the new states, extracted from the frontier to join the Union. It is possible, therefore, to single out a constitutional tradition of the frontier, inspired by the democratic individualism of American culture (Urbinati 1997), which met the original identity of American constitutionalism and pushed it toward new, more radical, achievements, as the constitutions of the western states still show today (Fritz 2008). Legal Tools and Keywords: Recall Recall is a procedure aimed at enhancing the democratic control on political representatives, elected to public offices, either in legislative or executive branches. Depending on the specific provisions, an institutional body or, most frequently, a certain number of electors, have the right to call the popular by-election, which will involve the same constituency that had elected the person in office: the vote has the goal to remove the elected person from his/her office before the conclusion of the term.

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Recall entails a limitation of the free political mandate, a cornerstone of representative democracy (7 Sect. 2.14), through the expansion of popular control on political representatives. At the same time, it raises concerns related to the continuous electoral campaign it provokes. Because of its inconsistency with the classical model of representative democracy, recall is not frequently provided for in contemporary constitutional law. American constitutionalism is the environment where recall has been originally proposed and adopted: nowadays, some states’ constitutions provide for recall procedures, for both members of legislative assemblies as well as for state governors. It is commonly provided for by those states’ constitutions that emphasize the role of referendums in legislative process or in constitutional amendments: recall and referendum on legislative or constitutional proposals are, indeed, both means aimed at counterbalancing representative democracy. It is possible to find recall procedures in Latin American Constitutions, mainly in Colombia, Ecuador and Bolivia: here, recall represents a typical tenet of Bolivarian constitutionalism (7 Sect. 8.4). In Europe, an important example of recall could be seen in the Weimar Constitution of 1919  in Germany, with regard to the President of the Republic (7 Sect. 4.7). In contemporary Germany, recall procedures are provided for only by some Laender’s constitutions. More relevant is the presence of recall procedures in Swiss Cantons’ constitutions, where recall is deemed consistent with the wide recourse to direct democracy tools, such as popular referendums, very commonly adopted in Switzerland. In the Latvian Constitution (originally adopted in 1922, and confirmed in 1991, after the independence from the Soviet Union), a recall of the entire national legislative assembly (Saiema) is set up. A specific form of recall has been recently introduced in the United Kingdom—despite the fact that the Parliament of Westminster can be considered the cradle of representative democracy and free political mandate. According to the Recall of MPs Act (2015) a by-election can take place every time a member of Parliament is sentenced for a crime of minor entity, which does not imply the automatic loss of command.  

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91 3.3 · The Progress of American Constitutional Law in…

The end of the Early Republic coincided with the shift to the second party system (1828–1854), starting with the presidential elections of 1828. In this period, the party system was characterized by the struggle between the Democratic Party and the Whig Party. The victory of the Democratic Party and the election of its leader, Andrew Jackson, as President in 1828 entailed a further enhancement of democratic values. The emphasis of Jackson’s Party on the effective functioning of democracy led to a radical transformation of the political system: the same political parties assumed a more precise organization, and started to expand their pervasive influence over institutions through the “spoils system,” which allowed the President to appoint party-­ members as officials in the agencies of the Federal Government under executive control (Ostrogorsky 1912). Suffrage was extended to all white men, while the process of presidential elections was deeply transformed by the establishment of the parties’ conventions. As a consequence, since that moment, presidential election became, as a matter of fact, a popular direct election, because presidential electors in the electoral college were committed to respect the results of the votes cast in their own state, as mere intermediates. The growing representative legitimacy of the President led to a relevant shift in the balance of power between the President and Congress. Presidential powers were strengthened, also through a wide use of veto power by Jackson himself, that made the President able to tackle Congress’ legislative direction, and impose a presidential political agenda that Congress had to cope with. Also, the President imposed a broadening of his own power of the appointment of high officials, which consequently reduced the powers of Congress. With regard to the relationship with the judicial branch, the tough confrontation between President ­Jackson and Chief Justice Marshall, while weakening the Supreme Court’s role, also had relevant repercussions on Marshall’s main goal, pursued since his inauguration: i.e. broadening of federal competences over states’ rights. For some time, Marshall was indeed able to limit the Democratic Party’s approach in favor of a constricted role of the Federal Government through a narrow construction of federal constitutional provisions. However, since 1833, with the important decision Barron v. Baltimore, Marshall had been forced to recognize that the Federal

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The age of Jacksonian democracy

Supreme Courts’ new trend of states’ rights’ protection

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The explosion of the slavery issue

Secession and the Civil War

Bill of Rights could not have been applied to the legislation or to the other acts of the states. Therefore, the possibility of establishing an effective judicial review by federal courts of state legislation was significantly reduced, leaving fundamental rights without a homogenous protection at a national level. With Marshall’s death in 1835, President Jackson nominated his loyal collaborator, Roger Taney, as Chief Justice. This nomination determined an important change in the Supreme Court’s orientation, which replaced Marshall’s methods of constitutional interpretation with a different approach, intended to afford a deeper protection of states’ rights. The new trend in Supreme Court’s constitutional interpretation had even more problematic implications: in the years of the second party system, the main political and constitutional issue was slavery. Slavery was deeply rooted in southern American society, where it allowed an abundant agricultural product for the few landowners. According to the vision of the Supreme Court, and consistent with the Democratic Party’s agenda, slavery in the southern states was defended, against growing dissent in the northern states. In the famous case Scott v. Sanford (1857), the Supreme Court, led by Taney, stated that the Federation had no power to establish rules over state law on this issue. The sharp confrontation on this profound moral and economic issue led to the birth of a new political party, the Republican Party, inspired by abolitionist goals; this was the beginning of the third party-system, characterized by the competition between Republican and Democratic Parties, which still defines contemporary politics. The stiffening of both abolitionist and pro-slavery movements led, first, to the election of the abolitionist Republican Abraham Lincoln as president; then, to the secession of the South; and finally to the Civil War (1861– 1865). The war was not only determined by the explosion of the divide on the moral acceptability of slavery; rather, it contrasted two divergent social and economic models and two distant conceptions of the Constitution itself. In account of the southern states’ interpretation, mainly inspired by the theories of John Caldwell Calhoun, the Federal Constitution was no more than a contract among sovereign states who ceded, under precise conditions, their powers, always retaining a power to secede (Martinico 2019); in the vision of northern states, instead, the Federal

93 3.4 · Liberal Constitutionalism in Nineteenth Century Europe

Constitution had triggered a process of national unification destined to progressively absorb original states’ sovereignty. The conclusion of the war and the defeat of the South allowed Congress to approve three further amendments to the Constitution: the Reconstruction Amendments were the first major constitutional transformations since the Federal Bill of Rights, and still represent today the main constitutional means for the protection of fundamental rights in the United States (7 Sects. 4.2 and 7 5.5). In detail, the 13th Amendment abolished slavery; the 14th Amendment expressed a ban over discriminatory state laws and bound them with “due process” and “equal protection” guarantees; and the 15th Amendment affirmed that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude”, also entrusting the Federal Congress to enforce the provision by appropriate legislation.  

3.4 

3

The Reconstruction Amendments

 

 iberal Constitutionalism in Nineteenth L Century Europe

In the first half of the nineteenth century, liberal constitutionalism spread in continental Europe, influencing transformations of the political and institutional framework, and leading to the adoption of several constitutions. These evolutions mainly involved those countries where the French Revolutionary Army, first, and Napoleonic Army, later, had brought a French direct influence over local politics, overturning old monarchies and triggering a process of constitution-making inspired by the liberal principles characteristic of the Revolution and the Empire. In almost all of the states involved in French military campaigns, we witness the adoption of constitutions modeled on the different patterns of the Jacobin Constitution of 1793, or of the liberal Constitution of 1795 (Saitta 1991): those experiences represented a turning point in the political history of those countries, preventing the possibility to simply restore the previous monarchical systems, widely organized according to Ancien Régime ideology. Before examining the main steps of the constitutional history of the European states, I want to briefly summarize the general features of European liberal constitutionalism in the nineteenth century.

The spreading of liberal constitutionalism in Europe

Nineteenth century European constitutions: octroyées and flexible

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European liberal constitutionalism was the outcome of a complex bargaining process between the growing bourgeoisie and the monarchies, which had been restored in almost all of the European states after the end of the Napoleonic wars. The troubled relationship between the old beliefs of absolutist monarchies and the new, invasive principles of liberalism and constitutionalism gave birth to a peculiar methodology of constitution-making: rejecting the authority of a constituent assembly and the ratification by a popular vote—methods directly related to the revolutionary experience—liberal constitutions were, instead, granted and “offered” by the king to the nation. The practice of the octroyées constitutions began with the French Charter of 1814, but reproduced itself throughout the whole first half of the century: although the contents of the documents mainly reflected the new exigencies of liberal constitutionalism, the process of their adoption aimed at confirming the traditional tenet of monarchical sovereignty. Another characteristic common to many of the European constitutions at this time is flexibility. The principle of constitutional rigidity shaped in the American experience and replicated in French revolutionary constitutions is not incorporated here; rather, generally, liberal constitutions do not provide a special procedure for their amendment. Although, in most of the cases, the lack of a specific procedure for constitutional amendment depended on the belief that the same written nature of the constitutions granted their perpetuity and immutability throughout the years (Bryce 1901), the consequence was, inevitably, the flexible interpretation of those constitutions, as such equivalent to primary legislation in the hierarchy of the sources of law. It is undeniable that constitutional flexibility represented a weakness of constitutional law in the legal systems of the European countries, and an ambivalence in the affirmation of the goals of constitutionalism, depriving the constitution of its main legal guarantee gainst legislative alterations. The main consequence of this weakness was the impossibility of establishing any kind of constitutional review of legislation, confirming, also from this perspective, the predominance of parliament and of legislation over other branches and sources of law.

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Inspired by the British constitutional system, the main goals of European liberal constitutionalism were focused on the protection of individual rights and the balance of powers, the latter seen as a means of limitation of the state’s power and a guarantee of a free society. In European liberal constitutions, individual rights were listed in declarations of rights, usually included in the text of the constitution itself, but sometimes separate. The contents of the declarations coincided with the values of liberalism: therefore, the rights that obtain protection are the individual liberties, such as habeas corpus, freedom of religion, speech, and assembly, private property and economic rights. In general, the principles of legal Enlightenment (7 Sect. 2.13) are incorporated in the constitutions and in the main legislative codes of this phase. Among them is the principle of equality before the law, which represents a cornerstone of liberal constitutionalism. At first glance, one could be surprised of the resounding proclamation of the principle of equality in societies still characterized by huge social injustices, and by limited suffrage. It is important to understand that, on the contrary, the principle of formal equality was instrumental to the conservation of such unequal social frameworks. Indeed, formal equality played exactly the role of preventing the state from interfering with social interactions, such as those related to the economic life and labor relations: by delimiting the principle of equality to its mere formal dimension, and thus prohibiting a public function of regulation of social relations in the sake of promoting social justice, the bourgeoisie was protecting its own hegemony in the community, creating an ideal separation between the sphere of the state and the sphere of society (De Ruggiero 1925).  

Legal Tools and Keywords: The Reserve to Legislation In the framework of European liberal constitutionalism, the main constitutional mean of protection of rights and liberties was the “reserve to legislation”. I must warn the reader that this expression is just an attempt to translate in English the forms “réserve de la lois”, “riserva di legge”, “reserva de ley”, “reserva da lei”, “Gesetzesvorbehalt”: this legal technique does not belong to Legal English, because it does not belong to the Anglo-­ American legal tradition, where, rather, the rule of law

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Declarations of rights

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framework offers a different set of means of protection to rights and liberties, relying not only on statutory regulation, but also, and mainly, on judicial remedies and due process. As with the highly problematic rule of law/état de droit (7 Sect. 3.7), we face here the inherent difficulty, and sometimes impossibility, of translating legal concepts that are deeply rooted in cultural, and linguistic, contexts. In detail, the reserve to legislation, adopted by European constitutions in many provisions related to individual rights, permits the parliamentary statutes to provide detailed norms regulating the exercising of rights, while excluding any other source of law—especially the normative acts of the executive branch—from the regulation of the subject. The guarantee represented by this technique depends on the homogeneity existing in liberal societies between the values and the interests of the bourgeoisie, on the one hand, and parliamentary politics, on the other: by reserving to parliamentary statutes the regulation of rights and liberties, while excluding the intervention in these areas of the executive branches still under the political control of the monarch, the bourgeoisie was practically securing its own political control on the core of its interests. The reserve to legislation as an institutional guarantee soon became the main method to ensure the protection of individual rights towards sub-legislative sources of law in the framework of the Civil law legal orders of continental Europe.

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The shift toward parliamentary government

Concerning the organization of the government, the goal of a balance of powers was pursued through different techniques, such as: (1) bicameralism, (2) the veto power granted to the monarch, and (3) the establishment of a dualist system of government (based on the separation between a monarchical executive branch and an elective legislative branch), modeled on the constitutional monarchy settled in Great Britain after the Glorious Revolution and in the French Revolutionary Constitution of 1791. However, a stable balance of powers was hampered by parliamentary centrality in the government. Indeed, mirroring the growth of the bourgeoisie as the economic and social leading class, parliaments became the very core of the political power. As a consequence, in many constitutions that had established a dualist government, transi-

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tions toward parliamentary governments took place. Yet, unlike what happened in the United Kingdom, in many European states the evolution toward a parliamentary government brought on significant disparities, representing, as we will see later on, one of the major problems in liberal constitutionalism.

3.5 

European Constitutions of the Liberal Age

The revolutionary wars fought by France—which lasted throughout Napoleon’s Empire—had the role of spreading liberal and democratic principles and constitutional forms all around Europe. And even though the fall of Napoleon’s Empire (1815) led to the restoration of old monarchies, liberal principles were not abandoned in those countries that had experimented with constitutionalism. In Sweden, a constitutional monarchy was established with the Instrument of Government of 1809, adopted as the outcome of a popular rebellion against absolutism. In Spain, in 1812, the Cortes—people’s representative assemblies—adopted a Constitution, characterized by the acknowledgment of liberal principles of government, the settlement of a constitutional monarchy, and the affirmation of male general suffrage. The restoration of the monarchy confirmed the Constitution, even though in the following years several conflicts between liberal movements and the King arose. The Spanish Constitution was adopted as a model for several constitutions of this period. In Portugal, for instance, after the end of Napoleon’s empire, the restoration of the monarchy brought on a constitutional monarchy under the Constitution of 1822, embedding liberal principles. The fall of Napoleon’s empire inaugurated a phase of ‘constitutionalization’ in several other countries involved in previous French expansionism. In the Netherlands, independence brought on a monarchical Constitution in 1815; then, in 1848, a constitutional reform established a parliamentary government, following the same transition we have already described for British government. The equivalent happened in Norway, with the enactment of the Constitution of 1814, where the powers of the King

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France: from the restoration to the Constitution of 1830

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The influence of French constitutionalism in Italy

were strongly reduced in comparison with other constitutions of this period. In France, the new King, Louis XVIII—descendant of the King decapitated during the Revolution—decided to grant a constitution to the nation, with the purpose to show his loyalty to liberal principles. To underline the end of the doctrine of popular sovereignty and restore the ancient idea of monarchical sovereignty of the King, the Constitution was not adopted by an assembly representative of the people, but rather granted (octroyées) by the King. The Charter of 1814 cannot be compared to the constitutions of the revolutionary age, because the legislative assemblies found many checks in the King’s powers, the executive was firmly in the hands of the Crown, and above all, the right to vote was reserved only to a limited part of society. The restoration of the monarchy encountered many difficulties, due to the achievements of the Revolution and the weakness of the monarchical parties in the nation. In 1830, therefore, we witness a new insurgency, whose outcome was the passage of the throne to a new dynasty, considered more loyal to liberalism. The Constitution of 1830, indeed, mirrored the setting of liberal constitutionalism and consolidated the alliance between the monarchy and the bourgeoisie. The experiences of Belgium and Italy confirm the same trends. The year of 1830 was that of Belgium’s independence from the Netherlands, which brought on the necessity of enacting a new constitution. Inspired by the principles of liberal constitutionalism, the Belgian Constitution of 1831 set up a parliamentary government, in which the Cabinet was related to the bicameral Parliament through the relationship of confidence. The Monarch, therefore, was rigidly constrained in his political role. The right to vote was limited on the basis of personal wealth, and the catalogue of individual rights—adopted the year after with a Bill of Rights—followed the declarations of rights of the liberal tradition, with the acknowledgment of formal equality, and the protection of personal liberty, freedom of religion, assembly, expression, and the right to private property. In Italy, claims for a written constitution and for the acknowledgment of the principles of constitutionalism began during the years of the French Revolution. During the revolutionary war, part of Italy was occupied and in the new emerging states—all of them under the Republic

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(first) and the Empire (after)—new constitutions were adopted, drawing inspiration from both Jacobin constitutionalism and liberal constitutionalism (Ambrosini 2013). After the restoration of the previous monarchies in the Italian states, old practices and principles of government of absolutism were restored. This system ended in the middle of the nineteenth century, when the political pressure of the bourgeoisie increased and became too strong for the monarchies to resist (Ghisalberti 1974). As in other European states, many rulers of the Italian states were compelled to grant constitutions to the people. The year 1848 was the peak of this process. By this year, many constitutions were adopted: among those, the Statute of Carlo Alberto (1848), the Constitution of the Kingdom of Piedmont, which with the unification of Italy under the Crown of the King of Piedmont (1861) became the first Italian Constitution, lasting in force until the end of the Second World War. The Statute was drafted by a council appointed by the King, and then granted by the King to the people. It was a monarchical Constitution, in many aspects similar to the French Constitution of 1830 and to the Constitution of Belgium of 1831 (Ghisalberti 2002). As usual for the constitutional monarchies, the individual rights acknowledged by the Statute of 1848 were only those descending from the liberal tradition. The Statute provided for a dualist government, with a division between executive power—belonging to the King and the Cabinet—and legislative power, conferred to the two chambers, one of which was elected by the people with a limited right to vote depending on their wealth, and the other composed of members appointed by the King. However, during the middle of the 1860s, the Statute started to be constructed to authorize a parliamentary government (Mecca 2019); therefore, the same transition we witnessed in British constitutionalism happened here. In all of Europe, 1848 was the key year in the expansion of constitutionalism: requests for a written constitution consistent with liberal values were at the core of the political agenda of the revolutionary movements of those years. In this context, the struggle for constitutionalism was strictly intertwined with new nationalistic claims: in countries where national unity was not yet achieved, such as Italy and Germany, constitutions started to be regarded not only in the liberal perspective, as means of limitation

The Statute of 1848

1848 as a turning point: democratic constitutionalism

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The rise of constitutional ideas in Germany

of the throne’s power, but also as a common heritage of the national political community, and therefore as a political instrument able to legitimize ideological battles founded on claims of independence and national unification. Generally speaking, the European turmoil of 1848 materialized the meeting and integrating of liberal principles of constitutionalism with democratic ideas, now organized in movements, and able to lead protests and revolts against the liberal monarchies. At the core of these democratic insurgencies, we find the request of political equality, through the recognition of general suffrage, and the demand of social protection for the working class. It must be emphasized that this new wave of democratic movements strongly relied on the basic values of constitutionalism, whose achievements were not contested: rather, their purpose was directed to expand the achievements of constitutionalism, overcoming the fragile liberal compromise with monarchical principles, and reaching a pure popular sovereignty in the environment of a republican state. Jacobins’ political agenda was here often referred to as a benchmark of democratic movements. The harsh social protests that took place in Europe in 1848 also involved areas where the ideologies of the Age of Enlightenment, liberalism and constitutionalism had not been able to determine political shifts. In Germany the events of 1848 pushed the princes of several German states to grant constitutions inspired by liberal principles, and to call for a constituent assembly, elected by universal male suffrage, with the commitment to adopt a constitution for a German confederation. The works of the Assembly, gathered in Frankfurt, coincided therefore with the very beginning of an intellectual reflection on constitutionalism in the German environment. However, the main problems that the Assembly had to deal with regarded the process and methods of unification of the German states into one nation, a process which was further exacerbated by the existing conflicts amongst the states. The attempt to enact a constitution for a federal German state, therefore, ended without success the year after. The definitive establishment of a unified German nation took place only in 1871, under the leadership of Prussia, the largest and most developed state among all the other German states. As soon as William I became King of Prussia, he appointed Otto von Bismarck to lead the government. Bismarck’s strategy was immediately

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directed to exclude Austria from the German confederation and to unify the 27 German states into an empire, organized by the Constitution of 1871, in which the roles of the Emperor and the King of Prussia coincided. The Constitution of the German Empire of 1871 presented features common to the pattern of liberal constitutionalism: the system of government was a dualist constitutional monarchy in which the executive power was shared by the Emperor and the Chancellor, the latter appointed by the Emperor. Any attempt to establish a relation of confidence between Parliament and the Chancellor failed. Parliament was divided into two chambers: the Reichstag, elected, and the Reichsrat, composed of delegates of the member states of the Federation. However, in this upper chamber, the number of Prussian delegates was higher than the number of the delegates coming from the other states, thus consolidating Prussia’s influence in federal politics. Despite a constitutional design comparable to those of the other liberal states in the nineteenth century, German constitutional history followed a peculiar path: from one point of view, it progressively emphasized the role of the executive branch over the role of Parliament and, from another, it protected individual rights through less effective means when compared to Anglo-American or French experiences. Indeed, in the environment of German legal culture of the late nineteenth century, individual rights were not considered to be natural liberties, preexistent to the state, but rather, were the rights seen as benefits acknowledged by the law of the state and, therefore, moldable by the law of the state itself in order to make them compatible with public interest (so-called doctrine of “public subjective rights”). Revolutionary constitutionalism of 1848 encompassed many other European countries. In Denmark, a Constitution was introduced in 1849, providing for a typical system of constitutional monarchy. In Switzerland, the political revolutions of 1848 coincided with a war among the Cantons, which led to the establishment of a Confederation under a liberal Constitution. This Constitution deserves to be mentioned for some peculiar features: having regard to the territorial distribution of powers, the Swiss Confederation occupies a peculiar position within the category of federal states, due to the wide autonomy recognized as to the Cantons. As for the system of government adopted at the federal level, the

The Constitution of the German Empire

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Swiss Constitution opted for a directorial government, already experimented with during the Revolution in France, from the Thermidorian reaction to Napoleon’s coup d’état. Furthermore, it is worth mentioning the relevant use of instruments of direct democracy—a choice not common to other experiences in the environment of liberal constitutionalism: the Constitution set up several kinds of popular referendums, both at local as well as federal levels, all the more so in order to nullify decisions made by Parliament. Legal Tools Government

and

Keywords:

The

Directorial

The directorial government occupies a proper position in the classification of patterns of government: it is characterized by the presence of elements of both parliamentary government and presidential government. The name of this pattern derives from the name of the executive body, a collegial institution of “directors”, appointed by the parliamentary assembly. Nonetheless, the directorial government also shares features of the presidential system of government, namely the fact that the executive body is appointed for a fixed term, it cannot be removed by a parliamentary motion of censure; and symmetrically, the executive cannot dissolve the parliament. Today, Switzerland represents the only country in Europe where the frame of government (provided for by the Constitution of 1999) is a directorial one. The Federal Council (the executive) is elected by Parliament for 4 years; it is composed of seven members and it also exercises the functions of Head of State. There is no relationship of confidence between Parliament and the Federal Council, so the latter cannot be dismissed and cannot dissolve the former.

The year 1848 also represents a turning point in French constitutional history. New popular insurgencies, inspired by radical, democratic ideals, came to embrace socialist ideas for the first time, which brought on the fall of the monarchical Constitution established in 1830, and the proclamation of a new Republic, the Second Republic of France.

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With regard to the frame of government, the new Republican Constitution of 1848 set up a presidential government, deemed, at that moment, as a method to consolidate the republican achievements; yet, the direct election of the President resulted in a fragility of the system: Louis Napoleon Bonaparte—grandson of Napoleon—won the presidential elections, mainly thanks to the reputation of his name and with the support of the population of the countryside, mainly conservative and worried for the radicalism of the people of Paris. Bonaparte’s intent was to terminate the second Republic and establish a new institutional system. The occasion arrived in 1851, when, taking advantage of new societal disorder, Bonaparte carried out a coup d’état, suspending the Constitution, and proposing the restoration of the Empire—an ideal continuity of the first Empire under Napoleon. During the Second Empire (1852–1870) we witness a unique combination of authoritarianism (in the organization of the government) and liberalism, for the acknowledgment of individual rights and compliance with the principle of legality. The Empire was able to secure social stability and economic growth until 1870, when the Prussian Army defeated the French Army at Sedan. Following the defeat of Sedan, in a context of national crisis, in Paris radical movements of the working class promoted the institution of the Paris Commune, an attempt to organize the government of the city under principles of direct democracy, linked to the practice of government under the Jacobins’ time. The Commune was quickly dissolved and a new Republic took shape, the Third Republic (1870– 1940): the frame of government of the third Republic was organized by the constitutional laws of 1875, which provided for a parliamentary government. Here, the President of the Republic was a weak institution, without relevant powers: political direction was under the control of Parliament and the Cabinet, each linked with one another through the relation of confidence. However, unlike the British practice—where the stability of the Cabinet was granted by the leadership of the premier and the two-­party system—here the Cabinet was fully dependent on the will of the unstable majorities of the Houses: the fragmentation of the political party system in small parties, and the lack of techniques through which a stability of the executive could have been

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French Third Republic

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achieved, led to frequent changes in the composition of the Cabinet, thus impeding the consistency of political direction of the Country.

3.6 

3

 he Development of Public T Administration in the Liberal State

The evolution of constitutionalism in the Western World during the nineteenth century was accompanied by the ongoing process of consolidation of the organization of the liberal state. The architecture of public administration, as we know it today, was shaped during this period, designing its doctrines, functions and competences. As already explained with regard to other aspects of constitutional law (7 Sect. 2.16), even in the process of edification of the state’s administration, the paths of the western countries continued to follow different directions, creating more distance amongst each other. On one side of the Atlantic, continental European countries underwent, starting from the nineteenth century, the development of a public administration articulated in ministerial departments, with competence to a particular sector of the administration (e.g. finance and budget, army, foreign affairs, home affairs, justice, etc.). The “ministerial” pattern of administration was grounded on a stable and all-encompassing division of competences among standing departments. According to this structure, the ministry is organized in a pyramidal form: the political direction is secured by the Cabinet Minister in charge; civil servants are selected based on their skills and qualifications, granting their independent authority and autonomy from political leaders; and lastly, from the center (the ministry), the ministerial department articulates itself locally, granting homogeneity and central direction of public functions. In this hierarchical form, one can witness the affirmation and solidification of the basic doctrines of public administration’s legal scheme: among all, the legality of the administration implies that its acts and behaviors are regulated by norms outlined in primary legislation, and substantially bounding their goals and scope of action, in order to reduce the margin of discretion to solely technicalities, thus securing impartiality of the administration.  

Public administration in continental Europe

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At the same time, the special position of state administration, as a body entrusted with the pursuit of public interests, was confirmed by the favored regime of review of its activity. In continental Europe, a judicial review of the public administration’s acts developed only in the second half of the nineteenth century: from that moment, a special judicial branch took shape, separate and independent from the ordinary judicial branch, entrusted with the power to review the acts of the public administration. The introduction of this judicial review represented a step forward in the path toward a liberal state, granting a wide set of judicial remedies to individuals against the state’s administration (Nigro 1976). However, the separation of this branch of the judiciary from the ordinary one, and the inhibition of the regular courts to annul the acts of the public administration, exemplified the desire to set up the judicial review of the acts of the state, taking into special account the relevance of public interests pursued by public departments. It must be underlined that these new administrative courts and councils were often composed of former advisors or high officials of the public administration itself, appointed directly by the government, affecting, in the end, their independence. In a partially different fashion from that of continental Europe, the organization of public administration in the British Government has always been based, since its ­origins, on local self-government: during the eighteenth century, while tenets and procedures of constitutional monarchy were strengthened, most of the internal administration was managed by local authorities, with few exceptions and little control by central government. The reforms of the nineteenth century—aimed at rationalizing the patchwork of local authorities existing in the nation, with the sake of harmonizing with the increasing demand of administrative action needed by the process of industrialization—were able to lay out a system of local governmental authorities and a set of principles, mainly inspired by Bentham’s utilitarianism; those reforms, though, did not entail a centralization of administrative authorities, which instead remained mainly articulated in municipalities, although from now on, with forms of central supervision by the departments of the Cabinet (Loughlin 2017). Such a model of local administration apparently clashes with the unitary identity of the state: indeed, with

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The emergence of a special judicial review of administration

Public administration in the United Kingdom

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Public administration in the United States

the Act of Union between England and Scotland (1707) and the following Act of Union between Great Britain and Ireland, which formally created the United Kingdom, a unitary state took shape: the convergence of different nations in the UK did not imply a form of territorial distribution of political authority, but rather it was the outcome of a process of Anglicization of the UK. However, although the United Kingdom had always been ruled by the centre for what concerns legislation and political direction, its administration never lost its reliance on local self-­ government. A major transition toward centralization will take place only in the latter half of the twentieth century. Meanwhile, in the United States, the development of administration did not imply the rising of complex governmental bodies, nor a centralization of powers. At the federal level, the administration was not based on stable ministries, but rather on less structured agencies whose functions were related to the pursuit of a specific administrative task (Mashaw 2012). Federalism played a crucial role in determining this framework, because administrative functions follow the distribution of competences established for the legislative function: states’ administration, therefore, carry out a relevant part of daily administrative functions. Furthermore, while European countries adopted the method of public competition for the selection of civil servants, thus enhancing their independence from politics, but also paving the way to the creation of a bureaucratic class, in the United States high officials are selected through presidential appointment, yielding to the spoils system (7 Sect. 3.3), which implied a strong political dependency but also an ongoing reshuffling of public management. The lighter dimension of public administration in the Anglo-American environment mirrors its role and relationship with society: while, in Europe, administrative action is endowed with the prerogatives of sovereignty, representing, even in the framework of the état de droit, a rationalized form of sovereign’s action, in the countries adopting a Common law legal system, no immunity, speciality or differentiated jurisdiction has ever been attributed to the administration. In Common law principles, the actions of public administration are not related to sovereignty of the central government, and the review of its acts remains entrusted to the ordinary courts of the judicial branch.  

107 3.7 · Principle of Legality and Rule of Law

3.7 

Principle of Legality and Rule of Law

Liberal constitutionalism of the nineteenth century favored the consolidation of the convictions of the rule of law, in the Anglo-American experience, and of the état de droit, in the continental European legal orders. As already stated (7 Sect. 2.15), the principle of legality—elaborated within the European constitutional tradition as an application of the more general project of the état de droit, with the intent to conform state’s organization and functions to the main political role of parliamentary legislation—only partially corresponds to the concept of rule of law which characterizes the Anglo-American experiences. Also under this perspective, therefore, British, American and European constitutional traditions undertook divergent paths, which moving from common values and goals, eventually realized partially different results. Within the framework of the European liberal state, the principle of legality meant that all the functions of the state—both administrative and judiciary—must follow an instated norm, and must be consistent with the law. The principle of legality, therefore, entails a partial weakening of the principle of separation of powers, being further symptomatic evidence of the acquired ­predominance of the parliament in the general system of public powers. Under a legal point of view, three different implications of the principle of legality can be underscored. The first implication regards the public administration. Indeed, with regard to public administration—historically driven by the discretionary will of the monarch and the ministers—the principle of legality recognized the guarantee that all of the public offices must be organized according to the provisions established by the law, and that all of the administrative activity must be carried out following established standards. The principle of legality of public administration, therefore, was a channel to implement the values of legal Enlightenment, as legal certainty and the limitation of the discretionary power of the public authority. The second implication of the principle of legality regards the system of sources of law, which in the Civil law legal system was partially reshaped, placing the acts of the parliament at the top of the hierarchy of legal sources. Particularly, the principle of legality affirmed the primacy  

Principle of legality’s implications for administrative and judiciary functions

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The centrality of legislation in continental Europe, and the codification process

of parliamentary legislation over any normative act adopted by the executive branch (executive regulations, decrees, ordinances, etc.). Therefore, the latter acts were recognized as secondary sources, subject to judicial review in compliance with the primary sources of legislation. A third implication of the principle of legality involves the role of the judiciary branch. Namely, the judges are now considered as the “bouche de la loi”, compelled by the written norms, which should be applied and interpreted in compliance with the textual provisions and taking into account the original aims of the legislator. The principle of legality therefore limits the courts’autonomous, interpretative power, which during the Middle Ages and the Ancien Régime had been one of the main causes of ambiguity and heterogeneity of the law and, thus, an instrument of power in the hands of the judges (Alatri 1977). All of that suggests the definition of the nineteenth century liberal state as a “legislative state”. From a legal outlook, this characterization emphasizes the central relevance ascribed to parliamentary legislation, as demonstrated by constitutional flexibility, the principle of legality, and the reserve to parliamentary legislation. From a political standpoint, the definition of “legislative state” emphasizes that values and political goals of the bourgeoisie affirm themselves through legislative acts, which assume the task of reshaping the law and society as a whole, according to the vision of liberalism. The main effort in this task of rewriting the rules governing society was the process of codification of civil and criminal law, common to all the countries adopting the Civil law legal system. The Napoleonic Code of 1804, that propagated as a model for the entire European continent, was considered the “civil constitution of the French people” (Carbonnier 1979). With its emphasis on liberty of contract and private property, the Code demonstrated its intention to grant ownership of liberties to (Rodotà 2013) and pursue the goals of the bourgeoisie, the sole class represented in the parliament and endowed with a political voice. At the same time, the new trend toward the codification of entire branches of law that gradually spread across Europe in the nineteenth century, was clearly aimed at consolidating the principle of certainty of law, one of the most important goals of legal Enlightenment. Codification, indeed, pursued clarity, comprehensiveness, and understandability of legal provisions (Corradini 1971).

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There is no doubt that in Europe the edification of the liberal state represented a fundamental enhancement in the protection of individual rights and formal equality and, more in general, an essential contribution to the achievement of the claims of constitutionalism and the values set forth in the Age of Enlightenment. Nonetheless, starting from the second half of the nineteenth century, the liberal state suffered from an introversion (Ridola 2006), partially affecting the goals and the theoretical premises of constitutionalism. This retrenchment of the same liberal values to a more conservative attitude was due to several factors: (a) the resistance of the bourgeoisie to an enlargement of voting rights, and more in general to the acceptance of social and economic claims of the working class, in order to preserve its hegemony; (b) a stronger protection of the public order against mass movements, trade unions and political oppositions; (c) a more restricted vision of liberties and rights when conflicting with the public interest; and (d) the development of a public administration, with very centralized organization and endowed with immunities and special rights before the courts. Different than what we observe in the European landscape, the development and fortification of the rule of law in the Anglo-American environment did not entail an absolute prevalence of parliament over the other branches of government, nor the monopolization of the system of sources of law by the statutory law. It is true, however, that from this perspective, British and American constitutionalism follow different avenues: in America, you see the existence of a written Constitution rather than the evolutionary British one, the framework of the presidential government as opposed to the parliamentary government conventionally established in the United Kingdom, and the embracement of federalism in the American states as opposed to the unitary form of the state in the United Kingdom; these are all basic differences of the two constitutional traditions destined to influence all political and legal systems. I have already described the extraordinary expansion of parliamentary control over national politics in the United Kingdom. With regard to the system of the sources of law, the supremacy of the Parliament brought on a crisis in the peculiar balance established between Common law and statutory law. This balance had been the outcome of a unique historical path, in which the courts had been able to avoid the affirmation of the supremacy of statu-

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The rule of law in the UK, between Common law and parliamentary sovereignty

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tory law. Yet, during the nineteenth century, Parliament undertook the effort to extend the realm of enacted legislation over subjects that were traditionally regulated by Common law precedents and procedures. This effort led to positive outcomes, such as the reform of the system of the courts of Common law, inherited from the Middle Ages, no longer consistent with the needs of modern society (Samuel 2013): the main reform was brought by the Judicature Act of 1875. The newly established framework, an outcome of the evolutions of the nineteenth century, has been labeled as parliamentary sovereignty (7 Sect. 2.16). For Albert Dicey, one of the main British legal scholars of nineteenth century, parliamentary sovereignty was the essential feature of the British constitutional order, characterized by the lack of a superior paramount law and, therefore, by the supremacy of parliamentary statutory law over the other sources of law. According to Dicey,

3

 

»» The principle of

Parliamentary sovereignty means neither more nor less than this, namely that Parliament … has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.

Common law in the United States and the codification process

Therefore, the former “rule of law”—that in the past century had been used to describe the peculiar combination of Common law precedents and parliamentary statutes— became, in Dicey’s vision, something comparable to the principle of legality of the European legal systems. On the one hand, Dicey’s representation of parliamentary sovereignty allows us to understand the consistent trend of the British constitutional evolution in the nineteenth century, which follows a steady stream toward parliamentary and legislative supremacy; on the other hand, though, we must be aware that the transition toward parliamentary sovereignty did not affect the key role played by the jurisprudence in this legal system. In carrying out its legislative function, Parliament did not alter the long-­ established Common law legacy; on the contrary, it interpreted its role to include codifying the multilayered Common law case law, aligning with the goals of legal positivism (Bentham 1843). In the United States of America, protests against the Common law tradition began to appear immediately after the Revolution and independence from the mother coun-

111 3.7 · Principle of Legality and Rule of Law

try. It is true, indeed, that one of the main criticisms that the revolutionary generation launched against the mother country regarded the excessive role assumed by the Parliament of Westminster and the alteration of the sound principles of the Common law system, considered to be guarantees of liberties against tyranny. However, immediately after independence, the new parliaments elected by the American people, claimed wide and unlimited power to make new legislation, and did not accept the burdens imposed by a source of law, such as the case law coming from the English courts, as it was not representative of the will of the people. This criticism became stronger throughout the years, and conquered the aims of the middle class, especially in the West (Miller 1962). American literature of the first half of the nineteenth century criticized, through effective stories, the old judges of Common law, naming them to be a judiciary aristocracy speaking a technical language not shared by the common people. The affirmation of the Democratic Party of Andrew Jackson, sensible to these arguments, fostered a reform of the legal system (Pound 1921): codifications of law began to appear in many states, following the sample of the Civil Code of Louisiana. The spread of written statutory law and codification reduced, therefore, the role of Common law, which, in the United States was limited to a rule of procedure—mainly the rule of precedent—and to a specific set of subjects. The differences between the traditions of Western constitutionalism that I have highlighted may contribute to the different reactions to the challenges brought by the crucial turning point of the beginning of the twentieth century, mainly the rapid enhancement of the process of democratization and the associated expansion of mass society. Comprehension Check and Tasks 1. The evolution of the ministerial countersignature shows the transition of the British Government from a constitutional monarchy to a parliamentary government. Why? (7 Sect. 3.2) 2. The enlargement of suffrage in the UK in the nineteenth century: how did it happen and what consequences did it provoke? (7 Sect. 3.2)  

 

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3. Explain the role of Marshall’s Supreme Court in the interpretation of the relationships between the Federal Government and the states (7 Sect. 3.3) 4. What are the novelties introduced in the American scenario by the election of Andrew Jackson as President in 1828? (7 Sect. 3.3) 5. Go back to the classification of the patterns of government provided for in 7 Sect. 2.10, and elaborate it by adding the directorial government, as established by the French Constitution of 1795 (7 Sect. 2.15) and the Swiss Constitution of 1848 (7 Sects. 2.10, 7 2.15, 7 3.4) 6. Outline French constitutional history from the Revolution to the Third Republic (1789–1875): use a timeline (7 Sects. 2.13–2.15, 7 3.4 and 7 3.5) 7. Compare the role of the public administration in the European and Anglo-American frameworks (7 Sect. 3.6) 8. What is the role of the judiciary branch in the Civil and Common law legal systems? Consider the relationship of the case law, made by judges, with the enacted sources of law (7 Sect. 3.7)  

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References Alatri P (1977) Parlamenti e lotta politica nella Francia del Settecento. Laterza, Roma e Bari Ambrosini F (2013) L’albero della libertà. Le repubbliche giacobine in Italia, 1796–99. Edizioni del Capricorno, Torino Bagehot W (1867) The English constitution. Chapman & Hall, London Bentham J (1843) The works of Jeremy Bentham. William Tait, Edinburgh Birch AH (1964) Representative and responsible government. An essay on the English constitution. Allen & Unwin, London Bryce J (1901) Flexible and rigid constitutions. Oxford Univ. Press, Oxford Buratti A (2016) La frontiera americana. Una interpretazione costituzionale. Ombre corte, Verona Carbonnier J (1979) Essais sur les lois. Répertoire du notariat. Defrénois, Paris Corradini D (1971) Garantismo e statualismo: le codificazioni civilistiche dell’Ottocento. Giuffrè, Milano Costa P (2001) Civitas. Storia della cittadinanza in Europa. III: La civiltà liberale. Laterza, Roma De Ruggiero G (1925) Storia del liberalismo europeo. Laterza, Bari

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Fritz CG (2008) American sovereigns: the people and America’s constitutional tradition before the civil war. Cambridge Univ. Press, New York Galizia M (1974) Caratteri del regime parlamentare inglese del Settecento. In: Studi in memoria di Carlo Esposito. Giuffrè, Milano Ghisalberti C (1974) Dall’antico regime al 1848: le origini costituzionali dell’Italia moderna. Laterza, Roma Ghisalberti C (2002) Storia costituzionale d’Italia. Laterza, Roma Loughlin M (2017) Evolution and gestalt of the state in the United Kingdom. In: Cassese S, von Bogdandy A, Huber P (eds) The max Planck handbook in European public law. 1: the administrative state. Oxford Univ. Press, Oxford Marshall G (1984) Constitutional conventions. The rules and forms of political accountability. Clarendon Press, Oxford Martinico G (2019) Alcune osservazioni sul nucleo della teoria costituzionale di John Calhoun. Filosofia Politica 3:229 Mashaw JL (2012) Creating the administrative constitution. Yale Univ. Press, New Haven and London Mecca G (2019) Il governo rappresentativo. Cultura politica, sfera pubblica e diritto costituzionale nell’Italia del XIX secolo. Eum, Macerata Miller P (1962) The legal mind in America from Independence to the civil war. Doubleday & Company, New York Nigro M (1976) Giustizia amministrativa. Il Mulino, Bologna Ostrogorsky M (1912) La démocratie et les partis politiques. Fayard, Paris Pound R (1921) The Spirit of the common law. Marshall Jones, Boston Ridola P (2006) Diritti fondamentali. Un’introduzione. Giappichelli, Torino Robert C (2008) The growth of responsible government in Stuart England. Cambridge Univ. Press, Cambridge, MA Rodotà S (2013) Il terribile diritto. Studi sulla proprietà privata e i beni comuni. Il Mulino, Bologna Saitta A (1991) La questione del “giacobinismo” italiano. In: Momenti e figure della civiltà europea. Saggi storici e storiografici. II. Edizioni di storia e letteratura, Roma Samuel G (2013) A short introduction to the common law. Edward Elgar, Cheltenham Todd A (1889) On parliamentary government in England. Longmans & Green, London Turner FJ (1921) The frontier in American history. Holt & Company, New York Urbinati N (1997) Individualismo democratico. Donzelli, Roma

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Constitutionalism in the Age of Democratization Contents 4.1

 onstitutionalism and Democracy at the Beginning C of the Twentieth Century – 116

4.2

The Evolution of the American Constitution – 118

4.3

The United Kingdom Between the Two World Wars – 126

4.4

 he Irish Independence and the Constitution T of 1937 – 130

4.5

 uropean Constitutions in the Aftermath of the First E World War – 132

4.6

 European Invention: The Centralized Review A of the Legislation – 136

4.7

The Weimar Constitution – 140

4.8

Toward the Catastrophe – 145 References – 148

© Springer Nature Switzerland AG and G.Giappichelli Editore 2023 A. Buratti, Western Constitutionalism, https://doi.org/10.1007/978-3-031-40872-4_4

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4.1 

4

Ambivalences of liberal constitutionalism

The rise of democratic and social constitutionalism

 onstitutionalism and Democracy at C the Beginning of the Twentieth Century

In the third chapter, I presented the development of western constitutionalism in the nineteenth century. During that period, the consolidation of the state’s institutional framework was remarkable; at the same time, due to a comprehensive set of guarantees and judicial remedies elaborated within the framework of liberal constitutionalism, individual liberties obtained a general acknowledgment and an effective protection. However, the progress of democratization was weak and uneven, and social imbalances persisted. In the United States, despite the rapid enlargement of suffrage triggered since the first half of the century, American society remained backwards in many aspects: the abolition of slavery brought by the end of the Civil War did not imply the complete removal of the obstacles that hampered the affirmation of actual equality. In the southern states, discrimination against black people continued to be one of the major social issues, while, in the northern states, the development of an industrial capitalistic economy gave rise to monopolization of resources, thus determining the beginning of economic inequalities typical of industrial society. Both of these social phenomena occurred without arousing legal reactions, but rather within a rigidly conservative constitutional construction, as confirmed by several judgments of the Supreme Court: American society reached the twentieth century in the middle of these contradictions. On the other side of the Atlantic, the beginning of the new century met European constitutionalism, still organized according to the settings of liberal constitutionalism. Except in the case of the United Kingdom, at the beginning of the twentieth century, electoral suffrage was limited to wealthy people and parliamentary legislation remained distant from actually engaging in the main social issues affecting equality and social imbalances. This situation was destined to change soon after the end of the First World War (1914–1918), when the enlargement of suffrage generally achieved brought on a sudden, and often unprepared for, transition toward mass democracy. Throughout the first half of the twentieth century, western constitutionalism was involved in a huge transformation: from a legal design only aimed at establishing gov-

117 4.1 · Constitutionalism and Democracy at the Beginning…

ernment’s constraints and granting protection of individual rights, consistent with the values of liberal tradition, it became a project inclusive of democratic values, thus embracing the exigencies of the new social classes breaking into the political scenario. Liberal constitutionalism was therefore transformed into a new democratic constitutionalism, with relevant shifts in the scopes of government’s organization and fundamental rights’ protection. More in general, democratic constitutionalism dismissed the traditional separation between state and society, typical of the liberal age, and assumed a new social engagement: constitutions and legislative policies acknowledged the role of social actors, such as political parties and trade unions, and promoted plans for contrasting social inequalities through economic and legal means. In the United States of America and in the United Kingdom—where suffrage had already progressively increased throughout the nineteenth century—the impact of democratization was not as unexpected as in continental Europe, even though it brought on critical transformations of the political framework. In the rest of Europe, instead, the same transition happened through more radical forms, and was aggravated because of the political and economic crises in those countries defeated in the War: here, the sudden enlargement of suffrage caused the formation of mass political parties and mass movements, sometimes even radically antagonistic to the values of constitutionalism itself. This impetuous process of democratization made the clash between the traditional conception of constitutionalism—as a system of rules aimed at constraining political power—and the new principles of democracy—as a set of procedures meant to realize popular sovereignty through political parties and representative government, evident. This imposed the search for new arrangements and forms of rationalization of democratic pressures into the constitutional standards. While an attempt to rationalize the constitutional structures was pursued in some nations, giving life to important innovations in the features of European constitutionalism, in other countries social discontent assumed the form of a wide criticism against the old constitutional structures, often paving the way to authoritarian turns and dictatorships, as in Italy and Germany, thus triggering a process of demolition of constitutionalism itself (Ridola 2010).

