Constitutionalism's Evolution: Rights, State Power, and the Bill of Rights

The Evolution of Constitutionalism: Foundations and Debates

The concept of a constitution as a fundamental norm raises a crucial question: can and should the validity of the State's rules be judged based on a foundational rule that precedes the very authority of the State? This perspective suggests that the State itself exists only as a result of a meeting of minds, an elected leadership that the government should pursue jointly.

Historical Phases of Modern Constitutionalism

For some scholars, the opening phase, marked by the constitutions of the post-World War II era, represents the second major phase in the history of modern constitutionalism – the history of rights and freedoms. This follows the first phase, characterized by revolutions. This contemporary phase, like its predecessor, asserts the supremacy of the constitution. This effectively closes the historical period that had seen solutions provided by the clearly liberal-imprint State, which had reduced rights to a mere product of the State's regulations.

Statism vs. Anti-Statism in Constitutional Design

For others, current constitutions are not born from anti-statism but are based on it, exhibiting a clear continuity with the most pronounced form of statism: constructivism. Constructivism is the tendency to conceive the social body as an organized universitas, where each individual is assigned a duty and a place in relation to the collective enterprise, to carry out the basic policy rule.

What stands out in this line of interpretation is that when a constitution is no longer merely a security system but is designed as a body of values – a fundamental policy rule – it necessitates a departure from traditional constitutionalism, providing the basis for a renewed sovereignty of the State.

The Dilemma of Modern Democratic Constitutions

The alternative is either to uphold and develop the ambitious intentions undertaken by current democratic constitutions, thereby reconciling different aspects of historical constitutionalism's heritage, or to assert that this intention contains a fundamental flaw that must be addressed.

Key Provisions of the Bill of Rights 1689

The Bill of Rights 1689, a landmark document in constitutional history, was enacted by the Lords Spiritual and Temporal and Commons, gathered in assembly as the free and complete representation of the nation. Taking into their most serious consideration the best means to achieve their purposes, they claimed and asserted their ancient rights and freedoms. These declarations include:

1. That the pretended power of royal authority to suspend laws or the execution of laws without the consent of Parliament is illegal.
2. That the pretended power of royal authority to waive laws or the execution of laws, as it has been usurped and exercised recently, is illegal.
3. That the commission for erecting the extinct board of commissioners for ecclesiastical causes and all other commissions and courts of a similar nature are illegal and pernicious.
4. That levying money for use by the Crown under the pretext of prerogative, without grant of Parliament, for longer or in any other manner than as is or may be agreed by Parliament, is illegal.
5. That it is the right of subjects to petition the King, and all detention and prosecution for such petitioning are illegal.
6. That creating and maintaining a standing army within the kingdom in peacetime, except with the consent of Parliament, is against the law.
7. That Protestant subjects may have arms for their defense, according to their condition and as allowed by law.
8. That the election of members of Parliament should be free.
9. That freedom of speech and debates or proceedings in Parliament should not be impeached or questioned in any court or place outside Parliament.
10. That no excessive bail should be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.