INTRODUCTION TO LEGAL SYSTEM

CHAPTER ONE: REDISCOVERING THE TRADITION OF RESISTANCE AGAINST THE POLITICAL

POWER : THE THEORETICAL ROOTS OF MODERN CONSTITUTIONALISM

1.1 . CONSTITUTIONALISM : A DEFINITION

The notion of « constitutionalism » identifies a political doctrine first appeared in England during the 17th
Century , which quickly spread over North America and European western Countries , and became the
leading political doctrine of the three Revolutions of the Modern Age .

Since its origins , constitutionalism has aimed at reaching the goal of limiting the absolute political power
through the quest of three legal tools : ( i ) the adoption of a written constitution , prescriptive toward the
institutions of the State and suitable to act as paramount law upon its acts ; ( ii ) the separation of powers
of the State ; ( iii ) the legal protection of a wide range of individual rights . Constitutionalism is , therefore ,
the legal out come of philosophical doctrines of the Modern Age – jusnaturalism , contractarianism , and
their political synthesis , liberalism - with which it shares not only theoretical premises , but also political
goals : transforming the political , legal and economic structures of the Ancien Régime according to the
interests and the objectives of an increasing social class , i.e. the bourgeoisie .

As the historical analysis will show , the doctrine of constitutionalism places its roots in ancient political
and philosophical thought , where not only were needs of limitation of political power present , but also
many of the legal tools developed by modern constitutionalism had been already proposed and dis
cussed . Furthermore , a presentation of the features of this " ancient constitutionalism " allows a better
construction of modern constitutionalism and it sheds light on its connection to other theoretical premises
than those shaped in the Modern Age with in the cultural and social environment of bourgeoisie . The
deep er historical approach , indeed , is able to show the existing connections between the liberal doctrine
of constitutionalism and the goals of popular movements , with their democratic claims for social
redemption . Generally , the traditional approach presents constitutionalism as the exclusive outcome of
liberalism and - on the perspective of social classes - of bourgeoisie . The traditional approach looks at
the popular movements that took part to the Revolutions and to the following developments just as
parenthesis , inconsistencies , and breakages of continuity ( Furet , Matteucci ) . Here , I consider the
democratic doctrines and the popular quests for equality and political participation as relevant factors in
the building up and affirmation of constitutionalism and constitutional law . In other words , liberalism and
democracy , although with different theoretical origins and identified with different social classes , met in
the age of the Revolutions , leading to a combination , on the one side , of legal protections against the
political power and , on the other side , of social improvements in the field of equality and political
participation .

The Constitutions of the Modern and Contemporary Age are the outcome of this multi - faceted doctrine .
Liberal - democratic Constitutions are , indeed , the legal texts and the political hallmark of the
combination of all these fundamental claims of the Modern Age , always providing constitutional rules to
guarantee the rights of men , a regulation of the structure of the government in order to grant separation
and balance among its several branches , principles and plans of development of people's social
conditions and rights in fields such as equality and participation in the political life of the Country . Thanks
to this more comprehensive definition of constitutionalism , it is possible to conceive the contemporary
tasks of constitutional law - the constitutional protection of social rights and social justice and the deeper
regulation of social life - as a natural development of constitutionalism .
1.2 . THE CONTRIBUTION OF ANCIENT CONSTITUTIONALISM

Even if western constitutionalism is a product of the Modern Age , it has deep roots in the classical
thought . Scholars are used to speak about an " ancient constitutionalism " , different but strictly
connected with modern western constitutionalism [ McIlwain ) .

The first reflections on the limitation of political power bring us back to the Greek ancient political
philosophy , where a first discussion about the best form of government of the State appeared as a result
of the separation of politics from religious beliefs and boundaries . In Aristotle's Politika , the question on
the best form of government for the Pòlis is addressed in an original way . The philosopher , indeed ,
refuses Monarchy – the government by one man - as it could easily become a tyranny ; he re fuses also
aristocracy - the government by the richest part of the society - since it could easily become an oligarchy ;
and also refuses democracy , that he conceives as the government by the majority . Democracy ,
according to Aristotle , could lead to the government of the popular class , and thus it would boost only
the interests of the poorest part of the society against the other of social classes . As an alternative , he
proposes , instead , a mixed form of government , where all the social classes are represented and share
powers through different institutions , closely linked each other . He calls this perfect and balanced form of
government " Politeia " .

Throughout the centuries , the theory of Aristotle influenced other philosophers and politicians . In the
Roman Age , the most important of those was Cicero . As a member of the aristocracy , he fought against
both the desire of the Tribunes - representatives of the plebs – to acquire more power , and the attempts
to confer all the political power to one man . To this end , he pro posed the same idea of Aristotle , i.e. a
mixed and balanced form of government , that he called " Repubblica " .

Several features of these doctrines are linked to specific elements of cultural and political landscape of
the Ancient Age : both Aristotle's and Cicero's doctrines are strictly connected to the historical and social
condition of their times and to their main political project , i.e. the need to achieve political peace and
social stability ( Rimoli ) . According to them , this goal could only be reached through a mixed form of
government , in which all the powers are shared and divided . Furthermore , alike to the philosophy of the
Ancient Age , the two philosophers based their theories on a specific interpretation of the social body .
That is , the political community is comparable to a human body , in which all of its parts are connected ,
and no one is more important than the other , regardless the function performed by each of them . Such a
general view of the political community is linked to a static and organicistic interpretation that cannot be
applicable to modern societies . Nonetheless , in these doctrines we can find the first assertions on the
relevance of a mixed government , whence the modern doctrine of the separation of powers derives ( Vile
).

A second contribution on government and politics that the ancient thought bequeaths to modern
constitutionalism regards the idea of the boundaries of law .

In ancient political philosophy , indeed , the idea of a higher law - shaped by nature , human reason , or
given by God – that binds all men , began to appear . In the Greek thought the theory was not clearly
developed , and it is only with the Christian and the Roman philosophy that it was fully defined and , today
, it is commonly acknowledged as jusnaturalism . The theory , despite its several sources , varying each
from the other , generally claims for the existence of a natural limit to the law of men . In Cicero's De
Republica , we find a precise explanation of the bounds to the law of men represented by law of nature :

True law is right reason in agreement with nature ; it summons to duty by its commands , and averts from
wrong doing by its prohibitions . And it does not lay its commands or prohibitions upon good men in vain ,
though neither have any effect on the wicked . It is a sin to try to alter this law , nor is it allowable to
attempt to repeal any part of it , and it is impossible to abolish it entirely . We cannot be freed from its
obligations by senate or people , and we need not look outside ourselves for an expounder or interpreter
of it . And there will not be different laws at Rome and at Athens , or different laws now and in the future ,
but one eternal and unchangeable law will be valid for all nations and all times , and there will one master
and ruler , that is , God , over us all , for he is the author of this law , its promulgator , and its enforcing
judge .

In the Christian political theory , developed throughout the years in which Christians were a persecuted
minority , the natural law , based on the will of God , represented the main constraint to the doctrine of
unbounded sovereignty , which was ex pressed by the main political and legal thought in the age of the
Roman Empire . Following Origen , a Christian theologian living in the III Century a.C. ,

As there are , then , generally two laws presented to us , the one being the law of nature , of which God
would be the legislator , and the other being the written law of cities , it is a proper thing , when the written
law is not opposed to that of God , for the citizens not to abandon it under pretext of foreign customs ; but
when the law of nature , that is , the law of God , commands what is opposed to the written law , observe
whether reason will not tell us to bid a long farewell to the written code , and to the desire of its
legislators , and to give ourselves up to the legislator God , and to choose a life agree able to His word ,
although in doing so it may be necessary to encounter dangers , and countless labours , and even death
and dishonor . For when there are some laws in harmony with the will of God , which are opposed to
others which are in force in cities , and when it is impracticable to please God ( and those who administer
laws of the kind referred to ) , it would be absurd to condemn those acts by means of which we may
please the Creator of all things , and to select those by which we shall become displeasing to God ,
though we may satisfy unholy laws , and those who love them .

During the Middle Ages , this doctrine was kept alive and developed by many philosopher and Christian
theologians - among which John of Salisbury and Thomas Aquinas - , for whom it represented the
consequence of their religious vision of political obligation , as well as a powerful tool of resistance
against the secular power and its attempts to reduce the political leverage and the liberties of the
Christian Church .

In the specific context of Great Britain , the claim for the in tangibility of natural law merged into the quest
for the rule of law , a doctrine defended by the jurists of the Middle Ages , aimed at establishing
boundaries to the power of the King to legislate and govern . These boundaries were found in natural law
and human reason , as well as in the customary law belonging to the historical tradition of the Country
( lex terrae ) . According to authors such as Bracton , the main function of the rule of law was to limit the
political authority to the exclusive power of administrating justice ( iurisdictio ) , excluding any power of
shaping norms ( gubernaculum ) McIlwain ) .

A third contribution to modern constitutionalism comes from the doctrine of contractarianism . As we will
see , the idea that the State and the political institutions were born on the basis of a social compact
among free men is a fundamental pillar of modern constitutionalism . This doctrine had already been
introduced by several philosophers and politicians in the Ancient Age as well as in the Middle Ages . Also
in this case , Christiani ty played a pivotal role in deepening such doctrine , because the idea of the
contract had already been largely addressed in the Bible , exemplifying the foundation of the Alliance
between God and men .

The structure of contractarianism was also developed by the legal practice during the Middle Ages ,
through the affirmation of a new social and economic pattern , that is feudalism . In feu dal landscape ,
the contract was the typical model of setting the relationships among individuals and among
communities , both in the realm of work and of production , as well as in the political power . Focusing on
the political power , the feudal contract was based on a pact of submission and assistance between
individuals , legitimizing the political authority of the lord over the people . In the practice of feudal law ,
moreover , the contract theory was applied by the Courts as a means to resolve the disputes arising by
the violation of agreements and mutual duties , as well as by groups and communities to rebel against the
lord and claim their independence De Benedictis ) . In European his tory , therefore , contractarianism
was much more than a doc trine : it was a fundamental legal framework for the development of social and
political relationships .

Likewise the natural law theory , the doctrine of contractarianism had a relevant role in the affirmation of
the existence of constraints to political power vested in the sovereigns . However , whereas the doctrine
of natural law was mainly connected to religious beliefs and religious visions of the world ,
contractarianism allowed a definition of the boundaries of political power through a secular vision of the
world . In the Modern Age , where a vehement process of secularization took place ( Hazard ) , this
feature of contractarianism helped constitutionalism in defining the theoretical elements of its doctrine.

In conclusion , even though from different paths , jusnatural ism and contractarianism led to the
affirmation of superior and intangible limits to the commands of the political power of men . This also
brought to a radical outcome , the theorization by some of the philosophers - who contributed to the
definition of those doctrines - of a right of resistance against the political institutions : in the form of
disobedience to unjust commands and norms , as well as in the form of rebellion against the tyrant . As
we will see in paragraph 1.4 , the claims for a right of resistance were the ideological tools of minority
groups , and allowed to keep alive and preserve the tradition of constitutionalism throughout the Centuries
of absolutism Buratti , 2006 ] .

1.3 . THE FOUNDATION OF THE NATION STATE IN THE MODERN AGE

Although the theoretical roots of constitutionalism date back to ancient and medieval political thought , the
actual development of political structures followed divergent directions . In western Europe , indeed , the
Roman Imperial Age , the Middle Ages and the first Centuries of the Modern Age were characterized by
the development of a completely opposite doctrine about political obligation , based on the claim for an
absolute sovereignty . This doctrine supported the growth of the Empire and , later on , of national
Monarchies . In the intellectual landscape of those Centuries , only a minority of theorists and
communities considered constitutionalism as a sound political doctrine .

The idea of the political power as absolute was established in the context of the Roman Empire : at the
end of the Roman Re publican Age , the weakening of the Senate and the Tribunes ' roles gave to the
Emperor the right to act as superior to and not bounded by the law , identifying the law with his own will
( quod principi placuit legis habet vigorem ) . In the following Centuries , these doctrines shaped the
codification of law led by Emperor Justinian , according to whom « the imperial majesty should be armed
with laws as well as glorified with arms » ( Inst . Just . ) . A relationship of mutual support exists between
the consolidation of the doctrine of absolute sovereignty and the growth and devel opment , throughout
the last Imperial Age and the Middle Ages , of the Civil law legal system . Roman law of the late Imperial
Age was characterized , indeed , by the prevalence of written sources of law responding to the will of the
sovereign and able to prevail on norms resulting from customs and opinions of lawyers . The
development of the European civilian legal system follows these premises , building hierarchical
relationships among the sources of law , on top of which the written law , issued by the sovereign , rests.
Accordingly , the role of the Courts is strictly limited to the application of the provisions issued by the
written law .

During the Middle Ages , the falling of the Roman Empire brought to political fragmentation and the
consolidation of local lords and communities : in the field of law , local customs and local traditions came
back to life , while the jurisprudence of the Courts fostered the consolidation of a jus commune
characterized by ancient principles of Roman civilian codification and maxims of interpretation delivered
by the lawyers .

In order to contrast this fragmentation , since the beginning of the Modern Age the premises of the
doctrine of absolute sovereignty has been stressed : the political power was thought to be legitimized by
God and granted by him to the King or to the Emperor , his representative on the Earth. The French
philosopher Bodin is considered the main representative of this theoretical approach . The identification of
the person of the sovereign with the features of divinity led to extremist popular visions , such as those
recognizing to the Monarch a mystical and sacral value ( Kantorowicz ) . Accordingly , the political power
was considered to be indivisible and illimitable . The theorists of the absolute political power fought
against all theories aimed at es tablishing boundaries to the power of the sovereign to legislate ; for their
part , the sovereigns acted to abolish jurisdictional authority of the territorial lords , as well as to modify
ancient legal traditions and privileges of the cities , communities , guilds and nobles , which were very
widespread in the medieval legal order.

The spreading of the Civil law legal system , with its rational and centralized hierarchical structure ,
fostered during the years the development of the Modern Nation - State , the settlement of a centralized
authority able to bound all the local pow ers existing in the fragmented legal order of the Middle Ages , as
well as the progressive overcoming of the jus commune , at least as the main source of law . This last
achievement occurred thanks to the acquisition by the Monarch of the power to pro duce normative acts
and introduce normative innovations : a radical change if compared with the medieval legal order , which
conceived the law as eternal , and the role of political authority as strictly limited to interpret and apply the
law .

The State - as a political and legal order spread over a vast territory , driven by a centralized political
authority , and imposing a homogeneous law on people - started to appear in the 15th Century , with the
settlement of new Monarchies in France , England , Spain and Portugal . The phenomenon followed
common routes in Europe , with a lord becoming able to centralize fundamental public functions , such as
keeping a centralized army and granting internal security , raising revenues , imposing com mon
regulations to commerce , organizing the jurisdiction and granting the execution of its rulings .