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The inherent tension between liberal constitutionalism and mass society

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4.2 

4

The 14th Amendment

 he Evolution of the American T Constitution

In the United States, the period between the Civil War and the First World War was characterized by the progressive construction of a modern nation, now possible due to the overcoming of sectional conflicts and the end of slavery. Moreover, in the last years of the century, the continental expansion was completed with the annexation of the last western territories (California and New Mexico) and the civilization of the Far West. This expansion, along with the growth of a modern industrial economy, enabled the United States to establish its preeminence in the world economy. In many aspects, however, American society did not follow such a rapid modernization. As we have already seen, the main constitutional outcome of the Civil War was the enactment of the 13th and the 14th Amendments to the Federal Constitution. While the 13th Amendment declared the abolition of slavery in the whole nation, authorizing the Congress to pass corrective legislation for overcoming the states’ resistance to abolishing slavery, the 14th Amendment introduced a more general ban on state legislation, forbidding any state from enacting laws violating individual rights and affecting equality among men (Amar 1992; Green 2015). Mainly aimed at achieving equality among men and overcoming racial discrimination by state legislation, the 14th Amendment was much broader in its formulation. Indeed, according to the first section of the 14th Amendment:

»» All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The meaning of the Amendment can be understood only having in mind the longstanding Supreme Court’s case law: the three legal tools provided for by the 14th Amendment—namely, the privileges and immunities

119 4.2 · The Evolution of the American Constitution

clause, the due process clause, and the equal protection clause—were meant to overrule the doctrine affirmed by the Supreme Court in the case Barron v. Baltimore (1833), in which the Court had affirmed that the Federal Bill of Rights had bound only the Federal Government, and not the states. The Amendment, therefore, was aimed at affording a legal ground for reaching a homogeneous protection of rights and common standards of equality in all the states of the Union, thus overpassing the boundaries imposed on the application of the Federal Bill of Rights, and entrusting the Federal Government—both the courts as well as the Congress—with the authority to impose common legal standards on states’ constitutions and legislation (Buratti 2020). Notwithstanding the clear intent of the Amendment, its first interpretations by the Supreme Court denied this assumption: in landmark decisions such as the Slaughter-­ House cases (1873) and the Civil Rights cases (1883), the Court refused to apply the three clauses of the Amendment against states’ statutes which still recognized forms of racial discrimination or other abridgements of individual rights. Moreover, in Plessy v. Ferguson (1896), the Court also upheld the state normative provisions establishing racial segregation, and the separation between black and white people in public life. Racial separation, according to the Court, was not a breach of the principle of equality (s.c. standard “separate but equal”). A relevant shift happened with the turn of the century, Supreme Court’s when the Supreme Court changed its view about its own protagonism in the role in the American political system and in the relation- Lochner Era ship with the lawmaker. Indeed, even though in Marbury v. Madison the Court had already affirmed the doctrine of judicial review of legislation, it had rarely used this power, both against federal, as well as against state, statutes. At the beginning of the new century, the Court undertook a new approach, affirming its leadership through a revival of judicial review of legislation. However, the Supreme Court’s protagonism was not directed to overcome inequalities, but rather to oppose the new trends in social legislation. In the last years of the previous century, the American economy had grown ­enormously, experiencing the typical social imbalances of industrial societies: the Congress and the states’ legislatures, therefore, had started to pass measures in favor of the poor classes and workers, similarly to those that—in the same years—had already been approved in many

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4

Substantive due process and the incorporation of fundamental rights

European countries. Against these policies, the Supreme Court decided, instead, to reaffirm the traditional vision of the liberal economy, based on individual autonomy and state abstention from social interactions (Lambert 1921). The hallmark of this judicial protection of the liberal economy is the famous judgment of the Supreme Court Lochner v. New York (1905). In this judgment the Court struck down an act of the state of New York which had introduced a maximum of working hours for bakers. The arguments developed by the Court were rooted in the concept of the liberal economy: working time belonged to individuals, and could be subject to deals, as any other good owned by men; freedom of contract could not be limited by legislation, even if a public interest to general welfare was involved (Phillips 2001). The “Lochner Era”, as it was called for the relevance of this judgment, is therefore characterized by a broad use of the judicial review of legislation, and by the strengthening of constitutional law tools, especially the 14th Amendment, that was adopted as a comprehensive clause of protection of liberties (Corwin 1934). Indeed, according to the new course of jurisprudence, the due process clause of the 14th Amendment was not limited to its original function of imposing state authorities the respect of a correct procedure in any activity affecting individual rights (procedural due process), but rather it became a substantive source of fundamental rights (substantive due process). The doctrine of substantive due process, elaborated by the Supreme Court at the beginning of the century, allowed for the practice of incorporation of fundamental rights: it operated by moving an individual right from its original normative source—basically, the Federal Bill of Rights—and by incorporating it into the protection afforded by the due process clause. Incorporation of fundamental rights, therefore, represented a “door” through which specific rights obtained the status of fundamental rights, thus conquering a greater legal protection, starting with the ability, typical of the 14th Amendment, to bind state law, and not only federal law (Konvitz 2001). Incorporation of fundamental rights through the due process clause of the 14th Amendment quickly became a major tool for individual rights protection, as well as a method for achieving a homogeneous protection of rights in the whole Nation. Additionally, it is the main tool for the constitutional protection of fundamental rights today.

121 4.2 · The Evolution of the American Constitution

Reforms in procedure and jurisdiction of the Supreme Court supported the expansion of its protagonism: the Judiciary Acts of 1891 and 1925 created a system of federal appellate courts entrusted with the power to receive appeals from all federal courts, relieving the Supreme Court from the workload represented by the appellate jurisdiction. At the same time, the Supreme Court was authorized to issue writs of certiorari directed to the lower courts, both federal and state, in cases of petitions coming from the parties of the case. The writ of certiorari is an order addressed to a lower court, aimed at reviewing the ruling of the court in case of legal error. The use of the writ of certiorari as the main method of accession to the Supreme Court allowed it to select the cases, excluding from its docket cases of minor relevance and focusing on the major legal issues (Barsotti 1999; Bianchi 2000). However, the expansion of the Supreme Court’s advocacy was not only a counterweight to the new legislative trends and a conservative reaction aimed at protecting the traditional set of liberties, nor was it just the consequence of procedural reforms. The new activism in the judicial review of states’legislation must be contextualized within the framework of the process of legal and economic unification of the nation. Though prompted by the Civil War, it was only with the passage of the century that the process of federal unification achieved effective results. The turning point can be identified in 1913, when the Congress passed a bill for the creation of the Federal Reserve, the central bank of the United States, with the function of centralizing the control of the bank system and supporting the federal budget; in the same year, the 16th Amendment came into force, allowing the Federal Government to levy an income tax, regardless of state apportionment. The power of direct taxation over the population gave the Federal Government an essential means to develop a more general fiscal strategy, and to expand its budget and the scope of its politics and competences. The result of these improvements in the Federal Government’s influence became clear at the moment of the election of the democratic Franklin Delano Roosevelt to the presidency in 1932. Roosevelt was elected in the aftermath of the economic crisis of 1929, that heavily affected American society, bringing dramatic consequences for the poor class and the workers: his political agenda aimed to boost economic growth and to fight pov-

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Supreme Court’s power of case selection

The economic crisis of 1929 and Roosevelt’s New Deal

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Supreme Court’s reaction to the New Deal

erty met the support of the people, profoundly shocked by the crisis (Schlesinger 1957). Reversing the liberal vision of state’s indifference toward social needs and economic interactions, Roosevelt’s plan, the so-called New Deal, consisted of a program of industrial and economic recovery, and public intervention in economy and social assistance, directed by the Presidency through normative acts delegated by the Congress. However, in order to attain those goals, Roosevelt had to overcome the jurisprudence of the Supreme Court, which rigidly confined the executive function in the realm of administration, and granted mainly to the states, and not to the Federal Government, the competences related to social assistance and economic policies. In this respect, Roosevelt tried to involve the states in the New Deal, through the innovative method of the grants in aid: these are funds granted by the Federal Government to the states under the condition that they implemented federal regulations in their own legislation. The Supreme Court’s reaction was prompt, and implied the striking down of the first acts of the New Deal. According to the Court, the New Deal encroached states’ competences, indicated an expansion of the executive’s normative activity in violation of the separation of powers, and entailed a breach to the economic liberal principles due to the deep public intervention in the economy. The Supreme Court’s fierce resistance brought on a struggle with Roosevelt: the President announced his intention to introduce norms for the removal of Supreme Court judges and the appointments of additional members to the Court. Roosevelt’s threat of a Court-packing plan—as it was denominated—reached its goal: the Court changed its orientation and resolved to uphold the measures of the New Deal. The consequences in constitutional law were relevant: the competences of the Federal Government were broadened, and the executive branch was increasingly involved in the legislative process, through delegate legislative powers (Lasky 1940). The achievement obtained by Roosevelt in the struggle against the Court, and his success in the recovery of the American economy, were not the only reasons for his enormous political consensus, validated by his re-election in three subsequent elections (1936, 1940, 1944). He was the first President to understand the significance of the dialogue with the people and the use of the media: his use of the radio for entering into American families’ homes

123 4.2 · The Evolution of the American Constitution

was an innovative method of communication in American politics. Roosevelt’s popularity allowed him to bring further fundamental changes to the American constitutional practice: indeed, he was able to strengthen the power of the presidency against the Congress, as no other president before him had ever done. Firstly, in 1921 the Congress passed the Budget and Accounting Act, conferring on the President the power to introduce federal budget proposals to the Congress: indeed, the continuous increase in the public debt, due to the First World War, but also to the electoral necessities of the congressmen, convinced the Congress that it needed a presidential leadership to control spending (Schick 2000). Until that moment, presidential review of spending power of the Congress was carried out at the moment of the signature of the bills: a very high percentage of the presidential vetoes issued in the nineteenth century was based on the goal to prevent excessive and inappropriate expenses. The new system, introduced in 1921, allowed the President to guide and prepare the legislative business. The Congress remained free to alter and reshape the appropriations, but within the framework of a proposal coming from the President, and taking into account the financial variables as pointed out by the President. At the level of the federal administration, the Act of 1921 created the Bureau of the Budget which would eventually grow in terms of staff and functions, becoming under the Roosevelt presidency the very core of the political direction of the presidency, coordinating all the other branches of the administration (Neustadt 1954). Generally speaking, the federal administration increased in terms of staff, competences and budget. Secondly, veto power on legislation was enormously aggrandized: Roosevelt adopted more than 600 vetoes during his terms as president, thus forcing the Congress to seek bargains with the President’s politics (Wayne 1978). Thirdly, the same huge increase was registered in the use of the presidential executive orders. Originally, they were instructions sent by the President to his administration for the correct execution of its function. With the shift to the modern presidency, the executive orders started to introduce substantive legislation, often under a delegation by an act of Congress, but also without any specific authorization, only deriving from the constitutional duties of the executive branch.

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Legal Tools and Keywords: Normative Functions and Instruments of the Executive Branch

4

In the whole of the Western World, the twentieth century was a turning point with regard to the traditional conception of the separation of powers. In particular, the role of the executive branch was progressively enlarged, occupying spaces and assuming responsibilities typically belonging to the legislative branch. Such protagonism of the executive department mainly depended on the growing complexity of social and economic issues, requiring an effort in the expansion of public regulation and state’s involvement in issues of a growing technicality: a transformation that made the traditional monopoly of regulation by general parliamentary legislation obsolete (Weber 1918). All of that entailed the direct involvement of the executive branch in the normative function, both through the strengthening of the power of the executive to introduce legislation to the parliamentary law-making process, as well as by providing proper normative instruments of the executive branch. As for the first process, in countries adopting a parliamentary government, as most of the European countries, the role of the cabinet to introduce legislative proposals to the parliament was a practice already in use, which was progressively enhanced, thus making the cabinet the true director of parliamentary legislative business (Burdeau 1932). On the contrary, in countries with a presidential government, such as the United States, this form of power-sharing implied the reconsideration of the constitutional rules protecting the rigid separation of powers, and their circumvention by means of cooperation between the presidency and loyal party-members acting on his mandate (Caravale 2004). As for the second process, the provision of normative instruments of the executive branch implied a more ­radical transformation in the classic conception of the separation of powers. In the framework of liberal constitutionalism, the executive branch was not rigidly excluded from the possibility to adopt regulatory instruments (named in a variety of ways, depending on the legal order: ordinances, regulations, decrees, etc.); however, this task was limited to the necessity to implement legislative provisions—which usually requires not only adminis-

125 4.2 · The Evolution of the American Constitution

trative measures, but a detailed regulation, too. In this framework, the regulatory instruments adopted by the executive branch were rigidly confined to a secondary position in the ranking of the sources of law, and therefore submitted to the respect of the principle of legality. With the passage of the century and the emergence of the new promotion of the executive, new sources of law of primary level, in the availability of the governments, were set up in constitutional texts. This mainly happened according to two law-making procedures: (i) the delegation of legislative functions by the parliaments to the governments for the regulation of specific subjects characterized by complexity and technicality, and (ii) the adoption of normative acts in cases of emergencies.

A fourth element to take into consideration is related to the increasing presidential ability to circumvent the “advice and consent” of the Senate on international treaties, through the means of international executive agreements. Since the beginning of the constitutional experience, international agreements of minor political relevance have taken the shape of executive agreements. They are agreements with foreign states made, and directly signed, by the President, without the advice and consent of the Senate. In the constitutional practice, especially with the emergence of modern presidencies, executive agreements have rapidly overtaken treaties. Moreover, their range has broadened: far from being limited to regulate issues of minor significance, or to executing other treaties, executive agreements have extended their own scope to issues of primary importance for national foreign policy, thus circumventing the role of the Senate and altering the balance of powers set forth by the Constitution (Johnson 1984). The Supreme Court did not interfere with this form of presidential direction of international politics: in United States v. Belmont (1937), it affirmed the constitutional validity of executive agreements, considering their range coextensive to that of the treaties (Millet 1990). In particular, the Court recognized executive agreements’ power to overstep federal competences and occupy matters of state competence with the effect of preempting state legislation. In conclusion, the transformations brought by Roosevelt to the design of American presidency entailed the shift to a modern presidency (Rossiter 1956), hardly

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comparable to the pattern of nineteenth century’s presidency: still today, the basic structure of the presidency is the same as in the age of Roosevelt.

4.3 

4

The path toward universal suffrage

The “first past the post” electoral system

 he United Kingdom Between the Two T World Wars

In the United Kingdom, the process of enlargement of the franchise was gradual and consistent. Following the two Reform Bills of 1832 and 1867, that had already begun the process, a third Reform Act was adopted in 1884, extending the right to vote to a broader percentage of the male population, encompassing, indeed, the whole working class; then, in 1918, the Representation of the People Act affirmed universal suffrage to all men over 21 and women over 30, who were property owners or married to property owners, embracing women for the first time, thus addressing the requests raised by the suffragette movement. Nevertheless, the consequences of universal suffrage on the constitutional order were relevant also in the United Kingdom. A first transformation occurred in the electoral system for the election of the House of Commons, that, according to the Reform Bill of 1884, was organized in the form of a plurality system in single member constituencies. In detail, the British electoral system implies the division of the Country into as many constituencies as the seats in the House of Commons; in each constituency a competition of individual candidates, usually linked to a specific political party, takes place and the candidate who polls more votes wins the seat, even though he/she reaches just a plurality, and not a majority of the votes cast. The “first-past-­ the-post” electoral system, which is still nowadays a pillar of British government, has played a fundamental role in shaping and consolidating the two-party system, because it typically favors a parliamentary over-representation of the two political parties that are able to gather the main electoral support, while, at the same time, depriving other parties of a parliamentary representation proportional to their actual consensus.

127 4.3 · The United Kingdom Between the Two World Wars

Legal Tools and Keywords: Patterns of Electoral Systems In constitutional law, electoral systems are methods, provided by the law, for the transformation of votes into seats of a political assembly. Contemporary constitutions generally do not regulate electoral systems in detail, leaving the scope to primary legislation. Constitutions usually impose just general principles regarding the right to vote, elections and electoral legislation. In contemporary western countries, the electoral systems are usually classified into three general patterns— plurality, majority and proportional representation. Both plurality and majority entail the organization of the territory into single member constituencies. Plurality electoral systems—applied in the United Kingdom for the election of the House of Commons but also in the United States for all the elections at the federal and state level, and in several other countries—do not require the candidate to obtain an absolute majority of the votes to win the seat, but rather just the plurality. Majority electoral systems, instead, require the candidate to obtain an absolute majority of the votes in order to be elected. In the majority system (which is currently in force in France, for instance), if no candidate gains a majority, the competition passes to a second round, in which only the candidates with the highest number of votes are admitted. Despite the differences, scholars have nonetheless demonstrated that both of these electoral systems support the two main parties, while disadvantaging the third parties in the competition (Duverger 1964). Proportional representation is an electoral methodology whose aim is that of reproducing the same ratio among votes cast by electors in the composition of the assembly. With this objective, the territory of the nation is partitioned in multi-members’constituencies, where political parties present their lists of candidates. Electors vote for a list, corresponding to a political party, and, according to the electoral legislation, may also express preferences among the candidates within the list. At the end the electoral process, the distribution of available parliamentary seats happens on the basis of the respective quotas of votes obtained by the party’s lists.

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If, on the one side, proportional representation avoids the effect of misrepresentation of popular intentions determined by both plurality and majority electoral systems, on the other side it is often linked to the creation of multiparty systems, encouraging fragmentation and polarization of political parties rather than their aggregation and cooperation. This is why, in contemporary electoral legislation, proportional representation is often adopted together with corrective measures, aimed at reducing its natural outcome: those corrective measures are (i) the electoral threshold, which bans the access to the parliament to political parties with an overly limited consensus, (ii) the majority bonus, which assigns to the political party(ies) that obtains the plurality of votes an additional amount of parliamentary seats, useful to reach a more stable majority, and (iii) small constituencies, because it is evident that, the lower the amount of available seats in a constituency, the lower the amount of political parties that are able to participate in the distribution. In comparative law, it is also possible to find eclectic electoral systems, not falling within one of the categories explained so far, as well as mixed systems, that adopt different kinds of electoral systems in the same electoral process.

A second transition involved the structure of the political system: universal suffrage, indeed, determined the birth and consolidation of the Labour Party, a confederation among workers’ trade unions, that in those years obtained a growing consensus, replacing the Whig Party in the two-party political competition. Furthermore, the democratization process pushed forward the transition already in place toward the supremacy of the House of Commons over the House of Lords. The Parliament Act of 1911 took away the power of the lords to deal with financial bills, such as the budgetary law, and limited in general the effectiveness of lords’ vetoes over public bills, acknowledging a supremacy of the House of Commons that had already been affirmed, as a matter of fact, during the last decades of the nineteenth century. In 1949, a second Parliament Act organized the relationships between the two Houses in legislative business, stating that the House of Lords was only entitled to delay the approval

129 4.3 · The United Kingdom Between the Two World Wars

of bills passed by the House of Commons for a period of 1 year. Universal suffrage, the stabilization of the two-party-­ system and the progressive marginalization of the House of Lords from political direction allowed the consolidation of the premiership within the British parliamentary government, according to a set of conventional rules that are still in practice today. In the British experience, a plurality electoral system, together with an effective party discipline, leads to the prevalence of the leader of the party, who in case of victory in the general elections shall be appointed by the King as Prime Minister, leader of the Cabinet. Prime ministers, indeed, are appointed based on their ability to command confidence in the House of Commons: the premier controls the Cabinet, composed of the members of his/her party, and also controls the parliamentary party, which is expected to be loyal to its leader (Benemy 1965). The consequence of this peculiar arrangement of conventions, customs and political settings, is the remarkable stability of the Cabinet, and the efficiency of its direction by the premier (Lijphart 1984). Of course, crises of government may happen, which in turn may determine the formation of a new Cabinet or the early dissolution of the Commons. However, these crises, and the related solutions, emerge as the outcome of a dialectic within the political party holding the majority rather than as the result of arrangements and bargaining within Parliament. Another consequence of the two-party system is the relevance of the political opposition. Its institutional role was acknowledged in the very beginning of the twentieth century by an act, that officially acknowledged the role of the leader of the opposition, identifying it as a “government in waiting”. Even looking at the architecture of the House of Commons, one immediately understands the relevance of the political debate between the majority and the opposition in the British government, and the role of the opposition in checking the executive (Johnson 1997). Due to the constitutional role played by the opposition, the Parliamentary Standing Orders—the rules governing the internal procedural and structural organization of the work of the Houses—grant a number of prerogatives to the opposition in Parliament, such as the right to enjoy reserved quotas of the chambers’ law-making business agenda for their proposals. This last prerogative allows the opposition to elaborate its alternative program, which

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Common law and statutory law

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would be proposed to the electorate in future general elections (Dahl 1966). The process of democratization triggered a further transition affecting the English legal system, accelerating a process of readjustment of respective roles of Common law and statute law, already in place in the nineteenth century. The growing complexity of economic regulation, and the emergence of social issues imposed by mass society, raised the necessity for the legislation to actively engage in a wide regulatory task: the parliamentary legislation in the first decades of the twentieth century granted social reforms and assumed the role of providing general regulations in new subjects, with new focuses. Subjects of regulation related to social issues, administrative services and the regulatory power of the state—for instance labor law, welfare, economic regulation—fell under a wide and intense activity of legislative codification. At the same time, however, the consolidation of parliamentary sovereignty did not affect the balance between Common law and statute law achieved in the nineteenth century: while, formally speaking, there is no doubt that in the British Constitution the rule of law entails the principle of parliamentary sovereignty, as a matter of fact the case law of the courts of Common law did not lose its role as a parallel source of law in any of the scopes of the legal order mainly related to the judicial application—such as property, family, contract, criminal law, criminal procedure, procedures of the courts and forms of action.

4.4 

 he Irish Independence T and the Constitution of 1937

In the post-World War, the main challenge to political stability in the UK was represented by the explosion of independentism in Ireland: the end of the First World War boosted Irish separatist movements, active since the second half of the nineteenth century, claiming the independence from the United Kingdom. A harsh guerrilla took place, led by the insurrectional Irish Republican Army, imposing severe defeats to the British Army. A peace agreement, the Anglo-Irish Treaty, was then reached in 1921: while recognizing Irish independence, the Treaty also provided that the North-Eastern area of Ireland, mainly coinciding with the Ulster region,

131 4.4 · The Irish Independence and the Constitution of 1937

remained part of the United Kingdom, consistent with the intent of the population, the majority of which belonging to protestant religious communities. A provisional government was then organized in Ireland, until a Constitution was drafted and approved by a referendum. The Irish Republican Constitution of 1937 mirrors the radical democratic ideals that had guided the independence process, and sets up a frame of government where the principle of parliamentary sovereignty is clearly refused. The Constitution is, indeed, rigid, and constitutional review of legislation is provided, while a directly elected President of the Republic is entrusted with a role of check over parliamentary political direction. Under many aspects, and also paying attention to the denominations assigned to the several institutions, the Constitution drew inspiration from that of the United States. Under other aspects, however, we find in the Irish Constitution elements resembling European continental constitutionalism in the age between the two World Wars, for instance with the peculiar method of constitutional review of legislation and with the introduction of a system of government resembling the one envisaged by the Weimar Constitution of 1919 (7 Sect. 4.7). The Constitution establishes a semi-presidential government, with a significative popular direct influence over the political direction of the Nation. Not only do the people directly elect the President of the Republic, but they also can be involved in the legislative procedure in the case that a referendum is called, when it is proposed by political minorities and by the consent of the President, at the moment immediately successive to the parliamentary approval. A referendum is foreseen also for the procedure of constitutional amendment. The Cabinet is appointed by the President on the basis of the indication by the House of Representatives, and is responsible before it, according to the typical scheme of the relation of confidence. It is the only institution holding the executive power: even though the President of the Republic does not share any executive function, his role is relevant in constitutional architecture, for instance through the power he owns to submit a bill to the check of the Supreme Court, at the moment of the signature, for any doubt of constitutionality. It is true this power does not encompass a presidential check on the political meaning of the bill passed by Parliament, but it is also true that the power to trigger such an early constitutional review of

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Irish hybrid system of constitutional review of legislation

legislation represents an effective check over parliamentary political direction, thus configuring the President as a veto player. The system of constitutional review of legislation is an interesting case-study, for it represents a hybrid between centralized and judicial review (for a detailed explanation of the centralized review, see 7 Sect. 4.6). The review of legislation, indeed, can be both judicial and centralized: it assumes the shape of judicial review when it is carried out by the High Court or the Court of Appeal in deciding a case falling within their jurisdiction. It assumes the form of a centralized review when the President triggers the early review by the Supreme Court: this second system is a typical method of review within the centralized review pattern, for it encompasses an original and exclusive jurisdiction of the Supreme Court, and sets up an abstract review, independent from a case to be adjudicated. However, the Supreme Court is not a typical constitutional court, comparable to those existing in centralized systems: although its exclusive power of “certification” of statutes’ conformity to the Constitution entails a high level of political influence, the Supreme Court is a component of the judiciary branch, where it holds the highest position, with a jurisdiction of last appeal to any decision assumed by the other courts of the Nation, including the High Courts.  

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4.5 

European society in post-First World War

 uropean Constitutions in the Aftermath E of the First World War

In continental Europe, the aftermath of the First World War was a period of extraordinary social transformations and tensions, mainly dependent on the fast and unprepared process of democratization, which altered the equilibrium reached by the bourgeois society. The experience of mass war caused people to become more aware of their role in politics and society, and spread the feeling of belonging to a national community among all the social classes. At the same time, new political cultures, such as socialism and communism, arose and gave birth to protest movements, influencing trade unions and mass political parties. Political parties quickly conquered the scenario of the political struggle, until then occupied by small groups of

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political professionals, spreading politically debated issues throughout society and mobilizing the mobs. The enlargement of suffrage and the proportional representation— that was often preferred over the traditional plurality system—allowed new political parties to be represented in parliaments, and progressively occupy the center of the political stage. Against this common social background, the specific national contexts widely differed. In countries such as France and Italy, where constitutional structures were already in force, the stress determined by the impact of mass society manifested itself in a harsher political struggle, which sharpened political fragmentation and instability. In countries such as Germany, Austria, Hungary and Czechoslovakia, where the ancient imperial structure of power was dissolved as a consequence of the defeat in the World War, the transition was more radical, and involved the planning of new constitutional structures. A similar process happened in Spain, when in 1931 a republican coalition reversed the military dictatorship of Primo de Rivera, proclaimed the Republic, and adopted a new Constitution. In general, the new constitutions of the post-World The first wave of ratioWar assumed the responsibility to align the political and nalization institutional framework of those countries, which until that moment were less involved in the goals and standards of constitutionalism, to the experience of western European liberal constitutions. In many cases, those constitutions engaged in an effort of rationalization of the parliamentary government, with the aim of overcoming the difficulties that emerged in nineteenth century constitutional practice due to the instability of the executive branch and the excessive predominance of parliaments over the other branches of government (Mirkine-­ Guetzevitch 1928). In these constitutions, the experience of the French Third Republic, with the extreme fragmentation of the party system and the endemic instability of the Cabinets, was assumed to be a negative model, whereas the British framework, in which the political responsibility of the Cabinet before Parliament did not interfere with the endurance of the Cabinet and its ability to lead the national political agenda, was considered the ideal to be followed. However, the transplant of British “golden rules” to the new constitutions was a difficult task, because of their unwritten nature. The rationalization of the parliamentary government passed, therefore, through a com-

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plex operation of constitutional codification of rules and procedures related to the election/appointment of the cabinet by the parliament, the crisis of government and the early dissolution of parliament. Several rules were therefore introduced in the constitutions adopted during this period, such as the request of an absolute majority for the vote of confidence, or conditions for the proposal and approval of the motion of no confidence. The main aim of rationalization was that of stabilizing the cabinet and limiting parliamentary discretion to remove it. In the actual development, however, the outcome of this first wave of rationalization was ineffective. Notwithstanding the codification of strict rules, the instability of the governments affected these political systems. Constitutional codification, indeed, was not followed by methods to reduce political fragmentation, which, on the contrary, increased because of the proportional electoral system and the radicalization of the political parties’ agendas. Legal Tools and Keywords: Patterns of Parliamentary Government Analysing the constitutional experiences of the nineteenth and the twentieth centuries, political science has proposed to classify two general patterns within the common scheme of parliamentary government: majoritarian democracy and consociational democracy. Both of them are founded on the constitutional rule of the relation of confidence between the parliament and the executive, which characterizes the model of the parliamentary government; however, they diverge in the design of the political system (two-party system or fragmented party system), the different way the political actors interact among themselves (competitive or consociational), and the outcome in terms of institutional stability. The British Parliamentary Government has been able to grant stability to the Cabinet and effectiveness to its agenda (majoritarian pattern). Here, the Cabinet, composed by the leaders of the political party in control of the majority of the Commons and guided by the leader of the party as Prime Minister, is expected to remain in charge for the whole legislature, while crises of government and early dissolutions of Commons represent extraordinary events. Stability of the Cabinet is the effect

135 4.5 · European Constitutions in the Aftermath of the First World War

of several “unwritten” rules and conventions, such as the competitive attitude of the political parties, the rigid party discipline and the accountability that political parties feel toward the electorate and the electoral results. On the contrary, parliamentary governments in most of the European countries have been characterized by the instability of the cabinets, never able to actually lead the parliamentary majority (consociational pattern). Here, fragmented political systems lead to the establishment of cabinets supported by a coalition of parties, often affected by instability; in cases of crises of government, parliamentary bargaining may determine a reshuffling of coalitions and, therefore, shifts in the cabinet’s agenda. Early dissolutions of the parliament occur frequently, as the main resource to resolve political crises. The majoritarian pattern of a parliamentary government is usually connected to a two-party system, or at least to a two-coalition party system, and therefore to a plurality or a majority electoral system, while the consociational pattern of parliamentary government is usually associated to proportional representation, which often results in a multi-party and fragmented system (Duverger 1964; Lijphart 1999).

The unsuccessful results of this first wave of rationalization demonstrated the difficulty, if not the impossibility, to transplant constitutional devices from one context to another, with the naïve expectation to reproduce the conditions of the original model: not only were British constitutional conventions unwritten, and as such difficult to codify, but they also developed within a historical evolution, as accommodations of institutional conflicts and arrangements of political bargaining, and were largely influenced by cultural attitudes that resist to any effort of cloning in an institutional lab. Furthermore, the rationalization of the parliamentary government expressed the aim of reaching governmental stability only through intervening in the constitutional design of parliamentary procedures related to the confidence process; but it became quickly evident that those attempts of institutional ­rationalization could not tackle the growth of a more and more fragmented and conflictive society—where social inequalities, ignored and marginalized during the long

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bourgeois century, began now to inflame the outdated institutional structure of liberal constitutionalism. In the aftermath of the World War, therefore, political instability affected all countries on the European continent, putting liberal constitutionalism under pressure. And in some countries, distrust for the constitutional systems and parliamentary institutions arose, clearing the way for the affirmation of authoritarian movements (7 Sect. 4.8).  

4.6 

 European Invention: The Centralized A Review of the Legislation

The main innovation introduced in the European constitutions of these years, was the adoption, for the first time in European constitutional law, of the constitutional review of legislation, as settled by the Austrian and the Czechoslovakian Constitutions of 1920, and later by the Spanish Constitution of 1931. Introduced in the United States in the colonial age, thanks to the jurisprudence of the colonial courts of Common law, and confirmed in emphatic words by the Supreme Court in Marbury v. Madison (1803), the constitutional review of legislation had never been accepted by the European legal orders. In countries, such as the United Kingdom, where a written constitution did not exist, the lack of a constitutional review is quite easily understandable, depending on the difficulty of singling out the constitutional parameters to be imposed on the parliamentary statutes. The same difficulty in affirming the principle of hierarchy between constitutional and legislative normative sources affected countries—such as Italy under the Statute of Carlo Alberto—with simply flexible constitutions. Parliamentary sovereignty was, in these legal orders, the basic rule that governs the relations among the sources of law. In other countries, such as France, where rigid constitutions had been adopted, the reason for the lack of a system of constitutional review depended more on the distrust toward the judicial branch, and the refusal to assign a power to annul the deliberations of the legislative body, representative of the nation, to the courts. In the Dutch Constitution, with the main reform of 1848, and in the Swiss Constitution (1848), this attitude was so incisive that the same

137 4.6 · A European Invention: The Centralized Review of the Legislation

Constitutions expressly prohibited—as still nowadays do—any form of judicial review of the legislation (Martinico 2017; van der Schyff 2020). In these cases, notwithstanding the provision of special proceedings for the amendment of the constitution, constitutional rigidity remained deprived of its typical legal guarantee. This framework began to change with the new demands of constitutional innovation after the First World War. In Czechoslovakia, a Constitutional Court was established, with the duty to receive appeals from the highest political institutions of the nation, even involving the review of the primary legislation. In Austria, the Constitution established a federal territorial framework of the state, assigning legislative functions to the member states (Länder). Drafted with the direct contribution of the famous legal scholar Hans Kelsen, the Constitution granted the division of legislative competences between the Federal Government and the states through the creation of a specialized court. The Court, composed of members appointed in order to represent both federal and states’ interests, was entrusted with the power to receive appeals from the states’ governments and the Federal Government challenging legislation adopted without a constitutional ground of competence (Stelzer 2011; Saitto 2021). In Kelsen’s original perspective, the Austrian Constitutional Court should have played a role of arbitration of the litigation arising from the distribution of legislative competences between the two entities endowed with legislative functions: both the ways of bench’s appointment and the typology of the control entailed an overwhelming political nature of the control (Kelsen 1928). In the following years, however, it became evident that, once admitted as a tool for the resolution of controversies arising among the member states and the Federal Government, the constitutional review of legislation had to be extended to all the possible grounds of unconstitutionality of parliamentary statutes, even in the case of legislative provisions violating constitutionally binding procedures, individual rights, or any other constitutional provision. In order to extend constitutional review to all possible conflicts arising between legislative and constitutional provisions, the Austrian Constitution was then amended in 1929. Rejecting the method of judicial review applied in the United States, the Austrian Constitution established a form of cooperation between the judiciary branch and the

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Austrian model of centralized constitutional review of legislation

The incidental control

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Constitutional Court: when, during a judicial proceeding, a doubt on the constitutionality of a norm emerges, the judge has the duty to stay the procedure and lodge a preliminary reference to the Constitutional Court, containing a question of constitutionality, thereby activating the constitutional review by the Constitutional Court (so-called incidental control). Originally, in the Austrian system, only the highest courts of the judicial branch were entitled to raise incidental preliminary references; however, in the other countries that, in the following years, have adopted the centralized review and the specific method of incidental control, the authority to raise constitutional questions was extended to all the courts. Analysing the general design of the centralized constitutional review of legislation, it must be underlined that the novelty of this approach, if compared to the judicial review of legislation established in the United States, is the creation of a specialized Constitutional Court. Although acting as a court in terms of procedures and form of their decisions, the centralized courts do not formally belong to the judiciary department, but rather they occupy a unique position, in between jurisdiction and politics, which makes them able to adjudicate disputes which involve the balancing of individual rights and guarantees with political goals and institutional sensibilities, while remaining rigorously independent from any other departments of the state (Tushnet 2014). With few exceptions, the effects of the rulings of the Constitutional Court are general and consist of the annulment of the legislative provisions that do not comply with the constitution. Therefore, while in the judicial review system all the courts are entitled to review the legislation and to disregard unconstitutional provisions with effect limited to the case they are judging, in the centralized review system, the judges have only the power to raise the constitutional question and refer it to a specialized court, whose decision will have general effects, overwhelming the validity of the norm (Kelsen 1942). Legal Tools and Keywords: The Centralized Review of the Legislation The centralized pattern of constitutional review of legislation settled for the first time in the Austrian and Czechoslovakian constitutions is the main system of constitutional review currently applied throughout the

139 4.6 · A European Invention: The Centralized Review of the Legislation

world. As we will see in the following chapters, it is applied in the majority of the European countries (Tusseau 2021; Nicolini and Bagni 2022). The constitutions regulate constitutional courts with regard to four main issues: composition, jurisdiction, principles of procedure, and effect of their rulings. Other legal sources, including norms of procedures released by the courts themselves, complete this general regulation. Focusing now on jurisdiction, it must be considered that the constitutional courts usually perform several functions, all of them related to their role of guarantee of the constitution (for an overview of rules of composition and other functions of constitutional courts see 7 Sect. 6.2). The main and central function of the constitutional courts is constitutional review of legislation. There are several different methods to submit a legislative act for review to a constitutional court: (a) incidental access: when a judge, in deciding a case, has a doubt about the constitutionality of a norm with legislative force that must be applied to the case. In this case, the judge must stay the process and raise the question of constitutionality to the constitutional court through a preliminary reference, explaining the reasons why he/she considers the norm invalid. In order to raise the reference, the judge must always demonstrate the relevance of the norm in the case he/she is judging, i.e. the necessity to apply the norm in the case (Repetto 2017). Usually, the ordinary court addresses the constitutional court directly, but in some countries the request must first be sent to a supreme court, which filters the question by deciding whether the doubt as to the constitutionality of the legislative provision is serious enough; (b) direct appeal by the government and the regions/ member states: in those countries where a constitutional distribution of legislative competences exists, the government and the regions/member states usually have the power to appeal the constitutional court for the protection of their own sphere of c­ ompetences; (c) direct appeal by parliamentary minorities: some constitutions foresee this guarantee for the political minorities in order to challenge the constitutionality of a provision; (d) direct appeal by public bodies: some constitutions assign the power to appeal the court and challenge a  

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legislative norm to specific public institutions, such as the president of the republic, the president of a chamber of the parliament, the supervisory body, etc.; (e) automatic control: some constitutions foresee that, in certain specific cases, with regard to acts that involve specific subjects, the constitutional court must assess the constitutionality of them immediately after passage by the parliament.

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Incidental control can also be defined as concrete, for it takes into consideration the validity of the legislative provision regarding its possible application and effect in a specific case, whence the reference derives; controls originated by direct appeals are, instead, abstract, for the assessment of the legislation here is made without any consideration of actual cases of application. Individual complaints by citizens to the constitutional court are available in some countries, as a “last resort” complaint in case of a state’s acts violating fundamental rights. However, it must be underlined that this form of access is not a typical form of constitutional review of legislation (a task that follows the proceedings mentioned above), but rather a different, special, function of the constitutional courts, in which they are authorized to annul legislation as well as other acts (administrative or jurisdictional) of the state.

4.7 

German society in the aftermath of the First World War

The Weimar Constitution

The German Constitution of 1919—the Weimar Constitution, named after the city where the Constituent Assembly met—shows more than any other the passage to the new democratic constitutionalism, and the imbalances brought by the process of democratization. After the war and the sudden collapse of the Empire, German people were left without institutional points of reference; society was fragmented and conflictive, with new social classes claiming political participation and recognition of their rights. The Bolshevik Revolution and the conquest of power by the Communist Party in Russia also

141 4.7 · The Weimar Constitution

spread conflicts and threats to liberal democracy in Germany, evoking the peril of a communist turn. In this unstable framework, political leadership was assumed by the new mass political parties, which supported a provisional government and drove the works of the Constituent Assembly. The Weimar Constitution refused the liberal separation between state and society, and engaged in the task of assuring social inclusion of the masses and organizing social pluralism (Smend 1928). The Constitution attempted to answer these challenges firstly through the acknowledgment of social rights. This new category of rights, at the basis of the political agenda of the mass parties, imposed state intervention to promote the achievement of social goals and the improvement of individual and collective welfare: the right to school and education, the right to health, the right to work and the guarantee of fairness in labor relations, etc. The typical catalogues of individual rights elaborated within the liberal tradition—focused on the negative liberties consistent with the interests of the bourgeoisie—were therefore replaced by a multidimensional catalogue of rights, including both individual liberties and social rights (Ridola 2021). The hallmark of this shift was the regulation of the right to private property. Private property had always been the paramount liberty in the liberal constitutional tradition, where it had been protected from any external interference; now, with the new approach, private property was protected as long as it was not affecting the public good, legitimating, in such a case, the expropriation by the state. The new approach toward society also led to the transformation of the principle of equality: as we have seen in previous chapters, starting with the American Declaration of Independence and the French Declaration of Rights, the principle of equality had become a basic tenet of liberal constitutionalism: in this framework, equality was assumed as a duty of equal treatment by the law (equality before the law). In the new environment of democratic constitutionalism, this conception of formal equality was enlarged, in order to include a substantive conception of equality, imposing the duty to overcome inequalities and promote actual equal standards of life on the state.

The constitutional acknowledgement of social rights

Formal and substantive equality

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Legal Tools and Keywords: Definitions Typologies of Constitutional Rights

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and

In legal dictionaries, several definitions of “right” are available: in very general terms, a right is a condition, regulated by the law, that grants to the subject the enjoyment of a liberty, or the use of a good, exercise of a power, or entitlement to a credit, to receive a service or a good. Leaving aside, for a moment, the theoretical issue of the source of rights (natural or positive), we can agree that rights receive, and are defined by, a legal recognition: therefore, their legal source may be the constitution, statutes, case law, legal customs, etc. With the expression “constitutional rights” we identify the rights whose legal source is the constitution, and that are therefore endowed with the special protection afforded by their constitutional status. The Weimar Constitution, with its complex and detailed catalogue of rights inspired by different visions of the roles of the constitution and the state, gives us the ability to lay down a classification of the different typologies of constitutional rights in contemporary constitutional law (Grossi 1991). Within the general category of constitutional rights, we can distinguish: (a) individual liberties (first generation rights), which can be also divided into (a.1) civil rights (habeas corpus, fair trial, privacy, free movement, free speech, etc.), (a.2) economic rights (private property, freedom of contract, economic undertakings, etc.) and (a.3) collective rights (right to assembly and association, etc.); (b) political rights, that imply the rights related to the participation in the direction of the polity and are usually restricted only to citizens: above all, the right to vote and to be elected; (c) social rights (second generation rights): among others, these include education, welfare, and health. The abovementioned classification is based on the content of the rights, i.e. the nature of the claim they express. Indeed, the rights may consist of: (a) the i­ndividuals’ claim that public authorities do not interfere with their spheres of liberties; (b) the power of individuals to take part in the political decisions of the community; or (c)

143 4.7 · The Weimar Constitution

the expectation of an active intervention by pubic authorities to provide certain services aimed at meeting individuals’ basic needs and to promote equality. However, classifications of constitutional rights run the risk to oversimplify the complexity of their actual design: indeed, often constitutional rights imply the overlapping of different claims. So, for instance, the right to health implies both an individual’s autonomy in decisions related to his/her medical treatments, as well as the social right to receive adequate health services.

This approach made the Weimar political and constitutional order a controversial issue in German public opinion. The transition from the conservative society, that supported the Empire, to a new dynamic society created discontent. Moreover, the disaffection of the conservative classes became worse due to the new trends in society and habits: the Age of Weimar, indeed, was a period of emergence of new tendencies in fashion, arts, literature, theatre, and architecture; it was a period of recognition of the role of women, a triumph of the American style. In many aspects, these new trends were provocative and in open contradiction to the traditions of German society. The antagonism of the conservative classes for the new Republic eroded the fragile roots of the young Republic (Winkler 1993). Also, with regard to the frame of government, the Weimar Constitution brought relevant innovations. The Constitution, indeed, tried to match the goal of rationalization through a different strategy, looking for establishing a blended form of government, transplanting presidential elements into the usual frame of the parliamentary government. The frame of government was drafted mirroring the visions of Max Weber and Hugo Preuss, as well as drawing inspiration from experiences such as the French Second Republic and the Swiss Constitution, where popular participation to political decisions was not fully intermediated by the Parliament, but rather found avenues of direct influence, through presidential popular elections and referendums. In order to achieve stability of the institutional system, the President should have acted as a ­safeguard and a check against the excesses of Parliament and the political parties. With this purpose, the Constitution

Social cleavages in Weimar’s Germany

The frame of government

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Political fragmentation, economic crisis, and institutional instability

imposed the popular direct election of the President of the Republic. The powers of the President were not limited, as in the parliamentary government, to symbolic functions: on the contrary, he enjoyed relevant competences, as in cases of emergency (Art. 48 Weimar Const.). On the other side, the Constitution confirmed the existence of a relation of confidence between the Chancellor and the Reichsrat (the lower chamber of the Parliament, directly elected by the people). However, although the Chancellor could be removed through a vote of censure by the Reichstag, the Chancellor and the Cabinet as a whole did not need to obtain a preliminary vote of confidence by the Reichstag. This peculiar regulation of the relation of confidence entailed, therefore, the possibility for the President to appoint Cabinets depending solely on presidential support, and able to stay in charge until the adoption of a motion of censure by the Reichstag. Not only did the Constitution merge presidential and parliamentary elements into the same system of government, but it also established a conflicting disputation between the Reichstag and the President (Mortati 1973). The latter, indeed, had the power to call the people to referendum on parliamentary statutes he did not agree with; the Reichstag, on the other hand, had the power to promote a popular vote in order to obtain an early removal of the President—even though, in cases in which the people confirmed the President, the Reichstag would have been automatically dissolved. In the first years of the Weimar Republic, thanks to the loyalty of the first President, Ebert, the system of government worked according to its parliamentary dimension. Nonetheless, difficulties were not so far off. Pursuing the goal to foster the role of political parties and social pluralism, the Constitution had provided for an innovative norm, directly acknowledging the electoral proportional system in the Constitution. This was the first time that a specific electoral system received constitutional coverage. The consequences, however, were not satisfactory. The political system, indeed, deepened political fragmentation, and the political parties suspended the cooperative approach that had characterized the age of the drafting of the Constitution. In a few years the fragmentation led to political instability, aggravated by the economic crisis which involved German society. Mainly due to the high costs that Germany was compelled to pay the nations damaged in the war, the national economy, destroyed by

145 4.8 · Toward the Catastrophe

the war, was not able to recover. Monetary inflation, together with unemployment, poverty and social hatred, spread. The fragile and fragmented political system did not own resources for inverting the situation. In this problematic framework, the presidential elections of 1925 gave the result of the election of Hindenburg. An exponent of the German military aristocracy, Hindenburg belonged to those social classes that had never supported the Republican venture. In order to limit political instability, Hindenburg acted from the beginning by pushing the frame of government toward its presidential dimension, especially through the appointment of chancellors who depended on his personal confidence. The Reichstag, fragmented and weak, was not able to oppose a firm resistance to Hindenburg’s practice of appointing presidential Cabinets. Even though 1925–1929 was still a period of economic and cultural growth, mainly due to the strong connections established with American economics, the economic crisis of 1929 affected Germany more than any other European country, sharpening social conflicts. Social discontent and economic difficulties determined the disaffection towards political parties, and increased the consensus of Nazism, a movement founded by Adolph Hitler, mixing together nostalgia for the military order, along with liberal beliefs, revanchism and antisemitism. The elections of 1932 evidenced the growth of the Nazi Party, which obtained 38% of the vote. The failure to form a majority led to further elections in 1933, with the Nazi Party conquering 43% of the vote. Following these elections, in 1933 Hitler was appointed as Chancellor. The same year, under the threat of a conspiracy, Hitler convinced the President to take all power away from the Parliament, and obtained the power to legislate directly by decrees of the executive branch; political parties other than the Nazi Party were dissolved, and democracy and the Constitution collapsed along with them.

