A New Order of the Ages. Normativity and Precedence

Abstract

In the second research period of the Advanced Grant ReConFort (2016–17), precedence of constitution was the central interest for understanding historical constitutional discourses; these discussions have been further enriched by research into the Polish case study of 1815, which is also addressed in this volume. On the functional level as tertium comparationis, precedence of constitution guarantees the normativity of the modern constitutional concept, comprising the conceptual differentiation from ordinary law, the aggravated alterability (sometimes even up to an ‘eternal’ restriction on the constituent power) and the hierarchically supreme justiciability as legal tests for subordinate laws. Arising out of the American and French Revolution, the new normativity of the ‘constitution’, now connoted as a legal text, fixed the whole political order into one legal order. This claimed to be ‘the basis and foundation of government’, as the Virginia Declaration of Rights of 1776 starts, or ‘Le but de toute institution politique’, in the wording of the preamble of the French 1789 Declaration of the Rights of Man and Citizen. However, irrespective of the superficial linguistic commonalities, the revolutionary American and French discourses on constitutional precedence differ significantly, and met widely varying challenges. Nevertheless, both discourses provided the basic framework for European constitutional developments of decisive normativity in the late eighteenth and nineteenth century. Therefore, they act as cornerstones for comparative research on this key category, reconsidering constitutional formation between old liberties and new precedence. These foundations have guided not only the Principal Investigator’s following essay, but also the papers of the ReConFort postdocs and the contributions of the speakers at the international Brussels conference, on 14 March 2016, which are combined in this volume. In the case of America, colonist resistance against Westminster produced a written superior law set above all political power, due to the efforts to justify the revolution as a legitimate breach of common law. The colonies’ legal argumentation conducted their case like a common-law litigation and borrowed from a long-standing constitutional semantic already traceable in early modern European monarchies. The subordination of ordinary legislative assemblies under fundamental laws (lois fondamentales)—as demonstrated in the granting of religious freedom to all inhabitants in the founding document of the Colony of West New Jersey (1676)—remained based on the traditional grounds that fundamental laws had a specific importance that elevated them above ordinary laws. Neither legal legitimation nor the binding of political authority by very important laws was a new or even revolutionary concept. The British-American discursive common law community was built around the prominence of the Magna Carta and the Bill of Rights, and it was indeed these fundamental laws on which the colonists relied for recalling their customary old liberties as subjects of the British king. Facing Westminster’s unitarian legislative absoluteness in the imperial context, the colonists developed the differentiation between legal and constitutional; the Stamp Act and the Sugar Act, although legal, were argued to be unconstitutional due to the violation of common law liberties. A complementary legal argument was the distinction of the Empire from internal colonial polities, which were governed by the old liberties and privileges as English subjects and not by the superintending power of the British Parliament. In the unsettled connexion of the colonies to Britain, American lawyers relied on Coke’s supremacy concept of common law as immortal custom, as it was understood through Blackstone’s Commentaries. As long as the legal debate was kept on the customary level of their old rights as Englishmen, all questions of precedence were mere questions of the applicability of ordinary law. This changed with the natural law ‘basis and foundation of government’ expressed in the Virginia Bill of Rights, which itself was not vested with any superior rank, but was still analogous to common law. The Declaration of Independence invoked a united American people, distinct from the British colonial power. Thereby emerging, the constituent American people became the reference point for establishing the constitution as law, as well as its revision and interpretation, though there were only the people of the thirteen individual states of the Union. Due to the lack of an unitarian state, the supremacy of the United States Constitution rested not only on it being the legal benchmark for all political powers to protect freedom and property, but also on it being the guarantee for the existence of the Union. Such an interlinkage between the Constitution and the Union invigorated the distinction between superior constitutional law and ordinary statutory law (also of the single federal states), and opened up the discourse on constitutional jurisdiction. In bidding farewell to the Lockean idea that there was ‘no judge on earth between the legislative and the people’, the secular ‘judge’ filled the gap between the legislative branch and the people, which had been caused by the legal separation of the Constitution from the ordinary legislation. The ordinary jurisdiction of the Supreme Court became authorised to measure the statutory law against the ‘higher will of the people’, meaning the Constitution. The Lockean right to resistance—addressed in his god-judge equivalence—was taken up by the federal jurisdiction. Marbury v. Madison (1803) accepted the latter’s prerogative to examine statutory constitutionality or unconstitutionality in a ‘judicial review.’ The common law tradition of the American idea of law was far removed from the French Rousseauist understanding of law as the expression of the volonté générale. Freedom by participation in legislation—articulated in Art. 6 Declaration of the Rights of Man and Citizen as (fraternal-political) equality (liberté, egalité, fraternité)—is and was totally unknown to the American constitutional discourse. Furthermore, ‘Le but de toute institution politique’ of the 1789 declaration reached for the same universal validity, but its philosophical wording only achieved the appropriate legal status by incorporation in the preamble of the September Constitution (1791). Whereas the American resistors differentiated constitutional law and ordinary law conceptually in their effort to justify the revolution as legitimate, the French discourse is, even now, very reluctant to review the unconstitutionality of acts of the legislative assembly, disregarding the difference between the ordinary legislative assembly and the constituent assembly (representing national sovereignty), following Sieyès’ differentiation between constituent national sovereignty and constituted sovereignty. Even under the current French Constitution (enacted on 4 October 1958), there is no review of statutes for unconstitutionality except for the narrow scope of the ‘prior question of constitutionality’ (question prioritaire de constitutionnalité or QPC) dealing with the a posteriori control of promulgated statutes being compatible with the rights and liberties guaranteed by the constitution in Art. 61-1. The failure of Sieyès’ draft of a ‘jury constitutionnaire’ in the Thermidorian debates of the year III (1795; reproduced here in the French original in Appendix A and in the English translation in Appendix B) was only the first link in a chain of reasoning to refuse any judicial authority to declare statutory law to be unconstitutional and overrule it. Sieyès planned for his jury to be staffed with former congressmen rather than professional judges. However, the Rousseauistic dogma of the general will and the continuous constituent power of the French people did not allow for Sieyès’ project to open a window of opportunity for constitutional complaints to be addressed even by individual citizens in their own name to the constitutional jury. Together with the skepticism of the Constitutional Convention about the jury’s resemblance to the judicial privileges of the Ancien Régime, this led to Sieyès’ petition being rejected unanimously in the Constitutional Convention of the year III. Finally, sketching matters of juridification, supremacy, and revision in the public sphere around the constituent St. Paul’s Church Assembly underlines the interconnection not only between the discourses established in the above case studies (applied in a different context), but also between the key issues of the ReConFort project as a whole. In spite of the fact that it ultimately failed to come into force, the German Imperial Constitution of 1849 is a clear example that national sovereignty (Reconsidering Constitutional Formation I) marked the starting point for the process of juridification of sovereignty; constitutional precedence (Reconsidering Constitutional Formation II) was the legal tool to complete the process of juridification of sovereignty.