However , it was only with the Peace of Westphalia ( 1648 ) that the form " State ” was finally
acknowledged . The Peace of Westphalia recognized the exclusive sovereignty of the State over its
population and excluded religion from politics . In other words , within the boundaries of the State there
could not stand religious authorities , such that of the Church , neither was recognized the authority of
other political institutions ( commons , lords of the Feudal system ) . Thus , the State is “ superiorem non
recognosens ” both in internal side as well as in foreign relation ships . The transformations brought by
Westphalia to the form of political obligation is easily understandable through the analyses of three basic
elements of the Modern State , which distinguish it from the previous forms of political obligations.

The first one is territory : while in the Middle Ages , after the fall of the Roman Empire , the political
obligation was based on individual trust and fidelity , here the State boundaries identify the space in which
the State's legal order is in force . The identification of the effectiveness of the legal order through the
State boundaries meant not only the overcoming of the intersection among different belongings and
fidelities , as common in the Middle Ages ; it also meant the direction toward an equal application of law
over the people [ Di Martino , 2010 ] . The second element to be taken into consideration is the people :
all the people living within the boundaries of the State are subject to State legal order ; territory and
boundaries of the State identify the community of people , excluding from the citizenship every people not
belonging to the State . The third element is sovereignty : Modern State does not allow the recognition of
other authorities within its boundaries and over its people ; it claims the legitimate use of the force , the
power to produce norms , to apply them , to judge over controversies and crimes . In the relation ships
with foreign States , each State is equally legitimated to stand , negotiate and join into Treaties . For this
equality between States , here is the beginning of the international law system , as we know it today .

Compared to the political orders of the Middle Ages , such as the Empire and the Church , the Modern
State overcomes feudal and local resistances and privileges , centralizing the political power .
Consequently , it begins to build a centralized and organized administration ; it overcomes religious
conflicts within the State , imposing to citizens a sole religious belief and limiting the role of the Church in
politics ; it harbors an international law system of States equally entrusted with the power to bargain and
sign treaties and any other kind of international agreement . It is the birth of the Jus Publicum Europeum (
Schmitt ) .

1.4 . THE MINORITY PATHS OF CONSTITUTIONALISM IN THE AGE OF ABSOLUTE SOVEREIGNTY

In the first years of the Modern Age , ancient constitutional ism was resumed by those thinkers , landlords
, minority groups and local communities that tried to oppose and resist to the tremendous building of a
new , absolute , theory of the political power's foundation .

In many countries , aristocracy resisted to the attempts to affirm a centralized Monarchy through the
imposition of Charters of rights : compacts drafted in the typical form of a feudal pact , in which the
aristocrats accepted the King as legitimate and , the King , on his part , confirmed privileges , immunities
and rights of the lords . In all of these Charters , the pacts were granted through the codification of a right
of resistance , allowing aristocrats to resist , rebel and remove the sovereign in case of violations of the
Charter . The English Magna Charta Libertatum ( 1215 a.C. ) - which was adopted several Centuries
before , as I will explain in next Chapter - was assumed as the pattern of such documents . These
Charters are hardly comparable to modern Constitutions and modern Bills of rights : they were only aimed
at protecting privileges of social class rather than individual rights , and their structure is more easily com
parable to compacts between lords ' and vassals typical of feu dal system ; but at the same time they
contributed to the settlement of the conception of individual rights as constraints to the political power of
the Monarchs .

The opposition to the modern pattern of political sovereignty was also carried on by the religious
minorities persecuted by the Monarchs all over Europe . According to the main leading authors of these
groups ( Hotman , Theodore of Beza , Calvin ) , the political power derived from a compact with the
people . Therefore , the government of one man had to be considered unjust and oppressive , and the
people should always have had the power to resist to the tyrant and to remove and kill him . At the same
time , these authors refused the binding authority of Roman law , since it was considered as the source of
the absolutist doctrine of sovereignty . A sound political system , instead , should had been based on a
system of constraints over the power of the Monarch , consisting in the traditional institutions of the
Country and in other innovative institutions entrusted with competences to check the Monarch's powers .

The insurgency of the United Provinces of the Netherlands against the Habsburg's Empire ( 1581-1588 )
was the occasion for the consolidation of these doctrines - supported by Calvinist religion spread in those
territories - and for the settlement of the Republic , an institutional organization setting a first form of
power - sharing [ Clerici ) . The Dutch painting of the 17th Century clearly shows the link between the
modern society of the merchant class and the constitutional organization of powers .

Also during the Italian Renaissance we can find elements of a political thought with strong connections to
ancient constitutionalism : though far from the premises of modern constitutionalism , Machiavelli , in his
Discourses upon Tito Livio ( 1513 1519 ) , magnified the institutional structure of the Roman Re public ,
and most of all the role played by the tribunes , who were described as a fundamental tool of check and
resistance against the absolute power of the Senate ( Skinner ].

Clearly , during the Middle Ages and the Modern Age , these doctrines were still a minority and were
largely scattered if compared to the widespread absolute sovereignty theory . Nevertheless , this minority
circulation of the ancient constitutional ism doctrine granted its survival and its recall at the moment of the
growth of the insurgencies against the absolute power of the Monarchs .
CHAPTER TWO: ACHIEVEMENTS . CONSTITUTIONALISM IN THE AGE OF THE MODERN
REVOLUTIONS

2.1 . TRIGGERING THE CONSTITUTIONAL EXPERIENCE

In the first Chapter , I introduced the theoretical roots of the doctrine of constitutionalism , and their mutual
overlap and cross fertilization paths . The Revolutions of the Modern Age in Europe and North - America (
England 1689 , United States of America 1776 , France 1789 ) were the occasion to deepen the claims of
constitutionalism , to link this doctrine to other compelling social and political claims , and to establish a
legal framework consistent with all of them . Therefore , the three Revolutions of the Modern Age
represent the foundation of the western constitutional experience , boosting the transformation of political
structures and the adoption of written Constitutions and Declarations of rights .

Although originating from the same strand of constitutional ism , the national contexts gave shape to
different traditions , mainly influenced by the perceived idea of State and of sovereignty , as conceived by
the respective national cultural contexts . In the actual transposition in legally binding constitutional norms
, the doc trine of constitutionalism was therefore forced to bargains and transformations , and undertook
different paths .

2.2 . THE ORIGINS OF ENGLISH CONSTITUTIONALISM , BETWEEN POLITICAL STRUGGLE AND

LEGAL CONSTRAINTS

England was the first Country where the modern doctrine of constitutionalism appeared and took concrete
form.

The early establishment of constitutionalism was possible for the endemic existence of some important
social and institutional features . Firstly , the ongoing conflict between the Crown and the aristocracy
represented the main deterrent to the potential growth of the monarchical powers . Secondly , the
economic growth of a young bourgeoisie , with values and economic interests opposed to the absolutist
ones , affirmed its willingness to see its liberties wholly acknowledged . Thirdly , the existence of an
institution such as the Parliament , in which the bourgeoisie and the aristocracy were represented , was a
counterweight to the King's authority , ant it enables the two social classes to share power with the King in
proposing legislation and granting tax revenues . Fourthly the Common law legal system and the role
played by the Courts was central in setting the boundaries to the political pow er of the King through the
settlement of general principles of Common law , granting individual rights against the Government.

The role played by the Common law legal system must be contextualized within a more general process
of separation from the Roman legal tradition and from the sources of the European ius commune of the
Middle Ages . This process brought Great Britain to the development of a peculiar legal practice based on
local customs more than on the Roman code and its constructions by the jurists . Moreover , the process
also fostered the consolidation - as a legal tradition of the Country - of the English rule of law , and the
development of a pluralistic system of ad ministration of justice . The spreading of jurisdictional power to
the feudal local Courts further strengthened the local resistance against Monarch's claims for a
centralized political power throughout the Middle Ages.

However , beginning with the 13th Century , we witness nonetheless to the growth of the absolute
Monarchy , aimed at re moving the ancient feudal social structures , and especially the ancient privileges
and immunities of aristocracy , with its traditional power of administrating justice in local Courts . The
endemic conflict between the Crown and the aristocracy was over come through the adoption of the
famous Magna Charta Libertatum of 1215 : a document in which the Monarch formally assumed the
commitment of respecting the special guarantees for aristocrats . At the same time , however , in those
years the English Monarchs achieved the goal of leaving the aristocracy out from the power of
administrating justice .

Eventually , the Common law legal system began to consolidate together with the strengthening of the
Monarchy , and quickly became a means to counterweight the peril of centralization of political power in
the King's hands . The Courts were indeed commit ted to apply common principles in the entire kingdom ,
removing the legal particularism inevitably linked to political fragmentation and pluralism in the
administration of justice . In this process of building up a unitary body of legal principles , the Courts of
Common law needed to establish the prevalence of their judgments over local customs . In order to
achieve this goal , they shaped a new legal system , characterized by a different set of relationships
among sources of law . This legal system strongly differed from the Civil law system , spread in the other
European Countries . Specifically , while in the Civil law legal system , based on the Roman law tradition ,
the normative act was recognized as the main source of law ; in the Common law legal system the main
source of law was the jurisprudence of the Courts. According to this method , the precedents of the
Courts must be followed by the other Courts of the kingdom when judging in similar cases ( principle of
stare decisis ) . With the development of the system , and the creation of Courts hierarchically organized ,
a differentiation in the binding force of precedents was established , acknowledging binding effects only to
maxims and precedents of the higher Courts. The role of the Courts became thus fundamental in limiting
the fragmentation of the legal system .

Moreover , since the 14th Century, the Courts of Common law have established a political alliance with
the Parliament in order to tackle the strengthening of the absolute power of the Monarchy. In this respect ,
the doctrine of constitutionalism became their means of resistance.

The settlement of the Parliament of Westminster dates back to the Middle Ages. Since the 14th Century ,
representatives of the Commons of England and of the clergy and Lords , have worked divided in two
Houses : labeled the House of Commons and the House of Lords . The powers of the Parliament were
reinforced over the years. In the Middle Ages , the parliamentary powers were limited to the approval of
tax revenues requested by the King. In the 16th Century , its strength increased thanks to the growing
economic relevance of the bourgeoisie. This new social class - whose wealth depended on the
development of trade and manufacturing industry – was represented in Parliament , and precisely in the
House of Commons . In those years , Parliament obtained the power to make laws , depriving the King
from this prerogative. Namely , while during the Middle Ages, the Parliament could only raise a bill ( a
proposal ) to the King , during the 16th Century the Parliament conquered the lawmaking power , leaving
to the King the only power to reject a law passed by the two Houses ( veto power ).

As for the role of the Courts , they also played an important role in limiting the absolute power of the
Monarchy . Along the 16th Century , Common lawyers ( the judges of the Courts of Common law ) not
only gained the control over the administration of justice , but also declared the supremacy of the
principles of Common law over the Government , recalling the ancient theory of the rule of law , according
to which no power can be exert ed beyond what provided by the law . In their jurisprudence , then ,
Common law precedents became the " Law of the Land " , a higher and unchangeable law to be
respected as a superior law , prevailing over royal decrees as well as over parliamentary statutes ( the
legislative acts passed by the Parliament of Westminster ) . In the Bonham's case ( 1610 ) , Justice
Edward Coke wrote :

It appears in our books , that in many cases , the common law will control Acts of Parliament , and
sometimes adjudge them to be utterly void : for when an Act of Parliament is against common right and
reason , or repugnant , or impossible to be performed , the common law will control it , and adjudge such
Act to be void.

As we will see in the next paragraphs , these are the origins and the basis of the judicial review of
legislation , the power of the Courts that today represents the main legal application of constitutionalism.
2.3 . THE REDISCOVERY OF CONSTITUTIONALISM IN ENGLISH THOUGHT REPUBLICANISM AND
LIBERALISM

Throughout the first Modern Age , the ongoing political struggle against absolutism fostered the
rediscovery of the ancient doctrines of mixed government , jusnaturalism and con tractarianism , which
together with the idea of the rule of law , contributed to the construction of the doctrine of modern
constitutionalism.

In the 15th and the 16th Century , during the hardest season of absolutism , the ancient roots of
constitutionalism were collected by a line of thought , shared by several philosophers , that took the name
of republicanism . James Harrington was the main representative of this thought : in his book Oceana
( 1656 ) , Harrington presents the Republic as the best form of government , quoting Aristotle and Cicero .
The source by which Harrington learned these principles of politics was the Italian thought of the
Renaissance , especially Machiavelli ( Pocock ).

The second line of thought that supported constitutionalism in England was liberalism . Even though a
complete settlement of the doctrine of liberalism was reached only in the 18th Century , in the age of the
Glorious Revolution we assist to the development of all the premises of this doctrine , mainly through
John Locke's work and his reflection upon individualism and in dividual rights . His fundamental political
work , The two Treatises on Government , was written immediately before the Glorious Revolution , and it
played an essential role in legitimizing it , especially supporting the doctrine of the separation of powers :
Locke is still considered as the father of this doctrine . However , his contribution to the development of
modern constitutional ism was much more than this : indeed , if compared to the classical approaches
developed in England on constitutionalism, Locke made a further step ahead , that allows a better under
standing of the shift from ancient to modern constitutionalism . He proposed a new doctrine of natural
rights of individuals that the government had to acknowledge and protect.

According to Locke , individuals are born free , in a state of nature in which they live in a condition of
whole liberty . They shape the State through a contract between themselves , which clearly defines the
goals that the State must pursue : above all , the protection of individual rights , such as life , property ,
freedom . In Locke's view , however , the foundation of the government through a compact is not intended
to annul the right of the people to control the government's behavior and decide about the political ends .
On the contrary , the people continue to maintain a power to check over the legitimacy of the acts of the
government and their consistency with the wellness of the people and the protection of their freedom .
The people retain the power to control the rationality of the government and the correctness of the
relationships among the several branches of it . In Locke's perspective , the government rests upon and
depends on the consent of the people , and the people have always the power to resist a corrupt
government that goes beyond the limits of its functions , as defined by the compact . Consequently , he
admits and justifies the resistance as a means for assuring the protection of the fundamental rights of
men:

But though men , when they enter into society , give up the equality , liberty , and executive power they
had in the state of nature , into the hands of the society , to be so far disposed of by the legislative , as the
good of the society shall require ; yet it being only with an intention in every one the better to preserve
himself , his liberty and property ; ( for no rational creature can be supposed to change his condition with
an intention to be worse ) the power of the society , or legislative constituted by them , can never be
supposed to extend farther , than the com mon good ; but is obliged to secure every one's property , by
providing against those three defects above mentioned , that made the state of nature so unsafe and
uneasy . And so whoever has the legislative or supreme power of any commonwealth, is bound to govern
by established standing laws, promulgated and known to the people, and not by extemporary decrees; by
indifferent and upright judges , who are to decide controversies by those laws ; and to employ the force of
the community at home , only in the execution of such laws , or abroad to prevent or redress foreign
injuries , and secure the community from inroads and invasion . And all this to be directed to no other end,
but the peace, safety, and public good of the people [ ... ] .
And where the body of the people, or any single man, is deprived of their right, or is under the exercise of
a power without right, and have no appeal on earth, then they have a liberty to appeal to heaven,
whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge,
so as to have, by the constitution of that society, any superior power, to determine and give effective
sentence in the case; yet they have, by a law antecedent and paramount to all positive laws of men,
reserved that ultimate determination to themselves which belongs to all mankind, where there lies no
appeal on earth, viz. to judge, whether they have just cause make their appeal to heaven.