4.8 

Toward the Catastrophe

The rise of the Nazis to power in Germany was the last, and the most dangerous, threat to the European liberal democracies. In many states, universal suffrage for men—and during the Weimar Republic also for women—was adopted too

The rise of the Nazi Party

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Italian Fascism

suddenly with respect to static and conservative bourgeois society. The economic condition of the popular masses caused the rise of social tensions, strikes and protests. In this scenario, the new mass political parties proved to be able to give voice to the growing discontent, breaking down the political homogeneity of parliamentary institutions. Both the old liberal constitutions, whose institutional architecture had been modelled with the main aim to grant political hegemony to parliaments representative of a homogeneous society, as well as the new post-World War constitutions, drafted in order to assure institutional stability through means of rationalization, failed to govern the emergence of social turmoil. In Italy, the crisis of the system occurred in 1922 with the rise of the Fascist Party led by Benito Mussolini. Mussolini, a former exponent of socialism, understood that the popular masses mobilized by the war experience could be manipulated and controlled. With the fascist movement, Mussolini managed to combine mass mobilization with the conservative claims of the anti-socialist bourgeoisie. Nationalism, militarism, repulsion toward liberal constitutionalism and the pluralistic party system were thus the predominant values of Italian fascism (Gentile 2022). Even though lacking a wide parliamentary support, in 1922 the King invited Mussolini to form a coalition Cabinet. Repression against the pluralistic party system initiated immediately, with persecutions and assassinations of political opponents, and the adoption of laws suspending the constitutional rights and liberties originally granted by the Statute of Carlo Alberto. Then, in 1923 the adoption of a new electoral law paved the way to the affirmation of a one-party government: in the following elections, held in 1924, the Fascist Party obtained more than 60% of the vote, and Mussolini could form a Cabinet composed solely of the Fascist Party, initiating a profound transformation of the legal order. A general legislation was enacted, in order to codify the power of the Fascist Party, as an ­institutional component of the Government; the elective Chamber of Deputies was abolished, and in its place the Chamber of Fasci e Corporazioni was set up. The new assembly mirrored the articulation of the corporative systems: it ceased to represent the Nation as a whole, becoming, rather, representative of fascist associations and industrial and professional corporations. Following the trends that occurred in Italian society, jurists and

147 4.8 · Toward the Catastrophe

scholars of law opposed little resistance to the abandonment of the tradition of the liberal state and constitutionalism. Finally, in 1939, influenced by the Nazi regime established by Hitler in Germany, racial laws were enacted in Italy, thus signing definitively the suppression of the liberties and rights granted by the Statute. Italian fascism was soon imitated in Hungary, Portugal and Spain. As for the first, the movement led by the authoritarian admiral Horthy conquered power in 1920. In Portugal, Salazar established a regime in 1932. In Spain, in 1936, General Francisco Franco led a successful military revolt to overthrow Spain’s newly formed democratic Republic, notwithstanding the fierce resistance opposed by the republican coalition. All of those authoritarian movements promoted a common political agenda, made of nationalism and opposition to both communism and liberalism: the refusal of liberal constitutionalism’s typical forms brought to the settlement of authoritarian regimes, based on dictatorship, a single-party system, the suspension of free democratic life, limitation of basic fundamental rights, rigid organization of the people in an organic articulation of social life, and reduction of social pluralism, even through violent persecutions of political and ethnical minorities. In conclusion, we can affirm that throughout the years between the end of the First World War and the 1930s, the process of democratization in the Western World made huge advances, with a wide acknowledgement of male universal suffrage. This process led to the involvement of the masses in politics, to the growth of mass political parties, and to the development of the new pattern of social rights, thus involving the state in the new task of promoting social justice and substantive conditions of equality of men. At the same time, however, the process of democratization provoked imbalances in society, creating anxiety and resentment in conservative social classes; even the masses newly entered into the political scenario demonstrated availability to a populist use of political communication and propaganda. In all the countries, the institutions of constitutionalism, mainly based on the central role played by the parliament, were swamped and pushed toward momentous transformations. In some European countries, where these difficulties were aggrandized due to the weak roots of constitutionalism, the institutions of consti-

Dictatorships in Europe

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tutionalism collapsed, leaving a power vacuum for authoritarian regimes. The geopolitical picture of the Western World at the end of the 1930s is, therefore, a vivid representation of the global conflict which was about to begin. Comprehension Check and Tasks

4

1. What is “incorporation” in the American legal experience? (7 Sect. 4.2) 2. What are the causes of the increasing role of the Supreme Court between the nineteenth and twentieth centuries? (7 Sect. 4.2) 3. List the innovations brought on by F.D. Roosevelt in the practice of the American presidency (7 Sect. 4.2) 4. Explain the plurality electoral system (7 Sect. 4.3) 5. Explain goals and methods of rationalization of the parliamentary government in Europe after the First World War (7 Sect. 4.5) 6. Compare the structure of the judicial and centralized reviews of legislation (7 Sects. 2.12 and 4.6) 7. What is the incidental appeal? (7 Sect. 4.6) 8. Which elements of the Irish system of constitutional review of legislation are consistent with the centralized review pattern? (7 Sects. 4.5 and 4.6) 9. Search the text of the Weimar Constitution on the web and look for the provisions expressing the increasing relevance of social rights (7 Sect. 4.7) 10. What are the causes of the shift that happened in Weimar’s politics around the 1930s? (7 Sect. 4.7)  

 

 

 

 

 

 

 

 

 

 

References Amar AR (1992) The bill of rights and the fourteenth amendment. Yale Law J 6:1193 Barsotti V (1999) L’arte di tacere. Strumenti e tecniche di non decisione della Corte suprema degli Stati Uniti. Giappichelli, Torino Benemy FWG (1965) The elected monarch: the development of the power of the prime minister. Harrap, London Bianchi P (2000) La creazione giurisprudenziale delle tecniche di selezione dei casi. Giappichelli, Torino Buratti A (2020) Diritti fondamentali e integrazione federale. origini, applicazioni e interpretazioni della due process clause nella Costituzione americana. Rivista di Diritti Comparati 1:1

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Burdeau G (1932) Le régime parlamentaire dans les constitutions européennes d’après guerre. Les Éditions internationales, Paris Caravale G (2004) Il governo legislatore. Giuffrè, Milano Corwin E (1934) The twilight of the supreme court: a history of our constitutional theory. Yale Univ. Press, New Haven and London Dahl RA (1966) Political oppositions in Western democracies. Yale Univ. Press, New Haven and London Duverger M (1964) Introduction à la politique. Gallimard, Paris Gentile E (2022) Storia del fascismo. Laterza, Roma Green R (2015) Equal citizenship, civil rights, and the constitution. The original sense of the privileges or immunities clause. Routledge, New York and London Grossi P (1991) I diritti di libertà ad uso di lezioni. Giappichelli, Torino Johnson LK (1984) The making of international agreements. New York Univ. Press, New York and London Johnson N (1997) Opposition in the British political system. Gov Oppos 4:487–510 Kelsen H (1928) La garantie jurisdictionnelle de la constitution. Girard, Paris Kelsen H (1942) Judicial review of legislation: a comparative study of the Austrian and the American constitution. J Polit 4:183–200 Konvitz M (2001) Fundamental rights. History of a Constitutional Doctrine. Transaction Publ./Rutgers Univ., New Brunswick and London Lambert E (1921) Le Gouvernement des Juges et la lute contre la legislation sociale aux États-Unis. Giard, Paris Lasky H (1940) The American presidency. Grosset & Dunlap, New York Lijphart A (1984) Democracies. Patterns of majoritarian and consensus government in twenty-one countries. Yale Univ. Press, New Haven and London Lijphart A (1999) Patterns of democracy. Yale University Press, New Haven and London Martinico G (2017) Studio sulle forme alternative di judicial review: il caso dei Paesi Bassi e della Svizzera. Federalismiit 12:2 Millet SM (1990) The constitutionality of executive agreements. Garland, New York and London Mirkine-Guetzevitch B (1928) Les Constitutions de l’Europe nouvelle. Delagrave, Paris Mortati C (1973) Le forme di governo. Cedam, Padova Neustadt RE (1954) Presidency and legislation: the growth of central clearance. Am Polit Sci Rev 3:641–671 Nicolini M, Bagni S (2022) Comparative constitutional justice. Eleven, The Hague Phillips MJ (2001) The Lochner court, myth and reality. Praeger, Westport and London Repetto G (2017) Il canone dell’incidentalità costituzionale. ES, Napoli Ridola P (2010) Diritto comparato e diritto costituzionale europeo. Giappichelli, Torino Ridola P (2021) Stato e costituzione in Germania. Giappichelli, Torino Rossiter C (1956) The American presidency. New American Library, New York Saitto F (2021) The Camel’s dilemma. Critical reflections on the political nature of constitutional courts. Zeitschrift für öffentliches Recht 76:353

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Schick A (2000) The federal budget. Politics, policy, process. Washington, Brookings Institution Press Schlesinger AM (1957) The age of Roosevelt. I. the crisis of the old order, 1919–1933. Houghton Mifflin, Boston, MA Smend (1928) Verfassung und verfassungsrecht. Duncker & Humblot, Munich Stelzer M (2011) The constitution of the Republic of Austria: a contextual analysis. Hart, Oxford and Portland, OR Tushnet M (2014) Advanced introduction to comparative constitutional law. Elgar, Cheltenham Tusseau G (2021) Contentieux Constitutionnel Comparé. LGDJ, Paris Van der Schyff G (2020) The prohibition on constitutional review by the judiciary in The Netherlands in critical perspective: the case and roadmap for reform. German Law J 21:884–903 Wayne SJ (1978) The legislative presidency. Harper & Row, New York Weber M (1918) Parlament und Regierung im neugeordneten Deutschland. Zur politischen kritik des beamtentums und parteiwesens. Duncker & Humblot, München and Leipzig Winkler HA (1993) Weimar 1918–1933: die geschichte der ersten deutschen demokratie. Beck, Munich

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Framing Constitutional Democracy: The Anglo-­American Experience Contents 5.1

 rom the British Colonial Empire F to the Commonwealth – 152

5.2

The Constitutional Order of Canada – 154

5.3

 he Constitutional Orders of Australia T and New Zealand – 157

5.4

 he Evolution of the British Constitution Between T the Human Rights Act, Devolution, and Constitutional Reform Act – 162

5.5

 he United States Constitution, from Post-world War II T Until Modern Times – 172 References – 188

© Springer Nature Switzerland AG and G.Giappichelli Editore 2023 A. Buratti, Western Constitutionalism, https://doi.org/10.1007/978-3-031-40872-4_5

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5.1 

5

 rom the British Colonial Empire F to the Commonwealth

Starting with this chapter, the book moves to the analysis of contemporary constitutional law in the Western World. The Second World War represented, indeed, a watershed in the development of western constitutionalism, as well as in the structure and goals of public international law. Despite the persisting legal peculiarities of each national experience, mainly deriving from cultural contexts and longstanding legal institutions, a convergence toward the common pattern of constitutional democracy can be observed, with regard to both the sharing of basic liberal-­ democratic values and the formation of constitutional designs corresponding to the main patterns of constitutionalism itself. In the United Kingdom, the end of the Second World War did not entail any particular challenges to the constitutional structure. The victory against Nazi-Fascism was interpreted not only as a sign of military supremacy, but also as a confirmation of the political and institutional model rooted within the state. Despite the remarkable stability of the institutions and political system, the major change as a result of the war regarded the British Colonial Empire. The British Empire—whose origins date back to the sixteenth century—had expanded enormously during Queen Victoria’s reign (1837–1901), as a consequence of the industrial revolution, which assured the economic leadership of Great Britain in the world. In those years, all the British colonies of North America (Canada) attained limited forms of self-­ government between 1848 and 1855. The British North American Colonies of Canada (subsequently the provinces of Ontario and Québec), New Brunswick and Nova Scotia convened into “one dominion under the name of Canada”, which became the first autonomous federation of the British Empire in 1867. On the other side, the Australian colonies were federated into an autonomous dominion in a similar manner, in 1901, while New Zealand became a dominion in 1907. Despite the efforts to preserve the Empire through the acknowledgement of self-governing powers, the decolonization process had already been triggered.

153 5.1 · From the British Colonial Empire to the Commonwealth

In the Balfour Declaration at the Imperial Conference in 1926, Great Britain and its dominions agreed to conceive themselves as “autonomous communities with equal status […] no way subordinated one to another in any aspect of their domestic or external affairs, though united by common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations”. The Balfour Declaration established, therefore, the birth of the Commonwealth. Following the Balfour Declaration, the dominions were granted full autonomy by the Statute of Westminster in 1931. According to the Statute, the institutional structure of the countries within the British Commonwealth had to be organized according to the following scheme: the Queen of England as the Head of State, a national parliament in charge of the legislative function, a governor general (appointed by the Queen under proposal of the local Cabinet) representing the British Crown, formally in charge of the executive function, and a jurisdictional function organized according to the Common law tradition. The framework established with the Statute of Westminster was destined to quickly change because of the Second World War: it globally spread a new trend of decolonization, which also affected the recently reformed British Commonwealth. The most resounding act was the independence of India, which was still part of the Empire. India proclaimed independence in 1947 and became a member of the Commonwealth thereafter. Consolidated with the proclamation of the republic in 1950, India was permitted to remain a member of the Commonwealth despite not acknowledging the authority of the British Monarch as the head of state. The issue of countries with constitutional structures not based on a shared crown, but wishing nonetheless to remain members of the Commonwealth, was resolved in April 1949 at the Commonwealth Prime Ministers’ meeting in London. Under the London declaration, India agreed that once it acquired its independence, it accepted the British Sovereign as a “symbol of the free association of its independent member nations and, as such, head of the Commonwealth”, thereby retaining a purely symbolic position. Today, the Commonwealth is composed of 56 member states. Among others, Canada, Australia, New Zealand and realms in the Caribbean and in the Pacific have had Queen Elizabeth II as Head of State up until her death in

5

From the Balfour Declaration to the Statute of ­Westminster

India’s independence

The Commonwealth

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2022, now replaced by King Charles III, represented by a governor general. The relationship is organized following the rules of an international organization through which countries with diverse social, political, and economic backgrounds are regarded as equal in status and co-operate within a framework of common values and goals, which include the promotion of democracy, human rights, good governance, the rule of law, individual liberty, egalitarianism, free trade, multilateralism, and world peace. Comparative law scholars have looked with distinct interest at the constitutional experiences within the British Commonwealth, for the relevant process of constitutional borrowings and imitation that have taken place: traditionally, the circulation of the British legal traditions among the members of the Commonwealth has been described as a one-way process, with British law and institutional structures influencing the institutions of the other countries; more recently, however, current developments arguably prove how the inverse process occurs with a bottom-up approach, with legal institutions that originated in Commonwealth countries influencing the United Kingdom as well (7 Sect. 5.4).

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5.2 

The Constitutional Order of Canada

Since the expansion of the British Empire had proceeded hand in hand with the circulation of the English legal system in the dominions, the new independent states were naturally brought to adopt structures of government modeled on the architecture of constitutionalism; and the institutional link with the United Kingdom, represented by the Commonwealth, was a further reason to promote the tradition of western constitutionalism in these countries. In the next two sections, I introduce the constitutional orders of Canada, Australia and New Zealand, which are the main countries with stabilized political and constitutional systems belonging to the Commonwealth. I’ll then discuss the Indian Constitution in 7 Chap. 8. The British North America Act of 1867—passed by Westminster Parliament—ruled that the British Crown Colonies of North American Canada (divided into the provinces of Ontario and Québec), New Brunswick and Nova Scotia joined into a confederation and were all  

Canada’s path to political independence

155 5.2 · The Constitutional Order of Canada

granted the status of self-dominion within the British Empire. The recognition of full autonomy came afterwards, with the Statute of Westminster (1931); but it was only in 1982—with the approval of the Canada Act by British Parliament—that the process of emancipation from the motherland can be considered to have been completely achieved. According to Art. 1, par. 1, of the Canada Act, the supreme law of the country consists of three main constitutional sources: (1) the British North America Act of 1867, (2) its subsequent amendments, and (3) the Canadian Constitution Act (which was attached to the Canada Act). The latter also includes the Charter of Rights and Freedoms. The Canada Act provided for the so-called “patriation” of the Canadian Constitution. It implies the establishment of a domestic amending procedure: the Constitution is now a national act that no longer requires an act of British Parliament to be amended. Amendments to the Constitution must be enacted according to Part 5 of the Constitution Act, which provides five different amending formulas; it is worth mentioning the formula described in Section 41 requires unanimous consent of all the provinces in case of amendments related to the office of the head of state, the number of senators, the use of either official language or the composition of the Supreme Court. The constitutional provision of the amending procedure has to be understood as the key norm of the federal system whose main features still appear to be problematic. Despite the professed supremacy of the set of Canadian constitutional sources, and the broad use of judicial review of the legislation by the courts of the nation, the British idea of parliamentary sovereignty has not been completely abandoned. Indeed, Section 33 of the Charter of Rights and Freedoms provides for a special “notwithstanding clause”, or clause dérogatoire—which allows federal Parliament or the provinces’ legislative assemblies to uphold the validity a law, for a renewable 5-year term, despite it being declared inconsistent with the Charter of Rights and Freedoms by the courts. The clause, whose origin must be explained as the result of a compromise with the provinces that feared losing competences and powers via the Supreme Court’s jurisprudence, has been invoked in few cases so far, with the exception of Québec, whose

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The patriation of the Canadian Constitution

Section 33 of the Charter of Rights and Freedoms

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Parliamentary government

5

The structure of Canadian federalism

Parliament has invoked Section 33 for overriding judicial review on several occasions, raising serious criticism in public opinion. With regard to the system of government, Canada adopted a parliamentary government, fully inspired by the Westminster model. As in the UK, therefore, the chief executive is formally the Sovereign who exercises his/her powers through a Governor General and the Privy Council of the King. However, the actual holder of the executive power is the Prime Minister, who is appointed by the Governor General. The latter, by virtue of a convention, has to appoint the leader of the majority party that holds the confidence of the House of Commons, the lower chamber of Parliament, which represents the country as a whole. With regard to territorial framework, Canada is a federal state composed of ten provinces and three territories. The overwhelming influence of the British system can explain the unusual features of the Canadian federal structure, which is quite atypical when compared to federal systems in general. In particular, by sharp contrast with the United States, the Canadian Constitution is designed with a powerfully centralistic bias. Indeed, while the Constitution lists the legislative competences of both the federal and provincial levels, it grants general and residual powers to Parliament, whereas in the U.S. residual powers lie with the member states. Moreover, the Federal Government retains the so-­ called power of “disallowance”—which means that it can strike provincial laws out—and the power of appointment of provincial governors. Additionally, Canada lacks a Senate truly representative of territorial sub-units: indeed, the upper chamber is not an elective one, and even though each province is entitled to have a number of representatives, the latter are appointed by the Prime Minister and do not have any electoral connection with the province of origin. However, despite the rigidity of the aforementioned provisions, the system has gradually evolved toward an expansion of provincial powers, giving rise to two different dynamics of center-periphery relations. On the one hand, the consolidation of constitutional conventions and practices has weakened a number of powers constitutionally entrusted with the Federation; on the other hand, a co-­ operative federalism emerged, thanks to intergovernmen-

157 5.3 · The Constitutional Orders of Australia and New Zealand

tal agencies entrusted with the regulation of several areas of common interest, providing great flexibility to the entire system. A crucial role in the shaping of Canadian federalism was played by the Supreme Court, the country’s court of last resort. The Court’s composition reflects the federal principle: it consists of nine justices, all appointed by the Governor in Council, and three of them are to be from Québec because of its adhesion to the Civil law system; moreover, the office of Chief Justice is to be held in turn by an Anglophone and a Francophone. The Court’s jurisdiction includes hearing appeals of decisions from courts of appeal and, on occasion, to deliver references on constitutional questions raised by the Federal Government. The Québec case is worth mentioning. Québec presents some idiosyncrasies within the framework of Canadian society and its legal system: it is a French-speaking province, and it is the only Canadian province that is ruled by a Civil law system. Recently, its longstanding claims for independence have increased, together with opposition to the patriation process: the quest for independence raised the issue of the constitutional legitimacy of secession via referendum. As a reaction, the Canadian Federal Government asked the Supreme Court for an opinion to be given with respect to the legality, both under Canadian and international law, of a unilateral secession of Québec from Canada. The 1998 Supreme Court’s opinion held that a unilateral secession is not lawful: under Canadian constitutional law, secession requires a constitutional reform, based on the constitutional amending procedure. However, the Court added that, in case of a popular vote claiming independence, federal Parliament has a duty to negotiate (Martinico 2019). The conflict seems to have lessened in recent years: in 2006 the House of Commons passed a motion that granted Québec the status of “nation within a united Canada”.

5.3 

 he Constitutional Orders of Australia T and New Zealand

In Australia, the progress toward independence from the motherland reveals strong similarities with the Canadian experience.

The Supreme Court

The case of Québec

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Australian path to independence

5

Constitutional amending procedure

The frame of government

A former dominion of the British Empire, Australia, gained independence in 1901, after British Parliament established the Commonwealth of Australia (Commonwealth of Australia Constitution Act of 1900). Although passed by a British law, all Australian former colonies (New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia) approved it through a referendum, thus seizing the Constitution. The federal framework of the Australian Commonwealth is proclaimed in the preamble of the Constitution, which makes it clear that the decision to join in “one indissoluble Federal Commonwealth under the Crown of the United Kingdom and under the constitution thereby established” was made by the populations of the former colonies. The Act consists of a preamble and nine clauses or parts. The last part includes the constitutional document. The rigidity of the Constitution resides in Section 128, which establishes an entrenched amending procedure where democratic and federal principles are strongly balanced. The amending procedure consists of several steps: first, the proposal for amending the Constitution is to be approved by an absolute majority of both chambers of Parliament. After 60 days and within 6 months following the approval of the constitutional amendment by the federal legislature, the proposal is to be ratified by the majority of the people, and this majority has to reflect three different quorums: the majority of electors in each state and territory; the majority of territorial entities; and the majority of people entitled to vote within the entire Federation. Such a complex procedure has ensured that only a limited number of constitutional amendments have been approved up until now. Constitutional rigidity implies the settlement of the constitutional review of the legislation that, in Australia, is organized in the form of judicial review. Within this framework, a special role is played by the High Court of Australia, established in 1901 as the highest court in the country. Like Canada, the Australian system of government is strongly inspired by the Westminster parliamentary model. The Head of State and formal holder of the executive power is the king of the United Kingdom, represented by a governor general; however, by virtue of convention, the latter acts in accordance with the advice of the Prime Minister. Thus, while the Constitution does not mention the Prime Minister, his position exists by constitutional

159 5.3 · The Constitutional Orders of Australia and New Zealand

convention. Therefore, from a substantive point of view, the executive power lies with the Prime Minister, who is the leader of the majority party within the House of Representatives, and with his/her Cabinet. As in the Westminster model, the Prime Minister needs the House of Representatives’ confidence in order to govern. The legislative power is exercised by two chambers, the House of Representatives and the Senate. While the first is elected in single-member constituencies, the latter represents the territorial entities on an equal basis, irrespective of the size, with 20 senators per each state and two senators per each territory. Equal representation of the original states was a crucial part of the agreement to form a federation; the smaller states saw this as necessary to protect their interests against the bigger ones. Analogous to the American system, senators are elected for 6  years (though renewable in midterm elections, every 3  years), thus 3 years more than the representatives’ mandate. The two chambers share the same power in legislation, except for the House of Representatives’ exclusive initiative on financial bills, to which the Senate cannot propose amendments; furthermore, the confidence relationship lies with the House of Representatives.

Legal Tools and Keywords: The Alternative Vote System in Australia The alternative vote (also called transferable vote) applied for the election of members of the House of Representatives is a special kind of majority election, which differs from the French “double-ballot” system. In single-member constituencies, the electors rank the candidates in order of preference. At the moment of scrutiny, the votes are distributed to the top choice candidates. However, a candidate must earn a majority, not just a plurality of votes to be elected; therefore, if no ­candidate earns a majority, the last of the ranking is excluded and its votes are redistributed according to the second choice of the electors. This operation is repeated until a candidate reaches a majority of the votes. This system allows the people to vote in a single round, simultaneously avoiding the difficulties related to the “first past the post”, where candidates can be elected even with a small plurality of votes.

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The Australian Commonwealth is a federal state made up of six original states, three internal territories and seven external, or offshore, territories. According to Art. 51 of the Constitution, federal Parliament enjoys an exclusive, legislative competence on enumerated subjects, leaving the residual ones—unspecified and unrestricted—to the states. Although the Federation enjoys relevant legislative competency over financial matters, Australian federalism has been progressively developed on a cooperative basis through the establishment of joint institutional meetings for federal and territorial governments, such as the Council of Australian Governments. British sovereignty over New Zealand dates back to 1840, when the Treaty of Waitangi was signed between the British Crown and Māori tribes inhabiting the island.

Legal Tools and Keywords: Indigenous Peoples’ Rights One of the greatest controversies in the interpretation of the Treaty of Waitangi arises from the fact that the English and Māori versions of the Treaty do not ascribe the same meaning to crucial words. In the British interpretation of the Treaty, the tribes had renounced to exercise any form of sovereign power, fully acknowledging British sovereignty, retaining only the property of the lands. In Māori’s understanding, instead, the tribes retained a vast political autonomy, coinciding with typical governmental power, while, with regard to what remains under tribes’ property, their concept of property encompasses not only concrete assets, such as the land, but also intangible assets, such as language, cultural and religious traditions. Since 1980, New Zealand courts have confirmed this interpretation, holding that the term property encompasses even intangible goods, considered as collective assets of Māori people, thus recognizing the applicability of Māori customary law and entrusting the indigenous communities with autonomous powers on subjects related to those intangible assets, such as family law and natural resources. This approach, open to the recognition of indigenous communities’ right to the ownership of ancestral land, is shared by several courts of the “global south” in the World (Pannia 2022).

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Westminster Parliament passed the first New Zealand Constitution Act in 1846, providing an initial institutional framework. Following the Imperial Conference in 1907, New Zealand was given the status of dominion by a royal proclamation, and in 1908 two acts of constitutional relevance were passed: the Judicature Act, describing the powers and role of the judiciary, and the Legislature Act, establishing the powers of Parliament. However, unlike other areas of the Commonwealth, New Zealand did not express a clear intent to declare its independence from the mother country, at least until more recent times. The Constitutional Act of 1986, passed by the Parliament of New Zealand, can be considered as the first national constitutional act of the country, followed, a few years later, by the Bill of Rights Act of 1990. With the passage of these two landmark constitutional acts, New Zealand developed a proper set of written constitutional sources, thus reconsidering its traditional adhesion to the British approach to constitutional law as an evolutive law. However, the passage of the Constitutional Act and the Bill of Rights do not imply a general codification of constitutional law: still nowadays New Zealand’s Constitution derives from a collection of legal documents with a constitutional nature, consisting of parliamentary statutes, treaties, orders in council, decisions of the courts and constitutional conventions. All of that contributes to explain the flexible nature of constitutional law in New Zealand, which confirms the principle of parliamentary sovereignty. Accordingly, for a long time New Zealand’s judges were not entitled to carry out the judicial review of legislation. Under this perspective, however, a major change happened with the passage of the New Zealand Bill of Rights Act: although being a parliamentary act, it represents a breach of the doctrine of parliamentary sovereignty. Together with the provision of a comprehensive catalogue of rights, the Act provides some important interpretative principles that guide the courts in its application. Section 4 of the Bill explicitly denies its supremacy over any other legislation: that means that courts cannot annul a law if it is in contrast with one of the Bill’s provisions; however, if several interpretations are possible, judges are to choose the one which is compatible with the rights protected by

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The Bill of Rights

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the charter (method of consistent interpretation). The binding force of the Bill is also limited by Section 5, according to which the rights guaranteed by the Act can be “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The “justified limitations” allowed by Section 5 are a further demonstration of the persistence of parliamentary sovereignty. Finally, Section 7 provides for a peculiar mechanism for checking a bill before it enters into force: the attorney general can bring any provision of the bill that appears to be inconsistent with any of the rights contained in the charter to the attention of the House of Representatives, thereby demanding the chamber to review the political convenience of proceeding with its adoption. As one can see, the New Zealand Bill of Rights Act holds a twofold identity: on the one side, it confirms the features of a legal system based on parliamentary supremacy, and attempts to prevent the development of an effective judicial review of legislation; at the same time, however, it triggers a process of constitutional consolidation, and the establishment, in 2003, of the New Zealand Supreme Court, could disclose unpredictable outcomes (Bassu 2017).

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UK’s political and parliamentary framework

 he Evolution of the British Constitution T Between the Human Rights Act, Devolution, and Constitutional Reform Act

In the aftermath of the Second World War, the British political system continued to be characterized by the same features, described above, of the majoritarian parliamentary government. The two-party system was not altered, even though on a few occasions third parties have been able to affirm themselves, giving place to: (1) Cabinets supported by a parliamentary relative majority; or (2) coalition Cabinets. This last case occurred in the general elections of 2010: due to the large support gained by Liberal Party, it obtained seats in the Commons besides the Conservative and Labour Parties. The Cabinet was thus supported by the confidence of a parliamentary coalition of Tories and

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Liberals. This new political context brought on the attempt to codify new rules concerning government: in order to grant the coalition agreement, indeed, Parliament passed the Fixed-term Parliaments Act (2011), which represents the first attempt of codification of the British Government’s practices. The Act strongly reduced the royal prerogative (as a fact, a discretional power of the Prime Minister) to decide the early dissolution of the House of Commons—a practice that has been often used by the Premier to take advantage of the political conditions, or to resolve disputes within the party. According to the Act, indeed, the early dissolution of the Commons could only happen (1) with the consent of a two thirds majority of the House, or (2) as a consequence of the passage of a motion of noconfidence, if no other Cabinet is able to obtain the confidence in the following 2 weeks. However, the 2015 general elections gave a strong majority to the Conservative Party, confirming therefore the typical majoritarian shape of the British Government and avoiding further coalition Cabinets. While in 2017 an early dissolution of the Commons was possible due to the support of two thirds of the House to the request by the Premier, in 2019 a major crisis happened, with the necessity to pass an act aimed at bypassing the Act of 2011. In 2022, then, the Fixed-Term Parliaments Act was formally repealed, thus reviving the traditional practice of royal prerogative to dissolve the Commons. Another relevant change in the system of government regards the House of Lords, which had been subjected to several reforms since the beginning of the twentieth century. The House of Lords Reform Act (1999) changed the methods of composition of the House, reducing the number of hereditary members and Lords Spiritual, and regulating the methods and the conditions for the appointment of other life members. This reform, though, did not fully satisfy a part of British public opinion, which would be the abolition of the House of Lords. If reforms in politics and the frame of government have demonstrated to be only transitional and of a minor importance compared to the traditional design of the British constitution, more relevant reforms have taken place with regard to the system of the sources of law and the form of the state: these reforms allow us to more precisely define the current understanding of the British Constitution.

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The Human Rights Act

The first change hinges on the enactment of the Human Rights Act (HRA) (1998), which implied a rearrangement of the traditional human rights’protection system. The HRA provided for the incorporation of the European Convention of Human Rights into the national legal order, acknowledging the European Convention and the case law of the Court of Strasbourg (7 Sect. 7.2) as legally binding sources of law. Although the contents of the European Convention are consistent with the heritage of the British tradition of protection of fundamental rights, the Act implies several radical changes in the national traditional constitutional structure. By introducing a new written catalogue of rights in the legal system of the Nation— adopted by an international law organization and coherent with a continental approach of written legislation—the HRA entails a major challenge to the Common law tradition, according to which the protection of rights is mainly based on the role of Common law, and follows principles deeply rooted in the court’s precedents. As I will explain in 7 Sect. 7.2, this difficulty proved to be far too speculative, because the HRA confirmed the essential role of the Common law courts, granting them the role to take into account the Convention and the Strasbourg Court’s case law, as well as to interpret domestic law consistently with the Convention. Since the adoption of the HRA, indeed, the courts have demonstrated their ability to transplant the Convention into the Common law system avoiding radical conflicts. However, the HRA implies a second, more radical, challenge to the British legal order, and especially to the doctrine of parliamentary sovereignty. Indeed, the enactment of a catalogue of fundamental rights that must be respected by the whole legal order challenges the traditional vision of parliamentary legislation as superior law. The case of a conflict between domestic legislation and the Convention is regulated by Section 4 of the HRA: in order to resolve the antinomies that could arise between national and conventional law in all the cases in which interpretation and deference cannot resolve them, Section 4 of the Act foresees that in those cases the courts must issue a declaration of incompatibility to Parliament. Therefore, courts do not have any power to annul primary legislation for their incompatibility with the Convention and Strasbourg case law, nor to order a provisionary restriction on the effects of such provisions; rather they must defer the issue to Parliament, which is required to  

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Declarations of incompatibility under Section 4 of HRA

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consider it and adopt such modifications necessary to avoid conflict. Only a limited number of superior courts in the UK can issue a declaration of incompatibility. In special circumstances, the ministers are entrusted with the power to issue a remedial order amending the provision following the declaration of incompatibility. The mechanism seems to have achieved a good balance: from one perspective, it entails a form of judicial review of the legislation aimed at reaching a stronger protection of fundamental rights; from another perspective, it respects the role of Parliament, leaving Westminster with the decision on whether and how to amend the legislation. The mechanism proved to work as an effective remedy: since the adoption of the HRA (1998), the courts have raised more than 40 declarations of incompatibility, and Parliament corrected the domestic legislation consistently with conventional law in all but one of the cases (Hirst saga, see 7 Sect. 7.2). A second transition worth mentioning regards the form of the state, in the light of the territorial organization of the United Kingdom.  

Legal Tools and Keywords: The Territorial Organization of the State In the study of the territorial organization of the state, scholars usually distinguish unitary, regional and federal states: these typologies are the results of different methods of distribution of political power between state and local entities. The model of the unitary state dates back to the French Constitution of 1791 and is based on a strict interpretation of the principles of unity and indivisibility of the state, as a reaction to the political particularism of the feudal system. This model is characterized by a strong centralization of the fundamental functions of the state (legislative, executive, judicial) in the hands of the political institution and administrative bodies of the central state, without any (or very little) space left for the acknowledgement of autonomy to local entities. The relationship between the central and local bodies is regulated, therefore, by a system of hierarchical restrictions binding the latter in the implementation of public functions. Nowadays, this type of state is not very common in the Western World, especially when compared to

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federal and regional states; nonetheless, some examples of unitary states in Europe can be seen in East-Central European countries that were previously under the influence of the Soviet Union (7 Sect. 8.5). Even in France, the traditional unitary structure of the state was substantially maintained until the 2000s, when a moderate process of political decentralization took place (7 Sect. 6.4). On the contrary, the typology of the federal state, as previously mentioned with reference to the constitutional experience of the United States of America (7 Sect. 2.10), refuses the traditional concept of state’s sovereignty and recognizes the statehood of territorial entities that compose the federation. Consequently, the federal state is a “state composed of states”. In federal states, the relationship between the federation and the member states is not founded on hierarchy, but rather on the division of competences between the former and the latter, with regard to the legislative, the administrative and, in certain cases, the judicial functions (Palermo and Kössler 2017). This does not mean, however, that the federation and the states are placed at the same level: indeed, the federation retains strategic powers and prerogatives aimed at guaranteeing and maintaining the stability of the federal state. The model of the regional state was initially established by the Spanish Constitution of 1931 of the Second Republic. This model was later adopted by the Italian Constitution of 1948 (7 Sect. 6.3), and then again in Spain with the democratic Constitution of 1978. It is traditionally conceived as an intermediate type of state, between the unitary and the federal form. Its functioning is based on the dialectic between the principles of unity and indivisibility of the state, on one hand, and the acknowledgement and the promotion of regional autonomies, on the other (D’Atena 2017). 55 Regions are usually entrusted with legislative and administrative functions conferred in a number of fields and matters on the basis of a division of competences between the central state and regions. Their political orientation is set by regional executives and regional assemblies that represent regional communities and are elected by the latter. However, their political and administrative autonomy does not entail the same powers and prerogatives as those granted to  

 

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member states in federal states. Just to give some examples: Regions within regional states do not have the power to adopt regional constitutions; rather, they can adopt statutes that must be consistent with the state constitution; Regions are not entitled to carry out judicial functions; Legislative and administrative competences of the regions are usually enumerated and specifically identified, whereas the state retains competence in all those fields not expressly mentioned by the constitution; Regional states, unlike federal states, usually do not have a second chamber representing regional entities, so regions do not take part in the legislative process at the state level; Regions, unlike member states in some federal states, usually do not own a share in the constitutional amending procedure.

In the United Kingdom, the traditional unitary form of the state began to change in the last decade of the twentieth century, when Scotland raised its claims for self-­ government. The response to this quest was the beginning of a process of “devolution” of competences to Scotland. Following a negotiation between London and Edinburgh, the Scotland Act (1998) devolved the legislative power over specific subjects to the Scottish Parliament. In 1999, the people of Scotland elected their first Parliament, which appointed a Cabinet, linked through a relation of confidence to Parliament. Following the sample of Scottish devolution, other regions with a cultural specialty within the United Kingdom (i.e. Wales and Northern Ireland) obtained forms of political autonomy from the Parliament of Westminster. It must be noted that, following the devolution process, one cannot find in the United Kingdom a homogeneous territorial distribution of powers: rather, the functions conferred to each area of the country have been tailored to their specific exigencies (Leyland 2010): a form of asymmetric territorial organization of the state that is ­progressively obtaining more and more attention in comparative constitutional law.

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Scottish claims for independence after Brexit

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The devolution process has not definitively satisfied Scottish independentism: in 2014 a referendum to decide whether to achieve full independence took place in Scotland. The outcome of the referendum was negative, but new signals toward Scottish independence now derive from the outcome of the referendum on the participation of the United Kingdom in the European Union (2016), which ended with a majority in favor of the “Brexit” phenomenon, thus determining the end of the UK’s participation in the EU.  As a consequence, the euro-friendly Scottish people are now reconsidering holding a new vote on their independence from the UK. Facing a proposal by the Scottish Cabinet to hold a new referendum, the Supreme Court of the UK has stated that such a referendum does not represent a right of the Scottish people: according to the Supreme Court, a new referendum on Scottish independence could only be disposed by an Act of the Parliament of Westminster, as in 2014. A possibility that, during the writing of this book, seems improbable. The different Devolution Acts adopted in recent years have created a complex form of distribution of legislative functions between Westminster and the devolved Parliaments, potentially provoking disputes. All the devolution issues that can arise under the Scotland Act, the Northern Ireland Act and the Wales Act are now under the jurisdiction of the Supreme Court of the United Kingdom, established by the Constitutional Reform Act (2005). Before the settlement of the Supreme Court, the adjudication of these disputes was a function of the Appellate Committee of the House of Lords, the upper chamber of Parliament, that had always carried out judicial functions together with legislative ones, as one of the high courts of the Common law judicial system. The settlement of the Supreme Court—created by the Constitutional Reform Act of 2005—replaced the jurisdictional functions belonging to the House of Lords. The Supreme Court’s jurisdiction on devolution issues involves the review of statutory law adopted by the English, Scottish, Welsh and Northern Ireland’s Parliaments, and can be: (1) direct, when required by the legislative assembly that laments a violation of its competences; and (2) appellate, when receiving a reference from a superior or an appellate court of the United Kingdom dealing with a norm of which the validity is contested.

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If the Court declares the statute incompatible with the relevant Devolution Act, it will: (1) issue an order restricting the effects of such provisions until it is corrected by the relevant legislature, or (2) submit its judgment to the court that raised the reference, leaving it with the power to dispose of the effects of the incompetent legislation. The assessment of the devolution process in the comparative perspective must take into account a critical provision of the Scottish Devolution Act, reproduced in the other relevant Devolution Acts: the power of the British Government to veto a bill passed by local Parliament whenever it may imply a violation of an international obligation, or in case of an evident infringement of competences reserved to Westminster. Such a power, recently utilized to veto a Scottish bill regarding gender issues, demonstrates the persistence of a unitary and centralistic vision of the UK’s territorial framework. A third transition depends on the enactment of the previously mentioned Constitutional Reform Act of 2005. Despite its emphatic denomination, this Act is not aimed at providing a comprehensive constitutional codification, but rather it represents a rationalization of the judicial system of the UK, through the establishment of the Supreme Court as a high court of the Nation embracing judicial powers of last resort formerly distributed to different courts and bodies. The jurisdiction of the Supreme Court is a final, appellate jurisdiction in both civil and criminal cases, with a power to select the cases it hears on the basis of their general and public importance; as a last resort jurisdiction, it has the last say on declarations of incompatibility that courts want to refer to Parliament under the Human Rights Act; moreover, it owns the competence to receive direct appeals on devolution issues. As one can see, Supreme Court’s jurisdiction involves both typical functions of a supreme court in a Common law system, as well as typical powers of a centralized constitutional court—with regard to the adjudication of devolution complaints. Notwithstanding this peculiar set of competences, we must be aware the Supreme Court cannot be compared to a constitutional court: it is true that, as a last resort jurisdiction in civil and criminal cases, it plays a pivotal role in the interpretation of constitutional principles; and it is

The establishment of UK’s Supreme Court

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The emergence of a weak constitutional review of legislation

The circulation of a Commonwealth constitutionalism

also true that the adjudication of the disputes related to devolution and the final decision on the issues of compatibility under Section 4 of the HRA entail the review of legislation with regard to the core of constitutional matters. At the same time, however, we must bear in mind that the Court has no power of annulment of legislation, but rather it is deferent to parliamentary sovereignty: according to the HRA, in case of a legislative provision incompatible with the Convention of Strasbourg, the Supreme Court is not entitled to annul it, as would be usual for a constitutional court, but only to issue a declaration of incompatibility to Parliament; according to Devolution Acts, in the case of an act exceeding its competences, the Court can only restrict the effect of the legislation until it will be corrected by the relevant legislative assembly. We are therefore facing a brand-new model of constitutional review of legislation, different from both judicial and centralized review: scholars proposed defining this model of judicial review of legislation as “weak constitutional review” (Tushnet 2003). This typology attempts to encompass the methods of review of legislation—common in countries with parliamentary sovereignty—that, even though affirming the existence of legal constraints to legislation, still preserve the Parliament’s control over any decision actually affecting legislation. In these systems, therefore, the role of the courts is only that of referring constitutional issues to Parliament, leaving the final decision there: a form of review that is exalted by the theorists of a “political constitutionalism”, based on the centrality of democratic principle and the refusal of any judicial supremacy over political issues (Tushnet 2003; Hirshl 2004; Bellamy 2007; Waldron 2014). In any case, the debate on the role of the Supreme Court—and the actual outcome of its power to challenge primary legislation under the HRA and Devolution Acts—is ongoing in the UK. Looking at the current developments of the British constitutional system—namely the Devolution Acts, the Human Rights Act and the Constitutional Reform Act— it is interesting to notice how they drew inspiration from the constitutional structure of the Commonwealth countries. A sort of circulation of constitutional models has taken place: while the British Constitution has influenced the constitutional design of former dominions—mainly exporting the Common law legal system and parliamentary government—now the same British Constitution is

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affected by processes of constitutional learning which allow for the incorporation of legal patterns experimented abroad. This is particularly true for the passage from a unitary state to devolution, as well as for the settlement of a form of constitutional review of legislation, challenging the ancient, sacred dogma of the sovereignty of parliament. With regard to this last issue, the New Zealand Bill of Rights Act, the Canadian Charter of Rights and Freedoms, and the British Human Rights Act realize a peculiar model of protection of rights which can be positioned between the British archetype of parliamentary sovereignty and its American counterpart of the judicial review of legislation (Gardbaum 2013). In conclusion, we must ask ourselves the question on the very essence of British constitution. Is it still possible to frame the British Constitution as it has been described since the nineteenth century and throughout the twentieth century, as an evolutive constitution, made of a combination of fundamentals deriving from basic principles of Common law, landmark charters and declarations of rights and conventions of the constitution, all of them submitted to the principle of parliamentary sovereignty? The transitions we have analysed in this section demonstrate that two new sources have occupied a privileged position in the constellation of constitutional law—parliamentary statutes and referendums. As for the first, all the constitutional processes I have introduced in this section were triggered by an Act of Westminster: as a consequence, much of the core subjects of constitutional law now fall in some form of enacted legislation. More and more frequently, the courts are adopting the notion of “constitutional statutes”, for pointing out a set of legislation whose formal identity does not differ from parliamentary legislation, but whose substantive function is clearly of a constitutional nature, due to its devotion to basic regulation of political institution or to protection of fundamental rights (Ahmed and Perry 2017). The implication of this classification— which is now largely accepted by all the branches—is that a constitutional statute could not be repealed but through a clear legislative intent to remove or alter it, thus excluding the possibility of an implied repeal by ordinary legislation. As for the second, in the last decades a number of fundamental political decisions, crucial in national public opinion, have been entrusted to a popular vote (Tierney

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The essence of the British Constitution

The role played by constitutional statutes

The role played by referendums

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2012): the adhesion to the European Union, in 1975, and Brexit, in 2016, were decided following a popular referendum; in 2011, a referendum was held to decide whether to confirm the plurality electoral system; at a local level, referendums have decided the main issues on devotion and independence. It is true that referendums take place only through a prior statute enabling them, and that their legal effect is formally only advisory; but it is also true that Parliament has always respected the popular vote and assumed the outcome of referendums as, at least, politically binding (Gordon 2020). Constitutional statutes and referendums assume, therefore, a growing influence within the set of fundamentals, conventions and historical charters of rights which have always been assumed as the sources of the constitutional identity of Great Britain, thus entailing a challenge to the traditional principle of parliamentary sovereignty. The consequences of this updated architecture of British constitutional law is still unpredictable: while parliamentary sovereignty is day after day confirmed, seeds of judicial review are also present, and a trend toward a legal hierarchization of constitutional sources is not implausible.

5.5 

 he United States Constitution, T from Post-world War II Until Modern Times

We must now turn our attention to the transformations of American constitutional law during modern times, as well as its current trends. The analysis will be organized into four main areas: (a) the progress of fundamental rights’ protection and equality at a national level, (b) the difficulties arising in the regulation of electoral campaigns, (c) the trends affecting government and separation of powers, and (d) the current interpretation of federalism. In the first half of the twentieth century, American society was still conservative in many aspects, and was characterized by persisting inequalities among people and among the states. Racial segregation was the main issue: the abolition of slavery provided by the reconstruction did not imply a real equality of white and black people. In the southern states, a rigid legislation was in force, providing rules of segregation and division between white and black

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people. In the last years of the nineteenth century, the Supreme Court upheld this legislative pattern: in Plessy v. Ferguson (1896), it affirmed the standard of “separate but equal”, thus confirming the system of segregation of black people (7 Sect. 4.2). The turning point in the development of protection of fundamental rights occurred with the appointment of Chief Justice Earl Warren (1953–1969): under Warren’s leadership, and through the adhesion to an evolutive construction of the Constitution and of the 14th Amendment, the Supreme Court started to enhance the protection of rights and legal equality, striking down conservative legislation widespread in American states; a form of judicial activism quickly followed by a set of legislative reforms that embraced several claims raised by the African-­ American civil rights movement, thus giving birth to the Civil Rights Revolution (Ackerman 2018). The Warren Court began to strike down this legislation through the application of one of the tools provided by the 14th Amendment, the equal protection clause, overruling the infamous “separate but equal” standard. The landmark decision was Brown v. Board of Education of Topeka (1954), in which the Court declared the division of white and black people in the school systems to be unconstitutional, and imposed on the states the order to grant equal conditions to all students. Later, in Loving v. Virginia (1967), the Court struck down state law provisions prohibiting interracial marriages: the court affirmed the principle that the equal protection clause cannot be interpreted as authorizing race-based distinctions.

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Legal Tools and Keywords: The Equal Protection Clause and Suspect Classifications In general terms, the equal protection clause of the 14th Amendment can be inscribed within the set of constitutional provisions establishing the principle of “formal equality”, a formula that prescribes the equality of any individual before the law, without distinctions based on personal conditions. This principle, a cornerstone of the rule of law/état de droit since the age of the Revolutions, is still nowadays the core constitutional standard for the protection of rights and equality, forbidding discriminations, and representing a strategic goal of international law.

The Civil Rights Revolution

The development of the equal protection clause

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Although, at first glance, one could interpret the principle of formal equality as a ban to any form of legislative differentiation among people and groups, a deeper analysis of this standard discloses a more complex interpretation: as differences do exist in our complex societies, and legislation must take them into consideration for providing a proper regulation to social phenomena, a correct application of the principle of formal equality requires the legislation not to be blind to differences, but rather to take them into account. This awareness introduces us to the concept of distributive justice, originally theorized by Aristotle: as in our homes we distribute rights and duties according to the specific exigencies and possibilities of any family member, the same we should do in our societies; for example, it would be highly unjust to provide Mark and Tina with the same amount of time for completing an exam, if Mark suffered of dyslexia. The principle of equality is thus translated into a more refined standard: to treat an individual in the same manner as others in similar conditions and circumstances. Therefore, the principle of equality must be interpreted as authorizing distinctions presented by the law, when they are actually based on differing conditions and situations—for instance when a certain condition deserves a special legal protection, or a public effort to reform it. A legislative classification, therefore, is not necessarily a discrimination: on the contrary, sometimes it can be an “affirmative action”—a measure aimed at empowering a disadvantaged category of people in the sake of reaching an actual equality. On the contrary, a legislative classification turns into a discrimination whenever there are no legally acceptable grounds that justify the classification. The application of this standard in judicial review of legislation implies the emergence of a rationality test, through which the courts, and especially those entrusted with the power to carry out the review of legislation, can assess legislative rationality, and therefore interfere with political views at a deeper level than usual. This pattern of interpretation of formal equality is now broadly shared in the environment of western ­constitutionalism. However, there are specific methods of application of this general principle. The application of the equal protection clause by the U.S.  Supreme Court is a perfect case-study: in judging

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racial segregation cases, and starting with the Brown case, the Supreme Court stated that, although the equal protection is in general compatible with legislative classifications based on differing conditions and situations, any classification based on race is “suspect”, because the Constitution is “color blind”. The Court created, thus, the category of “suspect classifications”, that was, eventually, applied also to classifications related to nationality, religion, ethnicity and, with peculiarities, gender. While, in general, the Court is deferent to legislative choices in the application of the rationality test, thus accepting the view of the law-­makers having regard to the application of legislative classifications, suspect classifications imply the application of a strict scrutiny in judicial review: in case of a suspect classification, the legislation can be compatible with the Constitution only if it pursues a “compelling public interest”, and is “narrowly tailored” (principle of proportionality: strict adherence of the legislative measure to the goal it pursues) (Galloway 1989).

