The Spanish Constitution: Regulations, Production, and Reform
The Regulations of the Constitution
Our Constitution may be regarded as a fundamental legal rule of order. Stating that the Constitution is a legal rule means a rule considered capable of implementation by the public authorities responsible for law enforcement and the courts. This means that the Constitution is truly integrated law in the legal system and has to be applied as such by the actual content and character of each of its precepts.
The Constitution states explicitly and exhaustively the normative character. On the one hand, Art. 9.1 states that “citizens and public authorities are subject to the Constitution and other legislation.” On the other hand, the notwithstanding clause, paragraph 3, states that “Any provisions contrary to those established in this Constitution.”
The Constitution is intended to legally bind all subjects, public and private. The Constitution binds the government. The Spanish Constitution also understands that citizens themselves were bound by it.
All rules of the constitution are applicable to all courts and binding on all subjects of law. But once seated, it is clear that not all constitutional requirements are binding in the same way or to all subjects alike.
The normative character of the Constitution also has several other events. The Constitution shows, for example, its legislative role in all cases in which it supports direct application without specifying how inexcusable development laws are. This is the case of public freedoms and fundamental rights and the constitutional requirements governing the organizational structure of the constitutional powers.
Finally, we mention that the role of courts is essential to the effectiveness of the normative character of the Constitution. To them, the main part in terms of direct application and interpretation falls under the constitutional provision of other legislation.
The Constitution as the Primary Standard for Legal Production
The primary and fundamental character of the Constitution states that the Constitution also regulates the procedure for creating and modifying the other rules of order. This means that the Constitution is the primary rule on legal production in that it determines which are the statutory powers of management, who is the holder of each character, and the rules issued by such powers.
The Constitution provides for a wide range of regulatory powers:
- The legislative power, attributed to Parliament
- The power to issue decree-laws, blamed on the Government
- The power to issue legislative decrees, which the Parliament can be attributed to the Government
- The power regulatory, attributed to the Government
- The power of legislatures to enact rules of procedure
- The domestic regulatory authority of other bodies or institutions
Finally, we must also take into account all those powers similar to those mentioned that the Statute of Autonomy, based on constitutional provisions, attributed to parliaments, governments, and other bodies and institutions of the autonomous communities.
Reform of the Constitution: Non-Material Limits
Reforming the constitution is an act of undeniable importance since it involves the modification of the decision of the legislature on the model of the political regime. The Constitution devotes Title X to regulating two different processes of reform. Both procedures are rigid in nature. Constitutional rigidity is but one way of ensuring the supremacy of the Constitution.
The amendment of the constitution should be made by the specific procedure reform, and any ordinary law that contradicts the Constitution is unconstitutional and should be eliminated from the legal system.
We find two types of reform processes: the ordinary and the aggravated. The existence of two constitutional reform processes, with varying degrees of stiffness, is evidence that the establishment has chosen to exacerbate the process of reform to modify certain critical aspects of the system before some issues or requirements exclude the possibility of reform. This option usually responds to the belief that imposing substantive limits to the reform is not an effective barrier to preventing political change.
It is precisely on the key issues which, if necessary, political action can be imposed over the constitutional way, making forecasts of the component useless. Therefore, in the Spanish constitution, the possibility of reform is open even for the most relevant aspects of the constitutional system, which at least can serve to guide the eventual transformation of the scheme and to avoid actions done.
In short, the futility of establishing absolute physical limits to the constitutional amendment explains that the Constitution has not provided them. Therefore, the essential aspects of the Spanish political system should be considered in any case as a limit to the reform merely implied, in the sense that if exceeded, this is actually the transformation of the political regime in another country.