Locke is , therefore , not only the creator of a new theory of individual rights , consistent with the values
and interests of bourgeoisie and the doctrine of liberal individualism ; but is also the author of a perfect
synthesis among contractarianism ( the idea of a social compact establishing the political community and
political institutions , and the stress on the consent of the people and the right to create a new
government whenever it brakes the conditions of the compact ) , jusnaturalism ( the idea of « a law
antecedent and paramount to all positive laws of men » ) and the modern claims for individual liberties . In
this perspective, he has always been considered the main author of modern constitutionalism.

2.4. THE FIRST AND THE SECOND ENGLISH REVOLUTION AND THE SETTLEMENT OF THE
CONSTITUTIONAL MONARCHY

The alliance between the Parliament and the Courts led to the two Revolutions of the 17th Century.
Although both relevant, only the second, the Glorious Revolution of 1689, did fully achieve its objectives.

The Civil War that brought to the first Revolution was an attempt of the Parliament and the Courts to resist
to the settlement of an absolute Monarchy. At the end of the Civil War (1648 ) , Oliver Cromwell , the
general of the New Model Army allied to the Parliament , became the Chief of the Republic of the
Commonwealth of England , which lasted until 1660 , year in which the Monarchy was restored.

This Revolution is relevant for two main reasons. Firstly, it improved a republican thought, shared by
authors such as Harrington and Milton. Secondly, it broadened the approach of radical democratic
movements, such as the Levellers, believing in the equality of men and proposing a Constitution based
upon the people's sovereignty.

Then, Cromwell gave to England its first written Constitution, the Instrument of Government: a written
Constitution that represented one of the models to be adopted by the Founding Fathers in America . The
Instrument of Government acknowledged a moderate form of separation of powers, entrusting the
Parliament with the power to legislate and conferring the executive power to a Lord Protector - a charge
covered by the same Cromwell. After Cromwell's death, however, the Monarchy was soon restored and
the Instrument of Government ceased to exist.

The second " Glorious " Revolution of 1689 was triggered by the attempts of the King to enlarge his
powers over Parliament and by his threat to restore the Catholic religion in England. Parliament decided
to rebel against the Crown and changed the royal dynasty, granting the throne to William d'Orange , who
was the Statholder of the United Provinces of Netherlands . The theory of John Locke, very close to the
leaders of the Whig party that led the rebellion, served as the political legitimacy for the deposition of the
King and for the establishment of a new deal between the Crown and the Parliament. The outcome was
the settlement of the new pattern of constitutional Monarchy, based on the balance of powers between
legislative and executive branches.

Contrary to what happened with the first English Revolution, which led to a written Constitution,
Parliament did not adopt a formal Constitution this time. The main document of the Glorious Revolution is
the Bill of rights of 1689: it is both an act of settlement of the new dynasty and a charter of individual
rights.
In line with the English tradition, the Bill of rights was not intended to create new rights, but rather to
confirm and reaffirm « certain ancient rights and liberties » already present in the English legal history and
acknowledged in previous legal documents, such as the Magna Charta. In the Bill of rights, one can find
the responses to the requests and claims made by Protestants against the Crown in the years of the
Revolution, such as the right to bear arms for their defense; rights related to the Parliament's role in the
constitutional system (regular elections and freedom of speech); and rights of individuals related to
criminal prosecutions. If compared to other Declarations of rights of the Modern Age, the Bill of rights
might ap pear as quite less general and comprehensive. However, its relevance has to be sought in a
different direction: far from the universal and philosophical approach of other constitutional texts, such as
the American or French Declarations, the Bill of rights is deeply rooted in the English tradition of rights,
representing a turning point in its institutional framework and showing for the first time the leadership of
the Parliament.

In the tradition of constitutionalism, the rights enumerated by the Bill of rights are called rights of " first
generation ", because they appear at the very beginning of western constitutionalism in the main
Declarations of rights of the three Revolutions. They protect the so - called " negative liberties ", that are
claims for non intervention of the State for safeguarding the liberty of men. These kinds of liberties are
those requested by the liberal thought, based on jusnaturalism and focused on individual interests.

Actually, if we analyze those rights, which represent in the 18th and the 19th Century the main liberties
recognized by the Bill of rights annexed to the national Constitutions, we can ap praise the profound
coherence with the liberal and individual approaches and the strict adherence to their values. According
to those approaches, men are born free and with their own rights, which do not depend, and neither are
granted by legal provisions. In this respect, the role of the State - artificially established by men – is to
preserve their integrity, avoiding any external interference.

It appears evident that the rationale of those liberties was modelled following the logic of property rights.
Indeed, are property rights characterized by the establishment and the de limitation of the space of
dominance of individual powers, and they deny any external intrusion. The property rights became thus
the paradigm, role that was further boosted by the key function played by economic liberty in the
framework of the rights of the first generation. The rights of the first generation were indeed set up in
order to reflect the claims and the ambitions of the bourgeois individualism. In this respect, it is relevant to
note that Locke actually used to label the right of life, of liberty and of property with the all - inclusive term
of " propertys [ Gough ) .

According to the bourgeois approach, the men claim for security and protection of their private properties,
they demand the right to initiate commercial and economic activities in a regime of free and unregulated
market. Moreover, they call for guaran tees against the public authority in case of criminal trials, they
claim for liberty of religion, assembly and expression of their own thoughts. Those are the common
foundations of the rights of the first generation, which sum up the values and the claims of the legal liberal
approach.

2.5 . AMERICAN CONSTITUTIONALISM : FOUNDATIONS

Beginning with the second half of the 17th Century, due to the religious persecutions in England and in
search of economic fortune, several Englishmen emigrated toward the North American coasts, where
England had settled its colonial dominions. The people who emigrated mainly belonged to the Puritan
Church, which had been heavily persecuted after the affirmation of Anglicanism in England. They were
willing to settle in the Colonies a society in which evangelic values of justice and ethic would have been
acknowledged.

The famous Compact of the Mayflower (1620) – signed by the Pilgrim Fathers in their vessel, before
landing in America – reflects the religious foundation of the American idea of democracy and community.
Moreover, it shows the significance conferred by Puritans to the written Constitution as a superior law. All
of these ideas would have played a relevant role in American constitutionalism and culture, especially in
New England.

Colonial legal orders presented features destined to influence the progress of American constitutionalism.
Even though there was not a general pattern for the administration of the Colonies, and each Colony had
a proper legal order more or less linked and bounded to the mother country, it is possible to point out
three main common patterns in the government of the Colonies belonging to the English colonial Empire.
Firstly, the Do minions of the Crown, administered through a Governor ap pointed by the King. Secondly,
the Colonies given in concession to Private Companies and administered by the Company according to a
Charter granted by the King. Thirdly, the Colonies whose land belonged to an individual landowner, who
was at the same time the main administrator of the Colony. In all the Colonies self - government
assemblies, representing the settlers, promptly appeared, even though they did not have effective and
actual powers if compared to the powerful Governors of the Colonies. Furthermore, in all the Colonies a
written Charter existed, providing the frame of government of the Colony. In some experiences,
furthermore, the colons gathered in assemblies decided to adopt a written Constitution, anticipating the
enactment of the colonial Charter. This is what happened, for instance, with the Fundamental Orders of
Connecticut (1639), a document considered by many scholars the first written constitution of the western
world, adopted by a group of Puritans led by Thomas Hooker.

The colonial American society was not at all comparable to the English society of the Modern Age, and it
completely lacked a bourgeoisie able to link its own economic interests and its vision of society with the
doctrine of constitutionalism. However, it is important to note that the American colonial society became
the scenario of the affirmation of a peculiar kind of constitutionalism, in which religious Puritan grounds,
radical liberalism and democracy merged. The existence of written Charters and self - government
institutions - together with the religious grounds of American communities, the belief in contractarian ism
as the basis of government and the connections with English republican thought of the 16th Century and
English Whig political party of the 17th Century - shaped an intellectual environment ready for a radical
political fight for independence and self – government.

2.6. THE AMERICAN REVOLUTION

In the second half of the 18th Century, the thirteen Colonies of the central and southern coast of North -
America presented a wealthy and stable economic system, based upon commerce, plantations and
slavery.

The expenses for the defense of the Colonies against Ameri can Indians tribes and French and Spanish
colonial Empires in America compelled England to raise tax collections on the Colonies and to stop the
western expansion in Indian lands. These are the main reasons of revolt of the settlers against the mother
country.

However, the economic claims were not the only reasons boosting the American Colonies to rebellion, but
rather were al so political issues at stake. Against the oppressive policies adopt ed by the English
Parliament, the rebels claimed for the full respect of their own rights and prerogatives as already
recognized by their respective colonial Charters. The rebels were thus calling for an ideal image of the
colonial Empire based on the equal relationship between the center and its provinces (Onuf ] . It is clear
that at the beginning, the aim of the rebels was not that of renovating the existent political order, but that
of reestablishing the English principles of constitutionalism, as set up in the aftermath of the Glorious
Revolution and as embedded in the Imperial order (Arendt).

Despite the above, the rebellion against the mother country raised a vivid and important debate, which
going beyond the initial claims, it called for an autonomous democratic government and the recognition of
social equality (Wood).
During the years before the Independence, a wide political debate developed in the Colonies, based on
radical arguments and directed against the fiscal policy adopted by the mother country. The debate
quickly extended to political and constitutional complaints and included both critics on the English
corrupted system of government and, in American territory, on the quest for political autonomy of the
elected assemblies and the resistance against the concentration of power in the hands of the Governors.

Thomas Paine and Thomas Jefferson were just two of the most important protagonists of the American
republicanism. Their claims, initially based on the need to restore the rights of the Colonies against the
mother country, were soon widened and they included the recognition of the principle of equality of men
and the quest for a more autonomous government, consistent in their view with the right of any generation
to adopt its own Constitution.

The Declaration of Independence (1776), drafted by Thomas Jefferson and adopted by the Congress of
the Colonies, reflected this double nature of American Revolution, incorporating at once restoring and
revolutionizing claims. The representatives of the thirteen Colonies based their claims on the equality of
men, the existence of fundamental rights of men, such as Life, Freedom and the pursuit of happiness, the
right to have a government based upon the consent of the people and the right of the people to change
and rebel against an unjust government.

When in the Course of human events, it becomes necessary for one people to dissolve the political bands
which have connected them with another, and to assume among the powers of the earth, the separate
and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the
opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self - evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the
consent of the governed. That whenever any Form of Government becomes destructive of these ends, it
is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on
such principles and organizing its powers in such form, as to them shall seem most likely to effect their
Safe ty and Happiness.

Then, the Declaration provided a comprehensive list of the complaints of American people against the
mother country, among which we find both economic and political claims, lamenting the lack of
independence of the people of the Colonies.

This document is exactly considered one of the milestones of American constitutionalism: here we find,
on the one side, the elements of the modern theory of natural law, apprehend ed by the colonists through
the works of Locke, as well as the Puritan values and, on the other side, the basis of the democratic
theories. The famous motto of American Revolution " no taxation without representation " - points out in a
very clear way the relation existing between economic claims and the demand for political participation of
the American people.

Together with the Declaration of Independence, the delegates of the thirteen States resolved to adopt a
Treaty, the Articles of Confederation: it built a Confederation with the duty to lead the Army in the war
against England, and to manage the foreign relations of the American States . The fate of American
constitutionalism depended now on the outcome of the military campaigns.

2.7 . FROM THE INDEPENDENCE TO THE PHILADELPHIA CONGRESS : THE REVOLUTIONARY

DECADE

During the Independence War and the first ten years after the Revolution, we assist to three fundamental
steps of development of the American constitutionalism.
The first step regards the settlement of the constitutional orders of the thirteen independent States of the
Union: all of them adopted a new republican Constitution, based upon the pattern of Virginia's
Constitution, which was the first to been acted. These States ' Constitutions were divided into two parts:
the first contained the Frame of Government; the second, the Declaration of rights.

The Frame of Government was designed to provide rules on the relations among the institutions and the
branches of the government. In the States ' Constitutions, the frame of government was widely inspired
by the Instrument of Government of Oliver Cromwell and was aimed at strengthening democracy - in
some cases inspired by Rousseau's radical lesson. Indeed, as a reaction against the excessive power
recognized to the Governors during the years of the colonial Empire, the Constitutions were rooted on the
affirmation of radical democratic principles, which resulted in the strong limitation of the balance of
powers. In American States ' Constitutions, Parliaments were the very core of the political system, and
executive branches were sub mitted for several aspects to legislatures. This brought to a lack of balance
and stability among the institutions, and determined a general distrust against parliamentary sovereignty,
that had a relevant role in Philadelphia, at the moment of drafting the Federal Constitution.

The Declarations of rights were drafted according to the pat tern of the Declaration of Independence and
the English Bill of rights: they enshrined, therefore, the rights to life, liberty and property; the habeas
corpus rights, the right to a fair trial consistent with the due process of law, freedom of religion and press.
In the same Declarations it is also possible to find the statement of the equality of men, their right to a
democratic and representative government, based on regular elections and separation of powers. At the
same time, the American Declarations of rights represent a relevant progress compared to the English Bill
of rights. They propose, indeed, a universal doc trine of the individual rights, preexisting and superior to
the law of the State, linked to the natural liberty of men and to the contractarian origin of the State. All
doctrines spread in the religious roots of American thought (Jellinek).

The second step regards the beginning of the settlement of a legal order of the western frontier. The
victory of the Independence War and the signature of the Treaty of Paris of 1783 allowed the United
States to extend their dominion until the Mississippi River, doubling the territory of the Union. This meant
to extend the American legal order in the land owned by the Indian tribes.

The institutional order of the territories was provided by the North - West Ordinance of 1787, which
organized the government and the settlement of the territories northwest of the Ohio River, and provided
the procedures through which the people of the western territories could reach the statehood and join the
Union, on equal footing with the founding States.