During the years of the Warren Court, other cases brought critical changes to the traditional structure of conservative American society, for instance in the field of voting rights, individual guarantees in criminal prosecutions, sexual liberty, etc. The Warren Court engaged, thus, in the protection of new fundamental rights, making a large use of incorporation and broadening the area of fundamental rights beyond the rigid boundaries imposed by a strict textualistic interpretation of the Constitution: consistent with this approach, just a few years after the end of Earl Warren’s office, in the landmark decision Roe v. Wade (1973), the Court acknowledged a right to abortion as a component of the right to privacy, although to be properly balanced with other conflicting rights. The Civil Rights Revolution was then completed by the introduction of federal acts providing a higher level of equality and federal controls over state legislation (the Civil Rights Act 1964, the Voting Rights Act 1965). Together with remarkable social improvements, the Civil Rights Revolution also triggered a deep conflict in political and social opinion, raising a conservative opposition, and even legal scholars raised criticism against the activism of the Warren Court: in 1962, the eminent scholar

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Alexander Bickel published his book “The Least Dangerous Branch”, in which he came to envisage how such an intense use of judicial review of the legislation could lead to the emergence of a “counter-majoritarian difficulty”, i.e. the difficulty of accepting a technical, judicial check over legislative decisions assumed by people’s representatives (Bickel 1962). If we look at the legal reasoning and argumentative tools used by the Warren Court in order to develop the role of the Supreme Court and constitutional review of legislation, we can observe how different methods and solutions were deployed. In this set of legal reasoning means, a central position is occupied by the “due process clause” of the 14th Amendment, and the broad use of the “incorporation” technique, for which the clause makes possible. Legal Tools and Keywords: Incorporation of Fundamental Rights, Traditionalistic or Evolutive Constitutional Construction? We have already learned the meaning and application of incorporation, which allows the Supreme Court to extrapolate certain rights from the Federal Bill of Rights that are deemed as “fundamental”, and grant them a special, enhanced, protection, which implies, most importantly, their consistent protection throughout the entire Nation (7 Sect. 4.2). Since the age of the Warren Court, because of the relevant acceleration it imposed onto fundamental rights’ protection and social changes, a dialectic took place, involving jurisprudence, legal scholars, politics, and public opinion as a whole, related to determining the correct methodology to be followed in identifying a fundamental right. If we observe the case law, two different approaches by the Supreme Court can be detected (Buratti 2020): in the very first decisions, the Court took care to apply incorporation through a historical test, consisting of the assessment of the historical origins of a right, checking its belonging to the national legal tradition, to the “nation’s scheme of ordered liberty”, as the Court says: in this approach, a right deserves the classification of fundamental only if it is “deeply rooted in the nation’s history and tradition”.  

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Throughout the years, however, the Court has also begun to adopt a different, evolutive, approach, that sees the Constitution as a “living body” rather than as a text inherited from the authority of the past. This approach allowed the Court to ignore the national legal tradition, and deem a right fundamental and to be incorporated solely on the basis of its coherence with the broad concept of “liberty”, enshrined in the due process clause. This “liberty-based” approach has allowed for the construction of new rights not codified in constitutional acts, but rather consistent with new social demands arising from a society certainly no more comparable to that of the Founding Fathers, as with the right to privacy, the right to abortion, the right to decide freely on matters related to their sexuality, the right to same-sex marriages, and so forth. In all of these cases, the notion of liberty of the due process clause is used as a door open to society, as well as international law principles and comparative law standards, which allow the Supreme Court to embrace new social demands and afford them a legal protection, therefore reducing elements of the political struggle (Strauss 2010; Balkin 2011). In the very last years, this last approach has been much disputed, especially by the followers of the doctrine of originalism, supported by former Supreme Court Justice Antonin Scalia and now by several judges of the Supreme Court, according to which the interpretation of the Constitution must be consistent with the original understandings of the Framers (Scalia 1997). Following the recent appointments made by former President Trump, the Supreme Court is now composed of a majority of judges known for their conservative views, in many cases adhering to an originalist approach to constitutional interpretation. The consequence of this new composition was evident in the recent and highly debated case Dobbs v. Jackson Women’s Health Organization (2022), in which the Supreme Court overruled Roe v. Wade, denying the existence of a fundamental right to abortion, declaring that only a historical test may justify the incorporation of a fundamental right, thus leaving the regulation of abortion up to the member states (Sunstein 2022; Di Martino 2022). Historical inquiries are essential whenever we are asked to recognize a new component of the “liberty” protected by the Due Process Clause because the term “liberty” alone provides little guidance. “Liberty” is a

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capacious term. As Lincoln once said: “We all declare for Liberty; but in using the same word we do not all mean the same thing”. In a well-known essay, Isaiah Berlin reported that “historians of ideas” had catalogued more than 200 different senses in which the terms had been used. In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution. […] On occasion, when the Court has ignored the “appropriate limits’ imposed by “respect for the teachings of history”, it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York (1905). The Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that map the essential components of our Nation’s concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty”. When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion (U.S.  Supreme Court, Dobbs v. Jackson Women’s Health Organization).

Although still disputed as one of the main issues in American constitutional law, the due process clause has immensely enhanced the protection of fundamental rights. Today, almost all rights protected by the Federal Bill of Rights are incorporated by the due process clause. From the post-Second World War to nowadays, the Supreme Court also offered an important contribution to the improvement of equality and political transparency in the regulation of the electoral process, especially at the state level. After the extension of the right to vote to black people, indeed, the legislation of the southern states undertook the strategy of limiting, in several ways, their rights of political participation. Literacy tests or tax polls were imposed, and the practice of gerrymandering spread.

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Legal Tools and Keywords: Gerrymandering Gerrymandering is the practice, carried out by state legislatures, to draw electoral districts according to voting predictions, in order to predetermine the outcomes of elections. It takes its name from the then Governor of Massachusetts Elbridge Gerry, who in 1812 signed a bill that redrew Senate election districts to benefit his party. The word “Gerrymander” was used for the first time in the Boston Gazette as a portmanteau of the Governor’s surname (Gerry) and the word salamander. This linguistic blend was due to the fact that one of the new districts near Boston, as remapped by the aforementioned bill, was said to have the shape of a mythological salamander. The goal of gerrymandering is to maximize the effect of the votes received by certain candidates and to minimize the effect of the votes gained by the opponents.

In the southern states, gerrymandering was mainly aimed at dividing black communities in several electoral districts, in order to reduce their relevance in the elections of the state’s legislative bodies, as well as in the elections of the representatives and the senators in Congress. The practice was heavily fought by the adoption in 1965 of the Voting Rights Act, a landmark federal legislation that prohibited many forms of racial discrimination in states’ legislation. Furthermore, the Supreme Court declared that the practice of gerrymandering was against the equal protection clause, and imposed a strict judicial review of this kind of legislation. While some states have decided to delegate redistricting to independent agencies, many still maintain a parliamentary control over it: this explains why, in reality, the practice has never stopped. In recent years, furthermore, the Supreme Court has modified its rigid approach toward states’ electoral legislation: in Shelby County v. Holder (2013), the Court struck down several provisions of the Voting Rights Act, and especially those provisions allowing federal preclearance of the southern states’ regulations of the electoral process, considering the social conditions that had justified the adoption of these provisions no longer exists. This decision was read by many as an authoriza-

The uncertain status of rights and equality in the electoral process

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tion to resume discriminatory practices and partisan apportionment of the voters. In the last years, indeed, as the Republican Party started to adopt redistricting strategies as a common political practice, litigation arose, but the Supreme Court finally denied its jurisdiction over cases of gerrymandering, evoking the “political question” doctrine, that excludes judicial review over issues that fall within the realm of exclusive political deliberation. In Rucho v. Common Cause (2019) the Court stated that:

»» Partisan gerrymandering claims present political ques-

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tions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.

The evolution of presidential government

A similar path was followed in the field of regulation of campaign financing. In order to limit and control private contributions to political campaigns, in 1971 Congress passed the Federal Election Campaign Act, providing a set of limits to individual contributions and creating duties of disclosure, aimed at granting transparency of private contributions. The Supreme Court upheld this legislation in the famous decision Buckley v. Valeo (1976), in which the measures adopted by the statute were considered to be limitations to freedom of speech justified by a superior interest in preventing political corruption. This judgment was completely reversed by the Supreme Court in two recent decisions (Citizens United v. FEC, 2010, and McCutcheon v. FEC, 2014), that struck down several provisions of the Act, overturning the balance established in Buckley v. Valeo. Looking at the recent trends in the Supreme Court’s case law, both in the field of incorporation as well as the electoral process, it is difficult to avoid the sensation that the Court, in its new, more conservative, composition, has engaged in a consistent plan of dismantling the progress made in equality and rights that had characterized its role in the second half of the twentieth century. We can now turn our attention to the presidential form of government and the separation of powers. The long season of Roosevelt’s presidency—including the difficult crises that the United States had to overcome in those years, from the economic crisis of 1929 to the Second World War—significantly changed the features of American presidential government. The Roosevelt presi-

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dency completed a process that had already been triggered in the very last years of the nineteenth century: that is the aggrandizement of the role of the President in the Government. The presidency, which in the Early Republic was the weakest institution in the Federal Government, increased its powers in the legislation and in the budgetary process, and enlarged the federal administration’s scope, together with the enlargement of federal competences over states’ rights. This transition reached a peak during Roosevelt’s presidency (7 Sect. 4.2), in part due to his charisma, his personal skills and electoral support, and in part because of the crises that he had to face, which convinced the Congress to authorize the President to gain more powers (Schlesinger 1958; Rossiter 1948). The transition persuaded several scholars to revise their interpretation of the rigid separation of powers, typical of the American Presidential Government. The increasing intrusion of the presidency in the legislative function certainly created an innovative form of cooperation between the branches. The presidential government was therefore interpreted as a system of separated institutions sharing powers (Fisher 1998), in which the role of the presidency was intended to grow. Opposition to this vision of presidential supremacy began to spread towards the end of Roosevelt’s presidency; the post-World War II decades exhibit the persistence of dualism and conflict between the executive and legislative branches, and, in short, over the balance of powers. Immediately after the end of the war, during the first months of Truman’s presidency, the Congress reacted to this trend, and tried to reaffirm its role in the Government, returning to a more balanced dualism between the two branches. The first signal came from the passage of the constitutional amendment that limited consecutive presidential terms to two (Roosevelt had been elected four consecutive times). Furthermore, the new Republican majority effectively faced Truman’s presidency, passing a set of legislations that forced the President to use his veto power several times, in a divisive tension emblematic of the presidential system of government. This swing of powers and influence between the branches has characterized the whole second part of the century: during the Kennedy and Johnson administrations, the presidency was able to regain control over the legislative business of the Congress; then, upon his arrival at the  

Congress’ attempts to counterbalance presidential powers under Truman’s presidency

Presidential political leadership from Kennedy to Nixon

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Congress’ reaction after the Watergate scandal: the legislative veto

Clinton’s attempt to impose the Line-Item Veto Act

White House, the Republican President Richard Nixon tried to affirm an aggressive vision of the role of the President in the system of government. According to his vision, the President had not only the power to veto congressional legislation, but also the power to refuse the application of specific legislative provisions inconsistent with his political vision: at the moment of signing bills, he would issue statements (called signing statements), and boost the control of the federal administration by not applying the provision. Nixon’s involvement in the Watergate scandal brought back the power of Congress to impeach, a weapon that since the impeachment of Andrew Johnson, in 1868, had never been used against another President. In order to avoid the judgment, Nixon decided to resign. It was the beginning of a new phase of congressional predominance, starting with the passage of the Congressional Budget and Impoundment Control Act (1974), which returned many powers related to public finance back to Congress (Zorzi Giustiniani 2000). Another instrument used by the Congress to limit the presidential political leadership is the legislative veto. This means had already been in use since the first half of the century, but its application increased significantly in this new season of conflict between the two branches. Mainly, in delegating legislative powers conferred to the presidency, the Congress committed the President to submit all normative provisions to the Congress itself, for preliminary approval. This check on presidential-delegated powers was strongly contested by several presidents, through vetoes of the statutes embracing legislative veto clauses. The Supreme Court struck down these types of legislative provisions, inconsistent, in its vision, with the original meaning of the legislative process (INS v. Chadha, 1983). However, the Congress continues to this day to approve delegations under conditions. A new period of presidential unilateralism began with the Reagan presidency, and continued even during the following democratic presidency of Bill Clinton. During Clinton’s administration, a relevant moment was the passage of the Line-Item Veto Act (1996). The passage of this Act represented a fundamental victory for the presidential side, because it allowed the President to veto single provisions of a bill—a power available to the governors in many constitutions of the states. Such a power of selective veto could have authorized the President to cut out single pro-

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visions from a bill, without assuming the more delicate decision of a veto on the entire bill. The Supreme Court, however, struck down this Act: once again, as in the case of the legislative veto, the aim of the Court was to protect the original formulation of the Constitution (Clinton v. City of New York, 1998) and maintain the balance between the branches, avoiding the prevalence of one over the other. According to the Court:

»» If there is to be a new procedure in which the President

will play a different role in determining the final text of what may “become a law”, such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution.

The consequence of this judgment was the marginal- Recent trends of the ization, in the last presidencies of George W. Bush, balance of powers Barack Obama and Donald Trump, of the veto power, which was used in very few cases when compared with the wide use of their predecessors, and the parallel development of other tools of resistance against Congress’ legislative activity: the massive use of signing statements, and the recourse to impoundments, mainly during the Bush administration (Buratti 2012), a practice that many scholars consider unconstitutional, only partially reduced during Obama’s and Trump’s terms (Buratti 2018). Hints of a more balanced government also emerge from the practice of international executive agreements, which do not require the Senate’s approval (7 Sect. 4.2). Even though executive agreements remain a fundamental instrument of presidential control of international politics, a partial rebalancing derives from the frequent use of an intermediate method of cooperation, congressional-­ executive agreements: these are agreements negotiated and approved by the President but supported by a Joint Resolution passed by a simple majority in both Houses of Congress, with the effect of authorizing the negotiations or of approving the agreement. Apart from any consideration on political strategy, presidents seek congressional support in all the cases in which the implementation of the agreement requires legislative authorization of expenditures or modifications of the legislation. Whilst it is true that this transition can alter the framework envisaged by the Founding Fathers, it is also true that political actors have identified in congressional-executive agreements a more adequate proceeding for facing the complexities of  

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Trump’s presidency

5 Interpretation of impeachment

contemporary international law, while maintaining a new balance of powers (Krutz and Peake 2009). A final remark must be reserved to the turbulent and conflictual presidency of Donald Trump (2017–2021). Leaving aside the delicate issues Trump’s break-in into the scene of American politics has implied, as a symptom of a populist wave which sharpens the tensions between political elites and the people, and focusing now on constitutional issues, Trump’s administration offered the occasion to clarify the nature of presidential impeachment, especially contributing to a better understanding of the features of impeachable offences. Trump’s impeachment of 2019 demonstrated that there is no necessary connection between an impeachable offense and an indictable crime: Trump was accused for “high crimes and misdemeanors”, for the conducts of abuse of power and obstruction of Congress. Here, the notion of abuse of power—already evoked in the past in other impeachments—adequately demonstrates the still prevailing political significance of the procedure: the abuse of power encompasses, indeed, a variety of behaviors, not all necessarily unlawful and source of criminal responsibility. The Senate’s debate—which ended with the acquittal of Trump—has widely considered the issue, without reaching a definitive conclusion. The definition of impeachable offenses is therefore still problematic and subject to disputes of interpretation. The provision resists predefined normative definition, and is incompatible with common procedural guarantees; in the final analysis, it mirrors exigencies of political struggle (Gerhardt 1999). In the context of a growing political polarization which American society is currently experiencing, the pervasive political interpretation of impeachable offences could represent a serious threat to institutional stability. In 2021, after the election of Biden and the assault on Capitol Hill, the venue of the Congress, made by Trump’s supporters, a new impeachment was introduced against Trump for his conduct of incitement to violence, but it did not complete its proceeding due to the ending of his term.

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Legal Tools and Keywords: Independent Agencies in the United States A major transformation of the structure of the American Government in the twentieth century consists of the creation and the development of independent ­administrative agencies. Independent agencies of the U.S. Federal Government are bodies that, though technically part of the executive branch, are self-governed and not directly controlled by the President of the United States. The main functions carried out by these agencies deal with rulemaking functions at a federal level in specific fields characterized by remarkable technical complexities. The first independent agencies were established by the Congress after the Civil War, when a growth in industry and business took place in America and a need to ensure fair competition and price control emerged. The first independent agency was the Interstate Commerce Commission (ICC), set up in 1887 to regulate trucking industries and to ensure fair competition and rates in this sector. The Commission was eventually divided in 1995 into new, more structured commissions (the Federal Trade Commission is an example). Nowadays, independent federal agencies include: Central Intelligence Agency (CIA), Consumer Product Safety Commission (CPSC); Federal Communications Commission (FCC); Federal Election Commission (FEC); and Federal Reserve Board of Governors (FED). Independent agencies do not answer directly to the President. Unlike most executive branch agencies which are overseen by a single secretary or a director appointed by the President, independent agencies are usually led by a commission or a board whose members are appointed by the President, with the approval of the Senate. However, they often serve longer than the 4-year presidential term, so as to prevent the President from appointing all the commissioners of any independent agency. Moreover, federal statutes limit the power of the President to remove commissioners in cases of incapacity, poor

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performance, malfeasance or “other good cause”. Therefore, they cannot be removed simply on the basis of their political affiliation. Most independent agencies are even required by law to have a bipartisan membership in their commissions or boards. Lastly, their inner structure allows independent agencies to autonomously make their own organizational rules. As for their main tasks, independent agencies have the authority to: 55 create federal regulations with the aim of enforcing federal laws passed by the Congress in specific fields of competence; 55 conduct investigations; 55 impose fines or other civil penalties to persons and companies for any violation of federal regulations; 55 ban and stop deceptive advertising practices and other abusive activities.

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A more balanced construction of federal preemption

With regard to the development of American federalism in the aftermath of the Second World War, it is possible to point out a trend—originating after the New Deal—characterized by the expansion of federal legislative competences. The growth of the Federal Government over the states’ competences was also supported by the Supreme Court’s development of a more accurate doctrine regarding the application of the supremacy clause (Art. VI U.S. Const.) and the preemption doctrine. As previously explained, the federal competences enlisted in Art. I, Section 8, of the Constitution must be interpreted as available for state regulation as far as the Federal Government does not regulate the subject, thus preempting state law (7 Sect. 2.10). With the passage of time, and the enlargement of intervention of the Federal Government made possible by the broad construction of the competences of the Federation, the fields of potential overlapping between state and federal regulations increased. As a matter of fact, despite the rigid organization of the separation of competences, a number of subjects became available for both state and federal regulation. In this increasing area of concurring competences, federal preemption played an essential role. According to the construction of the Supreme Court, the fields of possible con 

187 5.5 · The United States Constitution, from Post-world War II…

curring regulation are available for state regulation provided the Federation does not intend to assume the regulation at a federal level: the enforcement of federal regulation entails the voidance of state regulation and the application of the federal one. In such a case, federal law preempts all state regulations, at any legal level, which (1) are in conflict with federal law; (2) interfere and obstruct the purposes of federal law; or (3) create rules in a field that is occupied by federal regulation (Bologna 2010). Beginning with the last years of the twentieth century, however, the progressive expansion of federal supremacy over states’rights was reconsidered by a more balanced orientation of the Supreme Court. The interstate commerce clause, which until then had represented the sharpest federal tool, passed from a broad interpretation to a more sensible one. In recent years, the opportunity to clarify this new approach appeared with the litigation between member states and the Federal Government on health reform, with an Act passed by the Congress and promoted by President Obama as a fundamental element of his political agenda. The Patient Protection and Affordable Care Act, indeed, reformed the American health care system, entailing several interferences in typical state competences. In the land-­ mark decision National Federation of Independent Business v. Sebelius (2012), the Supreme Court upheld the statute, considering it within the broad federal taxing power. However, at the same time, it confirmed the new, more rigid approach in the construction of the interstate commerce clause. According to the Court:

»» The Commerce Clause is not a general license to regulate

an individual from cradle to grave, simply because he will predictably engage in particular transactions.

In this judgment, even federal grants in aid—another sharp tool of expansion of federal legislative competence inaugurated during the time of the New Deal—were reconsidered. The regulations imposed by the Congress to the states as a condition for the availability of funds were judged coercive in their nature, and therefore unconstitutional. In conclusion, the recent jurisprudence of the Supreme Court confirms that there is room for the settlement of a more balanced construction of the general clauses provided by Art. 1, Section 8 of the Constitution.

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Comprehension Check and Tasks 1. Lay down, in a timeline, the main occurrences of the history of the British Commonwealth (7 Sect. 5.1– 5.3) 2. Canadian constitutional law is composed of different sources: list them and explain the peculiar position of the Charter of Rights and Freedoms, paying special attention to the “notwithstanding clause” (7 Sect. 5.2) 3. What is the legal status of New Zealand’s Bill of Right compared to parliamentary legislation? (7 Sect. 5.3) 4. In the Human Rights Act, what is the declaration of incompatibility? (7 Sect. 5.4) 5. What is the role of the UK Supreme Court in the system of devolution? (7 Sect. 5.4) 6. What are the contemporary challenges to the orthodox vision of parliamentary supremacy in the UK? (7 Sect. 5.4) 7. Take into consideration the Canadian “notwithstanding clause”, the method of review established by New Zealand’s Bill of Rights, and the declaration of incompatibility established by the Human Rights Act: can you detect here a third, intermediate, pattern of judicial review of legislation? (7 Sect. 5.2–5.4) 8. Explain the contribution by the U.S. Supreme Court to the protection of the principle of equality during the 1950s and 1960s (7 Sect. 5.5) 9. How did the Congress react to the aggrandizement of the role of the president after Roosevelt’s Presidency? (7 Sect. 5.5)  

 

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References Ackerman B (2018) We the people, The Civil Rights Revolution, vol 3. Belknap, Harvard Univ. Press, Cambridge, MA Ahmed F, Perry A (2017) Constitutional statutes. Oxf J Leg Stud 37:461–481 Balkin J (2011) Living Originalism. Harvard Univ. Press, Cambridge, MA Bassu C (2017) Tutela giurisdizionale dei diritti e metodo comparato. Wolters Kluwer-Cedam, Milano and Padova

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Bellamy R (2007) Political constitutionalism. A republican defence of the constitutionality of democracy. Cambridge Univ. Press, Cambridge Bickel A (1962) The least dangerous branch: the supreme court at the Bar of politics. Yale Univ Press, New Haven and London Bologna C (2010) Stato federale e “national interest”. Le istanze unitarie nell’esperienza statunitense. Bononia University Press, Bologna Buratti A (2012) Veti presidenziali. Carocci, Roma Buratti A (2018) Seeking the balance: Obama’s use of the veto power. In: Ferrari GF (ed) The American Presidency After Barack Obama (2009–2016). Eleven, The Hague Buratti A (2020) Diritti fondamentali e integrazione federale. Origini, applicazioni e interpretazioni della due process clause nella Costituzione americana. Rivista di Diritti Comparati 1:1 D’Atena A (2017) Diritto regionale. Giappichelli, Torino Di Martino A (2022) Donne, aborto e costituzione negli Stati Uniti d’America: sviluppi dell’ultimo triennio. Nomos 2:1 Fisher L (1998) The politics of shared powers: congress and the executive. Texas A&M Univ. Press, College Station, TX Galloway RW (1989) Basic equal protection analysis. Santa Clara Law Rev 29:121 Gardbaum S (2013) The new commonwealth model of constitutionalism: theory and practice. Cambridge Univ. Press, Cambridge, MA Gerhardt G (1999) The historical and constitutional significance of the impeachment and trial of President Clinton. Hofstra Law Review 2:354 Gordon M (2020) Referendums in the UK constitution: authority, sovereignty and democracy after Brexit. Eur Constitut Law Rev 16:213–248 Hirshl R (2004) Toward Juristocracy. Origins and consequences of the new constitutionalism. Harvard Univ. Press, Harvard, MA Krutz GS, Peake JS (2009) Treaty politics and the rise of executive agreements. Univ. of Michigan Press, Ann Arbor Leyland P (2010) Devolution in the United Kingdom: a case of perpetual metamorphosis. Le Istituzioni del Federalismo, pp 1–2 Martinico G (2019) Il diritto costituzionale come speranza. Secessione, democrazia e populismo alla luce della Reference Re Secession of Quebec. Giappichelli, Torino Palermo F, Kössler K (2017) Comparative federalism. Constitutional arrangements and case law. Hart, Oxford Pannia P (2022) Le corti e il diritto degli indigeni alla terra ancestrale: un’analisi comparata della giurisprudenza tra dialogo, mimesi e specialità. Rivista di Diritti Comparati 2:514 Rossiter C (1948) Constitutional dictatorship: crisis government in the modern democracies. Princeton Univ. Press, Princeton, NJ Scalia A (1997) A matter of interpretation. Princeton Univ. Press, Princeton, NJ Schlesinger AM (1958) The age of Roosevelt. Houghton Miffling, Boston Strauss D (2010) The living constitution. Oxford Univ. Press, Oxford and New York Sunstein C (2022) Dobbs and the travails of due process traditionalism. In: Harvard public law working papers 14

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Tierney S (2012) Constitutional referendums: a theory and practice of republican deliberation. Oxford Univ. Press, Oxford Tushnet M (2003) Alternative forms of judicial review. Mich Law Rev 101:2781 Waldron J (2014) Judicial review and judicial supremacy. In: NYU School of Law, Public Law and Legal Theory Research Papers Series Zorzi Giustiniani A (2000) Costituzione americana ed equilibrio finanziario. Pacini, Pisa

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Framing Constitutional Democracy: The European Experience Contents 6.1

 New Beginning: Liberal-Democratic Constitutions A in Europe – 192

6.2

 he General Features of Contemporary European T Constitutionalism – 195

6.3

The Italian Constitution of 1948 – 213

6.4

The German Basic Law of 1949 – 220

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The French Fifth Republic Constitution (1958) – 230

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 he Consolidation of Constitutional Democracy T in Europe: Democratic Transitions in Greece, Portugal and Spain – 241 References – 249

© Springer Nature Switzerland AG and G.Giappichelli Editore 2023 A. Buratti, Western Constitutionalism, https://doi.org/10.1007/978-3-031-40872-4_6

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6.1 

European geo-political framework in the aftermath of WW2

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 New Beginning: Liberal-Democratic A Constitutions in Europe

The tragic events of the Second World War determined a profound reconsideration of the traditional tenets of European constitutionalism in Western Europe, favouring a convergence toward liberal-democratic constitutions. As usual in comparative constitutional law, geo-­ political coordinates play a relevant role in explaining such a consistent transition: after the war ended, Europe was divided into two spheres of influence, rigidly separated according to the agreement reached between the United States, the United Kingdom and the Soviet Union at the Yalta Conference (1945). On the west side of the Iron Curtain, liberal democratic ideals were revived and consolidated: western European states were supported in post-war reconstruction by the United States, and linked to each other by the military alliance of the North Atlantic Treaty Organization (NATO). On the east side of the Iron Curtain, socialist popular democracies took shape, influenced and supported by the Soviet Union and gathered in the military alliance of the Warsaw Pact, whose social, economic and institutional organization was defined according to socialist ideology.

Legal Tools and Keywords: Politics and Constitutions in Socialist Democracies The socialist regimes established in the Soviet Union, by way of the Soviet Constitution of 1936, also known as the Stalin Constitution, and in Soviet satellite states of Central and Eastern Europe after the Second World War, were the political framework in which a peculiar model of organization of powers developed, considerably influenced by the ideology of the ruling communist parties, and profoundly divergent from liberal constitutionalism. The main differences were related to: (1) the role of the state and its relationship with society; (2) the concept of individual rights; (3) the organization of state power; and (4) the nature and function of the constitution. The socialist state is grounded on a collectivistic, class-based ideology, that conceives the state as the rep-

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resentative of universal public interests. Within communist ideology, the state is an instrument in the hands of the ruling class, the proletariat, whose aim consists of building a communist society with no distinction among classes and institutions. According to the socialist approach, collective interests prevail over individual rights and politics has the duty of establishing equality among men. Individual liberties and political rights are instrumental to state interests, and they cannot be exercised contrary to the existence and the objectives of the socialist state itself. The core of constitutional organization in socialist countries lies in the idea of the concentration of power in the Communist Party or its leadership over the state and society. Communist parties hold the leadership of the state and society in their nations, according to the principle of “democratic centralism”. Therefore, the separation of powers is rejected in favour of unity of state power under a one-party system. The supreme body of the state is the popular assembly elected by the people; however, the daily exercise of power is in the hands of more limited bodies placed at the apex of the assembly and the administration, with a strong personalization and individualization of power in favour of the secretary of the leading party. The principle of socialist legality, while formally prescribing respect of the constitution and the law, is also permeated by a sharp ideological mark. Moreover, it is not supported by an effective system of judicial review of legislation. According to socialist theory, indeed, control over the activity of the legislative assembly (the supreme body that holds all the powers of the state) is not permitted. Thus, in socialist countries the review of legislation is often carried out by the assembly itself. As a result of such an ideological, political and economic framework, the idea of a constitution, according to the socialist vision of the state, is subject to the primacy of three tenets: socialist legality, democratic centralism, and collective mastery. The constitution, therefore, is conceived, in accordance with an instrumentalist approach, as a collection of general principles of socialism and a list of social goals to be achieved by the state, expressing the political, social and economic ideology of the Communist Party.

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European constitutions as devices of precommitment

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Learning from the tragic events of the war, western European countries understood the risks entrenched in weak forms of limitation of political power, and recognized the positive role played by the introduction of constitutional checks upon it. Scholars describe the efforts of this transition recalling the mythological image of Ulysses captivated by the mermaids: wherein Ulysses forced his sailors to chain him to the mast in order to resist temptations and thus lead the boat to safety. We can compare this to the people who are now aware of the necessity to submit their sovereign power to constitutional constraints, in order to prevent and resist the risks of democratic swerves toward authoritarian regimes and violations of fundamental rights (Holmes 1995; Elster 2000). This is why many legal structures typical of American constitutionalism—such as federalism, constitutional rigidity and constitutional review of legislation—refused in the nineteenth century following the French constitutional ideology, were finally accepted even in Europe. Furthermore, a criticism against nationalism arose, and the states finally understood the relevance of international relationships as a useful means in order to reach peace and well-being. This tendency was at the origin of a process of European integration, which developed through a system of supranational organizations that—with the passage of half a century—have now established a unitary European constitutional space (this process and the legal structure of the European constitutional space will be presented in 7 Chap. 7). We can observe these changes by analysing the new Constitutions of France (1946), Italy (1948) and Germany (1949). These constitutions—in the case of France, also the following Constitution of the Fifth Republic (1958)— represent the core of the pattern of European liberal-­ democratic constitutionalism in post-World War II: these Countries, along with Belgium, Luxemburg and the Netherlands, gave life to the European integration process, and were eventually adopted as models by other European countries, such as Portugal, Greece and Spain, after the conclusion of authoritarian experiences (7 Sect. 6.6), and by all the eastern European states that escaped from communism after 1989, achieving liberal-democracy in future years (7 Sect. 8.5).  

 

 

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 he General Features of Contemporary T European Constitutionalism

In the next sections, I will present in detail the constitutional orders of Italy, Germany and France (for the latter, taking into consideration the new Constitution of 1958). Here, it is important to highlight the general directions undertaken by western European constitutions in post-­ World War II. Starting with an analysis of post-Second World War Constitutional rigidity European constitutions’ formal structure, all of them exhibit the nature of rigid constitutions.

Legal Tools and Keywords: Patterns of Constitutional Amendment Procedures As we already know, constitutional rigidity depends on the provision of an entrenched procedure for the amendment of the constitution: constitutional amendments must pass through the adoption of a special, enhanced proceeding, provided for by an entrenchment clause of the constitution. The formal provision of a function and procedure for the reform of the constitution—organized with the purpose of balancing popular sovereignty with the respect of minority rights and the absolute protection of fundamental values of constitutionalism—gives a clear explanation of the difference between the power of the constitutional amendment process and constituent power, which is mainly a de facto power, aimed at establishing a new political and legal regime, not regulated by either written or customary law (Albert 2019). In flexible constitutions, like those adopted in Europe during the nineteenth century, the lack of provisions related to the constitutional amendment process often resulted in the possibility of amending the constitutional text by means of ordinary laws, in accordance with the traditional interpretation of the principle of parliamentary sovereignty rooted in the liberal state (see 7 Sect. 3.4). Conversely, rigidity—settled by the construction of American constitutional law—is a common feature of the constitutions adopted in Europe from the post-World War II years onward. It entails the inclusion of a provi 

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sion regarding particular amending procedures by the constitution itself, which are more complex than those provided for the adoption of ordinary legislation. The aim of these procedures is to guarantee stability to the text of the constitution and enhance a larger consensus, both among political groups and within the society, helping to curtail the risk of sudden constitutional reforms made by a political majority, overlooking and in violation of minorities’ rights. Some general distinctions can be drawn from patterns of constitutional amendment procedures, on the basis of a number of criteria. 1. Depending, firstly, on the institutions and bodies that are directly involved in the constitutional amendment process, one may distinguish among: 55 Procedures entrusted to an ad hoc assembly, whose sole function is to discuss and approve amendments to the constitution. This case differs from the summons of a constituent assembly, entrust-ed with the constituent power and in charge of the approval of an entirely new constitution. 55 Procedures entrusted to the ordinary legislative assembly. 55 In cases of bicameral systems, constitutional amending may be entrusted to the two chambers of the parliament jointly summoned in an assembly. 55 Procedures laid down in many constitutions of federal states, where amending the constitution requires the participation of member states. In such instances, member states may participate through the second chamber of the parliament (Germany, USA, Belgium), the legislative assemblies of the states (USA, Canada), or the electorate of the states by means of a referendum (Switzerland, Australia). 2. A general distinction may also be drawn on the basis of the participation of the electoral body in the procedure. One may distinguish between procedures in which such participation is provided for and procedures in which it is not. The first pattern is very common in the Western World (Italy, Switzerland, France, Spain, Poland). The involvement of the people in the amendment process by means of a referendum is aimed at enhanc-

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ing the principle of popular sovereignty in a crucial field for the life of the political community. Nonetheless, there are still many states where the procedure to amend the constitution is in the exclusive hands of the parliament (Germany and, under specific circumstances, France). 3. As stated, constitutional amendment processes provide for more complex procedural requirements related to different phases of the amendment procedure. The main requirements being: 55 Supermajorities that must be achieved in order to pass a constitutional amendment bill. These qualified majorities usually amount to two thirds or three fifths of the members of parliament or the two chambers. In a few cases (such as Italy), the threshold can also be the absolute majority (i.e. the majority of the members of the parliamentary chambers); 55 A double vote of the parliament on the constitutional amendment bill, usually spaced out by a time interval aimed at ensuring a wiser reflection on the amendment proposal; 55 A referendum in case some procedural conditions related to the parliamentary phase are not met (for example, in Italy a referendum may take place in case the constitutional bill is not approved by two thirds of the members of each chamber in the second vote); 55 The automatic dissolution of the parliament, so that the electoral body is called on to indirectly approve (or disapprove) the decision to adopt a constitutional amendment made by the dissolved assemblies. The newly elected parliament has to ratify the decision and draft the constitutional amendment, which will be approved by a qualified majority (Spain) and then, in some cases, submitted to a referendum (Switzerland). 4. Some constitutions provide for different procedures depending on whether an overall or partial constitutional reform is at stake. Therefore, more stringent procedures are prescribed in cases in which the amendment involves the entire constitutional text (Spain, Switzerland, Austria, Romania, Netherlands).

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6 The emergence of fundamental rights

A second element we have to emphasize, still related to the formal structure of the constitutions and to the system of sources of law, refers to relations between domestic and international law: with the purpose of maintaining peace and social stability through cooperation among nations, European constitutions open themselves to international law and international organizations. The constitutions, indeed, provide norms aimed at acknowledging the special legal force of international law within the national domestic legal order. The main outcome of this goal has been the creation of European Communities, whose legal order was able to quickly obtain primacy over the legal orders of the member states. As previously stated, I’ll discuss the development of supra-national law in Europe in the next chapter. All constitutions pursue the goal of a wider and deeper protection of individual rights. This effort was reached through the adoption of comprehensive and elaborated catalogues of constitutional rights. Here, either in constitutional text and in the legal discourse, we witness the emergence of the category of “fundamental rights”, which draws inspiration from the new approach of international law toward the codification of human rights (first of all, the Universal Declaration of Human Rights: see 7 Sect. 7.1), and entails a reconsideration of the pre-positive source of rights together with a further enhancement of their legal protection (Ridola 2018).  

Legal Tools and Keywords: The Balancing of Fundamental Rights and Proportionality Scrutiny The variety of constitutional rights and general principles enshrined in contemporary constitutions, represents a richness, for it mirrors social pluralism and offers an acknowledgement of social heterogeneity, making the constitution a shared project. At the same time, diversity of fundamental rights represents one of the main challenges contemporary constitutions must face, not only for the political process, but also for constitutional adjudication. In contemporary constitutionalism, diversity of fundamental rights and principles imposes their balancing (Zagrebelsky 1992; Alexy 2005). For example, how far should we go to protect Mark’s freedom of expression? Should it prevail over the protection of morality? Should it prevail over Annie’s

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right to privacy? Should it be limited when affecting the dignity of a person? When both the interests at stake present constitutional relevance, and the constitution does not offer a clear indication of a hierarchy, a balance must be searched. Of course, in a democratic community, rules and solutions for balancing rights should be provided for by legislation, according to people’s political orientation. However, legislative balancing must be fair and equitable, and are therefore subject to judicial review; moreover, in many cases legislation lacks, or does not offer a satisfactory answer to the detailed issues—an event that often occurs with delicate ethical issues. In these cases, judicial balancing allows the review of legislation, binding political discretion within the limits of rationality, checking reasonability of legislative means, and avoiding an excessive sacrifice to all the constitutional relevant fundamental rights at stake. When balancing is necessary, constitutional adjudication cannot be carried out with the usual methodology, which entails the assessment of the compatibility between a legislative provision and a constitutional standard; when the courts deal with balancing, their judgement involves the search of an equitable solution, that is able to respect, as much as possible, both the values at stake. With the passage of time, many courts have developed proper doctrines of balancing, starting with the United States Supreme Court and the German Constitutional Tribunal (Aleinikoff 1987; Bomhoff 2013). In Europe, where balancing is very common not only by national constitutional courts but also by European supranational courts, a valid method of balancing fundamental rights and public interests is represented by the proportionality scrutiny. According to Aharon Barak’s seminal works: “Proportionality can be defined as the set of rules determining the necessary and sufficient conditions for a limitation of constitutionally protected rights by law to be constitutionally permissible” (Barak 2012). The development of the proportionality principle started in German administrative case law during the second half of the nineteenth century. Here, proportionality was adopted as a method of review of public administration acts, in a context, the German Rechtstaat, in which the affirmation of the rule of law did not imply a consis-

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tent transformation of the ancient structures of administration. With the adoption of the Basic Law (1949), the proportionality test was transposed from the review of administration to the review of legislation. In general terms, proportionality review entails a scrutiny of the statute with regard to the proportion between its ends and the means it adopts; courts check the possibility to use alternative, less intrusive, means and the comparison between costs and benefits of the measure (Nishihara 2010; Schlink 2012). In the last 20  years, the use of the proportionality principle in constitutional adjudication has exponentially spread in comparative law, becoming one of the most widespread methods used by constitutional and supreme courts of the Western World: “Proportionality-based rights adjudication now constitutes one of the defining features of global constitutionalism” (Stone Sweet and Mathews 2008). While judicial balancing offers a solution to many delicate demands of justice that legislation often leaves unanswered, as a main instrument of judicial activism it also raises a potential counter-democratic problem (Ferreres Comella 2018): its abuse, indeed, could move constitutional adjudication away from popular sovereignty and democratic process.

Constitutional catalogues of rights are often characterized by the acknowledgment, aside from the traditional rights of first-generation, of social rights and substantive equality. The constitutions do not limit themselves to the task liberal constitutionalism had assigned them, to grant separation of powers and secure individual liberties, but rather they also express a set of values embracing aspirations and goals of the whole society (Hesse 1967). The constitutional development of social rights and substantive equality takes place through the political project of a European welfare state, based on a progressive tax system, social assistance, state regulation of economic activities aimed at preserving fair competition, and plans of public investments in general services (Kaufmann 2012). In many European constitutions of this period, we can observe the recognition of the role of social organizations,

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such as churches, associations, political parties, trade unions, etc. As for this aspect, following the path initiated by the Weimar Constitution, the post-World War II European constitutions redefined their role and their nature in pluralistic societies. Indeed, the constitutions guaranteed social pluralism, expressing a constitutional responsibility to protect social, linguistic, religious and ethnic minorities. This attention to the forms and actors of social pluralism leads to a more precise definition of the role of political parties in the constitution. During the nineteenth century and especially in Europe, political parties were considered to be an element of destabilization of the political unity of the nation. Though, political parties are now recognized as crucial actors of the political order, and a means of democracy and stability. However, the constitutional relevance of political parties can lead to different patterns, depending on whether the emphasis is to the autonomy political parties must own, or on the responsibility they assume toward the stability of the political system: while in Italy and France the constitutions limit themselves to a formal acknowledgment of the role played by political parties in shaping the national political orientation, and for the rest treat them as free associations, in Germany the political party is considered to be a body of the institutional framework. In German Basic Law, therefore, we find provisions establishing constraints on their objectives and methods, as well as the power of the Constitutional Tribunal to dissolve anti-constitutional parties. Inspired by this second orientation, many of the European constitutions adopted in the following years regulate political parties with provisions related to the respect of internal democracy, internal transparency and budget audits and expenditures, etc. In the political arena, the political parties become the predominant political actors. They act as a catalyst upon the drafting of the political agenda and the selection of the political class (Schumpeter 1942). While this new model of parties’ democracy is more coherent with mass society, and can channel masses’ mobilization into the avenues of parliamentary procedures, it also undermines the ideal and traditional basis of political representation as conceived in the framework of the liberal state: a political system organized around the role of political parties, legitimized by the people’s vote and leading the national agenda according to their plans, affects the liberty of the

Constitutional functions of political parties

Representative and direct democracy

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individual representative, elected for exercising a free parliamentary mandate (Schmitt 1923). Notwithstanding this evident dilemma, the principle that bans the imperative mandate (free parliamentary mandate) is generally confirmed by contemporary liberal-democratic constitutions: this renders the members of parliamentary assemblies free from both their parliamentary groups and parties, thus preventing the restriction of political dialectic by means of party directives (Ridola 2011). The affirmation of parties’ democracy, therefore, does not affect the traditional design of representative ­democracy, with the typical structure that it has assumed since the French Revolution: independent of the electoral system provided by the law (proportional, plurality or majority representation), the general rules that supported the free parliamentary mandate and the independence of the parliamentary assemblies are shared everywhere. At the same time, European constitutions—with the significative exception of the German Basic Law—leave room for the recognition of a partial role of direct democracy. In many constitutions, indeed, referendums are introduced in several constitutional procedures, such as the reform of the constitution, the ratification of international treaties and the legislative process.

Legal Tools and Keywords: The Organization and Functions of Parliaments in Europe Contemporary parliaments in Europe are structured according to two main patterns: (1) bicameralism and (2) unicameralism. The bicameral principle, whose origins date back to English constitutional history, later reproduced by European liberal constitutions as a means to reconcile the aristocracy and the bourgeoisie in the constitutional framework of the state, is now mainly justified as a means of reflection and consideration within political majorities. The bicameral principle is characterized by a peculiar outline with reference to federal states (Germany, Austria, Switzerland). Here, the bicameral structure of the parliament stems from the federal structure of the state, whereby the second chamber represents member states. The unicameral principle, which has its roots in the French Revolution and in the idea of unity and indivisibility of national sovereignty, was adopted by some dem-

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ocratic constitutions (Denmark, Sweden, Greece, Portugal, Norway) mainly because of its efficiency, as opposed to the laborious procedures inherent to bicameralism. Nevertheless, bicameralism was maintained in the most densely populated countries of the Western World. From a structural viewpoint, second chambers are usually elected by the people (Italy) or by territorial entities (France, Netherlands), or have a mixed composition (Spain). In the case of the House of Lords in the UK, its members are by heredity (selected aristocratic families), official function (high members of the clergy, as Lords Spirituals), and appointed by the monarch, on a proposal of the Prime Minister. From a functional viewpoint, symmetric (or perfect) bicameralism, where the two chambers share the same powers and functions, persists in some federal (Switzerland) and non-federal countries (Italy), whereas asymmetric bicameralism, according to which the two chambers are entrusted with different powers and functions, is largely prevalent. Most of the second chambers in asymmetric bicameral systems do not share the relationship of confidence with the executive branch. Furthermore, in asymmetric bicameral parliaments the two chambers enjoy different powers as to the exercise of the legislative function: law-making powers of the second chamber are usually restricted to certain subject matters, whereas the first chamber often retains the power to “have the last word” in the approval of the bills. As for the main structural and organizational features of contemporary European parliaments, the most important inner bodies that hold the reins of parliamentary functions and the organization of its work are: 55 the president of the legislative assembly (equivalent to the Speaker of the House in Anglo-American tradition); 55 parliamentary groups; and 55 parliamentary committees. The president of the assembly presides over the business of the assembly, and guarantees the observance of the rules of procedure and the efficiency of parliamentary work. The president often decides on parliament’s agenda or chairs the inner body entrusted to do so. The role of the president is mainly conceived as a super partes

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body, which acts in an impartial way and does not intervene on the matters discussed by the assembly. Parliamentary groups are the main political bodies on which the organization of parliaments in European contemporary constitutions are based. They are the expression of political parties within the legislative assemblies and carry out important functions: they boost parliamentary works; many inner bodies of parliaments are composed in proportion with the strength of parliamentary groups; parliamentary groups guarantee the discipline of members of the parliament as to how they vote and carry out their duties or functions. All parliaments in Europe distribute their functions between the plenum of the assembly and parliamentary committees. These can be standing committees or special committees: the former are set up for the entire length of legislature and are specialized for subject matters that usually correspond to the competences of the ministries; the latter are set up to deal with specific affairs, and their term is dependent on the fulfillment of the tasks assigned. In some bicameral parliaments, it is also possible to constitute bicameral committees, composed of members of the two chambers, whose task is usually to take part in the legislative procedure when a conciliation between the two chambers is necessary, or to carry out advisory or control functions. According to the European constitutions, the most significant functions carried out by contemporary parliaments are: 55 the relationship of confidence with the executive or head of the executive; 55 the legislative function; and 55 the control and inquiry function. In parliamentary and semi-presidential frames of government, the relationship of confidence is the main channel through which the parliament (or the chamber that holds this function) and the executive agree upon the general political orientations and commit themselves to making it effective through policymaking. As the cabinet is politically responsible before the parliament for its political action, the parliament owns a number of instruments, within the framework of the relations of confidence, to guide and check it.

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Only a few constitutions, however, provide for an express initial vote of confidence (Germany, Italy, Spain, some countries of Central and Eastern Europe), whereas in other countries (France, the UK, Portugal, Austria, Scandinavian countries), the confidence between the parliament and the cabinet is presumed. The parliament, however, can always remove the cabinet from office by passing a motion of no confidence. Moreover, a generally acknowledged principle is that the cabinet itself has the power to call into question the confidence relationship, by submitting to parliament a question of confidence when the approval of a bill, or measure considered as fundamental for the cabinet’s policy, is at stake. The rejection of the bill is equivalent to the passage of a motion of confidence. The legislative function is still today the function that mainly characterizes parliaments. Parliaments, indeed, are traditionally referred to as “legislative assemblies”. Legislative bills can ordinarily be submitted by: (1) each member of parliament; (2) the cabinet; in certain cases, (3) a number of people (popular initiative); (4) territorial entities; and (5) other bodies having a constitutional relevance. Legislative procedure is usually structured on a double examination of the legislative bills: firstly, each bill is assigned by the president of the assembly to whichever committee is competent in the bill’s subject matter; then, once the committee has completed the procedure, the bill is submitted to the floor of the House, where it is debated and voted on. A few constitutions foresee that, in some cases, the bill can also be approved directly by the assigned committee, without further procedures in plenary. In bicameral systems, it can be required that the bill be approved in the same text by the two chambers (symmetric bicameralism), whereas in the majority of cases the will expressed by the lower chamber prevails in cases of conflicts with the upper chamber. Yet, some legal orders provide for a conciliation committee (Germany, France) that may be called upon to reach a compromise between the two chambers. Lastly, the control function entails the task of examining and challenging the work of the cabinet, with a view to steer and monitor its policy and make the politi-

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cal responsibility of the cabinet effective even when its stability is not at stake. In order to carry out this function, parliaments usually resort to a variety of procedures: written and time-addressed questions to government ministers; parliamentary debates; and investigative activities carried out by the committees. The latter procedures, notably, are the core of parliamentary control: their technical specialization, indeed, allows committees to scrutinize the spending, administration and policy of each ministry. The power of inquiry deserves particular attention. It is carried out by specialized committees of inquiry enjoying a certain degree of autonomy in the implementation of their investigative activities on matters of public interest. Most of the committees of inquiry in European parliaments, indeed, are entrusted with quasi-judicial investigative tools.

