Constitutional State Configurators and Models
Item 11: Configurators of the Constitutional State
These authors, political philosophers, present a model that doesn’t spontaneously become a constitutional project but arises through revolutions. The transition from theoretical elements to configurative ones isn’t natural or imaginary. In political practice, legal devices are created by political changes called revolutions.
State of Nature and Natural Rights
The state of nature is the origin of rights, insofar as they are considered natural—pre-existing and inalienable. Powers do not create them but acknowledge their pre-existence. These rights are fundamental to political order. Political power is constructed to guarantee them. In the Old Regime, order was an original fact, determining rights. Modernity establishes rights dependent on humanity as the foundation of order. Hobbes first introduces the individual as a subject of law, but Locke conceives of human nature as inherently natural, setting a limit to state power. These thinkers envision white males as the quintessential subjects of political rights, particularly the right to vote, which emerged in the 19th century based on the principle of distinction.
Social Contract, Constituent Power, and Sovereignty
The concept of isolated individuals forms the basis of order. The politically organized community is shaped by bonds of solidarity—the nation—which limits the scope of individuals participating in the political community. Anderson’s concept of ‘imagined communities’ rejects the nationalist view of the nation as a dividing force. This idea merges two elements: subjectivism (a sense of belonging to a nation) and constructivism (nations are constructed). Nation-building becomes relevant when a community is needed to organize political order. In the Old Regime, life revolved around territory-based corporations. With their decline, isolated individuals emerged, necessitating a bond of belonging: the nation. Sieyès, in his revolutionary context work, introduces the notion of constituent power: the nation establishing order through this power. For Sieyès, the nation always acts through representation. The second element is national sovereignty, which now changes meaning. The revolution was an act of transfer. Sovereignty in the Old Regime was absolute power within an established order. To overcome this, we must shift from a corporate order to one of individuals. Sovereignty is no longer absolute power but a minimum condition for social and political existence.
State and Division of Powers
The state now implies an unprecedented concentration of power. Based on the distinction of powerless isolated individuals, the danger is despotism. This is the foundation of Montesquieu’s theory of the division of powers, dividing power into legislative, executive, and judicial branches. His theory has three main ideas: 1) Attributing each branch to different subjects (legislature to two chambers, executive to a single authority—the king, judiciary to the people), 2) No subject can control another power, and 3) Reciprocal powers, where each authority can override or control the decisions of others. All this is enshrined in the constitution.
11.3 The Constitution and Constitutional Models
11.3.1 Constitution and Revolution: The Modern Concept of Constitution
The constitution formalizes the political principles of the constitutional state, articulating categories within a specific institutional framework. The term ‘constitution,’ dating back to Aristotle, traditionally described the existing political structure given by tradition. Modernly, it’s prescriptive, defining how the political structure should be, creating order and organizing political power. Constitutionalism refers to the culture of rights, freedoms, and their guarantees. The constitution articulates this culture, ensuring natural rights and establishing the division of powers.
11.3.2 Constitutional Models
Revolutions produce different constitutional models based on their values:
- American Revolution: Constitution as supreme law.
- French Revolution: Constitution with political value.
Fioravanti identifies three theoretical models of freedoms:
- Historicism: Freedoms derive from history and tradition, evading intrusions of constituted power. Its weakness is the lack of constituent power.
- Individualism/Natural Law: Breaks with tradition, emphasizing individual will in forming order. Its weakness lies in guarantees, critical of political participation rights.
- Statism: The state is a necessary condition for freedoms. Negative freedoms are granted by the state, while positive freedoms (political participation) appoint key state organs.
Fioravanti argues that two models combine to exclude the third. The American Revolution (1776) prioritized individualistic and historicist models, rejecting statism. The key is the constitution as the highest law, guaranteeing rights against state excesses. The French Revolution prioritized individualism and statism, rejecting historicism. National sovereignty became parliamentary sovereignty, giving the legislature a decisive role. The constitution had merely political value.
11.3.3 The 19th-Century European Liberal State
European liberal statism emerged from the French model, prioritizing stability. It used history to shield political order from individual power, defining the nation as a cultural, natural, and historical product. Individual rights were contingent, granted by the state. This historicist and statist model prioritized state laws over the constitution.
11.3.4 On the Value of the Constitution
In the American model, the constitution is the supreme law, with mechanisms to ensure all powers, especially the legislature, adhere to it (judicial review). In the French model and 19th-century European liberal statism, the constitution has only political value, lacking mechanisms to subject laws to it. These flexible constitutions are subject to legislative intent, unlike models where constitutional guarantees are paramount.