The third step is the crisis of the Articles of Confederations as a system through which to ensure union
and cooperation among the States. The conflicts arising among northern and southern States, among
small and large States, among coastal and land ed States, led to a deep crisis of the Union, with the risk
to break the Union. In order to avoid this risk, a Congress convening the delegates of the thirteen States
was called: they met in Philadelphia in the summer of 1787.

At the moment of their meeting in Philadelphia, the delegates of the thirteen States were divided by
several factors.

A first divide was between the largest and the smallest States of the Union: the largest States were calling
for a strong er Union and they (mainly, Virginia and New York) were arguing that the Confederation was a
weak institution, not able to pursuit the American interests in international politics, i.e. protect economics
and trade and ensure its territorial expansion. According to the Articles of Confederation, the
Confederation had no power in economics, neither in internal improvements ( streets, channels, etc. ) ,
nor on relations with Indian tribes and on the territories acquired by the Union after the war. There was a
need to strengthen the competencies of the Union, reduce the competencies of the States and avoid that
States could legislate conflicting with the interest of the Union. As for the smallest States, they feared that
by taking measure aimed at rein forcing the Union, this would have strengthened the role played by the
largest States. The leading role of Virginia and New York could have given to these States the control
over all the American politics, limiting the autonomy of the smallest States.

A second divide was between the northern and the southern States. The States of the New England,
geographically at the north of the Mason - Dixon line, shared an economy system based on maritime
trade, fishing, small farms and a weak and young industry. Southern States, instead, had an economy
based on the plantation system: huge lands owned by rich men, using slaves as the main force of work.
Slavery was one of the elements of opposition between the New England mindset, believing in equality of
men, and the southern men. However, there was also an economic issue: slavery allowed plantations,
and plantations allowed huge production of tobacco, cotton, wheat and corn. This huge production
needed exportations toward European markets, and therefore low tariffs upon imported goods. Contrary
to the southern States, the north was characterized by a young industrial system, needing protection
against importation from Europe; therefore, they supported the adoption of high tariffs on imported goods,
in order to reduce the prices of the American goods in internal markets.

The largest States arrived at Philadelphia with a plan for the Constitution to be approved, drafted by
James Madison, delegate of Virginia. The Virginia plan provided a strong Federal Government, holding
several legislative competences and entrusted with the power to nullify State laws. According to this plan,
the Federal legislature should have been bicameral, and elected according to the population of the
States, a solution that would have given the control of the legislature in the hands of the largest States. In
opposition to this plan, the New Jersey plan, soon drafted by the delegates of the smallest States,
proposed to maintain the structure of the Congress of the Confederation, articulated in a single House
composed of a single dele gate for each member State, independently from the respective population.

Despite these contrasts, the delegates gathered at Philadelphia were able to achieve a compromise and
to adopt a Constitution, which was approved by the Convention on September 1787.

2.8. THE FEDERAL CONSTITUTION

The outcome of Philadelphia's Convention was a constitution al text aimed at strengthening the cohesion
among the States through a new kind of structure, the Federation, with its proper institutions elected by
the people and a wide set of legislative, executive and judiciary competencies.

Let us begin the analyses of American Federal Constitution looking at its institutional framework. Mainly
inspired by the principle of separation of powers, the Federal Government was aimed to grant the
independence of the executive branch from the other branches and to avoid legislative encroachments,
which had affected the political life in the thirteen States in the years immediately following the Revolution.

The legislative power rests in the Congress, which following the English model, is divided into two
Chambers. Representatives elected by the citizens every two years compose the lower Chamber, called
House of Representatives. About this organ , the main discussion that took place in Philadelphia was
about the ratio to be followed for assigning the seats among the States : if only the male white citizens
( those enjoying the right to vote ) had to be counted , the southern States would have suffered a
limitation of seats in the Assembly ; on the contrary , counting the population as a whole would have
meant to give stronger relevance to individuals , including also the slaves , who were present only in
southern States and , anyway , did not have the right to vote . At the end of a difficult compromise, a
clause was established: in the definition of the exact number of seats in the House of Representatives
available for each State, slaves ("other persons”, as the Constitution denominated them in order to hide
their actual condition) would have counted three fifths of a white free male. The three fifths compromise,
as it was immediately called, was a perfect solution in order to close a heavily and long debated question
among the sections, although leaving the slavery issue still open. This ambivalences implicit in this
pragmatic solution would early come back to affect the Union.
The upper Chamber of the Congress is the Senate. It is possible to say that the Senate was the actual
invention of the delegates gathered in Philadelphia. The institution represents the compromise of the
apparently insoluble struggle among small and large States. The Senate, indeed, was organized in order
to allow the sharing of the main political powers of the Union among all the member States of the Union.
Each State is represented in the Senate on an equal footing, regardless to its population, by two
representatives. The two Senators are appointed or elected according to the constitutional provisions of
each State; Senators ' term is of six years, but the Assembly is renewed every two years for one third of
its members.

The special composition of the Senate, aimed at representing and protecting the interests of the member
States of the Union, also explains its special competences and position in the institutional framework of
the Union. Indeed, the Senate not only shares with the House of Representatives the legislative power,
but also carries out several functions mainly related to check the executive power. In the legislative
business, the Senate has a power completely equal to that of the House of Representatives: a bill must
be approved by both the Houses in order to reach the Presidency and be signed. In case of contrasts
between the two Houses, a committee can be appointed, composed of members of the two Houses, with
the duty to find a shared text. But if the agreement is not achieved, the bill cannot end the legislative
business. As for the other functions that only the Senate carries out, the Constitution assigns to the
Senate the power to ratify - with a two thirds majority - the international treaties signed by the President;
furthermore, the Senate is entrusted with the power to approve the appointments of the Federal officials
made by the President ( so called “ advice and con sent " ). In the Founding Father's view, the Senate
was the place where all the States, represented on an equal footing, could lead the Nation's politics and
check the Presidential initiatives.

The organization of the executive branch absorbed much of the business of the Philadelphia's
Convention: many delegates, still remembering the abuses committed by the Governors during the
colonial age, were firmly convinced of the need to avoid a strong executive power, and to confirm the
institutional framework adopted in the States ' Constitutions, based on the parliamentary predominance
over the executive branches. On the contrary, other delegates and influent political leaders - such as
Alexander Hamilton and John Adams -- felt the need to resume a method of government based on the
balance of powers among the branches of government, and to strengthen the executive power, according
to the model of the Constitution of Massachusetts. The main issue was the composition of the executive
branch and the delegates were divided between two alternatives: the setup of a college of ministers, as
present in many States ' Constitutions, or the choice for a single President of the Republic. Finally, this
second option passed.

According to the Constitution, the President is elected for a term of four years, together with a vice
President destined to substitute him in any case of end of the Presidential term. In the first decades of the
constitutional experience, the election of the President was not fully dependent on a direct popular vote:
citizens joining the right to vote elected a restricted number of electors, who were required to vote for the
President and the vice President. In case none of the candidates had reached the absolute majority of the
votes casted by the electors, the House of Representatives would have elected the President. This last
hypothesis often happened in the Early Republic, sometimes reversing the preferences expressed by the
citizens. The system was changed in the first half of the 19th Century, as I will explain later on.

The President is not only the Chief of the State, but also the leader of the executive branch, and therefore
is entrusted with the power to appoint the Federal officials (under the advice and consent of the Senate).

According to the vision of the Founding Fathers, the frame of government of the new Federal Constitution
should have been inspired to the separation of powers: executive and legislative branches were elected
with two different proceedings and had no tools to influence each other. Nonetheless, the rigidity of the
principle of separation of powers is mitigated thanks to the pro vision of a system of " checks and
balances” among the branches of government. The Congress and the President are independent
institutions, but they are linked among themselves when carrying out public functions. We have already
seen some of these tools, such as the advice and consent of the Senate to the appointments made by the
President; other two fundamental tools of checks and balances are the impeachment and the veto power.

As for the first, born in England during the age of limited Monarchy, the impeachment was a trial carried
out by the Chambers of Parliament for crimes committed by the Ministers of the Crown. Throughout
English history, however, impeachment lost its role, substituted by the raising of the confidence between
Parliament and Ministers, and the political responsibility of the Ministers for their actions. The Framers of
the American Constitution decided to confirm the impeachment for President, Vice President and other
high officials of Federal Government, also for its consistency with their ideal of ethic responsibility of those
who are in charge of public functions. In the Convention, a deep debate took place between those who
would have liked to provide a limited area of impeachable crimes, granting an ample discretionary power
to the President and the executive branch, and those who would have wanted to spread impeachment not
only to crimes, but also to maladministration, creating a sort of Congressional check upon the political and
administrative action of the President. Had this second solution been approved, the separation of powers
would have been strongly limited.

The delegates at Philadelphia decided to acknowledge an impeachment on « treason, bribery, and other
high crimes and misdemeanors ». While treason and bribery are classical crimes, misdemeanors are a
kind of activity not exactly defined, and open to several constructions, as we will see in the progress of
American Constitutionalism. Regarding the procedure, the Constitution provides that the Chamber
approves the indictment, with a majority of the whole House, and the Senate judges with a majority of two
thirds. In case of condemnation, the official is removed from his charge and can be judged by the Courts
for his crime. Impeachment – as already outlined - is not a criminal trial, but a judgment of the public
opinion upon crimes committed by federal officials.

Another tool of checks and balances provided by the Ameri can Constitution is the presidential veto power
on the bills passed by the Congress. Those delegates who wanted to settle a form of government with a
strong prevalence of Congress did not accept this power of the executive branch: the States '
Constitutions after the Independence had rejected this power, for its systematic abuse by the Governors
of the Colonies against the acts passed by the Assemblies of the colonists. On the contrary, those who
wanted a strong executive saw in the veto power a check upon vicious legislation, a means of moderation
of political decisions and a tool for the protection of the Constitution against unconstitutional laws. A
compromise was reached on this point too. It was rejected an absolute veto power, but it was recognized
a qualified veto power: in case the President vetoes the bill passed by the Congress, the Congress could
override the presidential veto with a majority of two thirds in both Houses. In such a case, the President
shall be compelled to sign the bill.

During the Philadelphia Convention, the organization of the Federal judicial power received little
consideration. The Founding Fathers strongly believed that Federal Courts should have been subject to
the rules of Common law, which represented - according to Framers - the source of law of the legal order,
and thus the sole rule to be followed in order to structure the entire judicial system. Moreover, the little
attention was also based on the Founding Father's perception that since the Federal level was
overlapping with the judicial system of the States, the Federal Courts would have been destined to play
just a residual role. For all of those reasons, the organization of the Federal Courts was not regulated in
the Constitution but reserved to a successive Federal law to be approved.

Nonetheless, in art. 3, the Constitution directly regulates the establishment of a Supreme Court, whose
members should stay in charge « during good behavior » (a clause that meant a life long tenure, but it
also included the possibility of removal in case of impeachment).