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European post-World War II constitutions seek p ­ olitical stability through the adoption of enhanced tools of rationalization of the frame of government. As already stated (7 Sect. 4.5), the first wave of rationalization, began in the aftermath of the First World War, demonstrated to be fragile and unsuccessful. A second wave of rationalization is then introduced in the post-­ Second World War: here the goal of reaching institutional stability has been pursued through different, more effective, methods. Although, also in this case, results in terms of institutional stability are highly differentiated, we can see a general trend toward the strengthening of the executive branch’s political direction: the aforementioned process of enlargement of the normative functions of the executive branch (7 Sect. 4.2), the new means of rationalization, and the increasing personalization of powers entail the consolidation, in many countries, of a majoritarian pattern of democracy, characterized by an effective control of legislative agenda by the executive branch (7 Sect. 4.5). As a consequence, the traditional vision of separation of powers, based on the balance of powers among the branches of government, was reshaped. The necessary constraints on the political power of the executive and the legislative branches are today assured by new methods,  

 

 

Transformations of the separation of powers

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such as: (1) the political control exercised by the parliamentary opposition; (2) the control exercised by independent institutions, such as the President of the Republic in parliamentary government; (3) the territorial decentralization of powers; (4) the independence of the judiciary branch; (5) the settlement of the constitutional review of legislation, usually through the centralized system of review of legislation by a constitutional court; and (6) a pluralistic and constitutionally granted public opinion. In contemporary constitutional democracy, the inde- Independence of the pendence of the judiciary branch from the other branches judicial branch and political institutions represents a crucial means of check and constraint over political power: it is further strengthened through the ‘constitutionalization’ of a set of guarantees, both organizational and functional. Although a general pattern of organization of the judicial branch may be inferred from the analysis of the constitutional regulation of the judiciary in the constitutions of Western Europe, relevant differences persist between one legal order and another. In general, the separation of the judiciary from the executive branch is obtained through different techniques, such as (1) the provision of separate careers for judges entrusted with adjudicating functions and public prosecutors; (2) the obligation to prosecute any crime, independent from political direction and priority; and (3) the provision of Judiciary Councils, as autonomous bodies— entirely representative of the judiciary itself or entailing a combination of judiciary and political membership— entrusted with the power to appoint magistrates and assess their professionalism and conduct (Patrono 2010; Kosař 2018). A further innovation in the typical framework of public administration is the settlement, in many relevant scopes, of independent administrative agencies. Similar to the American model, independent agencies in Europe have administrative, regulatory and quasi-jurisdictional functions, thus circumventing the traditional vision of the principle of separation. Furthermore, they distance important political decisions from political responsibility and democratic control. At the same time, however, the very goal of separation of powers is empowered by the expansion of these agencies, because they represent limitations to the political decision-making, and their activity is always submitted to judicial review (Clarich 2005; Rose-­ Ackerman et al. 2017).

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The affirmation of constitutional review of legislation

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First established in the Czechoslovakian and Austrian constitutions (see 7 Sect. 4.6), the centralized constitutional review of the legislation has become a common element in European constitutionalism, following the samples of the Italian and German Constitutions. As we will see, with the adoption of the 1958 Constitution, this achievement even involved France, a Country traditionally averse to constitutional review of legislation. While we will analyze in detail organization and functions of the main constitutional courts in the European landscape, we must not forget that, aside to the model of rigid constitutions guaranteed by centralized review of legislation, a number of European countries still confirm the tradition of parliamentary sovereignty, adopted following both the British archetype and the French revolutionary constitutional ideology: I have already mentioned the cases of Switzerland and the Netherlands, where a constitutional court does not exist and judicial review of the parliamentary statutes is expressly forbidden by the Constitution (7 Sect. 4.6). A similar condition exists in Sweden, Norway and Denmark, where no constitutional courts exist, and no court owns a power of annulment of legislation. In all these countries, however, a limited form of judicial review of legislation is now emerging, especially as a consequence of their participation in international organizations with the power to adopt normative acts superior to national statutes.  

 

Legal Tools and Keywords: Composition and Functions of Constitutional Courts In 7 Sect. 4.6, I stressed that one of the characteristics of the European centralized pattern of constitutional review consists of the special method regarding the composition of the constitutional courts, aimed at ensuring sensibility to the political background of the legal issue, in consideration of the functions they are entrusted to carry out. This element is quite evident if we analyze the methods of composition of the constitutional courts provided for by European constitutions (Harding and Leylan 2009). All the constitutional courts in Europe are completely or partially elected by the parliaments. In some cases, as  

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in Germany, the whole body derives from the parliament. In this case, a qualified majority is often required, with an aim to involve the oppositions in the election of a judicial body entrusted with guaranteed functions. Such majorities usually oscillate from an absolute to a two thirds majority. Many European constitutions, however, adhere to a somewhat different model, based on the participation of a plurality of bodies apart from the parliament, with a view to balancing the weight of the main powers of the state within the composition of the constitutional court. According to these different patterns, judges of constitutional courts may be partly appointed by the Head of State (Italy, France), by the Cabinet (Spain), by the Judiciary Council (Spain) or by the supreme ordinary and administrative courts of the judicial branch (Italy). To be appointed/elected, a constitutional judge must possess qualifications of professional excellence. Moreover, some constitutional courts are composed taking into account additional criteria, such as the linguistic factor or the place of origin (Belgium). With regard to their functions, the constitutional courts do not limit themselves to the main task of constitutional review of legislation, which is the core of their activity (Ginsburg and Elkins 2009). The methods according to which this task is organized in the different constitutions is schematized in 7 Sect. 4.6. Ancillary functions of the constitutional courts that can be inferred from the analysis of European contemporary constitutions are: 55 Judgments on the conflicts arising from allocation of powers of the state and powers allocated to state and regional entities (Italy, Germany, Spain); 55 Judgments on appeal against decisions made by the parliament on the check of the credentials of its members (Germany, France); 55 Supervision over parliamentary or presidential elections and judgements of related complaints (France, Germany, Austria, Portugal); 55 Judgments on the admissibility of referendums (Italy); 55 Judgments on the charges brought against the President of the Republic (and, in some cases, the ministers) for high treason or serious misdemeanors contrary to the constitution (Italy, France);  

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55 Overview on the exercise of emergency powers (France); 55 Judgments on the constitutionality of political parties (Germany); 55 Assessment on the constitutionality of international treaties, before their ratification (France); 55 Judgments on direct individual complaints of violations of rights guaranteed by the constitution committed by legislative, administrative or judicial acts (Germany, Spain, Switzerland, Belgium, most countries of Central and Eastern Europe).

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In some countries, direct appeal to the constitutional courts can be raised by special bodies entrusted with the power to protect fundamental rights against acts of the state: it is the case of the Ombudsman, a typical institution of Scandinavian modern legal orders, even adopted by other European and Latin American constitutions.

With regard to the territorial organization of the state, we witness the settlement of a more effective decentralization of powers, both in the form of regionalism and federalism, also in those countries traditionally relying on a rigid and centralized organization of the state, as France and Italy (for the presentation of the different patterns of territorial organization of the state, see 7 Sect. 5.4).  

Legal Tools and Keywords: Local Independentism in Europe In recent years, in several European countries we have witnessed the rise of political movements claiming local independence. Common to other non-European countries, such as Canada, secessionist movements have developed in Spain and Belgium, representing serious threats to the unity of the states (Mancini 2012). The outcomes of these claims have been very different. In Spain, claims for independence arose first in the Basque Region, where nationalism and the struggle for political unity of all the Basque-speaking territories led to the foundation of the pro-independence group ETA. Despite the autonomy gained by the Basque community

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after the enforcement of the democratic Constitution of 1978, the activism of ETA soon escalated into violence and terrorism, with several episodes of bombing, assassinations and kidnappings. The definitive cessation of its armed activity occurred in 2011. Claims for independence, however, did not cease in crossing the Spanish territory. Recent years, indeed, were characterized by the upsurge of nationalism and independentism in Catalonia, a region that had developed its own culture and language. After years of harsh political confrontation, a referendum on the questions of statehood and independence of Catalonia was announced by the Catalan Government in 2014; however, it was deemed unconstitutional by the Constitutional Tribunal. Thus, the referendum was turned into a non-binding consultation, which resulted in the majority of voters choosing statehood and independence. In 2015, the Catalan Parliament passed a resolution declaring the beginning of the independence process. Soon after, a second binding referendum on independence was announced by the Catalan Government. Although it was ruled unconstitutional by the Constitutional Court, the referendum was held anyway in October 2017. The results showed an overwhelming majority of voters in favor of independence, although the turnout was only 43% of the electors. On the basis of the results of the referendum, the Catalan Parliament approved a resolution declaring the independence of Catalonia from Spain, despite the fact that the Constitutional Court had declared the sitting of the assembly illegal. As a result of the deliberation, the Spanish Government triggered the mechanism of Art. 155 of the Spanish Constitution: the Catalan Government was dismissed and direct rule was imposed from the national government, while several leaders of independentism movements, even holding institutional charges, were prosecuted and condemned for sedition. Local elections in 2017 and 2021 have showed a more balanced distribution of votes among pro-independence and anti-independence parties. In Belgium, we witnessed the affirmation of erosive processes led by the two main Belgian cultural communities: on the one side, the French community territorially

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concentrated in Wallonia, and, on the other side, the Flemish community mainly located in Flanders. The end of the historical predominance of the French community and, conversely, the demographic and economic rise of the Flemish community, led to a long-­ lasting conflict between the two entities. The erosive forces led to a series of constitutional reforms, characterized by a progressive consensual separation, which resulted in the establishment of the federal state in 1993. Thus, today, the Belgian Constitution—as revised in 1993—explicitly states that Belgium is a federal state composed of different communities and regions. The established federal model is a peculiar one, characterized by a dual structure based upon three regions and three communities. As for the former (Flanders, Wallonia and Brussels), they mainly hold competences in the socio-economic field; while the three communities (the Flemish, the French and the German-speaking communities) hold competences in the cultural and linguistic areas. Today, all of the above substate authorities have their own representative governments and their own institutions, which over time enlarged their roles to surpass the federal government’s. Federal Parliament was then based upon rigid electoral mechanisms, which recognized the distinctive representation of all the different communities; this was done in order to assure that none of the communities could exclude the others from the federal representative ­institutions. Moreover, important powers were assigned to the Court of Arbitration, in order to solve conflicts over the distribution of competences among the regions, the communities and the Federal Government, and cases were brought before the Court directly by the federal and/or the federated authorities claiming a breach of their own powers. With a further constitutional innovation (2007), the Court of Arbitration was transformed into an actual Constitutional Court. Many analysts foresee how Belgium is nonetheless destined to face further erosive processes.

213 6.3 · The Italian Constitution of 1948

6.3 

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The Italian Constitution of 1948

After the end of the war, the Italian democratic parties that led the resistance against Fascism (Christian-­ democrats, socialists, communists) were aware of the need to overcome the Statute of Carlo Alberto and the structure of the liberal state. However, the main political parties did not agree on the future of the monarchy. This is why, on June 2nd of 1946, a referendum was called, asking the people to choose between a monarchy and a republic. The response was for the Republic. Elected on the same day, the Constituent Assembly, dominated by the new mass political parties, began to draft the new Republican Constitution, completing its work in December of 1947. The Constitution entered into force in 1948, and is still in force today (Cartabia and Lupo 2022). The first sections of the Constitution are dedicated to general principles and fundamental rights. In this regard, the Italian Constitution follows the trend of European constitutionalism in the twentieth century. The compromise among the Christian–Democratic Party and the socialists and communists in the Constituent Assembly led to the introduction of a wide set of fundamental rights: the first part of the Constitution acknowledges both traditional negative liberties as well as social rights. Consistently with this articulated framework, Art. 3 I.C. provides for the principle of equality of men, both in the traditional formal dimension and in the new substantive dimension. Furthermore, limits to individual economic rights and to the right of property show the preference to public good and social needs over individual rights typical of the liberal ideology. Although very comprehensive, the catalogue of social rights presents a fragility deriving from its programmatic nature. In many of the constitutions of the Contemporary Age, we see that the recognition of a wide set of social rights is not accompanied by proper legal means aimed at assuring their enforcement: often, indeed, in contemporary constitutional law, social rights and principles of substantive equality assume the nature of goals to be achieved by future legislators, leaving few possibilities for the courts to grant their immediate, actual enforcement. This is the case for many of the social rights established in the Italian Constitution.

The institutional referendum of 1946

A comprehensive catalogue of rights

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On the contrary, regulation of individual liberties includes innovative tools of protection. The typical guarantee provided for by liberal constitutions—mainly, the reserve to legislation (see 7 Sect. 3.4)—is here improved through a new instrument, the strengthened reserve to legislation. According to this second method, indeed, not only the regulation of a subject is attributed to parliamentary statutes, but the Constitution itself further defines the goals that must be followed by the statutory regulation. In these cases, the lawmaker is thus compelled to lay down the regulation following constitutional limits and goals. All of this confirms the awareness that the Constitution, far from limiting itself to providing a framework for daily political competition, encompasses an idea of a society to be shaped, according to shared social values. I now move on to analyze the institutional framework established by the Italian Constitution of 1948. A peculiar feature of the Italian Constitution is its symmetric bicameral system, where both the Chamber of Deputies and the Senate are elected by the people, and share the same powers in legislative function and have an equal political relationship with the executive. In contemporary constitutional law, symmetric bicameralism is quite uncommon, because potential deadlocks in the legislative process are more likely, specifically when there is a contrast between the two Houses. Moreover, further problems can arise with respect to the relationship between the executive and the legislature, mostly related to the support of the Cabinet through the relationship of confidence. In practice, symmetric bicameralism in Italy has aggravated the instability of the Cabinet and has slowed the law-­ making process. The Italian Constitution adopts a parliamentary government. In the organization of the Government, all the parties represented in the Constituent Assembly shared the opinion that it was necessary to introduce a rationalized parliamentary government, in order to ensure a more stable and effective action of the Cabinet. However, divisions among parties led to a poor compromise. According to the constitutional framework, Italy has a low rationalized parliamentary government: the Cabinet (Prime Minister and ministers) is appointed by the President of the Republic according to the outcome of the general elections, and following presidential hearings with political parties, that must demonstrate the existence of a parliamentary majority willing to support the Cabinet; once  

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Symmetric bicameral system

Parliamentary government

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appointed, the Cabinet must receive, within the next 10 days, the confidence of both chambers of Parliament (Art. 94 I.C.). Parliament can always withdraw its confidence in the Cabinet and thus compel it to resign. In such a case, according to a well-settled practice, early parliamentary dissolution occurs only if it is not possible to appoint a new Cabinet. Throughout the history of the Italian Republic, the parliamentary relationship has been characterized by a high level of political instability: this has been mainly due to the fragmentation of the political system and the resulting weakness of the majority coalitions. Therefore, in the last 40 years, a debate on constitutional and electoral reforms, aimed at reducing political fragmentation and granting the Cabinet’s stability, developed: notwithstanding this effort, attempts to reform the system of government have failed until now. Two major attempts to reform the second part of the Constitution—and mainly the frame of government, in order to assure stability and leadership of the Cabinet also through the abolition of symmetric bicameralism—were approved by Parliament in 2006 and 2016. However, in both cases, the popular referendum requested by the Constitution for constitutional amendment did not ratify the proposed reforms. In addition, the frequent changes to the electoral system did not manage to avoid fragmentation, breaks in the majority coalitions, and instability within the Cabinet. The fragility of the Cabinet’s control over parliamentary majority, which results in endemic instability, has allowed the progressive growth of a political independent role of the President of the Republic, well beyond the powers codified by the Constitution and the prerogatives the Head of the State owns in a parliamentary government. Consistent with the pattern of a parliamentary government, the President is elected by the Parliament with a qualified majority, and therefore should avoid any political partisanship: in fact, key political leaders have never been elected as President. Nonetheless, among the western republics with parliamentary governments, the Italian Constitution is the one in which the President plays the most relevant role. Despite the wish of the Constituent Assembly, which assigned the President a limited role— restricted in all his acts through the typical method of the ministerial countersignature—the first Presidents were able to practically extend their political powers.

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Political fragmentation and institutional instability

Increasing influence of the President of the Republic

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Italian regionalism

After decades of constitutional practice, Presidents have been thus able to occupy a significant role, both in case of weak majorities, supporting the Cabinets and contributing to plan the political agenda, as well as in cases of strong majorities—using their constitutional prerogative to control and check the political direction. The role of the President of the Republic is not precisely defined by the Constitution, and the scope of its actual powers depend on the stability of the party-system: while, in normal political conditions, the President should play a minor role, leaving to the Cabinet and the parliamentary majority the responsibility of carrying out national politics, in recent years, the rush of the economic crisis and the increasing fragmentation of the party-system have called for an aggrandizement of presidential protagonism. Nowadays, the President carries out relevant powers, including: checking the legislation (with the possibility of returning a bill to the Houses) and the normative acts of the Cabinet; approving the appointments of Ministers; and seeking solutions to crises of government, where the main choice on whether to dissolve the Parliament or to favor the formation of an alternative Cabinet is politically significant. Additionally, the President appoints five members of the Constitutional Court, in order to avoid partisanship in the Court itself. With the purpose of granting independence of the judiciary from the executive, the Constitution establishes a High Council of the Judiciary, composed of members elected by Parliament and members elected by the judges and chaired by the President of the Republic himself, entrusted with the power to manage the careers of the magistrates, thus cutting them out from the competences of the ministry of justice. One of the major innovations adopted by the Constituent Assembly is the institution of the regions— territorial entities not existent in the previous legal order. Their creation represented an answer to the claims for the recognition of a stronger territorial political autonomy, after many years of a centralized government—both under the liberal system and Fascism (D’Atena 2022). The Constitution acknowledges two types of regions: ordinary and special. As for the latter, these are the five regions with peculiar conditions of economy, language and regional identity; they are governed according to a special statute owning a constitutional status, adopted by Parliament with the con-

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stitutional amending procedure (Art. 138 Const.). Special regions’autonomy is, in general, higher with respect to the ordinary regions. As for the ordinary regions, in the original constitutional framework, they owned few and insubstantial powers, always submitted to an incisive central control. However, the constitutional reform of 2001 increased ordinary regional powers, so that today their competences seem to be almost equivalent to those of the special regions, including full legislative competence in subjects not reserved to state legislative competence (Art. 117 I.C.). The ordinary regions enjoy a power of self-­ organization: they adopt a regional statute, which provides the frame of government and the organization of the administration within the region. As stated, they own a legislative power, embracing competences in subject-­ matters not reserved to state’s legislation: according to the new version of Art. 117 I.C., regional legislation is not inferior to state legislation, but merely submitted to the Constitution and international treaties; also, they share administrative powers with municipalities and the state; finally, they have limited tax power. After more than 20  years from 2001s constitutional reform, it is possible to affirm that its results have been inferior to one’s expectations: the reform indeed caused the rise of several controversies and conflicts of competences between the different levels of government, forcing the Constitutional Court to play the role of an arbitrator; the expansion of regional functions brought by the reform has been unfulfilled by the Court’s case law. Moreover, a regional political life has never actually emerged. As a response to this stalemate, in the last years, northern regions with a major economic efficiency are pushing for the activation of Art. 116 I.C. system of asymmetric regionalism, which allows the state to enable some regions, upon their request, to broaden their competences beyond the boundaries of Art. 117. The entrenchment clause of Art. 138 I.C. provides for Procedure and limits the procedure for amending the Constitution. The proce- to constitutional dure requires two votes by each of the two chambers of amendment Parliament, and the second must pass with a vote by at least an absolute majority. If Parliament reaches a majority of two thirds, the constitutional amendment is approved; if, instead, Parliament reaches an absolute majority, there is the possibility to call for a referendum for the ratification of the act.

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Centralized constitutional review: the Constitutional Court

The only absolute limit to the revision of the Constitution is expressed by Art. 139 I.C., which consists of the republican form of the state. The choice for the Republic, indeed, represents the outcome of the referendum of 1946, and it is the fundamental source of political legitimacy of the new constitutional order established after the war. Despite the limited scope of unamendable constitutional principles, a wide debate has developed in the years, involving scholars and the Constitutional Court’s jurisprudence, about the existence of further, implicit, limits to constitutional revision. In line with a trend that involves many legal orders in the realm of western constitutionalism (Roznai 2016), the Court—starting from its seminal Judgment n. 1146 of 1988—has indeed broadened the area of unamendable constitutional principles, theorizing the ‘unamendability’ of superior principles of the Constitution and fundamental rights (Faraguna 2015). Consistent with the choice for constitutional rigidity, a form of constitutional review of legislation was also introduced. The constitutional review of legislation works according to the pattern of centralized review, and is performed by the Constitutional Court. The Constitutional Court is composed of 15 judges, appointed respectively by Parliament (5), the President of the Republic (5) and the superior courts of the judiciary branch (5). The Court’s review can be activated in two ways: (1) through an incidental appeal by a court facing a constitutional doubt in a case, and (2) through a direct complaint by the central Government and the regions, when they believe that a state or a regional law breaks the constitutional distribution of competences (see 7 Sect. 4.6). As is typical in constitutions that adopt a centralized system of constitutional review, the Constitutional Court is also entrusted to carry out other functions: it resolves disputes arising between the branches of government and between the state and the regions; it assesses admissibility of a popular referendum to abrogate a statute; and it judges the impeachment of the President of the Republic in cases of indictment for crimes of high treason or attempts to overthrow the Constitution. Throughout the years, the role played by the Constitutional Court in the Italian legal order has significantly increased. The Court has been able, first and foremost, to strike down and force Parliament to repeal much of the legislation inherited from Fascism, which was inconsistent with the new liberal-democratic values pro 

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vided by the Constitution; then, it contributed to the actual enforcement of social rights though the affirmation of legal efficacy of programmatic norms of the Constitution; it imposed a method of legislative construction consistent with the Constitution onto the judicial system; and developed new techniques of judgments, adding or reformulating parts of the legislative provisions, in order to make them harmonious with the Constitution, thus replacing, in specific cases, the role of the legislator. Legal Tools and Keywords: The Italian Constitutional Court’s Judgement on Euthanasia—A Case of Legislative Jurisprudence In a recent case (s.c. “Cappato”, decided in 2018), related to euthanasia, the Court was requested to assess the constitutionality of the crime of assisted suicide, provided for by the criminal code. The Court needed to answer the following question: is the act of assisted suicide a crime in cases of a free and painless euthanasia, where the person suffers from a terminal and invalidating disease, that doesn’t allow them to autonomously euthanize? Moving from the assumption that the Constitution protects the liberty to refuse medical treatment, the Court ascertained that, in this specific case, the crime of assisted suicide shouldn’t apply. At the same time, however, the Court acknowledged the consistency of the criminal provision in general cases with the constitutional value of life. Therefore, with the awareness that the general effect of annulling the criminal provision could have resulted in an even worse regulatory framework, the Court adopted an interlocutory decree compelling the Parliament to adopt a regulation of the phenomenon within a 1 year deadline, pointing out a series of guidelines to be followed, and adjourned the case; then, since the Parliament did not adopt any legislation within the deadline, the Court reassumed the case and provided a positive and detailed regulatory framework of the issue. The same declaration of prospective unconstitutionality—consisting in the ascertainment of unconstitutionality followed by the postponement of the judgment—has been adopted in further occasions by the Constitutional Court, always with the intent to emphasize the role of the Parliament in the correction of legislative defects, but without renouncing its role of granting the primacy of the Constitution.

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6.4 

The constituent process in the Federal Republic of Germany

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General design of ­German Grundgesetz

The German Basic Law of 1949

The Constitution of the Federal Republic of Germany was approved by a Parliamentary Council convened in the city of Bonn in 1949. Due to the peculiar conditions of Germany in those years, the allied western forces that were controlling the Country after the war played a relevant role in triggering the constituent process. Following the wishes of the Americans, who believed in the relevance of federalism in order to avoid any risk of totalitarian rebirth, the Laender (member states) were acknowledged as the leading forces of the constituent process. The Constitution, indeed, was not framed by a Constituent Assembly, but rather by a Parlamentarischer Rat composed of representatives of the Laender; and ultimately ratified by the Laender themselves. A process that reminds us, to some extent, of the constitutional process of the United States of America. The Parlamentarischer Rat decided to entitle the Constitution as “Grundgesetz” (GG), Basic Law. The rejection of the word “constitution” was the consequence of the division of Germany after the end of the Second World War: the Basic Law, indeed, applied only to West Germany—under the military control of the United States, UK and France—while in East Germany, the Democratic Republic was organized as an autonomous state under the influence of the Soviet Union. Therefore, the Grundgesetz was conceived as a provisional constitution: according to the preference of the Parliamentary Council, a new constitution would have been framed after the reunification of East and West Germany. Nonetheless, when in 1990 the reunification of Germany finally became possible, the Grundgesetz was simply extended to East Germany. In order to understand and interpret the Grundgesetz, it is worth clarifying the main aim pursued by the new constitutional order—to prevent the possibility of an authoritarian backlash, and avoid the reiteration of all the limits and the weaknesses of the Weimar experience, which allowed Nazism to conquer and seize power. With this aim, the Basic Law establishes a strong central government, led by a Chancellor elected by the Bundestag, the lower chamber of Parliament, which is directly elected by the people. Furthermore, the Basic Law set a strongly rationalized parliamentary government, in which the relation of confidence is organized with the pur-

221 6.4 · The German Basic Law of 1949

pose to grant the stability of the Chancellor and his/her leadership. Finally, in order to avoid any risk of personalization of power in the figure of the President of the Republic, the framers of the Constitution reserved a weak role for the President, reduced both in terms of political legitimacy and powers. Learning from the Weimar experience, the members of the Parlamentarischer Rat were aware of the potential menace of undemocratic parties and how easily they could threaten democracy, pluralism and tolerance. For this reason, the Basic Law establishes a fighting democracy, through the control of constitutionality of the political parties and a detailed regulation of the freedom of expression (Art. 19 and 21 GG). The aim of avoiding new totalitarian threats was pursued by the path of federalism as well. The federal state was organized resuming some of the historical features of German federalism, as experimented with in the Empire’s Constitution. The upper chamber of Parliament (Bundesrat) indeed directly involves the Laender, thus allowing their participation in the formation of federal policies. Furthermore, the atrocities committed during the war induced the German political culture to build a rigid catalogue of fundamental rights, in which the principle of human dignity assumed the role of axiological premise of the Constitution as a whole. Moreover, as an additional guarantee, Article 79 G.G. established the so-called “eternity clause”, according to which it is not possible to modify, firstly, the federal structure of the state, secondly, the principle of cooperation between Laender and Bundestaat in the legislative process and, finally, the liberal-­democratic principles enlisted in Art. 20 and 1 GG. A centralized constitutional review of legislation guarantees a higher level of the protection of the catalogue of fundamental rights. I move on to examine the structure of the Federal Parliament. It is composed of two chambers, the Bundestag, directly elected by the people, and the Bundesrat. Consistent with the German federal tradition, the Bundesrat is not elected: it is composed of delegates of the executive branches of the Laender, and the votes of each Land must be cast as a unit. In the Bundesrat, not all the Laender have the same number of delegates: it depends on the population (Art. 51 GG), and can vary from 3 to 6. The different criteria for the composition of the two chambers results in an asymmetry as for their functions:

Bundestag and Bundesrat

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6 The Chancellor

Election of the Chancellor and establishment of the relation of confidence

the Bundesrat does not take part in the relation of confidence with the Chancellor, except in the case of “legislative emergency”, and with regard to legislative function, its role is equivalent to the Bundestag’s only if the subject exhibits a regional interest, and in case of amendments to the Constitution, which must be approved by both chambers with a majority of two thirds. In order to avoid the political instability that affected Weimar’s experience, the framers adopted means of rationalization of the relationship of confidence between the Chancellor and the Bundestag. Compared to the poor methods of rationalization figured out in the first wave of rationalization, in the Grundgesetz, the comprehensive codification of the relationship of confidence produced more effective rules of rationalization—above all, the constructive no-confidence vote. Consistent with German constitutional tradition, the role of the Chancellor in the executive branch is peculiar and constitutionally superior to the ministers’ role. The relationship of confidence, indeed, begins with his/her election by the Bundestag, which requires an absolute majority. Derogating from the typical pattern of parliamentary government, where the political responsibility of the Cabinet is generally conceived as collective, here the Chancellor, and not the Cabinet as a whole, is the sole addressee of parliamentary confidence. This characteristic of the German system of government determines a position of supremacy of the Chancellor over the ministers, who are appointed by the Chancellor and can be removed by him/her. The detailed codification of the relationship of confidence also entails relevant limits to the discretionary power of the President of the Republic to dissolve the Bundestag. There are only two instances, both regulated by the Constitution, in which the President can dissolve Parliament before its natural term: the first is related to the lack of an absolute majority of the Bundestag supporting the election of the Chancellor; the second can occur in a crisis of government. I will describe both of them, analyzing the complex legal and political framework of the relation of confidence. The relation of confidence is established with the election of the Chancellor by the Bundestag. After the general elections, the Bundestag must elect the Chancellor with an absolute majority. If the absolute majority cannot be achieved, the Constitution allows the Bundestag to elect a

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Chancellor with a simple majority. In this case, however, the President of the Republic, who has the duty to formally appoint the newly elected Chancellor, can decide to dissolve the Bundestag and call for new elections (Art. 63 GG). This is, therefore, the first circumstance in which the President can dissolve the Bundestag, dependent only on his/her estimation of the political capacity of the newly elected Chancellor, analyzing the fragility of support in the Bundestag. This form of dissolution, however, has not played a relevant role in the German experience: the political scenario, indeed, has always been structured around strong political parties able to realize solid coalitions on the basis of a clear coalition agreement. This is due to two main reasons: firstly, the electoral system establishes threshold clauses that exclude small political parties (under 5% of the votes) from the Bundestag to avoid political fragmentation; secondly, the dissolution of C ­ ommunist and Neo-Nazi Parties by the Constitutional Tribunal, during the very first years of the Republic, helped to stabilize the political system. Therefore, the settled political background reduces the risks of fragmentation in the Bundestag and allows the formation of solid coalitions, assuring the existence of political majorities able to reach the absolute majority required for the vote of confidence to the Chancellor. This has been a characteristic of the German political system since the foundation of the Grundgesetz, and even though a new trend of political fragmentation has taken place in the most recent elections, majority coalitions realized after the elections still grant consistent parliamentary support and remarkable stability of the executive. Once elected and formally appointed, the Chancellor enjoys a strong leadership, which derives, on the one side, from his/her position of supremacy over the other ministers of the Cabinet and, on the other side, from the limitation of the Bundestag’s powers to remove him/her through the vote of no-confidence. Here we find, indeed, the main tool of rationalization provided for by the Basic Law: the constructive vote of no-confidence. Its purpose is to prevent the Bundestag from removing the Chancellor without having a new stable majority yet, supporting a new Chancellor (Art. 67 GG). The novelty of the constructive no-­confidence motion is that it must include, together with the withdrawal of parliamentary confidence, the election of the new Chancellor. The Bundestag must reach an absolute majority on this motion.

The main tool of rationalization: the constructive vote of no-confidence

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The outcome of this provision is tremendous: in the typical environment of a parliamentary government, a crisis of the majority coalition leads to the resignation of the Cabinet, with or without a formal vote of noconfidence, and to a crisis of government; in the environment of the German parliamentary system, instead, the crisis must be resolved in advance by the political parties themselves, proposing an alternative solution in the same moment in which they break the previous agreement. In practice, the constructive vote of no-confidence has worked in only one occasion, in 1982, when the social-­ democrat leader Schmidt was removed and the Christian democrat Helmut Kohl was elected as Chancellor. Nonetheless, we should not underestimate the effectiveness of the constructive vote of no-confidence. Indeed, it plays a fundamental role in protecting the Cabinet from the risk of sudden attacks, and in avoiding the dangers of crises of governments without clear solutions. This latter is of high relevance since, learning from the Weimar experience, it prevents lengthy crises and periods of power vacuums. At the same time, however, the protection offered by the constructive no-confidence does not allow the Chancellor to underestimate parliamentary opposition toward his/her action: a Chancellor that loses the actual support of the majority is no longer able to effectively carry out his/her agenda. In a parliamentary system, indeed, most of the acts of the executive branch must pass through the approval of the legislative branch. Statutes, budgetary processes, ratifications of international agreements, etc.: these are only the most evident examples of the plot of competences that the two branches of the government share. After consideration of this point, it is possible to underline a further difference between a presidential and a parliamentary government. In a presidential system, the possibility of a “divided government” is viable, due to the rigid separation of powers, though with severe consequences on the effectiveness of politics. In a parliamentary government, instead, the breaking of the mutual support between the two branches leads to situations of blockage, which is highly inconsistent with the exigencies and the duties of the state. In the environment of parliamentary government, therefore, early dissolutions of parliaments represent an essential means for the resolution of political crisis.

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Additionally, in the case of the German Basic Law, although protected by constructive no-confidence, the Chancellor needs channels to overcome the gridlock represented by a fragile majority support. This is possible through the introduction of a question of confidence. A question of confidence is a request that the Chancellor introduces to the Bundestag, with the aim of checking the existence of a parliamentary majority supporting his/her action: in case of a question of confidence, the Bundestag is not forced to reach a constructive agreement on an alternative Chancellor; it can simply withdraw the confidence, compelling the Chancellor to resign (Art. 68 GG). The Basic Law regulates this procedure in detail. According to the Basic Law (Art. 68 GG), once the Chancellor proposes a question of confidence, and the Bundestag does not approve it with an absolute majority, the Bundestag has 21 days to elect, with an absolute majority, a new Chancellor. In this circumstance, the President of the Republic is compelled to appoint the new Chancellor. In case the chamber is not able to reach the majority required for electing the new Chancellor, the Chancellor who was defeated by the Bundestag has two options. Firstly, he/she can ask the President to dissolve the Bundestag and call for new general elections. In this instance, the President cannot refuse the early dissolution: this is the second circumstance in which it is possible to dissolve the Bundestag before the natural term. Secondly, but only if the political crisis coincides with a situation of emergency in the Country, the Chancellor can ask the President to declare a state of “legislative emergency”. In such a situation (which has never happened in German history) the Chancellor governs without a majority in the Bundestag and with only the support of the Bundesrat, which is entrusted with all of the legislative power. The state of legislative emergency, however, must be approved by the President of the Republic and can last only for a period of 6  months. After 6  months, the President shall dissolve the Bundestag (Art. 81 GG). The aim of such a detailed regulation of the crisis of government is to reduce discretionary powers of the President of the Republic and to prevent political instability from occurring in situations of national crisis, which on the contrary should be faced with a Cabinet retaining full power. In German political history, crises deriving from the rejection of a question of confidence have occurred twice:

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The regulation of the question of confidence

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Fundamental rights and human dignity

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The prohibition of abuse of rights

in 1983 and 2005. In these cases, facing a weak majority coalition, the Chancellor proposed a question of confidence to the Bundestag, with the explicit aim of obtaining a refusal and then dissolving the Bundestag. Having completed the presentation of the German system of government, now I will discuss the constitutional protection of fundamental rights. As stated, the catalogue of rights begins with the proclamation of the principle of human dignity, which represents the axiological premise of the entire system of values of the Grundgesetz. Article 1 G.G. states: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority”. The interpretation of this provision, seemingly very clear, does leave room for doubts and problems. In the framework of the German Constitution, human dignity has been traditionally understood as an objective principle, embracing basic values of mankind, rather than as an equivalent to individual liberty. On one side, the priority of human dignity as a basic principle of the entire legal order has allowed a dignity-based constitutional construction, with the possibility of enhancing the protection of individual rights and the same achievement of social goals (Alexy 2010; Ridola 2018). On the other side, however, the prevalence of human dignity in the catalogue of fundamental rights has entailed the possible limitation of self-­ determination of men and other individual liberties, in cases of balancing. Only recently, the Constitutional Tribunal’s case law has demonstrated its orientation in reducing the application of human dignity as a constraint on self-determination, as in the relevant case on euthanasia decided in 2020. Compared to the other European constitutions of the same period, and to the Weimar’s Constitution, the Bonner Grundgesetz provides a short catalogue of fundamental rights. It includes mainly the typical first-generation ­liberties. Art. 18  G.G. regards a set of rights more related to political life, as expression, press, teaching, assembly and association. In the constitutional regulation of these rights, we recognize the fighting attitude of German democracy: in affirming those individual rights, indeed, the Basic Law authorizes the Constitutional Tribunal to limit their enjoyment in cases of people abusing them as a means of overthrowing free democratic basic order. With

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this approach, the Constitution tries to cope with the paradox—pointed out by Karl Popper in his 1945 masterpiece, The Open Society and Its Enemies—that democracy, granting freedom of expression and voting rights to all, has in itself the premises of its self-destruction (Popper 1945). The same ratio regards the regulation of political parties (Art. 21 G.G.): citizens enjoy the right to create and take part in any political party, but political parties cannot be “anti-system”. For this reason, the Basic Law states that the political parties should be consistent with the principle of democracy. The Constitutional Tribunal has the power to judge and dissolve political parties, if ­dangerous for the stability of the state or for the liberal and democratic principles of the Constitution, with regard to both their goals and the actual behavior of their leaders. Twice, in the early period of German history, the Constitutional Tribunal dissolved unconstitutional political parties: once with the Neo-Nazi Party (1952) and again with the Communist Party (1956). Different from the majority of post-Second World War’s constitutions, the Basic Law does not provide a codification of social rights. This is another aspect in which it expresses the intent to diverge from the Weimar Constitution, and entails an axiological priority of liberty rights over social rights. At the same time, however, article 20 G.G. affirms that Germany is a “social federal state”. The interpretation of this clause has been problematic. Some scholars argued that the principle of the social state was irreconcilable with the principles of the liberal state (Forsthoff 1954); others read the principle of the social state as a compelling rule (Ridder 1975). The German Constitutional Tribunal, for its part, has considered the implementation of the social state as a duty for the state. A clear example is the recent jurisprudence on the “Existenzminimum” (2010). According to the judgment of the Constitutional Tribunal, the principle of human dignity, together with the principle of the social state, confer to the people an actual social fundamental right, directly executable, to receive social assistance by the state in cases of need. Germany is a federal state. This territorial organization of the state depends on two convergent factors: the federal tradition of German constitutionalism and the belief, descending from American culture, that federalism

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Fighting democracy: Art. 21 G.G.

The principle of social state

Federalism in Germany

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is a tool of separation of powers useful in avoiding the emergence of totalitarian regimes (Friedrich 1950). The Basic Law, therefore, establishes a federal state and protects the federal principle, by including it among those principles of Article 20 G.G. that cannot be modified, even with the proceeding of a constitutional amendment. Although inspired by the American constitutional theory, German federalism differs from the American one. In American federalism, indeed, the Constitution lays down a rigid separation of competences, belonging respectively to the states and to the Federal Government. In matters falling into their competences, the states and the Federal Government carry out legislative, administrative and judicial functions. Furthermore, there are no procedures or bodies performing the role to promote cooperation among states and Federal Government: although the Senate allows state representation at the central level, as a fact it does not cope with states’ issues (7 Sect. 2.10). On the contrary, German federalism is inspired by the principle of institutional subsidiarity, and can be defined as a cooperative federalism. As a general rule, Art. 30 G.G. states that, “except as otherwise provided or permitted by this Basic Law, the exercise of state powers and the discharge of state functions is a matter for the Laender”. The main application of this principle is administrative federalism (Art. 83 G.G.): even in matters that belong to the federal legislative function, the administrative functions generally fall into the realm of the Laender. This method entails a necessary cooperation between the Bund and the Laender, and highlights the role of the Bundesrat in coordinating the process of local administrative enforcement of the federal statutes. At the legislative level, article 70  G.G. states that “the Laender shall have the right to legislate insofar as this Basic Law does not confer legislative power on the federation”. Article 73 G.G. lists the subject matters that fall into the Federal Government’s legislative competence, and all the other subject matters belong to the Laender’s legislative function. This apparently rigid framework is completed by the provision, in Art. 72 G.G., of the so-called konkurrierende Gesetzgebung, the concurring legislation clause. Art. 72  G.G. embodies the principle of institutional subsidiarity and is the very expression of the spirit of the German federal system: it entrusts the Federal Government to legislate in subjects belonging to the Laender as far as a unitary regulation is necessary.  

Cooperative federalism

Concurring legislation

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In practice, the Bund plays the main role in legislative function, especially because the Constitutional Tribunal has traditionally refused to review the legislation on the basis of the application of the subsidiarity principle. The decision to adopt a federal statute on the basis of Art. 72  G.G. has always been, therefore, a political decision, entrusted to the Bundestag. With the passage of the constitutional reform of federalism in 2006, the concurring legislation was modified in order to avoid subsidiarity ­ allowing an excessive reduction in  local legislative functions: the Constitutional Tribunal now has a duty to assess the validity of the use of the subsidiarity clause by the Bund, and this has paved the way to a stricter constitutional review of the application of the subsidiarity mechanism. If one looks at the historical development of German federalism, it is possible to affirm that the German federal system has moved toward a “unitary federal state” (Hesse 1962), characterized by cooperation and solidarity. The stronger tool of this process of centralization was the “Finanzausgleich” between Bund and Laender, which consists of a complex system of revenue sharing and grants in aid.

Legal Tools and Keywords: Cooperative Federalism To summarize, the cooperative nature of German federalism is the outcome of the following elements: 55 the existence of the Bundesrat, the upper chamber of the Federal Parliament, composed of delegates of the executive branches of the Laender, with important functions in federal legislation and constitutional amendment; 55 the organization of the administrative functions that, on a general basis and with few exceptions, belong to the Laender even when the legislation that regulates the subject is federal; 55 the subsidiarity principle (konkurrierende Gesetzgebung) which entails a mobility of the legislative competences; 55 an equalization of public finance which creates a solidarity among the Laender.

In conclusion, it is worth discussing the organization of constitutional review of legislation and the functions of the Constitutional Tribunal.

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German constitutional Tribunal

6 Individual constitutional complaints

In general terms, constitutional review of legislation is organized according to the centralized system. As in Italy, there are two main methods of activating the Court’s review: the incidental control (where a question of constitutionality is raised by a judge during a process) and the direct appeal (both from the Bund and the Laender). As in many other constitutional courts, the German Tribunal also carries out ancillary competences, such as the resolution of conflicts among institutions and branches of government, or between the Bund and the Laender. Furthermore, as I have previously stated, the Constitutional Tribunal carries out specialized functions related to the abuses of fundamental rights and to the review of the constitutionality of the political parties. An additional key function of the Tribunal is related to the jurisdiction on Verfassungsbeschwerde. It is a direct complaint raised by individuals whose fundamental rights have been injured. Such a complaint can be raised only if the applicants have previously exhausted all other remedies provided by the legal order. This direct complaint can be used for challenging any kind of activity of the state— administrative, judicial or legislative acts. It means that the Tribunal can annul a legislative provision even through a second method, alternative to the centralized review of legislation, if the act is the reason for the injury. It is also worth mentioning that in recent years, the review of legislation passing through individual appeal has been more relevant, in quantitative and qualitative terms, than the review carried out according to other, typical channels. In the landscape of European constitutional courts, the German Tribunal is certainly the most appreciated and prestigious. Its role has grown progressively, nowadays enjoying powers not common to other constitutional courts (Repetto and Saitto 2020).

6.5 

 he French Fifth Republic Constitution T (1958)

After the end of the Second World War—during which the French liberal-democratic regime was subverted and a dictatorial government was imposed by Germany—the French political system felt the need to adopt a new, more efficient constitutional order, which would finally replace the weak Constitution of the Third Republic. The latter had a clear lack of proper policies regarding rationalized parliamentarianism, leading to an instable government.

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In 1946, a new Constitution was adopted. The Constitution of the Fourth Republic, as it was immediately named, had embraced a very similar frame of government to the former system, confirming a parliamentary system of government with poor means of rationalization: it was soon evident that it was not able to govern the fragmented French political system. A debate on a possible reform of the Constitution, in the direction of improving governmental stability, took shape, but it remained without significative results, as political fragmentation continued to increase. The turning point was in 1958, with the worsening crisis exploding in Algeria, a colonial dominion of France, where a war for independence had broken out in 1954. Since French political institutions demonstrated to be unable to manage the conflict, political parties agreed on conferring the leadership of the Cabinet to Charles de Gaulle, the military hero of the French resistance against the Nazi occupation, who had retired from political life after the war. De Gaulle intended to use the Algerian crisis to reform the French constitutional system. He accepted the mandate offered by the Parliament under the condition of a general reform of the Constitution, to be drafted by the Cabinet itself and to be ratified by the people through a referendum. In such a way, de Gaulle was trying to marginalize the role of Parliament in the constitutional reform, which, according to him, should have resulted in a drastic decline of parliamentary powers in the political system. The constitutional project was quickly drafted and the people approved it with a large majority, demonstrating a wide popular support for de Gaulle. The Constitution of 1958—the Constitution of the Fifth Republic—brought innovations to several features of French constitutional tradition. Despite the differences, even in this Constitution—as in those of the Third and Fourth Republic—we don’t find a Declaration of Rights, nor any other catalogues of fundamental rights. Rather, there is an explicit link to the French constitutional republican tradition and to the Declaration of Rights of 1789. All the republican constitutions that had been adopted throughout French constitutional history were based upon the acknowledgment of the basic role played by the first Declaration of Rights. The Declaration is indeed acknowledged as a legal source in the preamble of the Constitution:

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The Constitution of the French Fourth Republic

The Algerian crisis and the emergence of de Gaulle’s leadership

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»» The French people solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946.

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Semi-presidential government

Presidential elections and the reform of 1962

The preamble was later amended by adding “rights and duties as defined in the Charter for the Environment of 2004. As I will explain in the next pages, far from being just a rhetoric proclaim, the link to fundamental rights provided in the preamble plays a crucial role in the legal practice. The new Constitution established a semi-presidential government: as we already know, this is a mixed form of government, which includes features of both parliamentary and presidential systems. The President of the Republic is elected by the people (for 7 years according to the original text, for 5 years after the constitutional reform of 2000). According to the original text, the President was not elected by the people, but rather by a presidential college, composed of delegates of national and local assemblies. The direct popular election was introduced in 1962, following the proposal by de Gaulle, with the aim of strengthening the direct connection between the President and the people. The procedure adopted for 1962s amendment is worth mentioning: due to the resistance of Parliament in approving this constitutional amendment, which would have even increased presidential political leadership, de Gaulle decided to follow an amending procedure alternative to the one imposed by the Constitution. Based on a provision of the Constitution that gives the President the power to call a referendum on a legislative bill related to the institutional framework (Art. 11 F.C.), he submitted the proposal of establishing a direct popular election of the President to the people. This method was a clear violation of the Constitution: Art. 11 only allowed for a referendum on primary legislation, whereas a constitutional amendment should have followed the formal amending procedure. However, de Gaulle’s charisma helped him to persuade the Parliament to accept such a method: the approval by more than 60% of the electors ratified, with the force of popular support, a reform that, having regard to the procedure, was clearly lacking legitimacy (Ackerman 2019).

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Tailored on the figure of de Gaulle, the constitutional design of the President of Republic presents remarkable innovations, and in many aspects reminds us of the Weimar President. The President, indeed, enjoys relevant powers of political direction: he presides over the Council of Ministers, appoints the Prime Minister and can dissolve the National Assembly; he has a wide power to submit legislative bills to popular referendum; furthermore, he negotiates international treaties and can assume extraordinary powers in cases of national emergency (Art. 16). Many of these powers can be exerted without the typical check of the ministerial countersignature, thus emphasizing the independence of the President from the Cabinet and, more generally speaking, the other political institutions.

