Modern Constitutionalism and the Rule of Law

Chapter 4: The Current Constitution

The constitutions proposed today represent a political model essentially different from the 19th-century liberal past. These constitutions have reaffirmed the principle of popular sovereignty against the nineteenth-century tradition that favored state sovereignty. They have taken up the revolutionary tradition of the Declaration of Rights, expanding its scope to social rights, which, though only fleetingly relevant, had been asserted during the French Revolution.

Constitutional Control and Supremacy

Rigid constitutions are protected by special review procedures and reinforced by a steady spread of constitutional control. This control is organized differently than the American diffuse model but remains active as a court of freedoms. Currently, the supremacy of the constitution is recognized as a whole, serving as:

• The highest form of security for rights and freedoms.
• A key policy rule for the realization of constitutional values.

Post-War Legal Directives

After the fall of totalitarian regimes and the conclusion of World War II, a solemn affirmation of rights and freedoms protected by the constitution against possible abuses of public powers seemed insufficient. It appears the constitution is not only a fundamental rule of warranty but also an essential directive rule.

If the constitution is to be a true and accurate legal rule, the problem of the illegitimacy of positive state rules arises—specifically those issued correctly in formal terms but contrary to the constitution in substantive content.

The End of Liberal-Statist Dogma

The very existence of constitutional control destroys the liberal-statist dogma of the absolute force of law. It creates a situation in which the validity of state rules is suspended; their validity depends on conformity with the constitution and a specific interpretation of constitutional principles.

The constitution as a fundamental directive inevitably contrasts with the liberal statism of the last century. This is not because of a role for public authorities involving a quantitative growth of administrative duties, but because liberal-statist logic cannot accept that the political unity of a people or nation be conceived as an objective and peaceful reality.