At the beginning, according to the Judiciary Act, the Court was composed of six judges, but starting from
the second half of the 19th Century judges became nine (eight Associate Justices plus the Chief Justice).
Their appointment belongs to the President, as for any other Federal judge and official, but in this case
the advice and consent of the Senate is strict. The decisions of the Court are taken by a majority of
judges, and dissenting opinion can be delivered, as well as concurring opinions. In the history of the
Supreme Court, the practice to draft and attach to the opinion of the majority also dissenting opinions
allowed in many cases the development of broad debates in the public opinion about the decisions of the
Court, which forced the legal reasoning to be clear and effective, and offered alternative solutions that
would have been adopted as opinions of the majority in the future Di Martino, 2016] . The jurisdiction of
the Federal judiciary branch was defined by the Constitution itself: the Federal Courts had competence
over the cases related to the application of the Federal Constitution, a Federal statute law or a treaty
made by the United States , as well as in cases arising among citizens of different States of the Union
( so called diversity jurisdiction ) . In these cases , the Supreme Court received appeals from the Federal
Courts to be organized under the Federal statute ( appellate jurisdiction ) . Furthermore , the Supreme
Court also had a competence involving cases arising among the States of the Union , foreign States and
Ambassadors , and cases in which the United States were part . All these special cases gave life to the
so called " original jurisdiction " of the Supreme Court , in which the Supreme Court judged directly . Until
here I have analyzed the frame of the Federal Government , which defines what has always been called
the presidential form of government . We have now to turn the attention to the legal structure of
federalism : the main constitutional is sue in Philadelphia , indeed , was exactly the search of a new
pattern of relationships between the Union and the States , overcoming the weaknesses of the
Confederation . According to the stitutional culture of the Framers and to the constitutional practice of the
period , the key - issue was the method of organization of the legislative competences between the
Federal Government and the member States . After having considered the organization of the Congress ,
article 1 of the Constitution takes into account the legislative competences of the Congress , separating
them from the legislative competences left to the States . In sect . 8 , indeed , we find a list of matters
falling in the competences of the Federal Government , while a final clause states that all the matters not
enumerated in the section , nor in other provisions of the Constitution , are in the realm of the State
competences . According to the American federalism , administrative and judicial functions follow the
same division of competences pro vided for the legislative function . Indeed , the Federal executive
branch carries out the administrative activities related to the Federal legislation , and the Federal judiciary
branch extends its jurisdiction over all the cases arising under a Federal law . The technique to
enumerate the competences of the Union and to leave to the States the residual ones was immediately
considered as a guarantee against the Federal encroachments over the States ' rights , and , together
with the structure and the role of the Senate , was another useful element to push the reluctant States to
accept the new Constitution . A final look must be dedicated to the last article of the Constitution drafted in
Philadelphia . The article 5 regulates the procedure to be followed in order to modify and add provisions
to the Constitution itself . The States ' Constitutions had already introduced complex procedures for the
revision of the Constitution . The same solution was adopted by the Framers of the Federal Constitution .
According to this regulation , amendments to the Constitution could only be approved following a
proceeding divided into two different phases . The first phase is the proposal of the amendment , which
takes place at the Federal level : the proposal can be made directly by the Congress , with a vote of both
Houses reaching a majority of two thirds ; or by a special Convention , convened intentionally for
proposing the amendment . The choice of this second method is applied if requested by two thirds of the
State legislatures . The second phase consists in the ratification of the amendment , and takes place at
the federated State level : en in this case , two alternative methods can be followed . The first method is
the approval by the three fourths of the legislatures of the States ; the second method is through the call
of State Conventions , with the only duty to discuss and vote the approval of the amendment . The choice
for this second method depends on the Federal Congress , which can ask it . Also in this second case ,
the amendment is adopted in case of reaching the majority of three fourths in the State Conventions . As
one can easily understand , the aim of the provision is twofold : on the one side , it aims at avoiding
modifications of the Constitution approved only by the political majority , or by just one political party . It
follows that the qualified majority always required , assures a broad convergence of the Congress and the
States in the approval of the amendments . On the other side , the provision aims at involving the States
in the proceeding , both in the first as well as in the second phase of the process , consistently with the
Federal principle and with the conception of the Constitution as a contract among the States .
Furthermore , it must be noticed that the same art . 5 of the Constitution provides the first written clause
containing an ab solute limit to the constitutional amendment power itself : I mean the clause that forbids
to modify the principle of equal representation in the Senate for each State , a principle that , as we have
seen , can be considered the " golden rule " in the com promise achieved in Philadelphia . American
States ' Constitutions and Federal Constitution , therefore , are at the origins of one of the main pillars of
western constitutionalism , as we know it today : the constitutional rigidi ty . According to this pattern ,
every alteration or amendment to the Constitution can be approved only through a more complex
proceeding than the legislative ordinary procedure . Aimed first of all to grant and confirm the
extraordinary and fundamental relevance of the Constitution in the legal framework , the out come of the
constitutional rigidity will be that of transforming the same structure of the sources of law , establishing a
formal hierarchy between constitutional law and parliamentary statutory law . The result will be the
constitutional review of legislation , an achievement that I will introduce later on . 2.9 . The ratification
process and the Bill of rights Once adopted in Philadelphia , the Constitution was not immediately
enforced . Indeed , it had to be ratified by the thirteen States , with a majority of two thirds of the States .
The ratification debate took place at the beginning of 1788 , and it reached a critical point in 1789 , when
the State of New York decided to call a popular vote on the ratification . The vote of New York was
necessary for the final ratification , and people were divided between federalist and anti - federalist
approaches . In order to convince people for the approval of the Constitution , Madison , Jay and
Hamilton wrote a comprehensive body of essays aimed at explaining the Constitution : those essays were
collected in a book , The Federalist Papers , that is today considered the main text for the interpretation of
the American Constitution . Although aimed at bolstering the popular consent necessary for the ratification
of the Constitution , the Federalist Papers expressed a consistent doctrine of constitutionalism , destined
to characterize the American idea of constitutionalism until our days . Madison , Hamilton and Jay ,
indeed , shared a common vision of the function of constitutional law , a system of tools for the guarantee
of individual liberties against the abuses commit ted by the government . According to the Federalist
Papers , a democratic government could not be conceived as a valid political system as long as was
lacking a method for the protection of individual and minorities rights against the risk of a tyranny by the
majority . If men were angels , no government would be necessary . If angels were to govern men , either
external or internal controls on government would be necessary . In framing a government which is to be
administered by men over men , the great difficulty lies in this : you must first enable the government to
control the governed ; and in the next place oblige it to control itself ( The Federalist Papers n . 51 ) . The
Madisonian conception of the Constitution must be con textualized in the specific framework of the
American debate on the ratification . In order to push the people to vote for the ratification , the Federalist
party needed to demonstrate the limited competences of the Federal Government ; at the same time , the
Federalist Papers expressed a shared concern arising from the colonial experience as well as from the
radical democracy experimented after the Independence . However , the American constitutional tradition
cannot be limited to this specific conception of constitutionalism . The roots of American political thought
and the revolutionary culture expressed also a democratic claim , deeply rooted in the struggle for
equality , self - determination and self - government embedded in the vision of the Founding Fathers .
Thomas Jefferson always defended these values , destined to dominate the constitutional construction
and the political life in the first half of the 19th Century , Moreover , since the anti - federalist criticized the
lack of a Declaration of rights in the Federal Constitution , the Congress met once again in 1789 and
enacted a Bill rights , which was attached to the Constitution as its first ten amendments . The Federal Bill
of rights , drafted on the basis of the Virginia Declaration of rights , affirms rights such as freedom of
speech , the rights to bear arms , personal liberty and other immunities of the people in criminal
prosecutions , and other rights and liberties granted by the States ' Bills of rights . A last amendment
affirmed the principle that no Federal legislation could have been enacted in matters not enlisted in sect .
8 art . 1 of the Constitution . This strategy was successful , and the Constitution was ap proved by the
people of New York , and therefore came into force in 1791. George Washington - the General of the
Army who fought and won the Independence War - was elected as the first President of the United States
. 2.10 . The settlement of the judicial review of legislation The first years of constitutional practice were of
utmost importance for the construction of many provisions of the constitutional text . A first achievement
regards the settlement of the judicial review of legislation . Beginning with the colonial legal order , the
American constitutional thought was linked to the idea Common law as a superior law . The Courts of the
colonial legal orders tried to apply Common law principles as limits to the laws passed by English
Parliament , colonial Assemblies , as well as to the orders enact ed by the Governors . In the years after
the Independence , the judicial review of legislation was immediately adopted by the Courts of the States '
legal orders . Here , the States ' Declarations of rights provided the provisions to be applied as the norms
superior to the laws passed by the legislative bodies . In Philadelphia , States ' delegates did not openly
discuss the power of the Federal Courts to carry out such judicial review of legislation , but it was
commonly adopted by the Courts of all the States , and it was commonly acknowledged by the American
legal thought that it is the province of the judicial branch to declare null and void a law that does not abide
the Constitution . Indeed , while in English legal order the principles of Common law were not written , but
only declared by the Courts , in American constitutional tradition the written Constitutions and the
Declarations of rights provided a wide field of norms thought to be superior to the ordinary legislation .
The supremacy of the Constitution compared to the ordinary laws is not only an outcome of the legal
history , it also depends on the rigidity of the Constitution , as provided by article 5 of the Constitution .
Thanks to the rigidity of the Constitution , the supremacy of the Constitution over ordinary laws is not only
a theory , but also a binding norm . The doctrine of the hierarchical supremacy of the Constitution , and
the power of the judiciary branch to carry out the judicial review of legislation , declaring null all the laws
that do not abide by the Constitution , was clearly stated by the Supreme Be Court of the United States ,
in 1804. In the famous judgment Marbury v . Madison , the Chief Justice John Marshall stated that the
Courts have the duty to apply the law always considering the Constitution as a superior , paramount ,
law . The powers of the legislature are defined and limited ; and that those limits may not be mistaken , or
forgotten , the constitution is written . To what purpose are powers limited , and to what purpose is that
limitation committed to writing , if these limits may , at any time , be passed by those intended to be re
strained ? The distinction between a government with limited and unlimited powers is abolished if these
limits do not confine the persons on whim they are imposed [ ... ] . It is a proposition too plain to be
contested , that the constitution controls any legislative act repugnant to it ; or , that the legislature may
alter the constitution by an ordinary act . Between these alternatives there is no middle ground . The
constitution is either a superior paramount law , unchangeable by ordinary means , or it is on a level with
ordinary legislative acts , and , like other acts , is alterable when the legislature shall please to alter it . If
the former part of the alternative be true , then a legislative act contrary to the constitution is not law : if
the latter part be true , then written constitutions are absurd attempts , on the part of the people , to limit a
power in its own nature illimitable . Certainly all those who have frames written constitutions contemplate
them as forming the fundamental and paramount law of the nation , and consequently , the theory of
every such government must be , that an ant of the legislature , repugnant to the constitution , is void . It
is important to stress that Marshall did not affirm that the judicial review of legislation was a power
belonging solely to the Supreme Court . Even if in the judicial system of the United States the Supreme
Court is the highest Court , and its decisions bind all the other Courts , the power to apply the judicial
review is shared with all the Courts of the Union . According to Marshall's opinion It is emphatically the
province and duty of the judicial department to say what the law is . Those who apply the rule to particular
cases , must of necessity expound and interpret that rule . If two laws conflict with each other , the courts
must decide on the operation of each . According to the American system of judicial review , there fore ,
all judges can declare a law unconstitutional . In such a case , they must refuse its application in the case
they are judging . However , they cannot annul or repeal unconstitutional provisions with a general effect .
This means that another judge , in a different Court , judging a different or a similar case , could reach a
different conclusion about the consistency of the same provision with the Constitution , and so declare it
consistent with the Constitution , applying it to the case , and reaching a different judgment . Such a
divergence is a weakness of the sys tem of the judicial review , which is overcome by the role of the high
Courts of the judiciary power . Indeed , in all Common law legal systems the jurisprudence of the highest
Court is mandatory for the lowest ones ( rule of precedent , or " stare decisis ” ) . Thanks to this feature of
the Common law legal system , the consistency of the judgments in the Country is granted by the final
decision of the Supreme Court , even if the judiciary branch does not have the power to annul a law . This
fundamental statement of the Supreme Court , confirming and establishing the practice of judicial review ,
can be considered as one of the main achievements of the American constitutionalism in the age of the
Revolution , and one of its main features , together with federalism , the presidential form of government
and the constitutional rigidity . All key - institutions of the pattern of western constitutionalism , destined to
influence its development throughout the Centuries.

2.11 . Constitutionalism and the French Revolution : historical and theoretical premises In 1789 , only two
years after the drafting of the Federal Constitution in North America , in France the most famous
Revolution of the Modern Age began . It would have played a fundamental role not only for French politics
and society , but also for the development of constitutionalism in European Countries . During the age of
the Revolution , indeed , France shaped a proper tradition of constitutionalism , destined to influence
many European Countries : the war that began between the French Republic - that tried to expand its
influence and ideas in Europe – and the allied Monarchies of Europe , produced an expansion of the
revolutionary structures of government and the constitutional principles : this happened in Belgium ,
Nether lands , Italy , and Spain . Before the French Revolution , in these Countries there were no
experiences of Constitutions and constitutional law as we conceive them today . Therefore , all the history
of European constitutionalism is marked by the revolutionary years , during which many Constitutions and
Declarations were adopted , in France as well as in other European Countries under the French
influence . The Revolution took place in a Country , France , where the legal and social structure of
Ancien Régime was particularly strong . Since the 17th Century , the King had become able to impose
himself as the only center of power in the Nation , limiting the role played by the aristocracy . The typical
institutions of a State divided in classes settled during the Middle Ages - such as the General Estates , the
ancestor of modern Parliaments , where the clergy , the nobility and the cities were represented - had
never been called by the King , in order to avoid any kind of opposition or share of political power . In
society of the 18th Century , the only actual antagonists of the monarchical power were the Parliamentary
courts , which must not be confused with the modern Parliaments . On the contrary , Parliaments in the
French Ancien Régime were judiciary Courts , with competences also related to the registration of the
normative acts of the King . This centralization of power , not comparable to what happened in other
Modern States , allowed the Monarchy to develop a central administration , a unification of the normative
order in the whole Nation , an effective fiscal leverage , a centralized Army , a regulation of public finance
and a commerce related to a political strategy . Against the tremendous development of the structure of
the Modern State , an intellectual movement took shape in France in the last decades of the 17th and
during the 18th Century , claiming legal certainty , individual rights and guarantees and a government
based on the consent of the people . In the broad philosophical strand of the French Enlightenment – a
philosophical movement based on the prevalence of the human rea son and consistent with the basic
ideas of liberalism and jusnaturalism - an intellectual constitutionalism began to be discussed and
proposed to the people . English constitutional government after the Glorious Revolution was presented
as a sound political system ( De Lolme ) ; principles such as the State's duty to respect individual rights ,
the separation of powers ( Montes quieu ) , the rule of law , people's sovereignty ( Rousseau ) ,
government by consent , the right of resistance against a tyrannical government ( Mably ) , were
presented and discussed , and began to be known and understood by the people , even thanks to the
development of the public opinion and the press . Obviously , a Revolution so deep and broad such as
the French Revolution could not depend only on intellectual premises . There were serious social causes
pushing against the Ancien Régime and the monarchical absolutism : poor classes and land workers in
the countryside were squashed by the local nobility and the fiscal impositions by the clergy ; at the same
time , the young commercial bourgeoisie was unsatisfied of the fiscal policy of the Crown and , more in
general , with the limited liber ties enjoyed by individuals . However , the intellectual preparation of the
French Revolution in the framework of the Enlightenment made possible to make people aware that
economic claims were not single issues , but elements of a more general complex set of social issues , all
depending on the national constitutional structure . 2.12 . From the Pallacorda's oath to the Declaration of
rights As I have already said , since the 17th Century , the King had never called the General Estates ,
the ancient Assembly representative of the three estates of the Kingdom - aristocracy , clergy , and third
estate . The latter included almost the entire French population : the middle class , the peasantry ,
artisans . After such a long period , King Louis XVI was compelled to gather the Assembly for economic
reasons . The King needed in deed new funds for the Government , to be asked to the General Estates .
The calling of the elections of the General Estates triggered a wide public debate among the people .
Writing a list of their de sires for the future organization of the Nation – the so called " cahiers de
doleances ” – the people learned through books and journals the constitutional structure of England and
the deeds of the American Revolution , as well as the political beliefs of the legal Enlightenment . The
King immediately understood that the aim of the dele gates of the General Estates was not limited to the
approval of the economic requests of the Crown , but looked at general re forms of the institutions .
Therefore , he began to oppose the meetings of the General Estates : due to the resistances of the King
to authorize regular meetings , the 20th of June the dele gates of the bourgeoisie met in the Pallacorda's
room and swore to stay united until the establishment of a Constitution . The Pallacorda's oath is
generally considered the beginning of the Revolution . The General Estates were indeed dissolved , and
the new Assembly was called National Constituent Assembly . Most of the aristocracy and the clergy
joined the third estate in this new Assembly . The transformation of the General Estates in the Constituent
Assembly was not only a tactic move made by the dele gates of the third estate in order to react to the
King's at tempts to stop the work of the General Estates . Behind the dissolution of the General Estates
there was also a precise doctrine : the constituent power of the Nation , consisting in the people's right to
shape the constitutional structure of the State according to their desire and interests . According to the
main theorist of this doctrine in the framework of the ideological de bate in the French Revolution's age ,
Emmauel Joseph Sieyès , the constituent power belongs to the Nation as a whole , and especially to the
bourgeoisie and the third estate , that were in France the actually leading social class . According to
Sieyès ' vision , the third estate had the duty to drive a transformation of the former ancient institution
toward a new constitutional structure consistent with the claims of bourgeoisie . The duty to lead this
process was in the hands of the delegates of the third estate . In order to make this revolution possible ,
the delegates should have acted in the Assembly , independently from the mandate received by their
electors , as delegates of the Nation as a whole . This theory of the free parliamentary mandate was the
tool through which the Constituent Assembly was able to carry out its role in leading the Revolution , and ,
since that moment , it became the basic doctrine of the pattern of representative democracy , as we know
it today , The people of Paris were the other protagonists of the French Revolution . Through
demonstrations and insurgencies against the Monarchy , popular movements supported the Assembly :
the storming of the Bastille – the prison hallmark of the Monarchy - happened the 14th of July of 1789 ,
marked this alliance be tween the people and the Assembly , and forced the King to accept the
establishment of a Constitution . Such an impetuous revolution of the political power and the legal
structure of the Nation cannot be explained only by the social imbalances present in the Ancien Régime
society : the ideological debate that prepared the meeting of the General Estates , as well as the public
opinion that arose since the arrival of the delegates in Paris , shaped a new concept , the " pouvoir
constituant ” : in Sieyès - who was the first author introducing this doctrine - this idea points out the power
belonging to the Nation to settle the political shape of the Country , through a le gal act , the
Constitutions , consistent with the vision of the Nation itself . According to Sieyès and the other
protagonists of the revolutionary scenario , the power of the people to design and impose the form of
government and the principles regarding the liber ties of the citizens cannot be limited by historical legal
customs . Notwithstanding the different visions among parties and leaders about what the concepts of "
People " and " Nation ” exactly mean , all the revolutionary protagonists shared the opinion that the
political will - as represented by the elected parliamentary Assemblies or expressed by the people itself -
derives its legitimacy directly by the people and therefore cannot be limited by the " chains of the past "
Persano ) . This general premise shows one of the first difference between French and Anglo - American
constitutionalism : the idea of the Constitution, as a legal tool aimed at limiting the political power of the
government - which prevailed in North America - is here postponed to a different idea of the Constitution ,
whose main function is to de fine the legal form through which the political power must be exerted , and at
the same time to legitimize a new structure of power . The first act of the National Constituent Assembly
was the abolishment of the feudal privileges of the aristocracy . Then , at the end of August , it passed the
most famous document of the history of French constitutionalism : the Declaration of rights of man and
citizen , a catalogue of rights very close to the Declarations adopted by the American States after the In
dependence . Aimed to be the Preamble of the new Constitution to be ap proved , the Declaration
acknowledges the basic principles of jusnaturalism ( articles 1 and 2 ) . The rights here acknowledged are
those of the liberal tradition : life , property , economic enter prise , individual freedom ( habeas corpus ) ,
freedom of expression . The Declaration states the supremacy of the will of the Nation as expressed by
the statutes of the Assembly ( article 6 ) . According to this main vision of the Revolution , the liberties
enshrined in the Declaration are always shaped and limited by the statutory law . The French
revolutionary constitutionalism , indeed , is linked to Rousseau's vision of the law : according to Rousseau
, the law is the deliberation of the social body , the ex pression of Nation's will , it is therefore superior to
any other source of power and unlimited . According to art . 16 , those societies in which the protection of
rights and the separation of powers were not granted , do not have any Constitution . With this statement ,
the term « Constitution » changes its meaning : it is no more a term used to de scribe the fundamental
structure and the fundamental laws of a Country or a society , suitable to all kinds of governments . The
meaning of the Constitution becomes stricter : according to French revolutionary thought , the word
describes only that kind of legal acts that acknowledge the two principles said be fore . From a descriptive
use , it shifts to a prescriptive use , linked to the doctrine of constitutionalism .

