Understanding State Power and Constitutional Law

Posted on Dec 15, 2024 in Law & Jurisprudence

Stratified Political Organization and Power

Stratified political organization is dualistic, with two types of power: the King and the States General. Medieval nobility consisted of the clergy and the feudal state.

Concept Statement

Institutional political power organization of a national community.

State Composition

  • Formal Elements: Law and political power. The law, as part of the state, is the normal mode that expresses political power.
  • Budget Materials: People and territory. As an element of the state, the town may be considered the governed people, as recipients of its rules.
  • Organs of Status: Parliament, government, etc.

Territory: Onshore and inland waters, territorial sea, airspace, basement.

Power: Ability to influence decisions. Force consists of those who have the means and authority, those who are renowned as starters.

State sovereignty is a unique power that is manifested as supreme in the domestic realm.

The Social State of Law

The social state of law (19th century) is the evolution from the liberal state to the social state.

John Locke’s Philosophy

To preserve security rights, men unite in society through an agreement that establishes an authority to safeguard assets and rights (life, liberty, and property). This link maintains power to safeguard natural rights.

The three functions or powers in a state are: Legislative, Judicial or Federative, and Executive.

Historical Revolutions and Their Impact

English Revolution of 1688 (Glorious Revolution)

  • Petition of Right (1628), which restricted or limited royal power.
  • Resulted in the approval of the Bill of Rights (1689).
  • Marked the triumph of Parliament, affirming its powers.

French Revolution (18th Century)

The Declaration of the Rights of Man and of the Citizen of 1789 was formulated with pretensions of universality and timelessness.

Constitutional Regime (19th Century)

The liberal concept of constitution-based guarantees is based on:

  • The state is characterized by the abstention of public authorities.
  • Regarding political parties, the liberal state forbade refusal (prohibits intermediation).
  • Doctrinaire liberalism does not recognize the right of suffrage.
  • Political-Economic Liberalism:
    • Inexpensive: Defending property, free markets, labor, and state abstention.
    • Political: Freedom of resistance and political participation.
  • The 19th-century constitutional system set limits to public power and guaranteed individual rights.

Rule of Law

  • Power is circumscribed, regulated, and channeled by law.
  • For a state to be considered a state of law, the legal system should limit and channel the power of the government.

Conception of Social Rule of Law

From the public, reflecting their access to social, economic, and cultural goods that are covered by constitutional texts.

Social Rule of Law

  • Born in opposition to the liberal state and totalitarian states.
  • Identified with the liberal state of law.
  • The first correction to the liberal model was the call for public service in the administrative regime.
  • After World War II, it resulted in what has been called the welfare state.
  • It is an interventionist and society-shaping state.

Democracy

  • For a state to be a state of law, it requires that law limits and channels power.
  • Currently, for a state to be a state of law, it must be a democratic state.
  • Absolute sovereignty does not define a democratic regime.

The Spanish Constitution

  • Spanish constitution parties mainly focused on political pluralism.
  • The relationship between Community law and internal creation in Spain is governed by the principle of competition.
  • In the area of international law, the subject is the sovereignty of the state.
  • The European Community provides for integration into community legal entities, both European and other international bodies.
  • Section 93 provides for and regulates the possible transfer of certain rights of sovereignty to international bodies.
  • The principles of hierarchy do not govern the relations between Community law and state creation, but the principle of competition, at least in Spain.

Modern Concept of Constitution

The modern concept of constitution is a legal, liberal guarantee.

  • The conception of European Community legislation is enlightened and French, although it was initially developed in the USA.
  • The USA is where the constitution has developed most effectively.

Content of the European Community

  • Dogmatic Part (guaranteed by the organic part): Precepts that formulate values and basic principles of the rights and freedoms of citizens.
  • Organic Part (guarantee of the dogmatic and must be in function of it): Precepts relating to the organization, powers, and functioning of public authorities.

Sources of Law Systems

Written law + jurisprudence + custom + conventions.

  • Jurisprudence:
    • The jurisprudence emanating from the exercise of constitutional jurisdiction function integrates with other sources of the country’s constitutional law.
    • The so-called interpretative rulings of the Constitutional Court are a source of constitutional law.
  • Custom: (e.g., in Spain, the opening of the legislature by the King + joint dissolution of the chambers)
    • Traditionalists believe the constitution is organic and not popular.
    • Custom is hierarchically lower than written law.
  • Convention: An agreement, express or implied, between two constitutional organs.

Types of Constitutions

  • A) Rigid: Sets exacting requirements, more specific, more aggravated, and special (Bryce) for reform than flexible ones.
  • B) Flexible: Can be changed by the ordinary legislative procedure.
  1. Originating: Have initiated a mode of regulation, a political form, or an institution or fundamental principles anew.
  2. Derivative: Otherwise, as above.

Loewenstein Types

  • A) Policy: Regulates effectively the political process.
  • B) Nominal: Shows mismatches with political reality, beyond their normal function.
  • C) Semantics: Recognizing rights literally. The rule does not match reality at all.

Problem of Constitutional Reform Limits

  • The European Community supports its own sweeping reform.
  • Constitutional Power: The political will of the people to decide on their own democratic existence.
  • In a democracy, the holder of the constituent power is the people.

Characteristics of Constitutional Power

a) Originating power d) Unitary and indivisible
b) Extraordinary e) Inalienable
c) Continuous f) No more condition than democracy in its exercise

Types of Constitutional Power

  • Original Constituent Power: The only means of expression of this is the approval of the European Community.
  • Derivative Constituent Power: Power to reform or revise the constitution. This is when the exercise of constituent power is activated to reform the European Community.
  • The exercise of constituent power has no other condition than democracy.

Conceptual Delimitation of European Community Reform

  1. Reform
  2. Suppression (when the modification is complete, but the procedure also affects the whole set)
  3. Suspension
  4. Disruptive (occasional violation of the European Community without formally altering its duration in the future)
  5. Destruction
  6. Constitutional Mutation

Procedures for Reform

  • A) Regular Reform: Being partial and not affecting the whole text, it only requires approval by 2/3 of the chamber.
  • B) Aggravated or Special Reform: Particularly protected parts require approval of the reform decision by 2/3 of each chamber and a binding referendum.

The reform process must be established in the European Community itself.