Legal Tools and Keywords: Emergency Powers in Constitutional Law Many contemporary constitutions provide for emergency clauses, whose function is, usually, that of codifying the rationales and limiting the length of states of emergency, thus setting up an “emergency frame of government”. In general, those regulations also allow derogations to the constitutional guarantees of fundamental rights, but under certain conditions and within specific limits (Ferejohn and Pasquino 2004). Art. 48 of the Weimar Constitution—which played a crucial role in the crisis of 1933 causing the dissolution of liberal democracy—and Art. 16 of the French Fifth Republic’s Constitution, are often assumed as models of these kinds of regulations. The French Constitution of the Fifth Republic states: “Where the institutions of the Republic, the independence of the Nation, the integrity of its territory or the fulfilment of its international commitments are under serious and immediate threat, and where the proper functioning of the constitutional public authorities is interrupted, the President of the Republic shall take measures required by these circumstances, after formally consulting the Prime Minister, the Presidents of the Houses of Parliament and the Constitutional Council. He shall address the Nation and inform it of such measures. The measures shall be designed to provide the constitutional public authorities as swiftly as possible, with the

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means to carry out their duties. The Constitutional Council shall be consulted with regard to such measures. Parliament shall sit as of right. The National Assembly shall not be dissolved during the exercise of such emergency powers. After 30 days of the exercise of such emergency powers, the matter may be referred to the Constitutional Council by the President of the National Assembly, the President of the Senate, 60 Members of the National Assembly or 60 Senators, so as to decide if the conditions laid down in paragraph one still apply. The Council shall make its decision publicly as soon as possible. It shall, as of right, carry out such an examination and shall make its decision in the same manner after 60 days of the exercise of emergency powers or at any moment thereafter”. In international law of human rights, the possibility of a derogation to ordinary means of fundamental rights’ protection in cases of emergency has been recognized, first, by the European Convention for the Protection of Human Rights (1950), and later by the International Covenant on Civil and Political Rights. Adopted by the General Assembly of the United Nations in 1966, and nowadays joined by 173 states, the Covenant—also thanks to the additional Protocol that established the possibility of individual complaints to the Human Rights Committee—represents the main binding international treaty protecting human rights globally widespread. Art. 4 of the Covenant states: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin”. In the second paragraph, it excludes specific, inviolable, rights, strictly entangled with the dignity of human beings, from derogations in cases of emergency. The role of emergency clauses in constitutional and international law is highly debated in comparative legal discourse (Delledonne 2020).

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On one side, emergency clauses represent an attempt to rationalize states of emergency, exorcising their disruptive potential: their main functions indeed consist in delimiting legitimate curtails of constitutional rights, affirming parliamentary control and judicial review on executive’s actions, and preventing constitutional amendments during states of emergency. From this perspective, a regulated state of emergency is deemed as the best antidote to exceptional crisis, that can result in actual ruptures of constitutional legality. On the other side, though, legitimizing derogations to constitutional order and international standards, emergency clauses weaken constitutional rigidity, and often pave the way to constitutional transformations, in violation of supreme principles of the legal order and endangering liberal-democratic principles. In this second perspective, emergency powers are hardly constrained within their scope of preserving the order and safeguarding the constitution, but rather tend to trigger crises whose outcome is the transformation of the pre-existing order.

Consistent with the pattern of the semi-presidential government, although appointed by the President, the Cabinet must be supported by the confidence of the National Assembly. This means that the President cannot appoint a Prime Minister based solely on his political vision: on the contrary, the appointment of the Prime Minister follows the general elections of the National Assembly and respects the parties’ coalitions and the leadership of the parliamentary majority. Moreover, the early dissolution of Parliament is not a power that the President can easily exert against an elected and stable parliamentary majority. In the past, such an attempt led to the electors’ support moving away from the President’s party to the opposition party. However, compared to other semi-presidential systems of government adopted in the landscape of comparative constitutions, where Presidents rarely interfere with the executive functions, in France the President is directly involved in the direction of national politics, thus sharing the executive power with the Cabinet and giving birth to a peculiar coexistence with the leadership of the Prime Minister, depending on political contingencies. This char-

The position of the President in the executive branch

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The decrease of parliamentary influence

acteristic of the French Semi-presidential Government has entailed several challenges throughout the years. To understand the actual distribution of the executive power, we must take into consideration two different political frameworks, both having occurred in French recent history: in cases in which the Cabinet and the political majority in the Assembly are in line with presidential political orientation, the President is clearly predominant in the settlement of the political agenda, and as a fact leads the executive business; conversely, in cases in which the President is not aligned with the majority of the National Assembly and the Cabinet, presidential powers are rather limited, and the Cabinet gains wide margins of control over national politics. In this condition, defined as a “cohabitation” between the President and the Prime Minister, presidential powers are reduced to those that the Constitution expressly subtracts from the ministerial countersignature. Today, phases of cohabitation are hardly possible because of the constitutional reform of 2000, which modified the length of presidential term. The mandate of the President, initially of 7 years, today lasts 5 years, thus equalizing the term to that of the Assembly. Moreover, the electoral timetable was amended in 2001 by providing that the elections for the Assembly take place soon after the presidential elections. This change renders it more likely that the political majority in the Assembly and the President express the same political orientation, as in fact has consistently been the case since 2000 until present time. Although the possibility of new cohabitations is not completely excluded, it is evident that the constitutional reform of 2000 significantly increased the role and leadership of the President within the frame of government. The main purpose of de Gaulle’s political project was to diminish the role and the powers of the Parliament, which has always been central in French constitutional history. Due to the peculiar situation of necessity in which de Gaulle was called upon, and thanks to the vast popular support, he was able to introduce several constitutional innovations aimed at reducing parliamentary prerogatives and powers: (a) In the parliamentary relationship of confidence, it is not necessary to obtain the preliminary vote of confidence by the Assembly: although usually the Cabinet appears before Parliament in order to present its pro-

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gram, presidential appointment is sufficient to establish the legitimate authority of the Cabinet. The rejection of confidence needs an absolute, and not just a simple, ­ majority of the National Assembly. Furthermore, the power of the Cabinet to introduce a question of confidence on a bill is regulated in an innovative way: while in parliamentary government the question of confidence entails a parliamentary vote on the bill associated with a vote of confidence—and if Parliament rejects the bill, the executive is compelled to resign—in the French Constitution the question of confidence implies the automatic passage of the bill, unless the Assembly asks to discuss it (the so called “guillotine”): referring to this tool, French scholars speak of a revolution in parliamentary practice, because there are no other cases of a legislation having been passed without an express vote by Parliament. (b) In the field of sources of law, the principle of supremacy of the law over executive regulations—which is one of the implications of the principle of legality—is here submitted to radical transformation: a separation of competences between statutory law and executive’s regulations is settled, with catalogues of subject matters belonging to each of them. The Constitutional Council has the power to overview on this distribution of normative competences (Art. 34–37). (c) With regard to the organization of parliamentary business, the traditional principle of parliamentary autonomy in planning its own agenda is rejected: the Cabinet has the power to plan the works of Parliament (Avril et al. 2021). It must be emphasized that even in the UK, where the Cabinet controls parliamentary business, the power to determine the parliamentary agenda belongs to the majority chief whip, a parliamentary body. Moreover, in parliamentary business, the executive has additional strength in the power to stop the emendatory power of single members of the Assembly: this is the socalled “blocked vote”, which forces the Assembly to vote on a bill as a whole, without discussing the amendments proposed to it. (d) Finally, parliamentary standing orders—the hallmark of parliamentary autonomy—are submitted to an automatic preliminary review by the Constitutional Council, with binding effects.

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The Constitutional Council

The weakening of Parliament determined by the Constitution of 1958, especially when compared to previous constitutional experiences, is remarkable. As a consequence, in actual political life, the national political direction is strongly in the hands of the President and the Cabinet. Additionally, because the constitutional reform of 2000 increased presidential leadership over both the Cabinet and the Assembly, it is worth pondering over whether checks and balances on presidential powers are strong enough to match the challenging standards imposed by constitutionalism. One of the main innovations brought by the Fifth Republic’s Constitution is the establishment, for the first time in French constitutional history, of an effective system of constitutional review of legislation. With the creation of the Constitutional Council, de Gaulle inverted the French tradition that once considered parliamentary legislation as the primary source of law, due to its function of expression of the general will of the nation represented in Parliament (Carré de Malberg 1931), accordingly rejecting judicial authority to annul legislation, even when it was contrary to the constitution. Although, from de Gaulle’s perspective, the creation of a centralized constitutional court was just another tool for the impairment of parliamentary supremacy, the consequences of its settlement went far beyond this original intent, restructuring the entire constitutional architecture and pushing French constitutionalism to converge with the other European experiences that had already settled specialized constitutional courts. In truth, at first the Constitutional Council seemed destined only to play a marginal role in checking parliamentary legislation: different in many aspects from the design of the other European constitutional courts, the Council appeared organized more as a political, rather than as a judicial, body, and was deemed not sufficiently independent from Parliament and not actually able to represent an effective check. Their opinions were mainly determined by the availability of a mere abstract review on the laws, taking place before the law’s formal promulgation and entry into force. Moreover, this initial imprint was exacerbated by the fact that the Council’s decisions do not take the form of a judgment. Also considering the composition of the Council, one can appreciate its political dimension: the Constitutional Council’s nine members are appointed by political bodies (the President of the

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National Assembly, President of the Senate, and President of the Republic); they can be selected either from among legal experts or politicians; former Presidents of the Republic are additional, lifelong, members of the Council. However, over the years, the Council has been able to improve its functions and consolidate its role and reputation, reaching an identity that is easily comparable to the other European constitutional courts. This achievement was the result of three main transitions. The first transition concerns the enlargement of the constitutional parameters. In 1971, a landmark judgment of the Council broadened the parameters for constitutional review, assigning constitutional legal status to the fundamental rights enshrined in the Declaration of 1789, due to its acknowledgment by the Constitution’s preamble. This innovative construction allowed the Council to enlarge its review, assessing legislation not only on the basis of its compatibility with the constitutional text, but also on the basis of its compatibility with other legal sources equipped with constitutional status (so-called bloc de constitutionalité). This construction paved the way to new types of judgment by the Council, closer to those usually provided by the constitutional courts, whose typical function is the protection of fundamental rights. The doctrine of the bloc de constitutionalité has developed throughout the years, and nowadays it encompasses (1) fundamental rights enshrined in the Declaration of 1789 and in the Charter for the Environment, both mentioned in the preamble of the Constitution, (2) fundamental principles established in the republican legislative tradition, and (3) general principles and values implicit in the Constitution (Favoreau 2014). As one can see, the bloc de constitutionalité allows the Council to creatively adopt new binding constitutional principles, although always with reference to French tradition: for many aspects, this technique of constitutional construction can be compared, looking at its function and its methodology, to the incorporation process carried out by the U.S. Supreme Court. The second transition is related the enlargement of the subjects authorized to raise constitutional questions to the Council, thanks to a constitutional amendment passed in 1974. According to the original provision of the Constitution, the power to trigger the Council’s review was reserved to the President of the Republic, the Prime Minister, the President of the National Assembly and the President of the Senate. As one can see, all of these figures

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The introduction of regionalism

could be an exponent of the political majority. With the purpose of granting the power to trigger the Council’s review also to parliamentary opposition and political minorities ­represented in Parliament, the constitutional amendment of 1974 conferred the same prerogative to 60 members of the National Assembly and to 60 members of the Senate. In the years immediately succeeding the amendment, the Council received many relevant questions through this procedure, thus enlarging its role in constitutional adjudication. The third transition regards the introduction of the incidental control, through a constitutional amendment of 2008. As said, according to the original provisions, the Council could only carry out an abstract review on acts passed by the Parliament but not yet signed into law by the President: a further sign of respect to the French constitutional tradition and to the untouchable legitimacy of a law formally promulgated. Even this feature of French constitutional tradition was destined to change: the constitutional amendment of 2008 introduced the possibility for the courts to raise a question prioritaire de constitutionnalité to the Council (Bonnet and Gahdoun 2008). A peculiarity of French incidental control consists in the necessary preliminary advice that must be released by the Supreme Court of Cassation or the Council of State, the supreme courts of the French judiciary system, in case of an incidental question raised by a court. Despite this ‘filter’ of the supreme courts, the incidental control has already demonstrated its success, allowing the Council to adjudicate cases of fundamental relevance in political and legal discourse. Finally, it is worth mentioning one further constitutional reform, introduced by a constitutional amendment in 2003. It established France’s first form of regionalism. In its constitutional experience, France has consistently maintained a strong centralization of powers, only recognizing limited forms of administrative decentralization. The new regional level today overlaps with the already existent local authorities; and besides administrative powers, it also retains legislative powers. Moreover, the new regionalism is also characterized by its asymmetric organization, based on two different levels, with the regions “d’Outre-mer” (overseas), having broader competences with respect to those assigned to the metropolitan regions located within the French ­territory.

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However, compared to other experiences of territorial distribution of powers, French regionalism appears less developed.

6.6 

 he Consolidation of Constitutional T Democracy in Europe: Democratic Transitions in Greece, Portugal and Spain

European constitutional tradition has been consolidated and enriched with the adoption of new constitutions by those states that, due to their political contexts, had not reached liberal-democratic orders by the end of the Second World War. During the years of the Cold War, indeed, a new wave of democratization was embraced by Greece (1975), Portugal (1976), and Spain (1978). As the outcome of the transition from authoritarian regimes to liberal democracy, these three Constitution assumed the German, French and Italian Constitutions as main models: while general principles and fundamental rights’ catalogues follow common patterns, the frames of government diverge significantly (parliamentary government in Greece, highly rationalized parliamentary government in Spain, and semi-presidential government in Portugal), as well as the systems of constitutional review— with only Spain reproducing the typical European model of centralized review, and Greece and Portugal having hybrid systems. In Greece, with the defeat of the monarchy, a military dictatorship was established at the beginning of 1967, suspending the democratic Constitution adopted in 1952. With the fall of the colonels’ dictatorship, a special Parliament was convened, entrusted with the task to adopt a new republican constitution. In 1975, the Greek Constitution finally entered into force. In many aspects, this Constitution reproduces features of European constitutions, such as the German, Italian and French constitutions. Regarding other aspects, it adopts innovative solutions, as in the case of constitutional review of legislation. The Constitution is rigid, and foresees a wide set of unamendable principles, among which we not only find republican democracy and separation of powers, but also more detailed principles related to the form of govern-

The Greek Constitution

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Parliamentary government

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ment, such as parliamentary democracy, and to fundamental rights, such as human dignity, equality and basic rights of individual liberty. The Declaration of Rights, which preludes the Constitution, presents some interesting features, as it is particularly detailed and elaborate. In general, its regulatory framework recalls the Italian and the German catalogues of rights, emulating their general clauses and normative construction. As for the government, the Greek Constitution established a parliamentary system. The process meant to establish parliamentary confidence to the Cabinet is organized according to an extremely detailed procedure, also regulating some specific phases, such as the consultation stage and the appointment, which often—mainly in the Italian experience—are regulated by constitutional conventions and customs. The Hellenic constituents, thus, wanted to strongly formalize and deeply rationalize those phases, usually characterized by political uncertainty, in order to constrain the political parties to following settled constitutional procedures. In its original text, the Constitution assigned the President of the Republic with significant political powers, as compared to any other head of state in a parliamentary government. However, in 1986, with the constitutional reform boosted by the Greek Socialist Party, the power of the President was substantially reduced, which showed the affirmation of the classical pattern of parliamentary government, bringing the determination of the political agenda within the dialectic between Parliament and the Cabinet, giving the Prime Minister a relevant leading role (Kerameus and Kozyris 1993). Nonetheless, the Cabinet still has to share important powers with the President of the Republic. The President holds incisive powers—in some cases exercised without the usual check of a ministerial countersignature—such as the power to adopt ordinances in exceptional cases and to send bills back to the chamber for new deliberations (the chamber shall then approve them with an absolute majority). Before the reform of 1986, the President owned a broad discretionary power to remove the Cabinet and dissolve the Parliament. Following the reform, discretionary presidential power of dissolution of Parliament was strongly reduced and rigidly constrained.

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Derogating from the main European pattern, Greek constitutional review of legislation assumes the form of judicial review: any court must disregard a legislative provision that does not comply with the Constitution, and the nation’s supreme courts’ rulings lead the case law toward a homogeneous interpretation and application of justice, although in the environment of a civil law legal system. However, since controversies on constitutional review may involve the supreme courts themselves, a special court is established by the Constitution—the Special Highest Court, composed of justices coming from the supreme courts, and sitting only when convened on special issues. Despite the stark contrast from the structure of a centralized constitutional court, as experimented in the European landscape, within the jurisdiction of the Special Highest Court we find typical duties of a centralized constitutional court, such as the assessment of the regularity of parliamentary elections and referendums. Though, it is evident that the main task of the Special Highest Court is related to the resolution of controversies arising at the apical level of the judiciary branch and involving the question of constitutionality of a legislative provision. In Portugal, the long-lived authoritarian regime collapsed in 1974, with the outbreak of the Carnation Revolution, inspired by democratic and socialist values. The newly adopted Constitution (1976) begins with the Declaration of Rights, which includes the traditional liberal rights, as well as a broad set of second-generation rights and social rights. The new Constitution established a semi-presidential government. The executive branch is therefore shared by the Cabinet and the President. The Cabinet must receive the confidence of the House. The President is directly elected by the people with a 5-year term mandate. However, presidential powers are not comparable to those belonging to the French President, since the Portuguese Constitution confers a major role in determining national political orientation to the Cabinet. Consequently, the role of the President of the Republic is rather one of counterbalancing the actions of the Cabinet and the majority in Parliament, as demonstrated by the sharp veto power he/she can apply to parliamentary legislation. The Portuguese system of constitutional justice deserves a special acknowledgement, for it represents a

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Judicial review of legislation and the role of the Special Highest Court

The Portuguese Constitution

Semi-presidential ­government

Hybrid system of constitutional review

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peculiar case in comparative perspective (Gomes Canotilho and Moreira 2010). The Constitution establishes a Constitutional Tribunal, entrusted with functions related to the arbitration of political process, among others, such as the judgment on impeachment of the President for crimes committed during his/her mandate, the control on political parties, and the assessment of the validity of elections and referendums. However, the constitutional review of legislation is not organized according to the typical architecture of the centralized pattern: rather, the Constitution establishes a hybrid system, where the two traditional methodologies coexist. First of all, centralized review is carried out by the Constitutional Tribunal on questions brought to its attention before the promulgation of the act: in this case, the power to trigger the abstract control is granted to the President of the Republic, as well as to the Prime Minister and parliamentary minorities (one fifth of the members of the Assembly). Abstract control can involve primary legislation, organic legislation, regional law, and international treaties before their formal ratification. It is important to take into consideration that the effect of a judgment of unconstitutionality released by the Constitutional Tribunal in the case of preliminary review does not imply the definitive cessation of the bill: the Assembly can, indeed, reformulate the bill deleting the illegitimate norms, as well as overcome the Tribunal’s judgment with a two thirds majority. The preliminary control, therefore, is as broad in terms of typology of normative sources submitted to its check, as weak in terms of its effectiveness, at least if compared to the power of other courts that carry out similar functions, as the French Constitutional Council. However, as a matter of fact, the viability of parliamentary override is unrealistic. This abstract and preliminary control coexists with a second methodology of constitutional review: legislation formally promulgated and in force can always be submitted to a pervasive constitutional review, either in the form of judicial or centralized. As for the judicial, the Portuguese system is not totally comparable to the architecture of the American system: here, the authority of any court to disregard unconstitutional legislative provisions, with effects limited to the case, coexists with the possibility to trigger an incidental control to the Constitutional Tribunal, that will judge on the revision of the court’s ruling, deciding on the question of constitutionality as a last resort judge.

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Finally, the Tribunal owns a typical competence of centralized review: centralized, a posteriori control can be directly activated by several institutions—either political as well as judicial, and leads to the annulment of the unconstitutional norm, with a general and retroactive effect. Among the other functions it performs, this system allows the Tribunal to provide a final, general decision on matters of constitutionality when the case has been heterogeneously resolved by courts in their competences of judicial review. Due to the broad number of subjects authorized to lodge the question of constitutionality for, this concrete and centralized review is extremely penetrating in comparative perspective. In Spain, democracy was reestablished in 1978, with the adoption of the Constitution, which finally signaled the end of the transition phase, which had initiated in 1975 with the death of the dictator Francisco Franco. The important role played by the King in supporting democracy during this phase was one of the main reasons the constituents retained the Monarchy, although with a marginalized role in the newly established system (Balaguer Callejón 2020). After a long period of oppression of the existing regional identities within the Spanish territory, the newly attained emancipation also stimulated the awakening of those identities, mainly in the Basque Region, Catalonia and Galicia—territories characterized by the existence of a local language. For this reason, the constituent process was mainly aimed at reconciling the maintenance of the nation state with the recognition of local autonomies, through methods of self-government and the constitutional protection of the various languages and local cultures. Thus, Spanish regionalism differs from regionalism in Italy. While in Italy, the pattern of prerogatives belonging to ordinary regions is homogeneously regulated by the Constitution, in Spain any autonomous community can be spontaneously established, as a result of aggregation processes of provinces and municipalities. Moreover, the autonomous communities can achieve a higher level of legislative autonomy, negotiating with the central Government—within settled limits—policy areas to be further devolved. The possibility of accommodating historical nationalities through asymmetric regionalism is then reflected in the statutes of the autonomous communities: the statutes,

The Spanish ­Constitution

Spanish regionalism

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6 Constitutional protection of linguistic pluralism

indeed, provide regional frames of government, where different degrees of autonomy and self-government are acknowledged. In this sense, the statutes of the autonomous Spanish communities differ from the statutes of the Italian ordinary regions, and more closely resemble the statutes of special regions in the Italian system. However, in practice, the asymmetry among the communities has diminished through time and a de facto process of re-uniformization has taken place. Spanish regional statutes are also comparable to the constitutions of the German Laender, since they likewise regulate additional rights and duties of the citizens; the most recent statutes also introduced new innovative rights. With regard to the protection of language pluralism, Art. 3 of the Constitution states: 1. Castilian is the official Spanish language of the State. All Spaniards have the duty to know it and the right to use it. 2. The other Spanish languages shall also be official in the respective self-governing Communities in accordance with their Statutes. 3. The wealth of the different linguistic forms of Spain is a cultural heritage which shall be especially respected and protected. In order to assure the implementation of this constitutional provision, in all the autonomous communities where another language beside Castilian exists, their statutes and their laws provide a double language regime, which assures the recognition of two official languages. Therefore, both languages can be used by the citizens for access to public administration, as well as in judicial proceedings. It follows that the school system, although with some differences among the rules established in each autonomous community, is also organized in order to assure the teaching of both languages. Hence, the Spanish system represents one of the most advanced models in guaranteeing the protection of language pluralism. As already stated (see 7 Sect. 6.2), however, the development of such an advanced model of protection of linguistic and cultural pluralism has been coexisting with several difficulties dealing with the handling of pro-­ independence processes that cyclically threaten the unity of the nation, such as those that have arisen in the Basque Region and, in recent years, Catalonia.  

247 6.6 · The Consolidation of Constitutional Democracy in Europe…

As for the catalogue of fundamental rights of the Spanish Constitution, it is worth mentioning two of its general features: firstly, besides the traditional liberties of the first and the second generations, the Constitution provides for “new rights” (further developed by the statutes of the autonomous communities). Secondly, Art. 10.2 S.C., which is the legal source opening up Spanish legislation to the influences of international law, states that the provisions relating to the fundamental rights and liberties recognized by the Constitution shall be construed in conformity with the international treaties and agreements thereon ratified by Spain and, mainly, with the Universal Declaration of Human Rights (Schillaci 2012). As for the protection and the enforcement of fundamental rights vis-à-vis public powers, the Constitutional Tribunal is the institution in charge of carrying out the constitutional review of legislation (based on the centralized model, as with the Italian and the German models, assuring both a direct appeal as for the conflicts between the state and autonomous communities, and the incidental control). It also examines the so-called recurso de amparo—the direct individual complaint on fundamental rights violations. The Spanish Government is a rationalized parliamentary system, shaped according to the German model and to the provisions established in German Basic Law. Parliament (Cortes Generales) consists of two chambers: the directly elected Congress of Deputies and the Senate, which represents the local autonomies. The Congress of Deputies is the sole House that votes the confidence to the executive. The process of Cabinet formation is modelled mirroring the German provisions, such as the election of the President of the Government by the Congress and the introduction of the constructive no-confidence vote, which allows Parliament to withdraw the confidence only if there is a positive majority for the contextual election of a successor President of the Government. The King retains only limited and formal powers, and the power to dissolve the Congress is also rigidly regulated. The high degree of institutional stability of the Spanish system is unexpected if one evaluates that only recently it embraced liberal democratic values. However, this stability can easily be explained by underlining two main features of the Spanish system: firstly, the choice to establish a rationalized parliamentary system, especially through the introduction of the constructive vote of no-confidence;

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Spanish Constitutional Tribunal

Rationalized parliamentary government

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secondly, internal stability is also assured by the consolidated two-party system, which guarantees—in line with the electoral results—(1) the alternation of powers between the socialist and the popular parties; (2) the existence of an absolute majority in the Congress; and (3) the formation of stable cabinets led by solely one party. Moreover, electoral law also plays a role. Indeed, it sets forth a proportional electoral system with some relevant adjustments, such as the narrowness of the constituencies—a remedy that can reduce political fragmentation. Furthermore, Spanish law acknowledges the possibility of declaring any undemocratic parties unconstitutional and dissolving them, as in the case with the “Batasuna” Party, deemed as the supporter of the terroristic Basque group “ETA”. In recent years, however, the crisis of the two traditional Spanish parties and the affirmation of new political movements have led to the crisis of the two-party system and the practical difficulty of forming stable majorities.

Comprehension Check and Tasks 1. Contemporary constitutions have enlarged the role of the executive branch in normative functions. Explain the reasons for this general process and present samples taken from national experiences. See Art. 76 and 77 of the Italian Constitution, and Art. 34 and 37 of the French Constitution. Consider also the development of the executive’s normative functions in the American experience (7 Sects. 4.2, 7 5.5, 7 6.2, 6.3, and 6.5) 2. Constitutional courts carry out several functions, even beyond the essential task of constitutional review of legislation. What are the ancillary functions of the Italian Constitutional Court? See Art. 134 of the Italian Constitution (7 Sects. 6.2 and 6.3) 3. What is the meaning of the so-called “eternity clause” provided for by Art. 79 of the German Grundgesetz? Compare it with Art. 139 of the Italian ­Constitution (7 Sects. 6.3 and 6.4) 4. In contemporary constitutionalism, bicameralism is still a generally widespread principle of organization of the parliaments. However, the function of the second chamber is very different depending on the specific constitution. What are the main differences  

 

 

 

 

249 References

between the Italian Senate, the German Bundesrat and the French Senate? Are there elements of comparison with the American Senate? (7 Sects. 6.2– 6.5, and 7 2.10) Explain the content and the purpose of Art. 67 of the German Grundgesetz. (7 Sect. 6.4) In a parliamentary government, the Head of State (President of the Republic or Monarch) does not enjoy effective power of political direction: it is sometimes considered a “neutral power”. However, the constitutions (and political practice) assigned different roles to this figure. Compare the position of President of the Republic in Italy and Germany (7 Sect. 6.3 and 6.4) Explain the effects of “cohabitation” between the President and the Prime Minister in the French Government. Did the constitutional reform of 2000 alter this framework? (7 Sect. 6.5) The Irish Constitution, German Constitution of 1919 and French Fifth Republic Constitution establish semi-presidential systems of government. Compare the position of the Head of the State in these countries (7 Sects. 4.4, 4.7, and 7 6.5) Explain the peculiarities of constitutional review of legislation in the French Constitution of the Fifth Republic: how did it affect French constitutional tradition? What was the effect of the constitutional reform of 2008? What are the main differences between functions and procedures of the French Constitutional Council, Italian Constitutional Court and German Constitutional Tribunal? (7 Sects. 6.3–6.5) What are the elements of the Portuguese system of constitutional review that you can compare with other systems that you have studied? (7 Sect. 6.6) Can you compare Spanish and Italian regionalism? (7 Sects. 6.3 and 6.6)  

 

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The European Constitutional Space: The European Convention on Human Rights and the European Union Contents 7.1

 he Transformations of International Law in the Post T Second World War – 255

7.2

 rom the Open Constitutional State to the European F Constitutional Space – 260

7.3

 he European Convention on Human Rights: (a) T The Catalogue of Rights and the Court of Strasbourg – 262

7.4

 he European Convention on Human Rights: (b) T The Relevance of the Convention in Domestic Legal Orders – 267

7.5

 he European Union: Origins of the  T Integration Process – 272

7.6

 he New System of the Treaties and the Ambivalent T Identity of the EU – 273

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 he “Democratic Life” in the Union and the Institutional T Framework of the EU – 275

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 he Sources of Law of the European Union and their T Effects in Domestic Legal Orders – 282

© Springer Nature Switzerland AG and G.Giappichelli Editore 2023 A. Buratti, Western Constitutionalism, https://doi.org/10.1007/978-3-031-40872-4_7

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 he Court of Justice of the  T European Union – 287

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 he Protection of Fundamental T Rights in the European Union – 290

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 he European Union Between T Integration and Resistance – 294 References – 297

255 7.1 · The Transformations of International Law in the Post Second…

7.1 

The Transformations of International Law in the Post Second World War

In presenting the general characteristics of contemporary European constitutionalism (7 Sect. 6.2), I have emphasized the openness that European constitutions exhibit toward international law and cooperation, which this chapter will further divulge (De Visscher 1952). The engagement of European liberal-democracies in international legal cooperation must be contextualized in a general, globally widespread process of transformation of international law and development of an international community. Indeed, the Second World War can be considered the watershed between the classic pattern of international law and the contemporary international community. The classic pattern of international law dates back to the origins of the nation states. Affirming the state’s monopoly over political sovereignty, the Peace of Westphalia (1648) paved the way to the formation of international law, as a regulated environment wherein the states can negotiate and agree on subjects of common interest (Fassbender and Peters 2012). The set of general principles, customs and regulations laid down within the environment of classic international law shaped the first development of an international community, composed of a limited number of states—enclosed within the “amity lines” of the Atlantic World—sharing common values (Schmitt 1950; Koskenniemi 2001). In this framework, international law was a creation, and an instrument, of national sovereignty: through international agreements, states pursued their national interests rather than general, globally widespread goals. Additionally, although a basic core of common principles was progressively taking shape within the international legal arena, with a perceived binding effect, conflicts among states were still not easily manageable through international agreements, despite the war being conceived as a potential means to solve international disputes. Following these premises, the states have never acknowledged an automatic relevance of international norms, although deriving from treaties they agreed on, in the national legal orders. Every obligation descending from international agreements needed to be ratified and  

From the classic pattern of international law to contemporary international community

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7

The United Nations Organization

transposed into national norms through state’s sources of law (D’Atena 2018): such a rigorous separation between international law and domestic legal orders was instrumental to the protection of national interest and state political sovereignty. The modern-day international community presents different, and sometimes parallel, features: as influenced by the general diffusion of the decolonization process, it embraces a larger number of states from all the continents of the world, with heterogeneous cultural and social conditions and potentially conflicting values and interests. Notwithstanding this growing complexity, beginning with the end of the Second World War, and with the main purpose of reaching peace and security for the entire world, the contemporary international community assumes challenging tasks: it aims to create a system of cooperation among the states, pursued through legally binding sources of law and international organizations that occupy an autonomous role in the international scenario. The new structure and goals of the contemporary international community—not only peace and security, but also economic growth, solidarity, justice and respect for human rights—provoked a transformation of the traditional features of international law, as developed in the classic age. The old system of sources of international law, based on a core of generally acknowledged customs, instrumental to the development of international treaties pursuing national interests, was complemented by a system of multilateral international treaties, that strive to occupy a dominant position, also receiving express acknowledgement in national constitutions, and which allowed for the production of norms endowed with an automatic legal effect in domestic legal orders. The United Nations Organization occupies a preeminent role in the framework of the contemporary international community. The UN Charter, adopted in San Francisco in 1945, created an organization endowed with proper normative sources and institutions—among them, the International Court of Justice, entrusted with the power of interpretation of international treaties and dispute resolutions, whose decisions are binding over the states.

257 7.1 · The Transformations of International Law in the Post Second…

Legal Tools and Keywords: The United Nations’ ­Universal Declaration of Human Rights (1948) The Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations on December 10, 1948. For many reasons, the Declaration represented a milestone in the transformation of international law and the international community. The conception of the Declaration took its roots in the experiences of the preceding World Wars. In particular, the atrocities committed during the Second World War by the Nazi Army in defiance of basic human rights strengthened the consensus within the international community on the necessity for a universal declaration that specified the fundamental rights of all human beings. The aim of the Declaration, therefore, was to demolish the link between individual rights and state citizenship, in order to enhance the role of international law in the protection of the rights recognized therein. Consistent with the transition to a new identity of an international community, the Declaration expresses the claim that the protection of the rights of individuals was not considered to be exclusive, under states’ domestic jurisdictions. Moving from the preliminary recognition of human dignity inherent to every person as “the foundation of freedom, justice and peace in the world”, the Declaration provides a comprehensive catalogue of human rights— encompassing both civil and political rights (liberty, privacy, free speech, etc.) and economic and social rights (among the latter, the right to health, education and social security)—offering a globally valid legal protection to the core values of mankind, regardless of ethnicity, socioeconomic class, political views or religious affiliation, and notwithstanding any distinction between citizens and foreigners. Under a formal point of view, the Universal Declaration is not a treaty, so it does not directly entail legal obligations for countries that adhere to it. The reason for this must be explored in the criticism that arose within the UN member states after the draft of the Declaration: although, at first glance, the notion of “human right” could appear as a globally widespread concept, because of its proximity to a universalistic interpretation of the human condition before the law of every country, this concept has often been accused of reflecting

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only the values of the liberal thought of the Western World—overestimating individual rights over collective interests, ignoring the relevance of cultural customs and conventions that influence the conception of rights in other areas of the world, and minimizing the importance of preliminary social conditions of liberation from hunger and need. However, although not technically legally binding, the Declaration is an expression of values and principles shared by all members of the international community: hence, it has had a profound influence on the development of international and constitutional law. First, the Declaration has influenced the development of both constitutional and statutory provisions on the protection of human rights in several countries. The powerful doctrine of human rights has influenced the drafting of contemporary constitutions and the establishment of fundamental rights—a concept that has been forged, in the last decades, with the aim to encompass rights, either of first and second generation, characterized by their universal propensity, thus enriching the set of rights that states have always afforded to their citizens and protected as constitutional standards, with the new, universalistic, doctrine of human rights (Ferrajoli 2001). Second, the Declaration was the basis and the source of inspiration for a number of international treaties, adopted during the second half of the twentieth century, that were aimed at promoting the development of human rights. At the global level, it’s worth to mention the UN’s International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and many others related to specific scopes of protection; at the regional level, the main role is played by the European Convention on Human Rights, the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights. Finally, many rights and principles enshrined in the Declaration have been interpreted by players of international law as binding principles, because of their inherent belonging to basic, customary rules generally agreed upon by the states.

259 7.1 · The Transformations of International Law in the Post Second…

In the same period, an extensive set of further international organizations was created, with different aims (political, economic, military, etc.) and geopolitical extension. Examples are: the Organization for Economic Cooperation and Development (1948), the Council of Europe (1949), the European Coal and Steel Community (1951), and the International Atomic Energy Agency (1957). Regarding military alliances: the North Atlantic Treaty Organization (1949) and the Warsaw Pact (1955), which became the protagonists of the Cold War up until the collapse of socialism under the Soviet Union. In this scenario, characterized by the expansion of multilateral treaties laying the basis of a brand-new international community, a privileged role is played by the international law of human rights, stemming from conventions and principles generally acknowledged by the international community, and subject to the jurisdiction of international courts. The already mentioned International Covenant on Civil and Political Rights established a Committee on Human Rights, endowed with a power to receive individual complaints against states’ measures affecting rights enshrined in the Treaty, whose judgements are binding for the states. It is evident, however, that the most enhanced attempt at establishing an international jurisdiction aimed at protecting human rights against gross violations is the creation of the International Criminal Court of The Hague. Instituted with the Statute of Rome (1998), the Court is the last achievement of a process, triggered at the end of the Second World War, toward the affirmation of a universal criminal justice. The Tribunal of Nuremberg, judging crimes against humanity committed by German individuals during the War, was the first of international courts endowed with a power to ascertain individuals’ criminal responsibilities, on the basis of a generally agreed upon notion of gross violations of human rights, and with a power to directly inflict criminal penalties (Tomushat 2006). In the following decades, other similar international courts were established, with a jurisdiction governing specific areas of conflict. In this framework, the Statute of Rome achieved a more ambitious purpose: a globally shared definition of the concept of gross violations of human rights, and the settlement of an international jurisdiction endowed with the power to try individuals indicted for those crimes.

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The path toward the enforcement of human rights

International criminal justice on gross violations of human rights

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Although many states are not contracting parties to the Statute (such as the United States, China, Russia, among others), the Statute encompasses a community of more than 120 states of the world, and represents the most emblematic sample of the trend toward a cosmopolitan community of human rights’ enforcement.

7.2 

The development of a European constitutional space

7

Constitutional openness to international law and cooperation

 rom the Open Constitutional State F to the European Constitutional Space

While the aforementioned development and growth of international cooperation between the states had reached a global level, one must also take into account the leading role played by Europe in creating its own multi-layered European constitutional space, where different legal orders, national and supranational, overlap with one another, pursuing common goals and values (Pernice 2015). Post-war European culture was aware of the negative effect of nationalism, which had exacerbated interstate controversies and caused the failure of the League of Nations—unable to deal with the growth of international instability between the two World Wars—thus paving the way to the world crisis and to the War. This awareness of the threat of nationalism has matured in observance of the development of totalitarian regimes in Germany and Italy during the war (Trentin 1945). Consistent with this new mentality, the goal at the end of the war was to overcome the traditional impermeability of national legal orders: this strategy undertook two directions, one strictly linked with the other: (1) the constitutional openness to international law, and (2) the creation of a European common space in order to strategically enhance interstate cooperation. The first course is an evident characteristic of European constitutions of post-World War II: constitutions opened their national legal orders to international legal sources— including international customary law, bilateral and multilateral treaties, and legally binding instruments provided by international organizations. Many European constitutions acknowledge the possibility of an automatic integration of international legal principles, with a binding effect within their domestic legal orders, and even grant a constitutional force to certain international norms (Mezzetti

261 7.2 · From the Open Constitutional State to the European…

2014). Principally, States accept limitations of state sovereignty stemming from their participation in international organizations. As for the second path, the creation of the European common space was launched in the immediate aftermath of the Second World War and was pursued through two distinct supranational organizations: the Council of Europe and the European Economic Communities. The first initiative was the establishment of the Council of Europe, in 1949, with the purpose of promoting democracy, the rule of law, and respect for fundamental rights, as hallmarks of the European identity. One year later, in 1950, the European Convention on Human Rights was signed, under the auspices of the Council of Europe, thus transposing in a regional, legally binding convention, the principles enshrined in the Universal Declaration. In the meantime, a more restricted group of states felt the need to strengthen economic and industrial cooperation. Previously during the war, a project to establish a united Europe had been drafted by the Italian anti-fascists Spinelli, Rossi and Colorni, during their exile on the island of Ventotene. Hence, after the Second World War, it appeared clear that in order to protect peace and democracy, it was necessary to develop an international ground of reciprocal relationships among the states, involving areas such as industry, trade, natural resources, and energy, which had traditionally represented the main battlefield of interstate conflicts. According to the French, German and Italian leaders Schumann, Adenauer and De Gasperi, economic cooperation should not have been limited solely to promotion of economic growth: their strategy was aimed, rather, at establishing political cooperative relationships among those states, overcoming antagonism and strengthening their common interests and values. Between 1952 and 1957, the European economic integration process was finally launched, opening up the transition that eventually led to the birth of the European communities, later converging into the current European Union. The peculiarity of these two supranational organizations—the Council of Europe with its Convention for the Protection of Human Rights, and the European Union— depends on the deep level of integration between their laws and member states’ domestic legal orders. In this perspective, indeed, these two organizations play a role completely different from any other international organization.

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The Council of Europe ECHR

The path toward economic cooperation in Europe

Peculiarities of the European constitutional space

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This is why, today, it is impossible to understand the meaning and the functioning of European national constitutions without first framing them in the broader context of the European constitutional space. In discussing a European constitutional space, however, my aim is not limited to emphasizing the multi-­ layered environment created through the progressive integration between the supranational and member states’ legal orders; I also want to stress the profound consistency of the European integration process with the very goal of western constitutionalism—not only because of the values enshrined in the treaties and pursued through policies, but also with regard to the role these supranational organizations play in opening up national legal orders, thus overcoming the ambivalences deriving from the persistent ideology of state sovereignty. In this perspective, the European constitutional space represents a further driver of limitation and separation of political power, thus renewing the original goal of the constitutional movement. At the same time, however, the construction of such an intense supranational cooperation raises tremendous questions related to the actual participation of people in political decisions adopted by those organizations: originally designed as an environment of intergovernmental cooperation whose political legitimacy stemmed from democratic processes at a national level, the European integration process has now reached a level of political significance, which requires the envisioning of more refined forms of democratic participation, and a new integration of political and social practices in addition to legal and economic areas. In the following sections, I will discuss these issues in more detail with regard to, respectively, the European Convention on Human Rights (ECHR) (7 Sects. 7.3 and 7.4) and the European Union (EU) (7 Sect. 7.5 et seq.).  

 

7.3 

 he European Convention on Human T Rights: (a) The Catalogue of Rights and the Court of Strasbourg

Adopted with the Treaty of Rome of 1950 within the framework of the Council of Europe, the ECHR was aimed at enhancing democracy and the protection of fundamental rights, thus promoting the European

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­liberal-­democratic model vis-à-vis the popular socialist democracies in the Soviet Union and Eastern Europe. In order to grant the enforcement of the Convention, it established a European Court of Human Rights (ECtHR), based in the city of Strasburg. Examining the content of the Convention and the Rights enshrined in the additional protocols adopted during the following years, it ECHR is possible to recognize both its consonance with the Universal Declaration, as well as its consistency with the liberal tradition of individual rights developed in European constitutionalism. The harmony with the Declaration particularly stands out in those Articles that open the Convention, and enshrine rights strictly related to the protection of human life and dignity: right to life, prohibition of torture, inhuman or degrading treatments, slavery and forced labour. The heritage of constitutionalism is particularly evident in those provisions that summarize the principles of the rule of law/état de droit, starting with the basic guarantees of habeas corpus, the principle of legality in criminal matters, and the right to a fair trial. A third group of provisions regulates the guarantees of typical individual rights of liberty: privacy, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, right to marry, and the principle of non-­ discrimination. Additional protocols added in the following years have further enlarged the scope of individual rights enjoying conventional protection, enshrining, among others, the right to private property, right to vote, and freedom of education. The normative structure of the Convention’s catalogue Absolute and relative of rights is particularly important for understanding the rights complex balancing existing between fundamental rights and public interests, even more complicated in a community of states with peculiar political and legal traditions: while dignity-based rights are affirmed as imperative and unrestricted, in its presentation of the rule of law and individual rights, the Convention considers several public interests and goals that justify limits on the enjoyment of those rights. This normative structure allows for the distinction between two categories of conventional rights— absolute and relative rights, depending on the possibility for the states to adopt regulations and measures aimed at striking a balance between individual rights and the public good. The consideration of states’interests and exigencies to be balanced with individual rights is also demonstrated

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by two horizontal clauses, aimed at recognizing the possibility of the states to restrict the enjoyment of the rights in cases of national emergency (Art. 15) and in cases of an abuse of rights (Art. 17): the latter provision echoes the normative methodology established by the German Basic Law authorizing suspension of the enjoyment of rights to individuals who misuse them for the intent to subvert liberal-­democracy (see 7 Sect. 6.4). The second section of the Convention establishes the European Court of Human Rights, whose jurisdiction is related to the assessment of the compatibility of states’ measures with the Convention. The Court is currently composed of 47 Judges, one for each contracting state, appointed by the Parliamentary Assembly of the Council of Europe upon proposal by the relevant member state. It carries out its functions in two main manners: a Chamber of seven judges hears admitted cases and in the case of an appeal, a Grand Chamber composed of 17 judges hears cases, giving a final decision. Applications to the Court can be lodged by contracting states or individuals: since the jurisdiction of the Court is subsidiary to that of the states, individual complaints are admissible only when they have exhausted all internally available remedies. At the beginning of the process, individual applications pass through a stringent, preliminary check of admissibility, performed by a Commission: as a matter of fact, the Commission has represented an obstacle for individuals in reaching the Court, by avoiding taking on delicate issues and thus marginalizing the Court, and the Convention, in the landscape of international legal instruments of the protection of fundamental rights. This is why the adoption of the additional Protocol No. 11 (1994), which eliminated the Commission and assigned the Court itself with the task of admissibility control, represented a turning point in the story of the conventional legal order, tremendously aggrandizing the number of individual applications heard by the Court and improving the relevance of the issues debated. As an international Court of law, the Court of Strasbourg does not own an autonomous system of enforcement over its judgements, but instead relies on the compliance by the member states under the supervision of the Council of Europe, which can impose obligations and sanctions in case of noncompliance.  

The Court of Strasbourg

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The Court is the main player in the conventional legal order and has contributed to the progressive growth of the relevance of the Convention. An early, crucial contribution stemmed from the case Golder v. UK (1975). Here, the Court affirmed the principle of teleological interpretation of the Convention, meaning that it must be interpreted with regard to its general purposes, rather than through a strict and literal construction (Letsas 2009). This allowed, in that case, to expand the principle of a fair trial, encompassing new, unnamed rights. Furthermore, only 3  years later, in the case Tyrer v. UK (1978), the Court established the principle of an evolutive interpretation of the Convention, when it stated that “the Convention is a living instrument which … must be interpreted in the light of present-day conditions”, thus emancipating the Convention from the original intent of contracting states. Although this method of interpretation is not surprising in the perspective of constitutional law, which is typically submitted to evolutive constructions, it represents a radical innovation in the framework of international treaties’ interpretation, where generally the will of contracting states, as codified in the text, is the guiding principle of interpretation. A second contribution offered by the Court is related to the definition of a specific method of scrutiny, applied in all the cases entailing a balancing between rights and legitimate general goals of the state. This is particularly evident in litigation related to relative rights, where legitimate general interests protected by the states seem so broad, that they actually hamper an effective protection of rights: here, the Court has developed a proper methodology of scrutiny—the doctrine of the margin of appreciation, which has progressively allowed for the enhancement of the level of protection of fundamental rights. Whenever the case implies a balancing between a fundamental right enshrined in the Convention and a public interest that the same Convention recognizes as a legitimate aim capable of limiting a right, the Court carries out a proportionality scrutiny, with the purpose to check whether the state’s measure was “necessary in a democratic society”. This scrutiny requires a comparative analysis and a national contextualization: in order to answer the question of proportionality, the Court has the unavoidable necessity to contextualize the legal dispute into the national frame-

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The interpretation of the Convention as a “living body”

Balancing fundamental rights through the doctrine of the margin of appreciation

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Protocol 16 as a channel of judicial dialogue

work, while at the same time comparing national measures to the standards generally agreed upon by the member states’ community (Repetto 2011; Buratti 2013). Simply put, if the Court ascertains the existence of a broad consensus among the contracting states on a specific issue, the margin of appreciation that a state can enjoy in delimiting a right is narrow, and the Court’s proportionality review assumes the form of a strict scrutiny; if the Court does not find a consensus in member states’ law, or if national context is too peculiar to be compared to the rest of the community, the Court acknowledges a wide margin of appreciation to the member state, and the scrutiny will be loose, allowing for a wide discretionary power of the state (Benvenisti 1999). Because of the proactive attitude of the Court of Strasbourg and the increasing relevance of the Convention in domestic legal orders, interactions between the ECtHR and national supreme and constitutional courts is becoming more frequent. This judicial cooperation has now been formally organized through the recently adopted Protocol No. 16 to the Convention, which sets forth the possibility for the highest and constitutional courts of a state to request an advisory, non-binding opinion to the Court of Strasbourg, regarding questions of principle relating to the correct interpretation of the Convention.