2.13 . Constitutional history of the French Revolution Starting from the enactment of the Declaration , we
can di vide the revolutionary age in three periods , depending on political predominance , on constitutional
principles and on structures of government : they are the Constitutional Monarchy ( 1789-1792 ) ; the
democratic Republic ( 1792-1795 ) ; the Directorial Republic ( 1795-1799 ) . In 1791 , the Constituent
Assembly completed its work and the Constitution was enacted : it settled a constitutional Monarchy , in
which the form of government was aimed at reaching a balance among the different branches . The
model to which the form of government was inspired to was that of English constitutionalism following the
Glorious Revolution . The King was entitled to exercise the executive power , also appointing the
components of his Cabinet . The Legislative Assembly was the body representative of the people .
Elected by a limited suffrage depending on wealth , it exerted the legislative function . The consistency of
the frame of government of the Constitution of 1791 with the structure of English constitutionalism is the
consequence of its influence in the French political environment . During the years of the intellectual
preparation of the Revolution , the English experience was considered as the pat tern to follow in order to
overcome the Ancien Régime . During the revolutionary days , these ideas were carried on by a small but
influential group of members of the Constituent Assembly , led by Mounier , who were called " Anglomans
” because of their disposition toward the English constitutional system . A more radical line of thought
appeared in the Assembly during the de bates on the Constitution , a line that refused many of the
constitutional constraints existing over the will of the Nation and the tools for reaching a stable balance of
powers . Bicameralism , the King's power to veto the legislative deliberations , the exclusive dependence
of the Cabinet from the King were considered by those delegates as limits over the Nation's will , as
interpret ed and represented by the elective Parliament . Resuming and deepening the doctrines of
Sieyès about the Nation's sovereign ty , but also relying on the American constitutional experience , the
left side of the Assembly proposed a different constitutional ideology , destined to succumb in this first
phase , but to play a leading role soon. Despite the balance settled by the Constitution , the relation ships
between the Monarch and political parties in the Assembly were conflictive : none of them were satisfied
with this achievement . The elections of the Legislative Assembly of 1791 gave the majority to the
Girondin faction , supporting democratic visions . At the peak of the political conflict , the King decided to
es cape [ Tackett ] . However , he failed and he was recognized along the road , arrested , brought to trial
and condemned to death . In 1792 , therefore , the Republic was proclaimed , and a new republican
Constitution was to be provided : the Constitution of 1791 had been framed for a constitutional Monarchy ,
and it was a compromise between radical parties and parties close to the King . Its functions were
therefore exhausted . In these months , immediately after the proclamation of the Republic , the Girondin
party decided to declare war against the coalition of the European Monarchies : this decision resulted in a
continental war , that brought a deep economic crisis , causing the rebellion of the people of Paris against
the Girondins them selves . The elections for the new National Constitutional Convention - based on
general male suffrage – were held in September 1792. They gave the majority to democratic factions .
The leadership of the Convention was soon gained by the Jacobin faction , a radical democratic group
supported by the people of Par is and led by Robespierre , Danton and Marat . Danton , first , and
Robespierre , after , guided the Revolution to its most radical phase , called . " Terror " , for the cruel fight
that was declared against the enemies of the Revolution , aristocrats and politicians loyal to the King or
not allied to the Jacobin party . The Constitution of 1793 , adopted by the Convention and ratified by a
Referendum , was a democratic Constitution : its Declaration of rights differed from that of 1789 for its
acknowledgment not only of the individual rights belonging to the liberal tradition , but also of new social
rights , such as education , health , work . Then , it established a form of government in which the
suprema cy of the Parliament - elected by general suffrage - over the executive was clearly settled .
However , the Constitution did not come into force , because it was suspended until the end of the war . In
the meantime , the government was held directly by the Convention , through its committees. Several
scholars consider the Jacobin experience as a parenthesis within the historical development of French
Revolution , assuming the values and the agenda of the Jacobin party as inconsistent with the liberal
theory of constitutionalism Furet ] . This opinion is based on the misleading idea that western
constitutional tradition is only that of liberalism . However , as I explained in the first Chapter , the
theoretical roots of modern constitutionalism are heterogeneous , and also involve claims for equality of
men and social justice . Analyzed under this more comprehensive perspective , the Jacobin project
represents a specific constitutional tradition - for many aspects still not mature – within western
constitutionalism [ Fioravanti ) . The excesses of the Terror , and the growing protest of hungry people ,
convinced a part of the Convention to rebel against Robespierre . The 9th of Thermidore ( 27th July
1794 : the rebels had changed the calendar and the names of the months ) he was arrested and
condemned to death . The Thermidore's reaction marks the beginning of a new phase of the Revolution ,
in which bourgeoisie tries to stop the radicalism of the mob and to protect the achievements of the
Revolution in its first years : its main outcome is the Constitution of 1795 , also called Thermidorian
Constitution , which establishes the Directorial Republic . Here , the catalogue of rights goes back to the
principles of 1789 , the Parliament is divided into two Chambers , as a tool of check on the legislative will ;
the form of government is established to secure the stability of the executive branch : the Cabinet , called
Directory , is elected by the Parliament , but it should last for a fixed term and cannot be removed by the
Parliament . The Directorial regime went on for several months , also prosecuting the war against the
Monarchies with relevant successes . However , the weakness of the Thermidorians was that they did not
obtain the support of the people , because of their intent to restore privileges of the wealthy bourgeoisie ,
such as the limited suffrage . This is the reason why the people did not help the Assemblies when
Napoleon Bonaparte went back to Paris , after his military triumphs as the Commander General of French
Army , and , with a coup d'etat , dissolved the Directorial government ( 1799 ) .

2.14 . Western constitutional traditions : convergence or divergence ? It is now possible to sum the main
features of French constitutionalism and the differences existing with the English and American
constitutional traditions . We can see at least two ideas , common to all of the three constitutional
traditions : the doctrine of the separation of powers and the acknowledgment of individual rights that have
to be protected by the State . In English constitutionalism these two key - principles had been clearly
acknowledged and laid down by the Glorious Revolution and the Bill of rights . In America , individual
rights were immediately acknowledged by the Declaration of Independence , the several Declarations of
rights attached to the States ' Constitutions , as well as by the Federal Bill of rights , adopted as the first
ten amendments to the Constitution . Regarding the separation of powers , if we give a look at the records
of the Federal Convention of Philadelphia , we see that it represented the point of reference of its works ;
and the outcome , the presidential form of government provided by the Constitution , was the best
application of this principle . These two principles are basic also in French constitutionalism : we can see
this point in the famous article 16 of the Declaration of rights of Man and Citizen , the most important act
adopted at the very beginning of the Revolution ( August 1789 ) . Moving from the commonalities we now
consider the differences between French constitutionalism and the Anglo American tradition . While the
American constitutional tradition is characterized by the search of tools aimed at checking the political
power - such as division of powers , checks and balances , rigidity of the Constitution , judicial review of
legislation - , French constitutionalism established a Constitution whose main purpose was to represent
and support the will of the Nation , expressed through the statutory laws adopted by the representative
assemblies of the Parliament . Criticizing the French Revolution , Tocqueville said that it only substituted
the ancient sovereignty of the King with a new , but identical in its features , sovereignty of the Nation .
This key - purpose of the French Revolution led to two consequences : the supremacy of the legislative
body over the other branches of the government - a feature that would have characterized all the history
of French constitutionalism - , and the supremacy of the parliamentary law over the other sources of law .
So , regarding the relationship between statutory law and the Constitution , while in America the
Constitution played the role of a paramount law , enabling the Courts to review unconstitutional legislation
, in France th technique was not admitted . In French revolutionary culture , although the Constitution was
considered as the main legal source of the national legal order , it was not conceived as a superior law
able to annul any incompatible parliamentary legislation . The rea sons were strictly related , firstly , to the
general mistrust to ward the judicial branch ; secondly , to the idea that parliamentary law represented the
prevalent source of the will of the Nation and , finally , to the lack of a clear doctrine expounding the risks
connected with the excessive powers of the majority . Under this perspective , English tradition is not
comparable to none of the other two experiences . It is true , indeed , that the lack of a written
Constitution avoided any kind of constitutional review of legislation , like in France . However , the
supremacy of the law proper of the French tradition differs from the English principle of the " rule of law " ,
because the latter does not mean only the supremacy of the statutory law , but also involves the
jurisprudence of the Courts of Common law and the principles of Common law , which represents a legal
tradition , deeply root ed in Nation's history , suitable to act as a constraint over the Parliament .
Throughout the 19th Century , each of these three constitutional traditions followed their own line of
development , influenced by the peculiar conditions of each national context and the political struggle of
the Nations : if compared to the age of the intellectual foundation of constitutionalism , the growth of
Nation - States forced constitutional law to address political needs and match the single Nation's legal
environment . An introversion , that brought to the temporary weakening of the common grounds of
constitutionalism .

Chapter Three The different paths of western constitutional law in the 19th Century

3.1 . Constitutionalism and the Nation - State

In this Chapter , I analyze the development of constitution al law in the 19th Century , focusing on the
different paths undertaken by Anglo - American experience and European Countries . In the Atlantic
space , and especially Europe , the 19th Century was characterized by the growth of the Nation - State
with in the architecture of constitutionalism . My aim is to underline the ambiguity and the tension existing
between the political premises of constitutionalism and the legal structure of the Nation - State . At the
moment of its theoretical foundation , constitutionalism was a doctrine radically antagonist to the
structures of the Modern State . However , once constitutional claims led to the Revolutions and allowed
the bourgeoisie to shape new political forms , consistent with the quests of constitutionalism , many of the
features of the State were confirmed , be ginning with the idea of sovereignty . Such an ambiguity was
much more relevant in the European constitutional environment than in the Anglo - American one . In the
European Countries , the settlement of the Nation State happened within the specific framework of liberal
constitutionalism : the European liberal State was characterized by the predominance of the Parliament
and the legislation over the other branches of government and the other sources of law , ecting the full
acknowledgment of constitutional principles . All of that mirrored an effective social and political
hegemony of the bourgeoisie , and obstructed the openness to democratic improvements .

