Notes

Therefore, the constitution is the foundational document of a political community which is assumed to contain: a) a definition of public power and of the institutions rightfully entrusted with its exercise; b) a list of fundamental rights which are proclaimed to belong to every member of the community; c) the criteria for the public power and its exercise to be regarded as legitimate; d) a proclamation of the specific identity of the community; e) the specification of the procedures for issuing statutory laws and administrative acts; f) the self-definition of the constitution as the highest law within the hierarchy of norms that govern the community.



According to the Western constitutional tradition, only a political community in which public power is justified in an “ascending” way, or “bottom-up”, therefore only a democracy in which the instruments of power are at the service of the individuals, and not the other way around, can be regarded as a constitutional state in the proper and full sense of the word.



Definition and Limitation (or Control) of Public Power as the First Content of the Concept of Constitution in the Western Constitutional Tradition As mentioned above, the first content of the concept of constitution consists in the definition and limitation of public power.



The Division of Powers as the First Fundamental Instrument for the Limitation of Public Power and the Different Forms of Government In 1653 the then Commonwealth of England, Scotland and Ireland – which is the denomination, under the Protectorate of Oliver Cromwell, of what, roughly fifty years later, would become the United Kingdom – issued a constitutional document in which public power is not only clearly defined again, but also limited through its division into separate powers.



In the countries in which a parliamentary vote is required, the head of government or the government as a whole are considered having the “confidence” of the parliament if the “motion of confidence” is approved by absolute majority (with more than 50% of the total votes – or seats – that can be obtained in the whole parliamentary assembly, so that if the seats of the assembly are 100, the absolute majority is 51; this is the case in Germany), by simple majority (with more than 50 % of votes cast, so that if the seats of the assembly are 100, but the votes cast are only 90, the simple majority will be 46; this is the case in Italy and Spain), or in the absence of an absolute majority for those who oppose the “motion of confidence” (if the seats of the assembly are 100, but the votes cast against the “motion of confidence” are less than 51; this is the case in Sweden).



This can happen through a simple majority vote (like in Italy, Japan, Australia and many other countries), absolute majority (like in India), or through a “constructive vote of no confidence” (the “motion of no confidence” against the government in charge is also, at the same time, a “motion of confidence” in favour of a new head of government, so that there must always be a government in charge with full powers; this is the case in Germany and Spain).



In Germany, the Basic Law does not set any time limit with reference to the decision to dissolve the Bundestag by the Federal President, but the general interpretation, supported by the Federal Constitutional Court (Bundesverfassungsgericht), is that, if the head of government (Bundeskanzler) did not obtain the confidence of the Bundestag, or lost it, the head of state has to dissolve the Lower House.



e) Due to the fact that no distinction is given between the head of government and the head of state – who can stop the development of authoritarian tendencies by the government, in parliamentary systems, on the basis of her/his “reserve powers” – the presidential powers are to be limited so as to avoid a possible drift towards authoritarianism.



Federalism as the Second Fundamental Instrument for the Limitation of Public Power Beside the division of powers between legislature, executive and judiciary, public power can also be limited by resorting to federalism.



The US Federalism, or the “Competence-dividing Federalism” What distinguishes the “competence-dividing federalism”, as it is laid down in the US constitution, is that the competences of public power are either attributed to the federal institutions, or to the institutions of the Federated States.



Therefore, the federal government resorted to the Commerce Clause by arguing that the recognition of social rights, if it was not uniformly imposed in all States by federal laws, would impact on the commerce between States to the extent that it would create inhomogeneous conditions and therefore disadvantages for the traders and entrepreneurs from certain States as against those operating in other States.



The Protection of Fundamental Rights as the Second Content of the Concept of Constitution in the Western Constitutional Tradition The second content of the concept of constitution resides in stating the inalienable rights of the individuals, which shall be protected against any abuse by the established powers.



While the constitutions that were adopted at the end of World War II – for instance the Italian Constitution and the German Basic Law – were heavily influenced by the Weimar Constitution, in particular with reference to the relevance given to social rights, the constitutions promulgated in the second half of the twentieth century – for example, the Spanish Constitution of 1978 and the Portuguese Constitution of 1976 – were distinguished in their turn by the introduction, once again, of a new kind of rights, the environmental rights.



