Revista de Derecho Político (Sep 2006)
La influencia del constitucionalismo francés en la fase de reafirmación constitucional española (1837-1845)
Abstract
The influence of French constitutionalism is evident in the period of constitutional reaffirmation in Spain during the reign of Isabel II. This moderantist constitutional phase is committed to the «theory of the internal constitution» and takes as its point of departure the historical recognition of two basic principles that articulate (except for the democratic constitution of 1869 and the federal project of 1873) the Spanish constitutional and political reality: the Monarchy and Parliament. The shared sovereignty of the King and Parliament, together with a regime of collaboration between the powers arises from this reality. The French moderantism of the Charters of 1814 and 1830 is reflected in our Isabelline texts and the attempts at reform of the Constitution of 1845. The Constitutions of 1837 and 1845 break with the revolutionary liberalism of Cadiz (thus the Constitution of 1837) and they later accommodate it to a doctrinarian and transactional liberalism that will receive the European moderantist current, as can be observed in the 1845 text. As to the dogmatic context, for the first time in Spain a systemization of rights appears, postponing its development to the ordinary legislator. The shared sovereignty between the King and Parliament is the basic concept in order to understand the moderantism that can be appreciated in the Spanish texts of 1837 and 1845, as well as the French text of 1830. In contrast to the monocameralism of radical liberalism, a perfect bicameralism is consolidated between the lower house elected by universal suffrage and a Senate which acts as a moderator, not only due to its composition but also because it enjoys some competences similar to the elective House. Equally and omitting the first revolutionary liberalism, the rigid separation of powers gives way to a collaboration between them— appointment by the King of ministers who enjoy parliamentary support; the dissolution of Parliament by the King in the face of possible confrontation with the Government; compatibility of a ministerial post with a parliamentary mandate, fostering the powers of the Crown whose presence in the legislative context is quite intense, thus confirming a parliamentary regime whose precedents can be found while the Royal Statute in Spain and the Charter of 1814 in France were in force.
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