Principles of Constitutional Law - Modulo I

Foundation of the Identity of the Political Community

In the Western Constitutional Tradition, the concept of constitution includes the foundation of the identity of the political community as its fourth content. This concept assumes that the political community is a given fact, and that individuals belong to this community as part of a collective identity.

In different countries, the role of the upper house in the legislative process varies. For example, in the United States, the Senate has equal power with the House of Representatives in passing laws. In Germany, the Bundesrat is involved in the legislative procedure for certain matters specified in the Basic Law. In the United Kingdom and Spain, the upper house can only suspend a law passed by the lower house for a limited period of time.

In Spain, the Senate has more competences with reference to "organic laws" concerning fundamental rights and regional devolution, which require approval from both chambers.

The problem arose at the moment when the structure and competences of public power were submitted to the scrutiny of citizens freely committed to create a body politic in order to guarantee their life conditions and fundamental rights. The constitution is interpreted here as the document founding the identity of the political community. The first document attesting such an approach was the Mayflower Compact of 1620, in which the philosophical vision of the social contract acquires historic concreteness:

"In the name of God, Amen. We whose names are underwriten, the loyall subjects of our dread soveraigne Lord, King James, by the grace of God, of Great Britaine, France & Ireland king, defender of the faith, &c., haveing undertaken, for the glorie of God, and advancemente of the Christian faith, and honour of our king & countrie, a voyage to plant the first colonie in the Northerne parts of Virginia, doe by these presents solemnly & mutualy in the presence of God, and one of another,"

The idea that a group of individuals, freely and in conditions of equality and reciprocity, could establish a political community to better pursue their common goals passed then into the American constitutional tradition. During this process, the approach was progressively depurated of the

adapt its original semantic content to the political project of a reactionary renewal. The idea of a "national constitution" – already developed in the middle of the nineteenth century and reaching its zenith in the following century – amalgamated the distinct and at least partially contradictory elements of a collective identity based on popular participation on the one hand, as well as of an existential and exclusive self-affirmation of a pre-political ethnos on the other.

In conclusion, to the extent that the constitution can be regarded as the document which lays down the foundation of the identity of the political community and this identity is equated with the "nation", we are confronted with two alternatives. On the one hand, we can see the "nation" as based on pre-reflexive belongings, i.e., on non-political and non-legal factors, such as history, language, ethnicity, etc. By doing so, however, we preclude the possibility of the

Inclusion of the “other” as well as the creation of a multi-ethnic identity. On the other hand, we can still understand the “nation” in a quite opposite way, namely as the result of a social integration that essentially depends on the shared identification of the citizens with the norms and values governing their society according to participative procedures of legitimation. In this second case, no obstacle whatsoever exists to the creation of a society with one political and constitutional identity, but with many cultures, languages, collective histories, ethnic groups and religions.

2.5. 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. It was the Constitution of the United States of 1787 that introduced for

The first time – in the fundamental document of the political and legal order of the community – specific provisions on how statutory laws and administrative acts had to be legitimately issued. The presence of this content essentially characterizes all the most important constitutions from the beginning of the nineteenth century onwards, notwithstanding the fact that the definitions of the legislative organs as well as their functions widely vary in the distinct political contexts. Indeed, as it has been shown above, parliaments have very different compositions and, insofar as they are bicameral, the competences of the two Chambers present a great number of configurations. Furthermore, the executive power can be formally excluded from the law-making process – like in the US –; it can play a significant role in it – like in most countries with parliamentary system –, or it can play even a predominant role – like in many countries with semi-presidential.

system and in some with presidential system. Yet, it should be kept in mind that the broader the legislative competences of the executive are, the more the division of powers is in danger.

2.6. 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. Among the factors that have contributed to influencing the events, we should remember, first, the substantial difference between the cases in which the constitution emerges from a relevant historical rupture – as in all revolutionary situations or after a defeat in war – or it is part of a legal evolution characterized by substantial continuity. Secondly, the priority of the constitution over ordinary

The establishment of a constitutional adjudication is crucial for the proper functioning of laws. This can be achieved through a specific Constitutional Court or by assigning a similar function to the Supreme Court.

It is important to note that not all documents granted constitutional rank or defined as "constitutions" explicitly assert their normative superiority over other parts of the legal system. In cases where provisions regarding the superiority of the constitution are absent or unspecific, such as in Italy, constitutional adjudication may face difficulties in asserting its authority and may need to make compromises with non-constitutional courts.

Constitutional adjudication typically has three main tasks, although not all Constitutional or Supreme Courts are vested with all of them.

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.

In case that a law is considered in contrast with the constitutional provisions, it may be annulled (i.e., cancelled from the corpus juris), or disapplied (the law is treated as inapplicable, but silently remains within the corpus juris).

Secondly, Constitutional Courts are vested with the competence to resolve conflicts between constitutional organs.

Thirdly, Constitutional Courts or Supreme Courts may have the task to protect fundamental rights following a direct petition submitted by a citizen (not by a judge or by a part in a case).