Legal Tools and Keywords: Comparative Legal Reasoning The “dialogue” among the courts is not limited to the relationships between European supreme and constitutional courts and the Court of Strasbourg, but rather judicial dialogue is now a widespread method of institutional cooperation, involving the courts of the world in the search of common answers to common issues, through a process of mutual learning of techniques and concepts. The same judicial training is based on an increasing comparative approach, while national constitutional courts organize regular conferences aimed at sharing professional experience pertaining to legal issues (von Bogdandy 2022). Judicial dialogue also promotes the use of comparative reasoning, which is useful when a court’s legal reasoning is based on foreign law or the reproduction of the jurisprudence elaborated by other courts (Markesinis

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and Fedtke 2012). Nowadays, the practice of comparative legal reasoning is very common in Europe, as well as in Canada and South Africa, while it meets harsh criticism in American jurisprudence (Jackson 2013; Ferrari 2019). The development of comparative reasoning is one of the unavoidable consequences of the end of the once closed national legal systems of the states: in contemporary days, national legal systems participate in wider and greater legal processes than ever before.

7.4 

 he European Convention on Human T Rights: (b) The Relevance of the Convention in Domestic Legal Orders

Created as an international legal order, submitted to member states’ direction, the Convention has progressively transformed its nature, assuming the identity of a supranational system endowed with a substantive constitutional task of fundamental rights’ protection (Panunzio 2005). This transition, mainly having occurred in the last three decades, is a consequence of several factors, such as the increasing leadership of the Court of Strasbourg in legal discourse, and the eastward expansion of the European Convention legal space after the fall of communism, which has tremendously enlarged the geopolitical extent of the Convention’s community. The main consequence of the new constitutional relevance of the Convention can be observed in the increasing integration of the Convention within domestic legal orders, assuming a legal status hardly comparable to that usually assigned to international treaties (Martinico and Pollicino 2010). Against this general trend, different methods of integration can be pointed out: a first, more limited, group of states incorporates the Convention within the national legal order through the adoption of specific constitutional provisions. In these legal orders, the integration of the Convention implies its direct application, as a national source of law endowed with constitutional force. In the Netherlands, whose legal system is characterized by a remarkable openness towards international law, the

The pattern of ECHR’s integration through incorporation in domestic legal orders

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The Italian Constitutional Court “twin rulings”: ECHR as interposed source

The peculiar case of the UK’s Human Rights Act

Convention is placed in a superior position even with respect to national constitutional law. Hence, the provisions of the Convention and the decisions of the Court of Strasbourg are here conceived as binding law and preeminent over domestic law, therefore they are directly implemented within the state by ordinary judges. Also in Austria, the Constitution recognizes the constitutional status of the ECHR. The same method is adopted in some of the central-­ eastern European countries, previously under communist regimes, where the ECHR owns a constitutional nature or a supra-legislative status in the domestic legal system (Pollicino 2010). In France, Art. 55 of the Constitution recognizes international treaties, including the Convention, with a position of supremacy over statutory law: therefore, all the courts apply it directly, with the possibility to disregard legislation incompatible with the Convention (so-called control de conventionalité). Additionally, the Constitutional Council expressly incorporated the Convention into the bloc de constitutionalité. The same is the case in Belgium, even though without explicit constitutional recognition, but according to the jurisprudence developed by the Court. In Italy, the “twin rulings” 348 and 349 of 2007 of the Constitutional Court acknowledged the ECHR to have the value of an “interposed parameter” between statutory law and the Constitution. This means that the judge has the duty to interpret internal law consistently with the Convention and the settled case law of the ECtHR. If a statute infringes on the ECHR or conflicts with a ruling of the Court of Strasbourg, judges must refer the issue before the Constitutional Court as if they were dealing with a breach of the Constitution. As a result of these decisions, the Italian Constitutional Court obtained three main goals. First, it acknowledged a supra-legislative status of the ECHR in the domestic legal system, which statutory law must comply with. Secondly, it retained its monopoly of scrutiny over legislation, preventing the power of judicial review of legislation from being extended to ordinary judges. Finally, it preserved the Constitution itself and its pre-eminence over the ECHR: the latter has indeed a sub-­constitutional status and it is hierarchically subordinate to the Constitution, with the possibility to disregard conventional rules in contrast with it. A very interesting case of integration of the Convention in the domestic legal order is offered by the United Kingdom, according to the Human Rights Act (HRA)

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(1998). As a tremendous transformation of the UK evolutionary Constitution (see 7 Sect. 5.4), this Act provides for the incorporation of the European Convention of Human Rights into the national legal order: until the HRA, the Convention represented a mere international obligation binding the Government, but it was not autonomously applicable by domestic actors—citizens and courts; instead, with the incorporation of the ECHR, the Convention was included in the group of the enacted sources of law expressly aimed at protecting the rights of the people. However, the incorporation has immediately raised serious issues related to its impact on national principles of the Constitution: the enactment of a written and detailed catalogue of rights, together with the position of Strasbourg’s case law as a binding source for the internal courts, may entail an overturning of the traditional principle of parliamentary sovereignty. According to Section 2 of the Act, domestic courts “must take into account” the Strasbourg Court’s case law; furthermore, Section 3 states that “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. At first, immediately following the HRA, national courts adopted a “full mirror” theory in the interpretation of the effect of the Convention on the national legal order: according to this theory, the national courts would have been bound by the precedents of Strasbourg. After the establishment of the Supreme Court, which started its activity in 2008, the “full mirror” theory suffered a series of derogations. In R. v. Horncastle (2009), the Supreme Court stated:  

»» The requirement to “take into account” the Strasbourg

jurisprudence will normally result in this Court applying principles that are clearly established by the Strasbourg Court. There will, however, be rare occasions where this court has concerns as to whether a decision of the ­Strasbourg Court sufficiently appreciates or accommodates particular aspects of our domestic process. In such circumstances it is open to this court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This is likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that is in issue, so that there takes place what may prove to be a valuable dialogue between this court and the Strasbourg Court.

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According to this theory, the Court affirmed in further judgments the necessity to respect the principles of Common law and give them priority, even when they appear incompatible with the Convention, as interpreted by Strasbourg’s case law. Section 4 of the HRA provides the solution for those cases in which the antinomy between national legislation and conventional rules appears too sharp to be resolved according to the aforementioned criteria of judicial deference and consistent interpretation. According to Section 4, in such circumstances, the courts must issue a declaration of incompatibility to Parliament. As stated in 7 Sect. 5.4, this procedure introduces a form of review of legislation in the UK’s legal order. However, it must be clear that Section 4 of the HRA does not authorize any court to annul or disregard domestic legislation because of its incompatibility with the ECHR: after receiving the reference by the courts, Parliament is required to react to the declaration of incompatibility by amending the legislation to be consistent with the Convention’s standards. Parliament, though, is not rigidly bound to do so: Westminster always retains the “last word” in cases raising serious distortions of national legal principles and political values, and can refuse, in those cases, to comply with the request deriving from the courts’ reference, as occurred in the Hirst case.  

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Legal Tools and Keywords: The Hirst Saga The origin of the Hirst saga dates back to the 2005 European Court judgment in the Hirst case, concerning the right to vote of citizens imprisoned in the UK. Here, the Court found the blanket ban on voting by convicted prisoners provided by UK’s laws (notably, the Representation of the People Act 1983) to be in contrast with Art. 3 Protocol 1 ECHR, which establishes the individual right to vote. The judgment was the touch paper of a controversy between the UK Government and the Court: the former claimed that the ban was reasonable, proportionate and that it fell within the margin of appreciation of the state; the latter, conversely, observed that the ban was automatic and therefore covered a wide range of cases, resulting in an indiscriminate denial of the right to vote for all convicted prisoners. Moreover, the Court argued that

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even if the UK was not the only contracting state that deprived convicted prisoners of this right, nevertheless only a minority of these states provided for similar measures. According to the Court, therefore, this blanket ban fell outside the margin of appreciation left to contracting states. The judgment of the majority of the Court was questioned by five dissenting judges who stressed the highly political nature of the prisoner voting issue, thus adopting a deferential approach towards the UK, widening the state’s margin of appreciation. After the decision held in Hirst, national courts adopted declarations of incompatibility of the Representation of the People Act 1983 with the Human Rights Act. The statement in Hirst was reaffirmed by the European Court in the judgment of Greens and M.T. v. United Kingdom (2010), in which the Court held that the UK had to amend its own legislation in order to comply with the previous judgment in Hirst. Parliament, however, did not agree with the courts, and resolved to confirm the legislation. Parliamentary debates stressed the opinion that legislative decisions of this nature were politically sensitive and should be a matter for democratically elected lawmakers.

A second group of states sets the relationships among the national legal order and the Convention following a dualist pattern—consistent with the methodology traditionally adopted in the relations between national and international law. In these countries, the Convention and the case law of the Strasbourg Court bind governments rather than individuals and other subjects of a national legal order: it will be the duty of the state to provide such legal actions that will determine transposition of international law into national acts and state’s compliance with the Convention’s rules. However, with the increasing constitutional relevance of the Convention, and in line with the purpose to enhance the level of effective protection of fundamental rights, this more traditional model of dualist relations with the Convention is progressively evolving into more stringent forms of substantive integration: even in countries refusing formal incorporation of the Convention, indeed, constitution, statutes or binding judgements of superior courts foresee that the Convention and the Court of Strasbourg’s

The pattern of ECHR’s substantive integration through interpretation

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case law shall play a key role in the interpretation of domestic law, establishing a duty of consistent interpretation that, as a matter of fact, often reaches the same result of a formal incorporation. In Spain and in Portugal, the Convention plays a primary role and is conceived as an interpretative parameter for the adjudication of fundamental rights, meaning that the rights and liberties recognized by the Constitution must be interpreted consistently with the Convention. In Germany, the Constitutional Court emphasizes the value of the Convention as an interpretative tool supporting the construction of the national catalogue of fundamental rights, though the latter prevails if arising conflict cannot be resolved in an interpretative way. The case of the European Convention of Human Rights demonstrates, therefore, the powerful emergence of an international law of human rights profoundly influencing constitutional law and constitutional construction: a process of internationalization of constitutional law that in Europe, thanks to the openness of constitutional law, raises fundamental rights at the level of a common legal heritage, and makes it a crucial pillar of the brand-new European constitutional space.

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7.5 

From the European Economic Community to the European Union

 he European Union: Origins T of the Integration Process

A few years after the establishment of the Council of Europe and its adoption of the Convention for the Protection of Human Rights, a more limited group of states undertook the effort to launch an enhanced European cooperation in the economic field, through the creation of three European communities. In 1952, Belgium, the Netherlands, Luxemburg, France, Germany and Italy established the European Coal and Steel Community (ECSC): the economic integration thus initiated in the specific sector of the iron and steel industry, that had been—throughout all of European history—one of the main causes of political struggle among states. A few years later, in 1957, the Treaty of Rome gave birth to the European Atomic Energy Community (Euratom) and the European Economic Community (ECC), with the latter destined along the years to play

273 7.6 · The New System of the Treaties and the Ambivalent Identity…

a more relevant role with respect to the other communities. The ECSC and the Euratom indeed aimed at regulating, through cooperative practices, the production and the exchange of products in specific, although critical, economic fields, whereas the EEC had a more ambitious goal—to create a common market of goods, services, capital, and encourage the free movement of people, through more pervasive legal instruments, able to express a direct effect into domestic legal orders and to prevail over the internal provisions of member states. The establishment of these three communities has given birth to a historical process of European integration, which progressively overcame the boundaries of economic integration, assuming challenging tasks of political cooperation and convergence, directly influencing political practices and transformations of national constitutions, and contributing to the building of a European constitutional space. Throughout the years, the communities made huge efforts in their reorganization, leading to the rationalization and democratization of their institutional organization, to the enlargement of their competences and to the consolidation of their legally binding, normative instruments. With the Treaty of Maastricht, signed in 1992, the three communities were organized within a single and common institutional framework: the European Union (EU). Furthermore, they opened their membership to an increasing number of states: currently, after the recent exit of the United Kingdom, there are 27 member states of the EU. In the end, with the Lisbon Treaty, signed in 2007, the communities, with the exclusion of Euratom, were abolished and merged into one unique institution—the European Union.

7.6 

 he New System of the Treaties T and the Ambivalent Identity of the EU

The European treaties are the primary sources of EU law, and even though they cannot be compared to a constitution from the perspective of substantive and formal characteristics, they set the general framework for the organization of the EU, and lay down goals, competences, and limits for its action.

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The failure of the European Constitutional Treaty

EU basic Treaties after the Lisbon reform

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An attempt to enact a European constitution, containing all the main provisions of the treaties, took place in 2001. Elaborated by a convention composed with the aim to widely involve European society, and then signed by the states, the “Constitutional Treaty” had to be formally ratified by each member state. According to their national constitutions, a number of states needed to submit the ratification to a referendum: in France and the Netherlands, the popular vote was held in 2005, with a surprising outcome of rejection, thus determining the failure of the whole process. Despite this unexpected shutdown in the process of integration, most of the norms elaborated by the Constitutional Treaty are today reproduced in the current European Treaties, as broadly reformed in Lisbon in 2007, although with the abandonment of any references to a terminology typical of constitutional tradition. The new system of treaties agreed on in Lisbon foresees three fundamental Treaties of the Union, each of them endowed with the same force of primary law: they are the Treaty of the European Union (TEU), the Treaty on the Functioning of the European Union (TFEU), and the Charter of Fundamental Rights of the European Union (CFR). The TEU provides basic goals and principles of EU law, whereas the TFEU contains more detailed provisions with regard to the institutional framework, the competences of the EU and the procedures for the adoption of the EU’s normative acts, among other matters. The Charter provides for a catalogue of rights as well as a set of rules pertaining to the management and separation of scope between itself and the national constitutional systems of protection of rights (I’ll discuss this more in detail in 7 Sect. 7.10). Although the whole of the provisions of these three documents is rich and complex, the new system of treaties adopted in Lisbon represents a remarkable enhancement with regard to intelligibility and rationality of the basic architecture of the Union, thus reducing the complexity determined by the stratification of norms and procedures descending from the patchy revisions of the treaties adopted along the integration process. Despite the failed attempt to adopt a constitution for the EU, a general awareness is slowly spreading about the progressive transition of the EU legal order from the international law paradigm toward a constitutional law identity (Martinico 2022).  

The growing constitutional identity of the EU

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Many elements support this view: (1) the principle of primacy and direct effect of EU law over domestic law; (2) the increasing role of European Parliament in the EU institutional framework; (3) the increasing scopes of competences of the EU; (4) the relevance of monetary unification and (5) the development of a common policy in public finance led by the European Central Bank and intended to harmonize and direct national central banks and national autonomy in budgetary policies (Lupo 2007; Ibrido 2017). However, the outcome of the process of integration is not foreseeable, and the comparison of European integration to the main federalizing processes of constitutional history highlights several ambivalences. I am not referring to the natural resistance by the member states to abide by EU law: in American constitutional history, for instance, conflicts lasted for almost a century after the Federal Constitution was enacted, also leading to dramatic crises, such as the Civil War (Martinico 2019). The ambivalences I refer to are inside the same system of the European treaties, which in many aspects are still consistent with an international law paradigm. Let us consider, for instance, the modality of revision of the treaties: the procedure for the revision of the treaties, indeed, requires unanimity for any modification, thus confirming that the member states remain “lords of the treaties”; furthermore, member states retain a power to withdraw from the Union (Art. 50 TEU), as had happened for the first time with “Brexit”—the decision of the United Kingdom to leave the Union. It’s evident that these elements are incompatible with the federalizing processes seen in the history of constitutionalism: in this environment, the federal state was settled thanks to the gradual overcoming of these powers of veto and interdiction for the individual members.

7.7 

 he “Democratic Life” in the Union T and the Institutional Framework of the EU

The institutional framework of the Union, as defined by the treaties, offers an original sample of syncretism between the typical structure of international organizations and the design of a federal constitution.

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Ambiguities and obstacles to the constitutional interpretation of the EU

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The process of democratization of EU’s institutional framework

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Following the reforms introduced by the Lisbon reform, the democratic principle laying at the basis of the EU’s institutional architecture had been further enhanced, through (1) the growth of the role of the Parliament, (2) a more structured set of relationships among the parliaments of the member states and the EU, and (3) the institution of basic tools of direct democracy. All of these improvements together have the aim of shaping a “democratic life” of the Union, as stated in the TEU. Although, in many aspects, the achievement of a mature democratic life for the Union is still far off, the assessment of the quality of European democracy must take into consideration the historical process of integration. At the very beginning of the European communities, indeed, democratic institutions were not present, and the states—acting through their governments—were the only relevant actors: the European Parliament was not an elective institution, but an assembly of delegates of the national parliaments. It is only since 1979 that Parliament began to be elected by the citizens of the member states. In parallel, the weaknesses of Parliament in the framework of the European procedures were progressively overcome, until reaching the current framework, characterized by a balance with the other institutions.

Legal Tools and Keywords: European Political Parties The increasing role of the European political arena has led to the organization of a European political party system, determined by the aggregation of national political parties in political families, sharing a common vision on EU politics (Steunenberg and Thomasson 2002). In the treaties before Lisbon, political parties at the European level were legally acknowledged as “a factor for integration within the Union […]. They contribute to forming a European awareness and to expressing the political will of the citizens of the Union”. However, due to the lack of a specific legal basis in the treaties, the EU was not authorized to introduce a specific regulation on the subject. Later, the treaties were reformed in order to authorize “the Council [to] lay down the regulations governing political parties at the European level and in particular the rules regarding their funding”. Due to this legal basis, a specific regulation was finally settled in 2003, although mainly limited to setting the conditions to

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be fulfilled by any European political party in order to be able to receive public funding. In the new system of the treaties after Lisbon, new legal bases, authorizing a more comprehensive regulation, were introduced. On that basis, the Reg. No. 1141/2014 recently introduced a new complex regulation, establishing the currently named “European political parties”. According to this regulation, European political parties have a European legal personality and they shall respect the values on which the European Union is based. Moreover, it established a new registration procedure, an authority for European political parties with significant powers, a new procedure for funding, and it introduced detailed controls and sanctions for misuses and abuses.

We witness, therefore, a process of reform that progressively contributed to overcoming the original “democratic deficit” (Pinelli 2013). Furthermore, the European Treaties do not exactly mirror the democratic model experimented with in the experience of the nation state throughout the nineteenth and the twentieth centuries. In the context of state-­ constitutionalism, the democratic process was almost entirely concentrated in the form of representative democracy: parliaments and political parties have monopolized the democratic process, limiting the tools of direct democracy to a minor role, and frustrating any attempt to establish alternative methods of people’s participation. The European Treaties, instead, strive to settle a pluralist democratic model, in which the representative bodies (European Parliament, of course, but also the national parliaments linked amongst themselves) co-exist with other democratic channels. It is the case of the European citizens’ legislative initiative, which after a prior evaluation made by the Commission, shall be signed by one million European citizens from at least one quarter of the member states (seven countries). It must be said, though, that the practice has ­demonstrated the actual irrelevance of those methods of direct participation to EU’s decisional process, whose deliberative process remains concentrated in the hands of its institutional bodies. With these considerations in mind, we can now move on to the analysis of the institutional framework of the

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The European Council

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The European ­Parliament

EU, which can be imagined as a stage resting on four pillars—the European Council, European Parliament, Council of Ministers and European Commission. The European Council is the leading political body of the EU. It is composed of the Heads of State or executives of the member states. It meets every 6  months and it defines the EU’s overall political direction and priorities. It is also involved in the procedure for revision of the treaties. The European Council elects its own President and appoints the High Representative for Foreign Affairs and Security Policy. As for the first, he/she is elected for two and a half years—renewable once—and cannot simultaneously hold a national office; hence he/she should be an additional member of the European Council. He/she coordinates the European Council’s agenda, and, together with the President of the Commission, has a role of international representation of the Union. As for the High Representative, he/she is appointed for a 5-year term, with the role of carrying out the EU’s foreign and security policies. Although the European Council provides the impulses and main guidelines for the EU, it does not take part to the legislative function (Art. 15 TEU), which rather is exerted by the other governing institutions of the EU: (1) European Parliament, directly elected by the population of each member state, with the seats allocated according to “national quota” reflecting, as closely as possible, the size of the respective populations of member states; (2) the Council of Ministers, composed of the representative of each member state at the ministerial level. Its configuration varies depending on the subject matter at issue; and (3) the European Commission, which consists of one national of each member state and is the executive institution of the EU, but also owns a power of legislative initiative. Since 1979, the European Parliament has been directly elected according to “national quota” reflecting the size of the population of each member state. It is worth ­mentioning that the specifics of the election procedure for MPs are mainly left to the legislation of the respective member states, therefore there is not a uniform electoral procedure within the EU. As I have already said, the new system of the treaties speeded up the process of European integration, characterized by a greater “parliamentarization” of the EU decision-­making procedures, with the goal of overcoming the European democratic deficit.

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This enhancement occurred in two main areas: (1) the legislative procedure and (2) the relationship with the Commission. As for the first, Art. 294 TFEU, overturning the previous model, identifies the co-decision procedure as ordinary legislative procedure to be followed when adopting EU legislation, unless otherwise specified. According to this procedure, Parliament and the Council act on equal footing on the proposals made by the Commission (Craig 2008). A comparable transition can be observed in the role played by European Parliament in the selection of the European Commission and in political control of its ­activity. The procedure of selection and appointment of the Commission consists of several steps and involves different bodies. According to the new procedure established in Art. 17 TEU, European Parliament elects the President of the Commission with an absolute majority: however, the candidate for the presidency is not freely chosen by Parliament itself, but rather he/she is previously appointed by the European Council, taking into account the outcome of the European Parliament’s elections. If the candidate proposed by the European Council does not reach the required majority, he/she is not confirmed and a new candidate will be proposed—within 1  month—by the European Council. After the parliamentary election of the President of the Commission, the European Council adopts, by common accord with the newly elected President, the list of candidate commissioners on the basis of proposals made by the member states’governments. Then, once the list is agreed upon, the Commission—as a collegial body—is subjected to a vote of consent by the European Parliament. If positively assessed by the Parliament, the Commission shall be formally appointed by a qualified majority of the European Council. As one can see, the procedure is quite complex. Its design is meant to ensure both the control by national governments on the composition of the Commission, through the powers retained by the European Council, and the centrality of the political relationship that must be established between the Commission and the Parliament. Notwithstanding the peculiar procedure of appointment, the relationship existing between the Commission and the Parliament can be compared to the relation of confidence that characterize parliamentary government: according to

Increasing parliamentary influence in the appointment and control of the Commission

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The Council

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the TEU, indeed, the European Commission shall be collectively accountable before European Parliament; furthermore, the Treaty introduces the parliamentary motion of censure against the Commission, that, if adopted by European Parliament, compels the Commission to resign. The Council of Ministers is the institution that represents the member states’ governments within the EU institutional framework. It is composed of delegates of each member state at the ministerial level, depending on the subject matter at issue. Therefore, even if the general structure of the Council (one minister of the executive branch for each state) does not change, the composition may vary depending on the agenda to be discussed: the Council, indeed, sits in many configurations (Foreign Affairs, Agriculture, Education, and so on and so forth). Mirroring the international law roots of the European Union, the Council lays in between a communitarian and intergovernmental identity. This ambivalent nature of the institution is evidenced by the voting method provided by the treaties: the Council usually deliberates according to a complex system of majorities, based on a qualified majority, in terms of number of states and of the populations represented. The system of qualified majorities that still governs many deliberative procedures in the EU, and especially in the Council, is often considered the main obstacle in any progress toward a true federal union: at the same time, it must be kept in mind that the current system of majorities represents the achievement of a long process of integration, aimed at overcoming vetoes by the member states. One important political achievement obtained as a result of the Lisbon Treaty was the revision and rationalization of the voting system within the Council. The new Article 16 (3) TEU states—as a general rule— that the Council shall act via a qualified majority. Therefore, the treaties require unanimous voting only in residual and exceptional cases, specifically identified by the treaties themselves: examples are foreign affairs, security policy, and fiscal policy. In conclusion, even though the Council—with its composition and methods of deliberation—mirrors the nature of the EU as an international organization, in which the member states keep the main directive powers, the progressive abandonment of the method of unanimity implies a fundamental transformation.

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It has been generally argued that the Council emulates the role played by the upper chambers in federal systems, within the EU and mainly limited to ordinary legislative procedure. The Council, indeed, represents the national interests within the EU decision-making process and it has a dialectical relationship with the Commission and European Parliament, institutions that have traditionally promoted the enhancement of integration and the broadening of EU’s competences. Unlike the classical dynamic based on the legislative-executive and the majority-­ opposition dialectics, typical of democratic constitutional systems, the EU institutional system is characterized by the dialectic between communitarian institutions, supporting a more integrated union, and intergovernmental institutions, representing national interests. In the EU institutional system, the executive function The European is mainly exerted by the European Commission. I have ­Commission already explained the process for the selection of the Commission and the establishment of the political relationship of confidence that links the Commission to Parliament. The Commission is composed of one commissioner for each member state. The President has the role of assigning the specific competences to the commissioners, and he/she can remove them or reshuffle their competences. At the beginning, within the Communities’ structure, the role of the Commission was not limited to act as the executive branch; instead, it played a more general role, to ensure the achievement of the goals set out in the treaties. This role mirrored the general feature of the Communities in the first phase—their “functionalist” nature, as it was called to underline the minor role played by politics and the predominant relevance of technical goals. In the current institutional framework, instead, the creation of an actual legislative power—politically legitimized by the direct vote (Parliament) or the indirect vote (the Council) of the people—reduced the role of the Commission to its natural scope. It consists of: (1) the exclusive power to introduce legislative proposals to Parliament and the Council, (2) the duty to execute European policies, and (3) the role of overseeing the application of EU law by the member states and the European institutions. Although defined as the “executive branch” of the EU, there are several differences between the

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Commission and national executive branches. The structure of public administration in the states has enormously grown throughout the Modern and Contemporary Age, following the increasing complexity of society and the tasks that the state is required to pursue. The EU, instead, mainly ensures the administrative application of its acts through national administrative authorities that are compelled to apply EU law. A set of administrative functions that can be directly executed by the Commission exists, but they are limited; the role of the Commission, therefore, is more related to addressing, monitoring and supervising the legislative, judicial and administrative implementation of EU policies by the states’ authorities.

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7.8 

EU sources of law: ­primary and secondary

Regulations, decisions and directives of the EU

 he Sources of Law of the European T Union and their Effects in Domestic Legal Orders

The main feature of the EU legal order, which makes it different from any other international organization, is that it is entrusted with the power to autonomously produce normative acts that are able to express an automatic effect in domestic legal orders of member states. Primary sources of law of the Union—found in the treaties signed by the member states, providing a sort of constitutional regulation of the EU—create a set of sources of secondary force. EU’s secondary sources of law can be divided into two groups, depending on their (1) binding or (2) non-binding effects toward the member states. The non-binding sources of law are recommendations and opinions. Their effectiveness, however, should not be under-appreciated: often, the EU starts to pursue a goal through non-binding acts, which if the states do not adapt, can eventually become binding. According to Art. 288 TFEU, the binding sources of law of the EU are regulations, directives and decisions. Regulations are general (i.e. they regard all the states) and they are directly applicable: their norms are therefore immediately binding in the member states’ legal orders, and must be directly enforced by all the institutions (administrative and judicial) in the states.

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Decisions present the character of direct applicability, but they can be adopted in a more limited scope of subject matters, and are usually addressed to a specific group of states, a state, or an individual. Directives can be general or limited to a single state or a group of states. Their main characteristic, however, regards the legal structure: directives, indeed, do not provide norms equipped with direct applicability into the states’ legal orders, whereas they bind the states’ institutions to reach goals, within a specified deadline, implemented through the adoption of national legislation. Directives therefore bind the state, but are not binding within the state’s legal order. Although directives do not possess direct applicability, they are nonetheless effective tools: first, directives can provide sufficiently detailed goals (self-executing directives). In such cases, individuals can claim the application of the principles laid down in the directive and impose the state to refund damages deriving from the lack of the internal law transposing EU legislation. Under certain conditions, therefore, directives can have direct effect, even if they do not own the quality of direct applicability. Then, in case a state does not transpose a directive in its legal order through appropriate methods, the EU can open an infringement procedure, which is the procedure aimed at inflicting sanctions against member states for not respecting obligations deriving from their participation in the Union. The relations between the EU’s binding sources of law and states’ sources of law are organized according to the principle of primacy: the norms provided by the binding sources of law of the Union are superior to internal norms, even when the latter are adopted by primary legislation. Therefore, in cases of conflicts between national provisions and directly applicable European provisions, the latter must prevail, and it binds both prior and future national legislation, which means that the European norm would take precedence even over any national laws adopted thereafter. The primacy of European (primary and secondary) law over national law is an EU law principle firmly established by the European Court of Justice. In the case Costa v. Enel (1964), the Court affirmed the tenets of the principle of primacy:

Primacy of EU law

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»» By creating a Community of unlimited duration, having

its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves. The integration into the laws of each Member State of provisions which derive from the Community and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The law stemming from the Treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights.

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National resistances to primacy: counter limits, identity control, ultra vires control

The principle of primacy, as consistently conceived by the Court of Justice, entails that binding European law (Treaties, general principles, secondary sources, Court of Justice’s rulings) has priority over national law; furthermore, the Court has clarified that any conflict between national law and binding EU law must be resolved directly by the national authorities, giving application to EU law and disregarding national law, without raising questions of constitutionality (principle of direct effect, affirmed in van Gend & Loos 1963). For the Court, indeed, it is of critical importance that states comply with their obligations under the treaties by ensuring EU law enforcement without delay. Not all the national constitutional courts, however, accepted the doctrines of primacy and direct effect of EU law, and many of them have developed doctrines that authorize derogations to EU law’s primacy: after several resistances, the Italian Constitutional Court accepted EU law’s primacy and direct effect, as far as it does not infringe on a “superior principle” of the Constitution.

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While, normally, the judges are required to directly disregard national law incompatible with EU law, in the case of a violation of a superior principle they must raise the question of constitutionality, in order to allow the constitutional review (so-­ called “counter-limits” doctrine), which could eventually lead to disregard EU law (I.C.C., Judg. n. 183/1973 and 170/1984). A similar path has been followed by other constitutional and supreme courts. The court that more than any other contested the application of the principle of primacy is the German Constitutional Tribunal. Although this Tribunal did acknowledge primacy and direct effect since the beginning, it retained the power to review any violations of fundamental rights (BVG, case Solange, 1974) and on German constitutional identity (BVG, case Lissabon, 2009); furthermore, it also affirmed the existence of a so-called “ultra vires” control: according to this theory, it is up to the national Constitutional Tribunal to verify whether the European norms were adopted consistently with the treaties and within the competences of the Union (BVG, case Maastricht, 1993). As one can see, while the identity control is a methodology aimed at protecting the core values of a constitution, and can trigger a fruitful dialogue between constitutional and European Courts with the aim of finding a reasonable meeting point, the ultra vires control, by authorizing a state’s court assessment on the correct interpretation of EU Treaties, represents a serious threat to the building of a European constitutional space. Secondary legislation must be adopted within the scopes of competences of the EU. These competences are pointed out by the treaties through the typical constitutional technique of the enumeration of matters. In the field of non-exclusive EU competences, the intervention of the EU is subject to a general condition—the principle of subsidiarity. As we have already seen in analyzing the German Basic Law—where subsidiarity inspires the federal distribution of legislative functions between the Bund and Laender— the principle of subsidiarity, in general, requires that competences should be exercised by the smaller level of government, the one closer to the people, as long as the normative intervention of a higher level of government is not necessary or required to ensure the fulfillment of goals of general interest. Based on the subsidiarity principle, the EU must respect the autonomy of the states in adopting

The competences of the EU and the principle of subsidiarity

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their own legislation, and must intervene only whether its action is instrumental to reach a more efficient and appropriate regulation. This mainly occurs in fields that are characterized by trans-borders interactions, where harmonization of law is designed to achieve a common, unitary space. The Union must provide evidence of respect of subsidiarity standards when introducing proposals of normative acts. Therefore, in the areas of subsidiary competences of the Union, the interaction between national legislation and European legislation works in a way that is comparable to the model of preemption in U.S. law (7 Sect. 2.10): if the Union does not intervene, the states’ legislation is allowed to regulate the topic; however, national legislation is preempted in case of adoption of a relevant European regulation (Schütze 2015). Although included in the European Treaties for many years, the principle of subsidiarity has not been able to actually limit the continuous growth of the Union’s competences, a process that has taken place through different methods, especially through the initiatives of the Commission and the Court of Justice’s case law. While, in the view of the states, the principle of subsidiarity should have had the capability of interrupting this process, the Court of Justice has systematically denied the application of the principle of subsidiarity as a standard of its judicial review, leaving its application to the political appreciation of the other institutions. This is why the new system of treaties adopted in Lisbon provides an innovative tool for the effective application of the principle of subsidiarity: the states, through their national parliaments, must carry out continuous supervision over the legislative proceedings of the EU, in order to verify the respect of subsidiarity. In cases in which a legislative bill under the examination of the EU goes beyond the borders of EU competences, national parliaments can raise an “early warning”. The effect of the warning depends on the number of national parliaments that have joined it, but in general it forces the Commission to re-examine the bill, and to explain with detailed motivations, the legal basis that require a unitary regulation of the topic. Until now, however, national parliaments have raised early warnings in very few cases, and the effect of this means remains uncertain (Fasone and Lupo 2018).  

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287 7.9 · The Court of Justice of the European Union

7.9 

7

 he Court of Justice of the European T Union

The Court of Justice of the European Union (ECJ), based in Luxembourg, is the judicial branch of the EU. It consists of a two-tiered system of Courts: the Court of Justice and the General Court. In this section, I will take into consideration only the structure and the functions of the Court of Justice: it is by far the main judicial authority of the Union, due to the role that it has played throughout the years, which has been directed at enlarging the competences of the Union and enhancing the process of European integration (Pierdominici 2020). The Court of Justice is composed of one judge from each EU country, appointed by the national governments. Their terms last 6 years and can be renewed. The Court may sit as (1) a full Court, (2) in a Grand Chamber of 15 judges, or (3) in Chambers of three or five judges. It sits as a full Court in particular cases specifically prescribed by the same Statute of the Court, and when the Court considers a case of exceptional importance. It sits as a Grand Chamber when a party so requests it, and in other complex cases. The Court is also composed of 11 Advocates General, who have the role of assisting the Court, by way of presenting independent non-binding opinions on the cases. With regard to its jurisdiction, the Court of Justice deals with: (1) requests for preliminary ruling lodged by national courts, with the function of interpreting EU law; and with (2) certain actions for annulment of acts of the Union and appeals, which can be raised even by individuals. It also: (3) settles legal disputes between national governments and EU institutions. The main function of the Court is to judge on preliminary references submitted by the national courts. The mechanism is regulated by Art. 267 TFEU.  National courts of the EU member states are required to ensure that EU law is properly applied, but the courts could diverge in EU law interpretation. If a national court has a doubt about the correct interpretation or the validity of EU law, it can ask the ECJ for clarification, by raising a preliminary reference. The same mechanism can be used to determine whether a national law or practice is compat-

Jurisdiction of the ECJ

Preliminary references

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Infringement ­procedures

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The “nuclear option”: Art. 7 TEU ­mechanism

ible with EU law. In order to be validly issued, the question must be “necessary to enable it to give judgment” (Art. 267 TFEU). Decisions issued by the Court of Justice are binding not only on the referring national court, but on all the national authorities of the member states. ECJ is not entrusted with the power to annul national legislation: it can annul only European norms. However, its rulings often provide assessments on the compatibility of national law with EU law, with the consequence of forcing states’ judiciary branches to disregard domestic regulations. A further competence of the Court of Justice is: (iv) to decide on infringement procedures. As mentioned earlier, this kind of action is taken against a national government for having failed to comply with EU law. It can be triggered by the European Commission or by another EU member state. If the state is found to be at fault, it is compelled to assume the necessary measures; otherwise, a second case will be brought before the Court, which may result in a fine. The treaties do not foresee a power of expulsion as an outcome of infringement procedures; they do, however, provide a power of suspension—deliberated by the European Council—against a state that violates the basic values underpinning EU integration listed in Art. 2 TEU (so-called Art. 7 mechanism). Such a measure, meant to consolidate European common values, has not been used for several years, even in cases of states that have evidently undertaken a path toward the dismantling of constitutional democratic guarantees, as in Poland and Hungary. This mainly depends on the difficulty to reach the very high majority required by Art. 7 to conclude the procedure (Kochenov 2021). More recently, the Commission and the Parliament have assumed the initiative to trigger the Art. 7 mechanism, against, respectively, Poland (2017) and Hungary (2020). Both the procedures, though, are suspended before the European Council with little expectations to be completed. Legal Tools and Keywords: EU’s Engagement in Tackling Member States’ Democratic Regression In recent years, the EU has been involved in the difficult task of tackling democratic regressions and breaches to rule of law standards in the legal orders of member states.

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Democratic regression is a phenomenon globally widespread in the last two decades (Zakaria 1997; Diamond 2021; Groppi et al. 2022): within the EU member states, it has mainly regarded Hungary, where the Prime Minister Orbán explicitly theorized the goal to establish an “illiberal democracy” (Halmai 2019), and Poland (Sawicki 2021) after the electoral affirmation of the right-­wing populist PiS Party. The process of democratic regression involves the aggression to several pillars of constitutional architecture and the dismantling of basic constitutional principles, such as fundamental rights, minorities’ rights, prerogatives of political opposition, free speech and pluralism of media, respect of international law obligations and rights of migrants and refugees, independence of the judiciary and the rule of law standards. It is evident that measures affecting these areas entail an infringement of basic values enshrined in Art. 2 TEU. For the EU, the main instrument to react and impose the respect of basic values of Art. 2 should be triggering the mechanism set forth in Art. 7 TEU. However, as said, political difficulties make this option unrealistic. An alternative strategy for tackling democratic regression has been identified by the Court of Justice. Requested through preliminary references to assess the compatibility with the treaties of several measures affecting the independence of the judiciary and granting the control of the judiciary by the government, the ECJ, with several rulings adopted between 2018 and 2021, has imposed the respect of the rule of law upon Poland. Although the ECJ’s case law on the rule of law has involved several states, the rulings addressed to Poland have reached a level of tough confrontation with the political initiatives introduced by the Government. Reacting to the ECJ’s imposition of corrective measures, in 2021, the Polish Constitutional Court—whose composition has been totally redefined after the Government’s measures—disregarded the ECJ’s ruling, affirming that the national Constitution is incompatible with the principle of EU law primacy, when it claims to have priority over national constitutional provisions. Such a challenge to EU law primacy represents the most blatant aggression to EU legal principles performed by a member state: the EU Commission reacted by opening an infringement procedure against Poland.

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In the meanwhile, the ECJ has further elaborated its doctrine on member states’ measures affecting Art. 2 common values: in a set of rulings adopted in 2020 and 2021, it has affirmed a general principle of “non-­ regression”, which imposes the respect of Art. 2 common values by the member states, assuming the power to review states’ measures, even in fields not falling in the EU’s competences (see, in particular, ECJ, case Repubblika, 2021) (Scholtes 2023). A further method of political sanctions has been created with the adoption of the EU Regulation on the Rule of Law Conditionality: this Act created a mechanism of conditionality on the distribution of EU financial resources, imposing the assessment of the respect of the rule of law standards and other basic values as a condition for national governments to accede to funds. According to the Regulation, challenges to the rule of law include: “the principles of legality implying a transparent, accountable, democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts, also as regards fundamental rights; separation of powers; and non-discrimination and equality before the law”. The ECJ supported the act, rejecting complaints raised by Poland and Hungary that challenged the validity of the Regulation. While it is of the utmost importance that European common values obtained a legal enforcement equivalent to other principles of the treaties, it is evident that judicial substitution and financial conditionality cannot represent the only channels of protection of constitutional democracy: the enhancement of European political integration passes through new institutional checks on the respect of constitutionalism by EU member states.

7.10 

 he Protection of Fundamental Rights T in the European Union

At the origins of the integration process, European treaties contained no express reference to human rights. The Communities, first, and the European Union, thereafter,

291 7.10 · The Protection of Fundamental Rights in the European Union

were not involved in the protection of fundamental rights, but rather only pursued the goal of economic integration. During the last decades of the twentieth century, this framework has rapidly changed. The European Union, indeed, started to develop its own sources of fundamental rights and its own methods of protection. At the beginning, the development of sources and legal tools by the Court of Luxembourg’s case law was a consequence of the necessity to tackle the complaints raised by national constitutional courts regarding the lack of protection of fundamental rights in European law. By elaborating fundamental rights as general principles of EU law, the Court of Justice was able to submit EU policies to a legal constraint typical of constitutionalism, thus managing to prevent conflicts with member states’ courts by anticipating the remedy. Later, with the expansion of a political integration and in search of a European identity, fundamental rights were conceived as the core of European constitutional heritage, thus giving birth to a European codification of fundamental rights. These two different stages correspond to the two main sources of fundamental rights in the EU’s experience: they are (1) common constitutional traditions and (2) the Charter of Fundamental Rights of the European Union. The European Union recognizes those fundamental rights belonging to the heritage of constitutional traditions common to the member states as general principles of EU law—as such binding on secondary sources of law. Common constitutional traditions are detected by the Court of Justice’s case law as the result of a comparative analysis of the member states’ constitutions (Repetto 2011). Such method of judicial construction appeared for the first time in the 1970s: the judgment where we can find the start of this doctrine is the Stauder case (1969), in which the Court discovered “fundamental human rights enshrined in the general principles of European law”. One year later, in the case Internationale Handelsgesellshaft (1970), the Court’s doctrine becomes more precise: even if the fundamental rights acknowledged by the constitutions of the states do not represent a source of European law, “the general principles of European law grant an analogous guarantee”. In the vision of the Court, these general principles “are inspired by the constitutional traditions common to the member states”. Then, in the Judgment Nold (1973), the Court takes a step forward, stating:

Common ­constitutional ­traditions

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»» Fundamental rights form an integral part of the general

principles of law, the observance of which it ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the constitutions of those States.

Furthermore, in Nold we find a further step:

»» Similarly,

international treaties for the protection of human rights in which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of European law.

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The main effect of this last statement is the adoption of the European Convention of Human Rights as a source to draw inspiration for the identification of common constitutional traditions. Confirming this approach, the Treaty of the European Union (Art. 6) acknowledges the provisions of the ECHR, together with the constitutional traditions common to the member states, as “general principles” of European law. Legal Tools and Keywords: The EU’s Accession to the ECHR—A Dead End? Since Lisbon, the TEU has expressly foreseen the possibility of the European Union’s accession to the European Convention on Human Rights. Art. 6.2 TEU states: “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties”. The main consequence of the EU’s formal accession to the Convention would be the affirmation of the Court of Strasbourg’s power of adjudication of the acts of the Union, equivalent to what it carries out in respect to the acts of the contracting states. If this process was ever completed, it would represent a strong channel of cooperation in the European legal space, creating a system of dialogue and cooperation among charters and courts. At the same time, however, the accession represents a threat to the role played by the Court of Strasbourg, as the only guardian of the legitimacy of EU law. This is why, in its recent Opinion (n. 2/2013, of December 2014)

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on the accession of the EU to the ECHR, the Court rejected the draft of the Protocol for the accession (Lazowski and Wessel 2015). This Opinion, which underlines several instances of inconsistency in the project of the EU’s accession to the Convention, marks an actual regression in the process of construction of the European constitutional space, refusing the dialogue paradigm as dangerous and unclear, and confirming the desire of the Court of Justice to monopolize the interpretation of EU law. Rights enshrined in the Convention remain, however, binding and applicable to EU acts and by EU Courts, both because they are part of the common constitutional traditions as well as because of the several links EU Treaties contain to the Convention (Amalfitano 2018).

Following the pioneering construction of common constitutional traditions, and with the consolidation of a political dimension of the Union, claims for a codification of rights by the EU arose, leading to the adoption of the Charter of Fundamental Rights of the European Union, drafted and formally promulgated in Nice in 2000. The Charter of Nice expressly clarifies its aim, that is to codify, and not to create, those rights already defined and protected by the European Court of Justice, as resulting from the constitutional traditions common to the member states, the European Convention on Human Rights, and more in general the overall principles of European Union law. However, from the perspective of the framers, the Charter would confer a higher legal guarantee and a political relevance to the European Union’s level of protection of fundamental rights. As already said, the Charter was formally incorporated into the treaties by the Lisbon reform, and according to Art. 6 TEU, it has the same legal force of the treaties. Within its scope of application, therefore, it has direct effect and primary force over states’ law. The main difficulty in the interpretation of the Charter is related to the definition of its scope of application (Safjan 2012): Art. 51 of the Charter states that the provisions of the Charter are addressed to the Union and to the member states only when they are implementing EU law. While it is easy to imagine the application of the Charter

The Charter of ­Fundamental Rights of the EU

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as a source of interpretation and a condition of validity of EU acts, reproducing the function already played by common constitutional traditions in the ECJ’s case law, it is more complex to understand whether the Charter could be applied to assess the validity of national measures, and what would be the relationship, in these cases, with national catalogues of constitutional rights. In the attempt to resolve this difficulty, since the case Fransson (2013), the Court of Justice has denied a general application of the Charter, but has defined the Charter as “the shadow of EU law”: the Charter is therefore applicable not only to national measures directly implementing EU law, but also to national measures that entail “a certain degree of connection” with EU law. On their side, member states’constitutional courts have demonstrated their intent to emphasize the role of the Charter as a means ancillary to national catalogues of rights, thus highlighting the role of Art. 53 of the Charter, which invites all the relevant actors to interpret the Charter consistently with the other national and international catalogues of rights applicable by the states and the Union, with the aim to raise the substantive level of protection. At the same time, however, it is evident that the direct application of the Charter could imply the expansion of a judicial review on fundamental rights, with national judges applying the Charter and circumventing the centralization of constitutional review and national constitutional catalogues of rights (Komárek 2014; Saitto 2020).

7.11 

 he European Union Between T Integration and Resistance

Although the EU legal order, as it appears today, presents both features of an international law organization and a constitutional supranational organization, the historical development of the process of integration manifestly follows a direction toward constitutional integration: primacy and the direct effect of its sources of law, binding effect of the ECJ’s rulings, the unification of financial policies and the adoption of a single currency, the development of democratic procedures, and the growth of a system of pro-

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tection of fundamental rights. These are all clues of a process directed to a federal and constitutional integration among the European states (Weiler 1991). Nonetheless, several resistances remain by national courts and national governments, as well as by nationalist and euro-sceptical political parties whose support in national political arenas is remarkable. Many scholars believe that the construction of an actual political union in Europe is further hampered by linguistic pluralism (Grimm 1995); others criticize the excessive deficit of democracy in European institutions, the imbalances among member states in the actual direction of EU policies, as well as the fragility of a EU policy of social inclusion and solidarity (Guarino 2008), underlining the essential role of the states in pursuing goals of social justice in the twentieth century. Furthermore, although financial policies are now coordinated by the Union and the European Central Bank, the Union still lacks a power of direct taxation, hampering the possibility of an effective and homogeneous European economic strategy. Criticism against the limits of the institutional frame of the EU, as well as toward the unbalances existing in the policies of the Union, are widely agreed on. However, they should push toward constitutional reform of the EU, rather than supporting the defence of the past, with the purpose to make the EU the pillar of a brand-new European constitutional space. Having arisen from the framework of the modern nation state in the Atlantic space, and strictly connected with the development of the state as the typical pattern of political and legal obligation, western constitutionalism has always manifested a cosmopolitan and universal tendency. Universality of human rights, founded upon rules of reason; the proclamation of the equality of men and the goal of spreading democracy; the pursuit of social rights and social justice—these are all beliefs and goals belonging to the heritage of western constitutionalism, despite the specific national traditions it has undertook. This is why the process of supranational integration represents a challenge and an opportunity for western ­constitutionalism to further enhance itself, even beyond the political experience of the nation state.