3.2 . The English conventional Constitution : from the constitutional Monarchy to the parliamentary
government In the previous Chapter , I left the English constitutional his tory in a relevant turning point :
the settlement , by the Glorious Revolution , of a constitutional Monarchy , aimed at reaching , on the one
side , a stable limitation of the Crown's powers and , on the other side , a balance of powers between the
Parliament and the Cabinet . In the framework of the constitutional government , Parliament had the law -
making power and the King , together with his Ministers , the executive one . This pattern of dualist
government , inspired by a rigid vision of separation of powers , did not stop the growing influence of the
Parliament over the Crown and the ongoing decline of the power of the Monarchy . In fact , mirroring the
economic and the social expansion of the bourgeoisie and the correspondent de cline of the aristocracy ,
the Parliament quickly conquered a more relevant role with respect to the King , altering the ideal balance
of powers conceived by the theorists of the constitution al Monarchy . Without a written Constitution
regulating the form of government , these changes and transformations happened across the years ,
through modifications of institutional practices and political conventions among institutions and political
parties . This is why , scholars describe today the English unwritten Constitution as a « conventional
Constitution » , The transformations of the form of government along the 18th and the 19th Century are
fundamental for understanding the current English constitutional system , as well as the development of
constitutionalism in other western Countries . As I said , the main transition regarded the passage of
political influence from the Monarch to the Parliament : the executive power , indeed , passed from the
King to the Cabinet of the Ministers , who began to act independently from the instructions and the will of
the King . In the absolute Monarchy , the Cabinet was just a committee of counselors appointed by the
King to be supported in the exercise of the executive function . In the 18th Century , instead , the Cabinet
slowly became a strong center of power , in which the main political leaders of the parties represented in
Parliament were called as Ministers . Since the Cabinets of Walpole ( 1720's and 1730's ) a new
convention has began : the Cabinet and its leader , even if they were still formally appointed by the King ,
had stable relations with the Parliament , introducing bills to be passed by the Assembly and asking for
the approval of the national budget . The legal tool through which this shift happened was the ministerial
countersignature of the acts of the King . Since the beginning of the monarchical system , Ministers sitting
in the royal Cabinet have had to countersign all the acts adopted by the King . This was imposed by the
traditional principle of King's irresponsibility . Namely , through the countersignature , the members of the
Cabinet assumed the whole responsibility for the consequences of the acts of the Crown . It was not a
generic responsibility , or just a political one , but rather they could have even been called to give
evidence before the Parliament in reference to these acts through the institution of the special proceeding
, called " impeachment ” . This is a parliamentary procedure for the review of the acts and the conduct of
the Ministers , which could have also brought to a condemnation of the Minister , to imprisonment or
death . However , along the 18th Century , with the increasing role of the Parliament and the Cabinet ,
accompanied by their growing independence from the King , the countersignature and the responsibility of
the Ministers mirrored the definitive shift of the actual political power . Namely , the power followed the
responsibility , moving from the King to the Ministers of the Cabinet . The acts of the Cabinet were still
signed by both the King and the Minister , but the role of the King's signature became just formal , while
the countersignature showed the actual decision maker . Contemporarily , the impeachment procedure
was trans formed : from a judicial trial before the Parliament , it became a political debate upon the
conduct of the Ministers , and its conclusion was no more a condemnation , but just a political “ censure "
on the conduct of the Cabinet . A second fundamental shift happened at the end of the Century with the
affirmation of a new pattern in the forms of government , that is the parliamentary government ,
characterized by the special relationship between the legislature and the executive , called " confidence
" . Since the beginning of the 19th Century this pattern had been clearly established : the King had to
appoint as Premier a political leader able to gain the confidence of the Parliament ; the Cabinet , therefore
, was composed of the leaders of the party that had won the elections and would have thus gained the
control of the majority of the Houses . Consequently , the Cabinet was compelled to resign whenever
Parliament withdrew its confidence , by voting a motion of no - confidence . In such a case , a new
Cabinet could have been created through the reshuffling of men and measures . Immediately after the
settlement of the parliamentary government , a further major transition took place : the House of
Commons slowly started to prevail over the House of Lords . This is mainly due because while the
Commons were directly elected and represented the citizens , the members of the House of Lords
represented the aristocracy and the high clergy . Then , due to the economic transformations and the
declining role of the aristocracy , the richest and active part of society was main ly represented by the
Commons . This passage was much more drastic after the two Reform Bills , passed by the Parliament in
1832 and 1867 , which enlarged the electoral body , granting the right to vote to almost the 50 % of males
, depending on their wealth . Obviously , the consequence of those reforms was to strengthen the
Commons , the only elective Chamber of the Parliament . Along the 19th Century , a convention was
settled which further weakened the power of the House of Lords in the law making process . Namely , if
the House of Lords did not agree on a bill , this would have only imposed a new vote in the Com mons .
Furthermore , the Lords were also ousted from the political relationship of confidence with the Cabinet .
The progressive enlargement of the suffrage , the growth of a public opinion deeply interested in the
major political issues , and the achievement of a prevalence of the House of Commons in the definition of
the political agenda of the Nation ( both in the legislation as well as in the relation of confidence with the
Cabinet ) transformed the political struggle in the Parliament . The already existing dialectic between
parliamentary parties became an organized dialectic between two main political par ties - Tories and
Whigs - facing each other in a competitive political system , in which the two parties started to be in a
continuous competition for winning the general elections and gaining the control of the majority of the
House of Commons and of the Cabinet . In the framework of the new parliamentary government , the role
of the Monarch was strongly limited to a mere honorific function Bagehot ] : he appointed the Premier ,
and he dissolved the House of Commons , he signed the bills as well as many acts of the Cabinet .
However , all his powers were under the substantive control of the Cabinet , as the countersignature
showed . Therefore , the King used to give his advice , but then had to accept the final decisions of the
Cabinet and the majority of the House .

3.3 . The progress of American constitutional law in the 19th Century . From the Early Republic to the
Civil War The adoption of the Federal Constitution and its ratification by the States , as well as the end of
the Independence War against the mother country , allowed American society to develop in a condition of
stability , In the years of the Early Republic , the political system was characterized by the struggle
between the Federalist and the Republican party . On the one side , the Federalist party led by Adams
Hamilton , was supported by the northern States and the wealthy social classes . The party advocated the
achievement of a strong Federal Government and the improvement of the industrial economy and the
bank system . On the other side , the Republican party was led by Thomas Jefferson . It was support ed
by the southern States and by the new States of the western frontier . It believed more in democracy than
in liberal economy , supported the plantation system and the slaveholders , defended States ' rights
against a broad Federal Government , and encouraged the westward expansion and the removal of the
Indi an Tribes toward the western lands . The first issue of the political debate had to deal with the
constitutional construction of Federal legislative competences . According to the Constitution , the list of
powers of the Federal Government was limited to the enumerated powers . But among the enumerated
powers , there were also broad clauses , like the « interstate commerce clause » , or the « necessary and
proper powers of the Federation . These clauses were suitable for the Federal Government , allowing a
wide constructions of Federal competencies , encroaching States ' rights . In its jurisprudence under
Marshall's leadership , the Supreme Court adopted a broad construction of these clauses , consistently
with the Federalist party's views on the Constitution . This allowed , for in stance , the creation of a
Federal Bank of the United States , a provision that the Supreme Court upheld in the judgment McCullock
v . Maryland ( 1819 ) . The Federalist party was soon defeated in several elections , beginning with the
election of Jefferson as President in 1800 . This brought the Republican party to a lasting supremacy in
American politics . And even if Marshall - leading the Supreme Court - continued to uphold the Federalist
construction of the Constitution , many of his interpretations came to be limited by the political events of
the following years . We have to wait the Civil War of 1861-1865 , and the New Deal of F.D. Roosevelt for
a new expansion of the Federal Government over States ' rights . The supremacy of the Republican party
in the first half of 19th Century brought other changes of the American Constitution and its political system
. First , it fostered a huge territorial westward expansion . Under Jefferson's presidency , United States
purchased French Louisiana , doubling the territory of the Nation . The new territory , from the Mississippi
River to the Rocky Mountains , defined the Nation as a « continental Empire of liberty » , as Jefferson
himself said . The westward expansion of the Frontier had a crucial relevance in the transformations of
American constitutional law in the 19th Century . The confrontation with the wild frontier - the dangers
there present - reinforced the spirit of independence and self - determination of the American man ,
already shaped during the Colonial Age and the Independence War [ Turner ) . These are the roots of the
individualistic character of the American citizens , which in politics led to a natural suspicion toward the
Government and the representative institutions . At the same time , the pioneers ' communities organized
the frontier political life according to principles of radical democracy , such as the justice based on popular
jury , the predominance of elected assemblies over the executive branches , the methods of recall of the
elected authorities , the affirmation of male general suffrage . Western territories organized according to
the North - West Ordinance and the following Territorial ganic Acts , reproduced these same forms ,
which can be found even in the first Constitutions of the new States , cut out from the Frontier for joining
the Union . It is possible , therefore , to single out a constitutional tradition of the Frontier , inspired by the
democratic individualism of the American culture ( Urbinati ) , which met the original identity of American
constitutionalism and pushed it toward new , more radical , achievements , as the Constitutions of the
western States show also today ( Buratti , 2016 ) . The end of the period of the Early Republic coincided
with the growth of the second party system , starting with the presidential elections of 1828. In the period
1828-1861 the party sys tem was characterized by the struggle between the Democratic party and the
Whig party . The victory of the Democratic party and the election of Andrew Jackson as President in 1828
determined a strengthening of the democratic values . The emphasis of the Jackson's party on the
effective functioning of democracy led to a radical transformation of the political system : the structural
organization of the parties and their influence over society was indeed very pervasive [ Ostrogorsky ) . In
the entire Nation was granted the universal suffrage , while the process of Presidential elections was
deeply transformed by the establishment of the parties conventions . The main consequence of this
transition is that today the popular election of the presidential electors strongly restrains the discretionary
powers . Presidential electors are now committed to respect , while voting for the President , the results of
the votes casted in their own State . In other words , the presidential electors are thus mere intermediates
, obliged to follow the preferences ex pressed by the citizens of their own State . This has strongly
reduced the power of the presidential candidates , as well as of the same Congress . Hence , the
Presidential elections have became and are still today – practically speaking - a direct election although
continuing to be formally based on the indirect vote with the intermediation of the presidential electors .
The growing representative legitimacy of the President led to a strong shift in the balance of power
between the President and the Congress within the form of government . The presidential powers were
strengthened , first of all through a wide use of the veto power by Jackson himself , and by the
broadening of the appointment clause . Consistently , the powers of the Congress and that of the Courts
were reduced . The tough confrontation between the President Jackson and the Chief Justice Marshall ,
while weakening the Supreme Court's role , had also relevant repercussions on the main Mar shall's
goal , pursuit since his installment : i.e. the strengthening of the federal competences over the States '
rights . For some time Marshall was indeed able to limit the Democratic party's approach in favor of a
limited role of the Federation and a narrow construction of Federal constitutional provisions . However ,
since the 1833 , with the important decision Barron v . Baltimore , Marshall had been forced to recognize
that the Federal Bill of rights could had not been applied also to the legislations and to the other acts of
the States . Therefore , the possibility to establish an effective judicial review of States ' legislation by the
Federal Courts was reduced . With Marshall's death , in the 1835 , the President Jackson nominated his
loyal collaborator , Roger Taney , as Chief Justice . This nomination determined an important change in
the SuSpreme Court's orientation , adopting a different approach than the one previously followed by
Marshall , and it became much more focused on the protection of States ' rights . In the years of the
second party system , the main political and constitutional issue was slavery . It was deeply rooted in
southern American society , where it allowed a wide agricultural product for the few landowners .
According to the vision of the Supreme Court , and consistently with the Democratic party agenda ,
slavery in the southern States was defended , against the growing opinion in the northern States . In the
famous case Scott v . Sanford ( 1857 ) , the Supreme Court led by Taney stated that the Federation had
no power to establish rules over the State law in this issue . The position of the Court - and the stiffening
of both abolitionist and pro - slavery movements - led first to the election as President of the abolitionist
Republican Abraham Lincoln ; second , to the secession of the South ; and finally to the Civil War ( 1861-
1865 ) . The cleavages determined by the Civil War settled the third , and still lasting , party system ,
characterized by the struggle be tween the Democratic and the Republican party . The conclusion of the
War and the defeat of the South al lowed the Congress to approve three further amendments to the
Constitution . The Reconstruction amendments has been the major constitutional transformation since the
Federal Bill of rights , and represents still today the foundation of the constitutional tools for the protection
of liberties . In detail , the 13th amendment abolished slavery ; the 14th amendment expressed a ban over
discriminatory State laws and bounded them with the « due process » and the « equal protection »
clauses ; the 15th amendment affirmed that « the right of citizens of the United States to vote shall not be
denied or abridged by the United States or by any State on account of race , color , or previous condition
of servitude » , also entrusting the Federal Congress to enforce the provision by appropriate legislation ,
therefore overcoming the traditional principle of the exclusive competence of the State in the regulation of
the right to vote . This permitted to overcome sectional conflicts between southern , northern and western
States , and opened the way to further developments in economics , politics and government . 3.4 .
Liberal constitutionalism in the 19th Century in Europe In the first half of the 19th Century – while the
United Kingdom was dealing with the growing relevance of the Parliament in the constitutional system ,
and the United States were facing Lo the complex issues brought by the westward expansion , the growth
of the democratic principles and the conflicts among the sections - in continental Europe , the pattern of
liberal constitutionalism took shape and influenced the adoption of several Constitutions . Before
examining the main steps of European constitutional history , I want to briefly summarize the features of
liberal constitutionalism in the 19th Century . Inspired by English constitutional system , the main goals of
liberal constitutionalism were focused on the protection of individual rights and on the balance of powers ,
seen as a limitation of the State's power and a guarantee for the freedom of society . At the same time ,
how ever , liberal constitutionalism represented the outcome of a complex bargaining process between
the growing class of the bourgeoisie and the Monarchies , still present in almost all the European States
after the end of the Napoleonic wars . In the Constitutions belonging to this pattern , individual rights are
listed in Declarations or Bills of rights , usually included in the text of the Constitution itself , but
sometimes separated from it . The contents of the Declarations coincide with the values of liberalism :
therefore , the rights that grant protection are individual liberties against the State , individual freedom of
religion , meeting and speech , and economic rights as well . According to liberal constitutionalism , the
main constitutional tool of protection of these liberties is the reservation to the parliamentary statute law .
This method is a normative technique that the European Constitutions inserted in many provisions related
to individual rights ; it commits the parliamentary statute to provide detailed norms about the rights ,
excluding any other source of law - especially the normative acts of the executive branch - from the
regulation of the subject . The guarantee represented by this technique depends on the deep
homogeneity existing in liberal societies between the values and the interests of the bourgeoisie , on the
one hand , and the dele gates elected in the Parliament , on the other hand . This homogeneity was still
granted by the existence of the limited suffrage based on wealth . In liberal constitutionalism , Parliaments
are , therefore , the very core of the political power , independently from the specific form of government .
The Parliament , indeed , represents the wealthy social classes , leading Nation's economy , culture and
public opinion . The balance of power is reached through different techniques , such as bicameralism , the
veto power granted to the Monarch , dualist forms of government ( based on the separation between a
monarchical executive branch and an elective legislative branch ) . However , a stable balance of powers
is hampered by the parliamentary centrality in the government . In many of the Constitutions that
established a dualist form of government , transitions toward a parliamentary form of government took
place . The evolution toward the parliamentary form of government and the relation of confidence among
the branches brought to relevant imbalances in many European States , representing , as we will see
later on , one of the major problems in liberal constitutionalism . The pattern of constitutional rigidity
shaped in the American experience is not acknowledged : Constitutions are flexible , i.e .: they do not
provide a special procedure for their amendment . The main consequence of it , is the impossibility to
establish any kind of constitutional review of legislation , confirming , also un der this perspective , the
predominance of the Parliament and of the legislation over other bodies and sources of law . The
revolutionary wars fought by France - lasting also during the Napoleon's Empire - had the role of
spreading liberal and democratic principles and constitutional structures all around the Europe . Even if
the fall of Napoleon's Empire ( 1815 ) led to the restoration of old Monarchies , liberal principles were not
fully abandoned in those Countries that had experimented constitutionalism . In Spain , in 1812 , the
Cortes - people's representative Assemblies - adopted a Constitution , characterized by the
acknowledgment of liberal principles of government , the settlement of a constitutional Monarchy , and the
affirmation of male general suffrage . The restoration of the Monarchy confirmed the Constitution , even
though in the following years several conflicts be tween liberal movements and the King arose . Spanish
Constitution was adopted as a model for several Constitutions of this period . In Portugal , for instance ,
after the end of Napoleon's Empire , the restoration of the Monarchy brought to a constitutional Monarchy
under the Constitution of 1822 , embedding liberal principles . The fall of Napoleon's Empire inaugurated
a phase of " constitutionalization " in several other Countries involved in previous French expansionism .
In the Netherlands , the Independence brought to a monarchical Constitution , in 1815 ; in 1848 , then , a
Constitutional Reform established a parliamentary form of government , following the transition we have
already de scribed for the United Kingdom . The same happened in Nor way , with the enactment of the
Constitution of 1814 , where the powers of the King were strongly reduced in comparison to other
Constitutions of this period . In France , the new King Louis XVIII - descendant of the King decapitated
during the Revolution - decided to grant a Constitution to the Nation , to show his loyalty to liberal
principles . Actually , the Constitution of 1818 cannot be comparable to those of the revolutionary age ,
because the legislative power found many checks in King's powers , the executive was firmly in the hands
of the Crown , and above all , the right to vote be longed only to a strict and the richest part of the
society . Furthermore , to underline the end of the doctrine of popular sovereignty and restore the ancient
idea of the sovereignty of the King , the Constitution was not adopted by an Assembly representative of
the people , it was a Constitution " octroyée " , granted by the King as a gift to the Nation . The practice of
the Constitutions octroyées , which began with the French Constitution of 1818 , is a feature of many of
the monarchical Constitutions of the first half of the 19th Century in Europe . All of them were
characterized by the troubled relationship between the old principles of Monarchies and the new ,
invasive , principles of liberalism and constitutionalism . The restoration of the Monarchy , indeed ,
encountered many difficulties , due to the deep roots of the Revolution and the weakness of the
monarchical parties in the Nation . In 1830 a new brief Revolution took place , which brought a new
dynasty on the throne , considered more loyal to liberalism . The Constitution of 1830 , indeed , mirrored
the structure of liberal constitutionalism and consolidated the alliance between the Monarchy and the
bourgeoisie . The experiences of Belgium and Italy confirm the same trends . The 1830 is the year of the
Independence of Belgium from the Netherlands , which brought to the necessity of enacting a new
Constitution . In this respect , inspired to the principles of liberal constitutionalism , the Constitution of
1830 set a parliamentary form of government , in which the Government was related to the bicameral
Parliament through the confidence relationship . The Monarch , therefore , was rigidly limited in his
political role , and - consistently with the constitutional pattern - all his acts had to be countersigned by the
Ministers . The right to vote was limited on the basis of personal wealth , and the catalogue of individual
rights - adopted the year after with a Bill of rights -- followed the Declarations of rights of the liber al
tradition , with the acknowledgment of formal equality , and the protection of personal liberty , freedom of
religion , meeting , assembly , opinion , and private property . In Italy , claims for a written Constitution
and for the acknowledgment of the principles of constitutionalism began during the years of French
Revolution , when the revolutionary ide as moved from France to the closest States . Along the
revolutionary war , part of Italy was occupied and in the new emerging States - all of them under the
Republic ( first ) and the Empire ( after ) - new Constitutions were adopted , very similar to the model of
the French Constitution of 1795 . After the restoration of the previous Monarchies in the Italian States , we
assist in a return of old practices and principles of government of the absolutism . This system ended in
the middle of 19th Century , when the political pressure of the bourgeoisie increased and became too
strong to be resisted by the Monarchies . Like in other European States , many sovereigns of Italian
States were compelled to grant Constitutions to the people . The year 1848 was the very hallmark of this
process . By this year , many Constitutions were adopted : among those , the Statute of Carlo Alberto
( 1848 ) , the Constitution of the Kingdom of Piedmont , which with the unification of Italy under the Crown
of the King of Piedmont ( 1861 ) would have been the first Italian Constitution , resting in force until the
end of the Second World War . The Statute was drafted by a Council appointed by the King , and granted
by the King to the people . It was a monarchical Constitution , for many parts very similar to the French
Constitution of 1830 and to the Constitution of Belgium of 1831 . As usual for the constitutional
Monarchies , the individual rights acknowledged were only those descending from the liber al tradition .
The Statute provided for a dualist form of government , with a division between executive power -
belonging to the King and the Cabinet – and legislative power , conferred to the two Chambers , one of
which elected by the people with a 25 limited right to vote depending on the wealth , and the other
composed of members appointed by the King . However , since the middle of the 1860s the Statute
started to be constructed as authorizing a parliamentary form of government : therefore , also here
happened the same transition we saw in English constitutionalism . The 1848 was the key - year in the
expansion of constitutionalism in Europe , because claims for a written Constitution , consistent with
liberal values , were at the core of the political agenda of the revolutionary movements of those years .
The harsh social protests that took place in Europe in 1848 involved also areas , such as Germany ,
where the principles of the Age of Enlightenment , liberalism and constitutionalism had not been so
relevant , both in politics as well as in the philosophical thought . Nonetheless , the events of 1848 pushed
the Princes of several German States to grant Constitutions inspired by liberal principles , and to call for a
Constituent Assembly , elect ed through universal male suffrage , with the commitment to adopt a
Constitution for a unified German confederation . The works of the Assembly , gathered in Frankfurt ,
coincide there fore with the very beginning of an intellectual reflection about constitutionalism in the
German environment . However , the main problems that the Assembly had to deal with regarded the
process and the methods of unification of the German States in one Nation . A complicated process ,
which was further exacerbated by the different alternatives and the existent conflicts among the same
States . The attempt to enact a Constitution for a Federal German State , therefore , ended without
success the year after . The definitive establishment of a unified German Nation took place only in 1871 ,
under the leadership of Prussia , the biggest and the most organized State among all the other Ger man
States . As soon as William I became the King of Prussia , he called Otto von Bismarck to lead the
Government . Bismarck strategy was immediately directed to exclude Austria from the German
confederation and to unify the twenty - five German States in an Empire , organized by the Constitution of
1871 , in which the role of the Emperor and of the King of Prussia coincided . The Constitution of the
German Empire of 1871 presented features common to the patterns of liberal constitutionalism : the form
of government was a dualist constitutional Monarchy , in which the executive power was shared by the
and the Chancellor , this latter appointed by the Emperor . Any at tempt to establish a relation of
confidence between the Parliament and the Chancellor failed . The Parliament was divided in two
Chambers : the Reichstag , elected , and the Reichsrat , com posed of delegates of the member States of
the Federation . However , in this upper Chamber , the number of the Prussian delegates was higher than
the number of the delegates coming from the other States , strengthening the relevance of Prussia in
Federal politics . Despite the constitutional structure comparable to those of the other liberal States in the
19th Century , Ger man constitutional history moved toward a different direction : on the one side , it
progressively strengthened the role of the executive branch over the role of the Parliament and , in the
other side , it acknowledged individual rights in a weaker manner than the one established in the Anglo -
American or in the French approach . Indeed , in the environment of the German le gal culture , individual
rights were not considered as liberties belonging to individuals and existing before the State , but rather ,
were the rights seen as benefits acknowledged by the State law and moldable by the State law itself in
order to make them compatible with its interests ( so called doctrine of public subjective rights ) .

