Evolution of Constitutionalism: From Liberalism to Modernity
Item XI. Politics and Constitution in the Crisis of Liberal Constitutionalism
The constitutional development can be understood through two perspectives:
- In the early 20th century, between the World Wars, prominent writers sought to reformulate the idea of the constitution and the fundamental elements of a constitutional state. This period yielded significant intellectual advancements.
- Liberal constitutionalism seemed inadequate, with political decisions overshadowing legal frameworks. This perspective emerged from both the left and the right, with the proletariat seen as a potential catalyst for change.
The resolution to this crisis involved redefining constitutional law. The core principle is that all political power within society must ensure general freedom.
Consider the debate between Schmitt and Kelsen.
Post-World War II constitutions reflect a new European constitutionalism, aiming to transcend the limitations of previous models. The constitution is now seen as law, but with a unique character, serving as the foundation for all other laws and policies.
This shift is profound. The legal constitution incorporates elements of the liberal state while introducing corrections to enhance its effectiveness.
Our constitution exemplifies this change. Article I defines the state as a social and democratic state of law.
Today, the welfare state mandates that the government ensures social conditions for exercising rights and freedoms. The democratic state acknowledges political parties and constitutional supremacy.
The concept of the constitution as a supreme law developed early in American and Anglo-Saxon constitutionalism, with the judiciary empowered to review laws for constitutionality.
Understanding the constitutional norm is crucial. In continental European constitutionalism, the constitution stands apart from general law.
Constitutions enshrine fundamental rights that, historically, were not strictly legal. These rights are realized through legislative action.
Rights gain legal force through legislation, applicable to all citizens.
The constitution is superior to the government. In the Anglo world, judges can invalidate laws that contradict fundamental law.
A key principle is that the constitution is not easily amendable, unlike ordinary law.
The legislature’s power to amend the constitution is governed by the constitution itself.
The power of constitutional reform gained acceptance in the late 19th century, reflecting the principle of separation of powers. This dynamic often arises during periods of rapid change.
The liberal constitution, with its principle of universality, transformed society but lacked mechanisms for self-reflection. Constitutions were seen as political, reflecting specific interests.
By the late 19th and early 20th centuries, this model faced a crisis. Both the labor movement and the right recognized the limitations of liberal constitutionalism and sought new forms of coexistence. Finding this new path proved challenging.