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Persisting ambiguities and resistances to the enhancement of the European integration

The European ­constitutional space as a goal of European constitutionalism

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Comprehension Check and Tasks 1. Elaborate a definition of the constitutional principle of openness toward international law that characterizes European constitutions in the post-Second World War (7 Sect. 7.1) 2. Search the internet for: (1) the text of the Universal Declaration of Human Rights of the United Nations (1948), and (2) the French Declaration of the Rights of Man and of the Citizen (1789). Read and compare them: what are their main differences? Can you underline common and different concepts and terminology? (7 Sect. 7.1) 3. Be sure to understand the distinction between the ECHR and EU: can you describe their differences with regard to historical origins, goals, areas of extension, treaties and institutions? (7 Sects. 7.2 and 7.11) 4. Read the first 12 Articles of the European Convention on Human Rights (whose text you can easily find in the web): are you able to classify rights enshrined in the Convention on the basis of their absolute or relative nature? (7 Sect. 7.3) 5. Explain the impact of the Human Rights Act on the UK legal system (7 Sect. 7.4) 6. Describe the impact of the Lisbon reform on the EU’s institutional framework (7 Sects. 7.5 and 7.7) 7. Search the internet and read Art. 288 of TFEU. Lay down a list of the binding sources of law of the EU (7 Sect. 7.8) 8. Go to website of the European Court of Justice and search for the case Costa v. Enel (1964). Read the opinion of the Court, then, explain the principle of primacy of EU law (7 Sect. 7.8) 9. What is the “counter-limits doctrine”? What is its difference with the “ultra-vires” control? (7 Sect. 7.8) 10. What are the common constitutional traditions and what are their roles in EU law? (7 Sect. 7.10) 11. Read Art. 2 and 7 of the TEU.  Then, search the internet for the EU Commission’s recommendation to launch the Art. 7 mechanism against Poland (December 20th, 2017), and read it in order to understand the meaning of “rule of law” in the EU legal framework (7 Sect. 7.8)  

 

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References Amalfitano C (2018) General principles of EU law and the protection of fundamental rights. Elgar, Cheltenam Benvenisti E (1999) Margin of appreciation, consensus, and universal standards. J Int Law Politics 31:843 Buratti A (2013) History, traditions and contexts in the jurisprudence of the European convention on human rights. In: Repetto G (ed) The constitutional relevance of ECHR in domestic and European law: an Italian perspective. Intersentia, Cambridge Craig P (2008) The role of the European Parliament under the Lisbon treaty. In: Griller S, Ziller J (eds) The Lisbon treaty. EU constitutionalism without a constitutional treaty? Springer, Cham D’Atena A (2018) Lezioni di diritto costituzionale, 4th edn. Giappichelli, Torino De Visscher P (1952) Les tendances internationals des constitutions modernes. Collected Courses of The Hague Academy of International Law 80:512 Diamond L (2021) Democratic regression in comparative perspective: scope, methods, and causes. Democratization 28:22–42 Fasone C, Lupo N (eds) (2018) Interparliamentary cooperation in the composite European constitution. Oxford Univ. Press, Oxford Fassbender B, Peters A (eds) (2012) The Oxford handbook of the history of international law. Oxford Univ. Press, Oxford Ferrajoli L (2001) Diritti fondamentali. Un dibattito teorico. Laterza, Roma and Bari Ferrari GF (ed) (2019) Judicial cosmopolitanism: the use of foreign law in contemporary constitutional systems. Brill, Leiden Grimm D (1995) Does Europe need a constitution? Eur Law J 1:282– 302 Groppi T, Carlino V, Milani G (eds) (2022) Framing and diagnosing constitutional degradation: a comparative perspective. Consulta Online, Genova Guarino G (2008) Ratificare Lisbona? Passigli, Firenze Halmai G (2019) The fundamental law of Hungary and the European constitutional values. DPCE Online 39:1 Ibrido R (2017) L’Unione bancaria europea. Profili costituzionali. Giappichelli, Torino Jackson V (2013) Constitutional engagement in a transnational era. Oxford Univ. Press, Oxford Kochenov D (2021) Article 7: a commentary on a much talked-about ‘Dead’Provision. In: von Bogdandy A, Bogdanowicz P, Canor I, Grabenwarter C, Taborowski M, Schmidt M (eds) Defending checks and balances in EU Member States. Taking Stock of Europe’s Actions. Springer, Cham Komárek J (2014) National Constitutional Courts in the European constitutional democracy. Int J Constitut Court 12:525–544 Koskenniemi M (2001) The gentle civilizer of nations. The rise and fall of international law, 1870–1960. Cambridge Univ. Press, Cambridge, MA Lazowski A, Wessel RA (2015) When caveats turn into locks: opinion n. 2/13 on accession of the European Union to the ECHR. German Law J 16:179–212

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Letsas G (2009) A theory of interpretation of the European convention on human rights. Oxford Univ. Press, Oxford Lupo N (2007) Costituzione e bilancio. Luiss Univ. Press, Roma Markesinis B, Fedtke J (2012) Judicial recourse to foreign law. Routledge, London and New York Martinico G (2019) Alcune osservazioni sul nucleo della teoria costituzionale di John Calhoun. Filosofia Politica 3:429 Martinico G (2022) The tangled complexity of EU constitutional process, 2nd edn. Routlege, London Martinico G, Pollicino O (eds) (2010) The National Judicial Treatment of ECHR and EU Laws. A comparative constitutional perspective. Europa Law Publishing, Groningen Mezzetti L (2014) International constitutional law. Giappichelli, Torino Panunzio SP (ed) (2005) I diritti fondamentali e le Corti in Europa. Jovene, Napoli Pernice I (2015) Multilevel constitutionalism and the crisis of democracy in Europe. Eur Constitut Law Rev 11:541–562 Pierdominici L (2020) The mimetic evolution of the court of justice of the EU. A comparative law perspective. Springer, Cham Pinelli C (2013) The discourse on post-National Governance and the democratic deficit absent an EU government. Eur Constitut Law Rev 9:177 Pollicino O (2010) Allargamento ad Est e rapporti tra Corti costituzionali e Corti europee. Giuffrè, Milano Repetto G (2011) Argomenti comparativi e diritti fondamentali in Europa. Jovene, Napoli Safjan M (2012) Areas of application of the charter of fundamental rights of the EU: fields of conflict? In: EUI WP LAW 2012/22 Saitto F (2020) Salvare Solange? Parallelismo dei cataloghi e tutela integrata dei diritti fondamentali in Europa dopo le sentenze sul diritto all’oblio del Bundesverfassungsgericht. In: Caruso C, Medico F, Morrone A (eds) Granital revisited? L’integrazione europea attraverso il diritto giurisprudenziale. Bononia Univ. Press, Bologna Sawicki J (2021) L’Unione europea come argine all’erosione dello stato costituzionale di diritto. Costituzionalismoit 3:153 Schmitt C (1950) Der Nomos der Erde. Duncker & Humblot, Berlin Scholtes J (2023) Constitutionalising the end of history? Pitfalls of a non-regression principle for article 2 TEU. Eur Constitut Law Rev 2023:1–87 Schütze R (2015) European constitutional law, 2nd edn. Cambridge Univ. Press, Cambridge, MA Steunenberg B, Thomasson J (eds) (2002) The European Parliament: moving toward democracy in EU.  Rowman and Littlefield Publ., Lanham, Boulder, New York and Oxford Tomushat C (2006) The legacy of Nuremberg. Int J Crim Justice 4:830– 844 Trentin S (1945) Stato Nazione Federalismo. Marsilio, Venezia von Bogdandy A (2022) Comparative public law for European society. In: Max Planck Institute for Comparative Public Law & ­International Law 2022-28 Weiler JHH (1991) The transformation of Europe. Yale Law J 100:2403 Zakaria F (1997) The rise of illiberal democracies. Foreign Aff 76:22

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Trends of Expansion – 300

8.2

Decolonization and Constitutionalism in Asia – 301

8.3

Decolonization and Constitutionalism in Africa – 307

8.4

Constitutionalism in Latin America – 309

8.5

 he Ambivalent Expansion of Constitutionalism T in Eastern and Central Europe After the Fall of Communism – 315

8.6

Western Constitutionalism in the Global Landscape – 318 References – 322

© Springer Nature Switzerland AG and G.Giappichelli Editore 2023 A. Buratti, Western Constitutionalism, https://doi.org/10.1007/978-3-031-40872-4_8

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8.1 

Trends of Expansion

Thus far, this book has described the development of constitutionalism within its original environment, the Atlantic space. Only in 7 Chap. 5 have I broadened the analysis to countries such as Australia and New Zealand, due to the evident influence of British constitutionalism in their constitutional design, which began during the colonial age and was then consolidated by the Commonwealth experience. In this final chapter, I will delve into the expansion of constitutionalism across other continents. After the Second World War, indeed, several waves of democratization spread liberal and democratic principles around the World, in coincidence with the entangled processes of decolonization and economic development (Huntington 1991). In this framework, the defeat of communism in the Soviet Union and eastern and central Europe, along with the acceptance of capitalism as the main economic system in the world and the transition of many countries to liberal democracy, further raised the misleading sensation of an “end of history”, with the affirmation of a unique political and economic model, mainly coinciding with western liberal democracy, globally widespread (Fukuyama 1992). This process of global diffusion of liberal-democratic principles has proceeded hand in hand with the global diffusion of constitutional settings (Choudry 2006; Tushnet 2009; De Vergottini 2021). The settlement of constitutional systems in other countries and continents outside of the original Atlantic space—boosted by historical, cultural, economic, and geopolitical reasons—was made possible through the migration and transplant of legal concepts, institutions and models elaborated within the western constitutional tradition. In this “constitutional learning” process, a crucial role was played by comparative legal studies, which allowed for and widened the circulation of constitutional culture and techniques, thus contributing to the shaping of a global constitutional koiné (Di Martino 2021). Through reaching vastly different political and legal cultures, western constitutional tradition met tremendous opportunities and challenges. In some cases, it was able to merge with autochthonous legal cultures and traditions, giving life to forms of legal syncretism resulting in innovative ramifications of western constitutionalism. In other  

The spreading of constitutional forms

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cases, the process of expansion of western constitutionalism has been hampered by political and social conditions that demonstrated to be incompatible with the development of its structures. In these scenarios, the transplant of constitutional architectures has given life to fake constitutional experiences, often hiding old and new forms of authoritarianism (Dixon and Landau 2021). It has also caused the regression and rejection of constitutional democracy, as in the case of the recent phenomenon of illiberal democracies (Zakaria 1997). All of that has demonstrated the inherent fragility of constitutional democracy, and has raised the awareness of the existence of social preconditions to the establishment of constitutionalism (7 Sect. 8.6). I will analyze the trends of expansion of western constitutionalism following a historical order. First, I consider the diffusion of constitutionalism in the Asian and African contexts, where the affirmation of constitutional structures accompanied decolonization and the process of independence. Then, I consider the affirmation of constitutionalism in Latin America, where western constitutionalism took its roots during the nineteenth century and in connection with the first processes of independence from European countries, thus contributing to the development of a proper tradition of constitutionalism. Finally, I analyze the constitutional transitions in East-Central Europe after the fall of communism, whose results are hardly understandable, due to the current phenomena of democratic regression in many countries.  

8.2 

Decolonization and Constitutionalism in Asia

In Africa and Asia, the diffusion of constitutionalism has been associated with decolonization, a process that commenced at the end of the First World War, and strongly intensified during, and in the aftermath of, the Second World War. The independence of African and Asian states, previously under the dominance of European colonial powers, led to the adoption of constitutional documents, often drafted mirroring the constitutional models of the former colonial powers, or drawing inspiration from the American constitutional model. The first decolonization phase was thus characterized by a process of learning,

Challenges to constitutionalism in Asia

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8 Ambivalences of Islamic constitutionalism

reception and adaptation of the typical settings of western constitutionalism. However, in the long run, many of the newly independent states experienced a form of denial toward western constitutionalism, mainly due to the fragility of social preconditions that had supported the affirmation of constitutionalism in Europe and North America. While in some instances liberal-democracy had consolidated, in many countries we also witness the affirmation of authoritarian regimes, often giving rise to military governments, one-­ party systems or theocracies. The same processes of national unification and state building—often artificial and imposed by external forces—met difficulties and crises, with tribal and local conflicts resulting in breaches of national unity. In general, and with little exceptions, fragility of democratic regimes and instability of state’s institutions has characterized political life in these areas of the world. On the Asian continent, one can find an extremely heterogeneous set of political regimes and legal cultures. In this scenario, the Islamic World deserves special attention for the broad space it covers—which spans from North Africa to the Middle-East, from the Arabic Peninsula to Central and South-Eastern Asia—and for the relevance of the questions it poses on the compatibility of Islamic social and political principles with constitutionalism (Bahlul 2007; Grote and Röder 2012). In the Islamic countries, the overlap of civil and religious orders and the persistence of religious influence in law and politics brings with it the difficulty to root those principles of secularism and individualism that have been associated with constitutionalism since its origins in the Western World; at the same time, the difficulty to establish a pluralistic democracy has often paved the way to the affirmation of authoritarian governments, organized in several forms—military autocracy, single-party hegemony, unrestrained presidentialism, etc. Even in those countries of the Islamic World where democratic procedures and constitutional structures exist, and separation between religion and politics is formally settled, difficulties persist, mainly related to the inconsistencies in grating rule of law standards, the prevalence of public interest over individual liberties, the ambiguities in the recognition of equality, and the denial of religious pluralism. Those imbalances make institutional systems of Islamic countries fragile and susceptible to undemocratic

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retreat, as confirmed in the cases of the Arab Spring in North Africa. The most evident sample of democratic regression in an Islamic country is the case of Turkey, where the secularization process was triggered in 1920, granting the establishment of a democratic society, but was then interrupted in the last decade by a new political orientation aimed to reinstate Islamic principles in social life (Kaboglu 2022). This analysis—which of course should be better articulated having regard to the variety of the Islamic World and to specific national contexts—confirms, in general, the awareness that the separation between politics and religion which took place in the western scenario in the Modern Age is, as a matter of fact, a preliminary condition needed to allow the emergence of constitutionalism and the recognition of principles including liberty, equality and political participation. With regard to the Asian countries where the constitutional democratic system has consolidated, the main experiences to be considered are Japan, Israel and India. Since the end of the Second World War, the Japanese political system has been characterized by the consolidation and the stabilization of democracy. After military defeat in the Second World War, indeed, the need to build a new modern and democratic legal order was the main driver of a major constitutional breakthrough. The outcome was the adoption of the Constitution in 1947, which entailed the affirmation of democratic principles—thus downsizing the prerogatives of the emperor, who became no more than a symbol of the state and the unity of the people—and acknowledged fundamental rights and equality. Although deeply influenced by the American constitutional culture, the Japanese Constitution establishes a parliamentary government, where the Cabinet is linked to the legislative assemblies by the relationship of confidence. The Constitution is rigid: it sets forth a system of judicial review of legislation, with a preeminent role of the Supreme Court, as the highest court in the country. Since the end of the 1990s, the Supreme Court’s jurisdiction has become discretionary: this means that, similar to what happens with reference to the U.S.  Supreme Court, the Supreme Court has the power to select the cases it handles (Kawagishi 2007). In 1949, a resolution of the United Nations Organization recognized the independent State of Israel,

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Constitutional democracy in Japan

Constitutional democracy in Israel

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The emergence of entrenched constitutional law

carved out from the territory of the former province of the British colonial Empire of Palestine. Although not acknowledged by several states in the Middle-East, the resolution triggered a tremendous movement of immigration of Jewish people toward Israel. The Israeli Declaration of Independence was adopted a year prior, in 1948. It foresaw the adoption of a written Constitution by a Constituent Assembly. However, the constituent process went through a major deadlock, since the main political party, the Republican Party led by Ben Gurion, refused the adoption of an entrenched constitutional act. Ben Gurion’s position was based on a “republican difficulty”, consistent with the opinions of Thomas Jefferson at the origins of American constitutionalism: according to Ben Gurion, a written and entrenched constitution would have had the effect of imposing constraints over the will of the people, expressed through democratic procedure and the majority rule—a freezing of the democratic process even more unacceptable for a nation in quick aggrandizement thanks to ongoing momentous immigration. The religious grounds of Israel’s legal order were a further reason to reject the idea of the constitution as a higher law, deemed as a form of secularization of superior principles. Ben Gurion looked, rather, at the British experience to demonstrate the possibility of establishing a liberal and democratic state even beyond the legal framework of a written and entrenched constitution. The newly elected Constituent Assembly was therefore dissolved. As a consequence, since the beginning of its activity, the parliamentary assembly, the Knesset, started to adopt a number of basic laws, regulating single areas of the constitutional structure of the state and meant to be incorporated, in the future, in a constitutional act. This process never reached its end though, and the constitutional law of Israel still consists of the whole of the basic laws (Navot 2014). The majority of the basic laws do not require any special procedure for their amendment: for several decades, therefore, the substantive constitutional law represented by the basic law did not entail any form of constitutional review of legislation. This framework changed in the 1990s, when a significative process of constitutional reform took place: in 1992 and 1994 two basic laws were adopted: (1) for the protection of Human Dignity and Liberty; and (2) on the regulation of Freedom of

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Occupation. The protection of rights, originally granted by the Common law of the courts, was thus enriched by a written catalogue. Furthermore, those two basic laws present a rigid nature: due to this characteristic, in 1995 the Supreme Court affirmed the possibility of judicial review of primary legislation, despite the absence of a legal basis formally authorizing it (Pierdominici 2022). Other basic laws regulate the system of government, which is a parliamentary government. The Knesset is a mono-cameral Parliament. It is elected with a proportional system, resulting in a fragmented multi-party system, coalition governments, institutional instability and frequent early dissolutions. In India, at the beginning of the twentieth century, the British Government had already initiated a process of reform aimed at assigning more autonomy to the colonial provinces. However, only in 1947 did the British Government decide to recognize full independence. In December of the same year, the Constituent Assembly of India held its first meeting. Initially, the Assembly had to draft a federal Constitution for all the provinces previously under the British Empire, however the framers soon understood the difficulties of reconciling the two Indian areas, the one characterized by people mostly professing Hinduism and the other with a prevalence of the Islamic religion. After 2 years of cruel civil war, the division was accepted and two different states were established: India and Pakistan. The Constitution adopted in 1949 is the Constitution of the Federal Union of India. The federal structure was established in order to preserve the unity of a huge population within the nation—more than one billion people— characterized by profound social, ethnic, linguistic and religious differences. The framers opted for an open and highly dynamic federal system due to this variance, which over the years has favored the growth in the number of local authorities, meant to guarantee autonomy to territorial concentrated cultural identities (today there are 35 local Indian states and union territories with over 250,000 local governments). The powers of the Federation are therefore balanced with those of the states, and they prevail only in cases of a crisis. As for the Government at the federal level, in line with the trend that emerged during the first decolonization

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Indian independence and the Constitution of 1949

Frame of government and political process

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General principles, fundamental rights, and the role of the Supreme Court

phase, the Constituent Assembly opted for a parliamentary government, following the British model. The Parliament has a bicameral structure, with a major role assigned to the lower house (directly elected) over the upper house. The latter, following the American model, is composed of states’ representatives, and one third of its membership is renewed every 3  years. The lower house provides the confidence to the Cabinet, which is characterized by the preeminent role played by the Prime Minister. The President of the Union is elected by a wide electoral college composed of members of Parliament and states’ representatives. Except for additional emergency powers in exceptional times of national crisis, the President only retains coordinating powers, and he is the guarantor of the Indian Constitution. Despite the highly fragmented party system, characterized by a huge number of parties mainly organized at the local level, the Indian institutions have generally been able to assure political stability. This has been possible due to the major role played by one political party, the Congress Party, which for decades has consistently gathered a high level of consensus, thanks also to the leading role played by charismatic figures, such as Jawaharlal Nehru and Indira Gandhi, who have led the Party for many years; a role currently played by Narendra Modi, leader of the Popular Party and Prime Minister since 2014. The relevance of these charismatic leaders never undermined the democratic structure of the state. In 1974, when Indira Gandhi tried to enlarge the powers of the Prime Minister, entailing potential authoritarian risks, this attempt was negatively perceived by the population: his Party was strongly defeated in the successive election. This demonstrates how deeply Indian people relate to the values of a parliamentary democracy. According to the Constitution, the basic principles of the legal order are democracy and socialism. As for the latter, the principle was introduced with the constitutional reform that occurred in 1976 and should not be conceived as a devotion of the Indian state to socialism, but rather it should be understood in its broader sense, as a support to the welfare state and a goal to reach a larger social equality. Indian culture is indeed still based upon a rigid caste system, inherently incompatible with legal equality, that the Constitution aims at abolishing (Art. 15 I.C.). The constitutional catalogue of fundamental rights is very well developed with regard to the principle of equal-

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ity and the protection of social rights. Mainly, the principle of equality is understood as a means to reconcile the respect of formal equality with the adoption of concrete measures supporting the poorest part of the population, in order to assure the promotion of substantive equality. This comprehensive interpretation of the principle of equality, inclusive of both formal and substantive equality, also determined a different posture with respect to property rights, which were downgraded and subordinated to all the other goals of the welfare state. Another important feature of the catalogue of rights is the high level of protection guaranteed to ethnic, cultural, linguistic and religious pluralism, which represents one of the distinctive patterns of Indian society (there are 15 official languages and six main religions, along with more than one hundred minor religions, in the different provinces). The protection of the catalogue of fundamental rights is assured by an intense system of judicial review of legislation. The Federal Supreme Court, the highest court in the state, owns a preeminent position in the task of reviewing legislation and in the protection of federalism and fundamental rights (Bonilla Maldonado 2013): (1) as is normal in Common law systems, its precedents are binding for other courts, (2) it can declare the voidance of both federal and state statutes, and (3) its jurisdiction involves cases of conflict of competences between the Federation and the states. Furthermore, the Court can be reached through individual direct complaints for the protection of fundamental rights. 8.3 

Decolonization and Constitutionalism in Africa

Like Asia, African constitutionalism underwent difficulties in taking root, due to poverty and persistent inequality, tribal conflicts, financial instability, and artificiality of state-building processes. Although constitutional structures and democratic procedures were settled in an easier way as compared to Asia, on the basis of recommendations and guidance of former colonial powers, many African states have faced constitutional crises, often associated to revolutions and regime changes: in many cases, democratic fragility has paved the way to regimes characterized by concentration of powers in one man or in military élites. Nonetheless, also in the African continent—both

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South African postApartheid transition

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The Constitution of 1997

in Sub-Saharan and Austral regions, we can identify experiences where constitutional principles have been integrated in a stable political democratic framework, also giving birth to a peculiar syncretism with traditional legal customs (Nicolini 2016). Among the countries with a more consolidated democratic life, the case of South Africa deserves special consideration, for the peculiar conditions of its constitutional process, seminal for the whole African constitutional culture. A British colonial dominion enjoying a certain degree of autonomy since the beginning of the twentieth century, South Africa became independent in 1961. The first part of its story was characterized by the persistence of a system of violent racial segregation (Apartheid) suffered by black people. In 1994, Apartheid finally came to an end. The success of the political movement led by Nelson Mandela assured the establishment of a democratic system characterized by the peaceful cohabitation of different ethnic groups in South Africa. Of great interest is the approach followed for promoting the process of democratic transition, aimed to grant justice for the victims of the Apartheid, while assuring peace in the country. The “Truth and Reconciliation Commission”, established with the task of uncovering the truth about human rights violations that had occurred during Apartheid, heard from the perpetrators of the crimes and granted them amnesty from both civil and criminal prosecution. The aim of this mechanism of reparative justice was to boost a process of ethnic and social pacification (Elster 2004; Lollini 2005). This experience of transitional justice has soon become a model for other countries, especially Latin-American and African countries, for managing the passage from authoritarian regimes toward liberal-democratic orders, in order to support the new democratic institutions and the fragile nation-building process (Brankovic and van der Merwe 2018). Following the post-Apartheid transition, a Constitution was adopted in 1997. The constitutional catalogue of rights pursues substantive equality with the aim to promote economic growth of the black population. Therein, innovative rights, such as the right to housing, and proactive actions in favor of disadvantaged groups were introduced. The Constitutional Court of South Africa played a crucial role in assuring the enforcement of those rights,

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8

adopting leading decisions and boosting de facto important social reforms: it is the case of the well-known decision against patent rights on AIDS medications where the Court argued for the preeminence of the fundamental human right to health over intellectual property rights. The Constitution of South Africa establishes a peculiar system of government that can be classified within the parliamentary pattern of governments, with some exceptions: the parliamentary assembly elects the President for a fixed term of 5 years. However, different from a parliamentary government, the President embodies both the roles of head of state and head of the executive branch. Although elected by the parliamentary assembly, the President retains the same powers as a president directly elected; he/she is not responsible before the parliamentary assembly, and can be removed only in case of impeachment, for crimes and misconduct. In carrying out the executive function, the President is joined by a Cabinet, composed of ministers belonging both to parliamentary majority and political opposition: any party that gains at least 20% electoral support has indeed the right to be represented in the Cabinet. This is a peculiar feature of the constitutional system of South Africa, unique of its kind, and it further underlines the aim of the framers to assure a social process of pacification among the different groups composing a pluralistic society. The Cabinet is linked to the Parliament through a relation of confidence that implies the possibility to remove it and compel the President to form a new Cabinet.

8.4 

Constitutionalism in Latin America

On the Central and South American continent, the diffusion of constitutionalism had already been initiated during the nineteenth century, with independence from colonial powers. Hence, the newly independent states adopted constitutions largely mirroring the western models, characterized by rigidity and based on the principle of separation of powers, assuring the protection of rights and establishing systems of government, which mainly echoed American presidentialism. At the same time, Central and South American countries developed a proper constitutional tradition, only partially parallel to the North American model, and boosted by the influence of the popular movements fighting for

Latin American constitutionalism, and the emergence of a Bolivarian constitutional tradition

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Mexican Constitution of 1917

independence against the colonial powers (Gargarella 2013; Pampillo Baliño 2022). The main sample of this peculiar constitutional tradition is “Bolivarianism”, named after Simon Bolivar, the hero who led the struggles for independence in Venezuela, Bolivia, Colombia and Peru. This movement influenced the entire constitutional culture in Latin America. Strictly linked to the process of independence, state-building and social emancipation, Bolivarian constitutionalism established its distance from North-American constitutionalism in many aspects: it (1) affirmed an immediate and broad recognition of equality, claiming the abolition of slavery and giving priority to the fight against poverty; (2) refused federalism, favoring a preeminent role of the central state; (3) recognized extensive powers to a president, directly elected and retaining an immediate representative relationship with the citizens; (4) supported a different vision of democracy, not limited to representative democracy, but involving popular actions aimed at checking the delegates; and (5) enforced individual guarantees, not only through typical judicial methods, but also via direct individual and collective appeals to political bodies and the courts. A typical sample of a constitution that embodies this model is the Mexican Constitution of 1917, which was adopted after a revolution fought by the working and lower classes against the dictatorship, religious authorities and large landowners. This Constitution is still in force today. The institutional framework therein follows many aspects of the North American model: Mexico, indeed, is a federal state, and the Government is organized according to a presidential structure. Yet, when turning the attention to the catalogue of rights, it appears to be consistent with the revolutionary ideology, and the adoption of ideals typical of socialist movements, starting with the broad affirmation of social rights and rights of workers—thus anticipating the path undertaken by the Weimar Constitution. Furthermore, this is the first Constitution to establish an unusual remedy for the guarantee of constitutional rights, the recurso de amparo. Consistent with the Bolivarian pattern, in which the protection of rights passes through direct actions, in addition to typical judicial remedies, the amparo is an individual direct appeal to the Supreme Court, or to the constitutional court, if available, claiming the violation of fundamental rights protected by

311 8.4 · Constitutionalism in Latin America

the Constitution by an act of the state. After its adoption by the Mexican Constitution, the recurso de amparo was adopted by many other Latin American constitutions, expanding itself even into Spain (7 Sect. 6.6). While Mexican experience demonstrates a remarkable political stability, many countries on the Latin American continent met tremendous difficulties in consolidating and granting political stability throughout the nineteenth and twentieth centuries: social unbalances often corrupted democratic procedures, paving the way to authoritarian regressions and military regimes. Only in the last decades do we witness a consistent path of consolidation of constitutional democracy in a stable political framework. The international community has played a critical role in helping to reach democratic stability, especially through the American Convention on Human Rights (ACHR), adopted in 1969 by the Organization of American States. Created with the intent to implement human rights enshrined in the United Nations’ Universal Declaration into the American region, and mirroring the sample of the European Convention of 1950, the ACHR provides for a comprehensive catalogue of human rights, and establishes a Court, in San José de Costarica, for adjudicating human rights disputes, in a relation of subsidiarity with national remedies of rights’ protection (Buergenthal 1975; Cappuccio and Tanzarella 2017). The ACHR’s increasing relevance has stimulated states constitutions to integrate the Convention within their legal orders, in a process that could eventually reproduce what is happening in the European scenario (7 Sect. 7.4). Throughout the years, the Court of San José has supported democratization and human rights enforcement in many ways, also imposing the prosecution of political mass crimes committed by authoritarian regimes and protecting minority rights. It represents, therefore, a safety net for the stabilization of democracy. The troubled story of constitutional democracy in Latin America explains why nowadays most of the constitutions also regulate states of democratic emergency, with the attribution of special powers to the president and to the executive branch, as well as the recognition of the people’s right to resistance, all of them aimed at assuring institutional guarantees against any potential authoritarian degeneration.

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The Brazilian Constitution of 1988

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Constitutional review of legislation in Brazil

Today, several states in Latin America own consolidated democratic systems, with pluralistic party systems and effective constitutional protections of individual rights—a political stability that allowed many of them to develop a solid national economy and often to play an important role in the international scenario. Due to the dimension of its population, its political and economic relevance in the region and in the world, and the innovative features of its Constitution, I focus my analysis on the Brazilian constitutional experience. The Brazilian Constitution was adopted in 1988, after some failed attempts during the twentieth century. It is characterized by the eminent role given to the goal of eradicating poverty and social inequalities. The Constitution is rigid, and also entails unamendable principles: namely, the federative form of the State; direct, secret, universal, and periodic voting; the separation of powers; and individual rights and guarantees of rights. As for fundamental rights, the constitutional catalogue is very broad, giving prevalence to social and workers’ rights: the second part of the Constitution provides a very detailed set of norms about work life. The constitutional guarantees of rights are not limited to those forged within the tradition of western constitutionalism, but rather they are enriched by further remedies, such as the warrant for collective security (direct action assigned to political parties and labor unions for protecting collective rights and liberties), the habeas corpus, habeas data and writ of injunction. The constitutional review of legislation in Brazil follows a hybrid method, with elements typical of the judicial review system and the centralized one. As with judicial review, all the courts have the power to declare a legislative provision unconstitutional, and therefore disregard it in this case. However, while judicial review works in the U.S. within a Common law legal system, in Brazil the legal system is a Civil law one. Therefore, although being a last resort judgement, under a formal perspective the Federal Supreme Court’s declarations of unconstitutionality do not own the capacity to bind the inferior courts of the nation. This weakeness, that could hamper homogenity and equal application of the laws, is partially compensated by the peculiar mechanism of súmulas vinculantes. They are statements, adopted by two thirds of Supreme Court’s judges, that summarize a consolidated orientation of the Court on constitutional mat-

313 8.4 · Constitutionalism in Latin America

ters and raise it to the level of a normative, binding, standard: once adopted, the summary will bind all the other courts of the judiciary branch and the public administration at the federal, state and municipal levels. On the other hand, the legislative power is not bound by it, and may challenge the Court’s orientation through legislation. The role of the Supreme Court as a de facto centralized constitutional court is further strengthened by the existence of an additional action—the direct action of unconstitutionality, which allows several institutions, as well as associations, to directly invoke the Court’s review of a statutory provision. Brazil is a federal state: the Senate offers an equal representation at the Federal level to the states, that are also involved in the procedure of constitutional amendment. Different from the American patter, here federalism is organized according to a cooperative model: several subjects fall within the so-called concurrent matters between the states and the Federation, and the federal supremacy clause explicitly defines the procedures and the cases that allow federal intervention in matters falling within the states’competences. As in the great majority of Latin American states, the Brazilian Constitution provides for a presidential government. The President, along with the Vice President, is directly elected for a 4-year term by a popular vote, through a double-round electoral system: if no candidate achieves an absolute majority in the first round, then a second round of voting is held and the winner of this round is declared elected. The relationship between Parliament and the President is organized according to the typical institutions of the American Presidential government, such as the Senate’s power to approve appointments by the President and the presidential veto (which also entitles the President to adopt partial vetoes). The rigid separation of powers that usually characterizes the presidential government is here more measured, due to the President’s power to initiate legislation, and the possibility of delegating normative functions to the executive. Therefore, the Brazilian President powerfully participates in the legislative function. Impeachment suffered a much more troubled application: formulated following the American model, recently it has been interpreted by political parties as a political weapon rather than as a sanction for criminal offences,

Federalism and presidential government

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From the Bolivarian constitutional tradition to a “new constitutionalism”

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with the purpose to remove presidents no more enjoying parliamentary support: a degeneration that could, eventually, imply a transformation of the pattern of government and obstruct institutional stability. In the last decades, the panorama of Latin American constitutionalism has been enriched by trends that emphasize its persisting Bolivarian roots and creative posture, aimed at rethinking typical features of western constitutionalism in the light of innovative exigencies manifested by society. Scholars name this as “new constitutionalism”—mainly exemplified in recent experiences in Ecuador and Bolivia, but also in the Chilean constitutional process. This approach embodies emancipative and egalitarian elements of Bolivarian constitutionalism, and channels them into a thick net of social protection; the traditional catalogues of rights elaborated within the environment of liberal-democratic constitutionalism are therefore broadened with a wide acknowledgment of social rights and minority rights (Gargarella and Courtis 2009; Mastromarino 2020); a central element is also represented by the goal to preserve environmental resources—even with the recognition of a legal personality to natural assets, with the aim to raise the level of protection before the law (Brunet 2019). All of that is inspired by a set of values alternative to those that have guided the liberal society in the Western World, synthetized in the idea of buen vivir (Baldin 2019). Moreover, new constitutionalism confirms the radical democratic spirit of Bolivarian constitutionalism: not only does it shape the mechanism of organization of the political process with the injection of elements of direct democracy, but it also entails new and creative methods of participative democracy, that have reached their peak in the popular participation to the recent Chilean constitutional process, interrupted in 2022 due to the rejection of the referendum on the draft constitution (Iannacone 2022). Notwithstanding the enhancement that these methods imply for the quality of democracy, the emphasis on popular direct involvement in political decisions also fuels populist waves, which represent a characteristic of Andean politics: the concentration of powers in a directly elected president, while strengthening the identity of a national community and stabilizing the institutional system, at the same time could pave the way to an excessive personaliza-

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tion of power, detrimental to the exigencies of check over and constraint of political power.

8.5 

 he Ambivalent Expansion T of Constitutionalism in Eastern and Central Europe After the Fall of Communism

A further path of expansion of western constitutionalism began with the fall of the Berlin wall in 1989, which symbolized the end of socialist democracies in Eastern and Central Europe (7 Sect. 6.1). States previously under the influence of the Soviet Union started to plan new liberal-­ democratic constitutions: a transition that received the support and guidance from the European international organizations—the European Union and Council of Europe, ready to enlarge their membership to those states. In this scenario, we can identify four geopolitical areas, depending on their characteristics and the outcome of their political and constitutional transition. In East-Central European countries, we witnessed a Democratic transition rapid and effective re-establishment of democratic condi- in East-Central Europe tions and the affirmation of the principles of liberal constitutionalism. In the peculiar case of East Germany, a process of reunification with the Federal Republic of Germany took place, while in the other states the democratic transition entailed the election of constituent assemblies. The constitutions drafted by the newly elected constituent assemblies replicate to some extent the western constitutional models. As for the protection of fundamental rights, they recognize the protection of individual rights, mainly with respect to the protection of economic liberties and a free market economy, in opposition to the socialist model. Worth mentioning is the importance given by these constitutions to international law, which in many cases acquired a supra-legislative force. We can often find an explicit reference to the European Convention on Human Rights, as a binding standard of fundamental rights protection (Pollicino 2010). The frames of government were modeled on two main examples: rationalized parliamentary government (as in Hungary and Slovakia) and semi-presidential government (as in Poland, Romania and Bulgaria). It must be said,  

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Democratic regression in Hungary and Poland

though, that the direct election of the President of the Republic does not imply the adoption, in the last group of countries, of a French model of presidential participation in political direction: the presidential role remains limited, if compared to the crucial role played by the Prime Ministers in the political direction of the countries. In 2012, the Czech Republic amended its Constitution establishing direct presidential elections, thus shifting from a parliamentary government to a semi-presidential one. In general, liberal democracy is a consolidated achievement in these countries. Furthermore, all of them are members of the European Union. Yet, as previously stated (7 Sect. 7.9), in recent years the political systems of Hungary and Poland have undertaken a process of democratic regression, raising concerns in the international community, and especially within the European Union, that has repeatedly condemned Polish and Hungarian breaches of the rule of law. In both of those countries, indeed, the new political majority reformed some of the traditional guarantees of the constitutional model, threatening the independence of the constitutional courts and the judicial branch, imposing limitations to pluralism and freedom of media and press. In the case of Hungary, in particular, the emergence of the charismatic leadership of Orbán has led to an overwhelming popular consensus that, as a matter of fact, raises worries on an excessive concentration of powers in a single party, while the same Orbán has theorized the exigency of experimenting a system of government based on democracy, but alternative to the liberal tradition (Sajó et al. 2021). Similar considerations on the consolidation of constitutional democracy can be made for the Baltic Republics (Lithuania, Estonia and Latvia). In these countries—that in the aftermath of Second World War were submitted to a rigid political control by Moscow—the process of transition from communism led to the re-establishment of the liberal-democratic constitutions that had already been in place during the 1920s, prior to their accession to Russia. The three Baltic Republics are now members of the EU. A third area coincides with the Balkans. The countries of the Balkan area have experienced major problems in the democratic transition from former communist regimes. This transition awakened internal divisions, giving rise to nationalisms and ethnic conflicts that had been frozen by communism and the Cold War. Religious and ethnic conflicts had been in place in the Balkans for a very long time,  

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The Baltic Republics

Difficulties of constitutionalism in the Balkan region

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and the establishment of the nation states often represented an artificial constraint, unable to accommodate internal ethno-linguistic conflicts. The dramatic breakup of Yugoslavia led to the creation of new independent states: some of them have been able to embrace the democratic constitutional model and consolidate a democratic system, becoming members of the European Union (Croatia and Slovenia); in Serbia, instead, the basis of liberal democracy appeared fragile since the establishment of the new Constitution: an evident and consistent process of democratic regression has taken place in the last decade, leading to a concentration of powers in a single party and dismantling of pluralism, free media and political rights of minorities; finally, in other states, we can witness an institutional fragility, due to their still disputed independence (Kosovo) or to their profound internal divisions (Bosnia-Herzegovina). In Bosnia-Herzegovina, the Constitution is the outcome of the Dayton Agreements, which ended the war: the Constitution was attached to the Peace Treaty. According to the Constitution, Bosnia-Herzegovina is composed of three different ethnic groups (Bosnians, Serbs and Croats) whose equal participation to national decision-­making is constitutionally granted through a reservation system of ethnic quotas for the composition of both the legislative and executive branches. The dissolution of the Soviet Union prompted a long-­ Post-communist transilasting confrontation between Boris Yeltsin, the first lib- tion in Russia eral Russian President, and the Parliament, which was still mostly comprised of former members of the Communist Party of the Soviet Union, who openly wished for the return of the communist regime. The 1993 Russian constitutional crisis marked the victory of Yeltsin and the introduction of the new Russian Constitution which was largely modelled off western legislation (Danilenko 1994). However, fearing the return of the communist political opponents, the creators of new Constitution deliberately outlined substantial presidential powers to prevent further political turmoil and a Parliament-led coup d’état, starting with the establishment of a semi-presidential government. Perhaps, such notions could be expected in the 1990s given the large popular support of the Communist Party, but it certainly set the ground for a great abuse of power later on. As a result, the Russian President occupies a stronger Authoritarian backlash position with respect to any other semi-presidential system. Firstly, the President owns tremendous powers with

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respect to the legislative function, such as the power to emanate decrees with the same legal force of laws, independently from any explicit parliamentary delegation and from the existence of any state of emergency. Secondly, the President has substantial control over the executive branch, since the Cabinet—despite being legitimized by the confidence relationship with the Duma, the parliamentary assembly—is appointed directly by the President, which is able to influence and limit Duma’s role in managing the relation of confidence. It ends up that the Cabinet practically enjoys the confidence of the President more than that of Parliament, with a very limited role of political direction for the Prime Minister. The long presidency of Vladimir Putin has been based upon an interpretation of the Russian Government as a de facto presidential government. Over the years, Putin has introduced multiple reforms that not only consolidated his rule but also limited the rights and freedoms of Russian citizens. The pinnacle of his super-presidential intervention was the constitutional reform of 2020 which further exacerbated the concentration of powers in the hand of the President, establishing the precedence of the Russian Constitution over international law, thus further confirming the troubled relations of Russia with the rest of the international community. Therefore, criminalization of political opposition, the rigid control of media and pluralism, and the nationalistic interpretation of foreign and military affairs have demonstrated the failure of the attempt to affirm a constitutional democracy in Russia.

8.6 

 estern Constitutionalism in the Global W Landscape

The extraordinary process of expansion of democratic forms and constitutional structures around the world, which occurred in the aftermath of the Second World War as described in the previous sections, raises several questions. On the one hand, this process, together with a fairer distribution of wealth among nations and a generalized acceptance of the values of human rights, represents a fundamental step ahead in the civilization of humanity. Obviously, inconsistencies and dilemmas persist, as one can see with the scenario triggered by Russia’s invasion

319 8.6 · Western Constitutionalism in the Global Landscape

into Ukraine; though still we can affirm that the diffusion of the model of constitutional democracy has supported equality, human rights, and the limitation of political oligarchy, as well as gave shape to innovative ramifications of constitutionalism, with the outcome of syncretism and hybridization of different legal traditions and political cultures (Di Martino 2021). At the same time, however, the generalization of constitutional and democratic forms in heterogeneous geopolitical and cultural contexts runs the risk of weakening the demanding goals and the dense axiological framework constitutionalism has built. At the end of this book, the profound connection between constitutionalism and western social and political culture should be evident. While, on one side, we must avoid the presumptuous vision of western constitutionalism, as developed throughout modern and contemporary history in the Atlantic space, as the only valid method of democratic political organization (Frankenberg 2018), and be open to alternative methods of political and legal organization of governments consistent with the basic values of democracy and respect of human dignity. On the other side, we must condemn the abuse of the notion of constitutionalism as a mere descriptive concept, able to justify any form of political organization, even authoritarianism (Garcia and Frankenberg 2019). Although it is undoubtedly true that liberal constitutionalism has been associated in modern history with neo-colonial attempts to consolidate a western hegemony in the world, we learn from history that constitutionalism is, as a matter of fact, a western invention, inextricably entangled with liberal and democratic values and goals of social empowerment and inclusion. In constitutional studies, it is important to avoid any form of western ethnocentrism; but this cannot result in misrepresentation of historical evidences. In my perspective, the awareness of the western roots of constitutionalism is not aimed at refusing the validity of migrations and hybridizations of western constitutionalism with other experiences and legal cultures, but it invites us to analyse, assess, and discuss legal and political organization of human societies in the light of basic values, which are the heritage of our civilization. Constitutional studies are not ethology; they are, rather, immersed in culture. The derivation of constitutional democracy from the tradition of western constitutionalism invites us to understand and assess constitutional democracy as a complex

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system of political, social and legal conditions (Grimm 2016). At the heart of those social preconditions lays a pluralistic society: the contradictory and often dramatic history of western constitutionalism shows the tangled relationship between constitutional democracy and the development of a pluralistic public sphere (Habermas 1991). Together with a balanced system of government, aimed at preserving social liberties, the pluralistic public sphere contributes to shape a democratic, “polyarchic” framework (Dahl 1972): government by consent does not only rely on free and regular elections, available for checks by international organizations, and on the equality of the right to vote. Those legal settings only matter in a society where freedom of speech on political and social issues is granted at every latitude, where journalism and media are protected, as they perform the role of watchdogs of democracy, where political pluralism and the rights of political opposition are granted, both in parliamentary procedures and in political communication, to allow a dialogue between the majority and opposition and the actual possibility of change in government and political charges. Polyarchy is, therefore, a condition which represents the source and the web of protection of western constitutionalism. Adopting a demanding paradigm of constitutional democracy calls us to carefully evaluate the possibility of transplanting constitutional settings in contexts where social, political and cultural conditions do not fit with underlying conditions and values. Currently, several international organizations and NGOs play the role of driving emerging countries toward the settlement of constitutional structures; however, these attempts often conflict with the traditional shapes of their national societies. The existence of ethnic or religious divisions, the overlapping of religious law, and the tendency to autocracy all render those attempts unsuccessful. At the same time, however, a demanding paradigm of democracy must be applied when appraising the actual condition of liberal-democracies in the Western World. Currently, consolidated constitutional democracies face several threats. In the field of government, the general enlargement of the powers of the executive branches, able to lead the work of the parliaments, and the related role of media in bolstering the personalization of politics, represents a serious

321 8.6 · Western Constitutionalism in the Global Landscape

threat to the balance of powers (Rosanvallon 2015). Representative democracy, with its typical institutions (the parliaments) and actors (political parties) is the target of harsh criticism by public opinion (Manin 1996), raising resentment and discontent. All of that fuels populist waves that hamper democratic dialectic and a balanced government (Martinico 2021), and weakens defences against democratic regression. In the field of fundamental rights, the principle of equality is far from being actually achieved, as many countries still experience racial, religious and ethnic discrimination. Additionally, the process of globalization is putting states’ constitutionalism under pressure: the nation states appear weak, unable to react to global crises, while supranational organizations do not fully match democratic standards, and they are criticized for their excessive bureaucratic nature. Moreover, recent economic trends have deepened inequalities among social classes ­(Milanovic 2016), and global phenomena, such as migration, are managed with growing difficulty. Considering the challenges faced by the world today, and the various imbalances and weaknesses of constitutional democracy, one may doubt its effectiveness and its capability to resist these tremendous threats. Yet, placed in its historical context, constitutional democracy has proved to be the most suitable form of government for tackling contemporary global challenges and simultaneously preserving a high degree of human liberty and social justice (Sajó and Uitz 2017). It is a heritage to protect and a commitment to fulfill daily.

Comprehension Check and Tasks 1. Determine to what degree the British constitutional traditions have influenced the Indian path towards constitutionalism (7 Sect. 8.2). 2. How can you explain the choice of post-Apartheid South Africa to engage in a reconciliation process with officials of the segregationist regime? (7 Sect. 8.3) 3. Analysing the Brazilian pattern of constitutional review of legislation, point out commonalities and  

 

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differences between the two main patterns (judicial and centralized review) (7 Sect. 8.4) 4. What have been the difficulties in settling constitutional democracy in post-communist Europe? (7 Sect. 8.5)  

 

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Correction to: The Different Paths of Western Constitutional Law in the Nineteenth Century

The updated version of this chapter can be found at https://doi.org/10.1007/978-­3-­031-­40872-­4_3

© Springer Nature Switzerland AG and G.Giappichelli Editore 2024 A. Buratti, Western Constitutionalism, https://doi.org/10.1007/978-3-031-40872-4_9

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Correction to: · The Different Paths of Western Constitutional Law in the Nineteenth



Correction to: Chapter 3 in: A. Buratti, Western Constitutionalism: History, Institutions, Comparative Law, 3rd edition, https://doi.org/10.1007/978-­3-­­031-­40872-­4_3 In section 3.5, corrections have been made on p. 102 f., in order to place the experience of the Paris commune in the exact historical framework. The changes in detail are the following: 1. On p. 102 f. the following text was deleted: “In Paris, in particular, radical movements of the working class pushed the revolution to the institution of the Paris Commune, an attempt to organize the government of the city under principles of direct democracy, linked to the practice of government under the Jacobins’ time. The Commune was quickly dissolved, but the Republican Constitution of 1848 affirmed universal male suffrage and incorporated people’s requests of social emancipation, starting with the proclamation of the right to work.” 2. In the subsequent paragraph, the sentence “With regard to the frame of government, the Constitution of 1848 set up a presidential government, deemed, at that moment, as a method to consolidate the republican achievements;” has been changed to “With regard to the frame of government, the new Republican Constitution of 1848 set up a presidential government, deemed, at that moment, as a method to consolidate the republican achievements;” 3. In the following paragraph, the sentence “Following the defeat of Sedan, a new Republic took shape, the Third Republic (1870–1940):” has been changed to “Following the defeat of Sedan, in a context of national crisis, in Paris radical movements of the working class promoted the institution of the Paris Commune, an attempt to organize the government of the city under principles of direct democracy, linked to the practice of government under the Jacobins’ time. The Commune was quickly dissolved and a new Republic took shape, the Third Republic (1870–1940):”