Following a well-established interpretation, fundamental rights – as well as human rights – are divided in three categories: a) civil rights (or status negativus in Georg Jellinek’s vocabulary), as those rights that are guaranteed by the nonintervention of the state in fields directly concerning the “negative freedom” of the individuals, so that their selfrealization can be secured through the private space which is kept free from the interference of the public power; they comprise, among others, personal freedom (in the sense of habeas corpus), the inviolability of private homes, the freedom of speech, the free movement, the freedom of opinion and religion, the right to a fair trial, and the presumption of innocence.



The wording of Section III leaves no room for doubts: “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.” The same idea, according to which public power is justified to perform its actions only if it is legitimated by those who have to abide by the rules that this public power creates, is taken up in the Declaration of Independence of the United States of America of the 4th of July 1776.



More than the other electoral systems, the proportional system should guarantee that also minor parties are represented in parliament; since in general more parties are represented in parliament than in the other electoral systems, it is said that the proportional system prioritizes representativity as against governability.



The Specification of the Procedures for Issuing Statutory Laws and Administrative Acts as the Fifth Content of the Concept of Constitution in the Western Constitutional Tradition This aspect of the concept of constitution is – like most other contents – also a typical product of modern constitutionalism.



The Self-definition of the Constitution as the Highest Law within the Hierarchy of Norms that Govern the Community as the Sixth Content of the Concept of Constitution in the Western Constitutional Tradition The recognition of the dimension of the constitution as the highest law within the hierarchy of norms did not go through a simple and linear path in the history of constitutionalism.



Secondly, the priority of the constitution over ordinary laws depends significantly on the establishment of a constitutional adjudication, either through a specific Constitutional Court, or through the established practice that assigns a similar function to the Supreme Court.



The first and essential task – thus, always present in all forms of constitutional adjudication – is judicial review: the Constitutional Court or Supreme Court scrutinizes ordinary laws – following a request by judges of lower courts or a petition of any part to any civil or criminal case, according to the provisions laid down in each specific legal system – in order to verify whether they are consistent with the constitutional provisions.



The following passage of the sentence perfectly expresses the legal meaning and the political function of the principle of judicial review: “So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case.



If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” While judicial review was already introduced at the beginning of the nineteenth century, the first Constitutional Court was established much later, namely with the Austrian Constitution of 1919.



The Republican Constitution of Iran While the Constitution of the Saudi Arabian monarchy expresses the constitutionalization of a traditional rule, the Constitution of the Islamic Republic of Iran is the result of a revolutionary process.



In fact, important evidences speak for the existence of an at least partially autonomous EU public power: a) the establishment, from the very outset of the integration through the Treaties on the Communities, of supranational institutions endowed with considerable authority; b) the existence of decision-making processes not traceable back to intergovernmental cooperation; c) a large normative autonomy within the fields of competence; d) the broad scope of the matters the competence on which had been transferred from the sovereignty of the nation states to the EU institutions; e) the direct effect of EU Treaties and regulations on EU citizens; f) the primacy of EU law over national law – as regards the fields of EU competence even over national constitutional law.



If the Constitutional Treaty was characterised largely by an enhancement of what has been mentioned above as the fourth content of the constitutional tradition, it was precisely on this fourth content – the affirmation of a collective identity – that the axe of the Lisbon Treaty fell mercilessly, cancelling most elements introduced by the Constitutional Treaty.



Yet, the real difficult question is that, while national constitutions claim to have supremacy over any other national law in any field of competence, EU law claims supremacy – to a certain extent even over national constitutional law – but only in some field of competence.



The Global Economic Constitution A first strand of world constitutionalism limits the application of the concept of constitution to the legal framework that gives rules to the worldwide transactions carried out by economic agents.



Although most authors who can be led back to GCG are explicitly reluctant to apply the concept of “constitution” to their understanding of global order, their interpretation of postnational governance recalls, on a broader scale, what has been labelled as “material constitution” in the theory of national constitutionalism.



As a result, we are confronted with two possible outcomes: the first is to give up the use of “constitution” for the kind of legal order that is established beyond the borders of the nation state; the second is to question which ones of the contents of the national concept of constitution are really essential for the notion to make its use generally justifiable and its application to the postnational context reasonable.



Nonetheless, provided that the constitution is the legal document which organizes the life of a community, and a human community of cosmopolitan scope exists whose interactions should be regulated, the only logical conclusion, then, is that the legal documents which are endowed with the task of shaping the cosmopolis have a constitutional quality as well – and a quality which leads us to the most advanced frontier of constitutionalism.