In Switzerland , the political Revolutions of 1848 were the occasion for a war among the Cantons , which
led to a stronger unification in the form of a Confederation under a liberal Constitution . In the framework
of the Federal States in 19th Century , the Swiss Confederation was at the margin due to the strong
autonomy acknowledged to the Cantons . Another peculiarity of the Constitution is related to the wide use
of instruments of direct democracy , a path that was not common to liberal constitutionalism , based on
the impermeability of the relationship of political representation between the people and the Parliament .
Popular Referendums were possible in several moments of the political life , both at local as well as at
Federal level , even in or der to nullify decisions taken by the Parliament . As for the form of government
at the Federal level , the Swiss Constitution opted for the directorial government , already experimented in
France , during the Revolution , from the Thermidorian reaction to the Napoleon's coup d'état . The year
1848 represents a turning point also for the French constitutional history . New popular insurgencies
brought to the fall of the monarchical Constitution established in the 1830 and to the proclamation of a
new Republic , i.e. the “ second Republic " of France . The Republican Constitution of 1848 was the first
to settle a presidential form of government in France . However , this attempt was shortsighted , because
Napoleon III – grandson of Napoleon - won the presidential elections thanks to the reputation of his
name , and in few years established the so called " second Empire " , in an ideal continuity with the first
Napoleon Empire . The Empire would have lasted till the 1870 , when Otto von Bismarck defeated the
French Army at Sedan . Like the first Empire , also in the second Empire we witness to a peculiar
combination of dictatorship ( in the organization of the government ) and liberalism , for the
acknowledgment of individual rights and the compliance with the principle of legality , After the defeat of
Sedan , France adopted a new Republic , the third Republic of its history : its structure of government was
organized by the Constitutional laws of 1875 , which pro vided for a parliamentary form of government .
The President of the Republic was here a weak body , without relevant powers , and all the actual
decisions belonged to the relationship of confidence between the Parliament and the Cabinet . However ,
contrary to English practice - where the stability of Cabinet was granted by the leadership of the Premier
and the two - party sys tem - here the Cabinet was fully dependent on the will of the changeable
majorities of the Houses : the fragmentation of the political party system in small parties , and the lack of
techniques through which a stability of the executive could have been achieved , led to frequent changes
in the Cabinet . The comparison between French third Republic and English constitutionalism of the 19th
Century gave the occasion to classify two families of the parliamentary forms of government , both
founded on the basic relevance of the relation of confidence , but characterized by some different features
. The English system was able to grant stability and effectiveness to the Cabinet ( majority pattern ) ; and
the French system characterized by the supremacy of the assemblies over the executive ( consensual
pattern ) , Scholars also observed that the majority pattern of parliamentary form of government is usually
connected to a two - party system , or at least to a two - coalition par ty system , and therefore to a
majority or a plurality electoral system ; while the consensual pattern of parliamentary form of government
usually depends on a multi - party system , and therefore on a proportional electoral system ( Duverger ,
Li jphart ] . In the last decades of the Century - with the progressive expansion of the parliamentary forms
of government all over western Europe , and the decrease of dualist patterns of government such as the
constitutional Monarchy - , the alternative between the English majority parliamentary government and the
French assembleary government became a major issue in politics .

3.5 . The legal framework of the Nation - State : principle of legality and rule of law

The evolution of the Constitutions and of the forms of government in the Atlantic space during the 19th
Century was ac companied by the concurrent and ongoing process of consolidation of the Nation State .
The structure of the State , as we know it today , was shaped during this period , designing its functions
and competences , as well as its administrative and legal structures . In this process of edification of the
national law , the paths of the western constitutionalism continued to follow different directions , taking the
distance from each other . The divergences between the Anglo - American path and the European one
can be better understood analyzing the construction of the principle of legality in Europe , and the
correspondent concept of rule of law in the Anglo - American experiences , which occupy a central role in
the State's legal structure . In the framework of the European liberal State , the principle of legality means
that all the functions of the State - both ad ministrative as well as judiciary - must follow a previous norm
and be consistent with the law of the State . Two different implications of the principle of legality can be
underlined . The first implication regards the role of the Parliament . In continental Europe , the principle
of legality mirrors and grants the predominance of the Parliament , main political outcome of the French
Revolution . Indeed , having regard to the public ad ministration - historically characterized by the
discretionary will of the Monarch , the Ministers and the public service - the principle of legality recognized
the guarantee that all the public offices had to be organized according to the provisions established by the
law , and that all the administrative activity had to be carried out following previous norms . Therefore , the
principle was aimed at limiting the discretionary power of the above mentioned public actors . Moreover ,
it is important to stress that the principle of legality was the outcome of the legal values of the Age of
Enlightenment and the essential condition for the strengthening of the principle of legal equality , as well
as , the base for a fair relationship between the public administration and the citizens . Having this in
background , the principle of legality of the public administration was also the symptomatic evidence of
the acquired predominance of the Parliament and of the statutory law in the system of public powers . The
principle of separation of powers was thus weakened by the affirmation of the principle of legality .
Namely , the entire continental Eu rope was characterized by a strong intrusion of legislation , limiting the
principle of separation of powers . Consequently , starting with the second half of the 19th Century , in
many European Countries a special judicial branch took shape , separated and independent from the
ordinary judicial branch , entrusted with the power to review the acts of the public administration . The
introduction of the judicial review of the acts of the public administration represented a step forward in the
path toward liberal State , granting a wide set of judicial remedies to individuals against the State's
administration Nigro ) . However , the separation of this branch of the judicial pow er from the ordinary
one , and the inhibition for the ordinary Courts to annul the acts of the public administration , exemplifies
the desire to carry out the judicial review of the acts of the State , taking in special account the public
interests . Indeed , it must be underlined that these new administrative Courts and Councils were often
composed of former advisors , Ministers or high officials of the public administration itself , appointed
directly by the Government . The second implication of the principle of legality regards the sources of
law , which in the Civil law system were re - shaped placing the acts of the Parliament on the top of the
hierarchy of legal sources . However , this should be not considered as a revolutionary turn , since in the
Civil law system , the already well recognized prevalence of the written norms represented the archetype
for the establishment of this hierarchical recognition of a superior norm , as the main source of law
production . In this sense , the primacy of the acts of the Parliament further simplified the arrangement of
the sources of law in Civil law systems . Namely , having a norm with a superior force , considered as the
paramount law in the system of law production , it consequently implied that all the other norms , as
secondary sources , had to be subordinated to it . Particularly , the principle of legality affirmed the
primacy of the acts of the Parliament over any normative act of the executive branch ( executive
regulations , de crees and ordinances ) . Therefore , those latter were recognized as secondary sources
subject to judicial review in compliance with the primary sources of legislation . This second feature of the
principle of legality affects the role of the judiciary branch and of the Courts too . I have already underlined
that the principle of legality was not simply the out come of the claims made by the legal values of the Age
of Enlightenment in the name of legal certainty , but also the consequence of the political preeminence of
the Parliament over the other public powers , including the judicial one . Namely , the judges are now
considered as the " bouche de la loi ” , compelled by the written norms , which should be applied and
interpreted in compliance with the textual provisions and taking into ac count the original aims of the
legislator . One of the goals of the theorists of the principle of legality was indeed to limit the Courts '
autonomy interpretative power , which during the Middle Ages and during the Ancien Régime had been
one of the main causes of ambiguity and heterogeneity of the law and , thus , an instrument of power in
the hand of the judges ( Alatri ) . All these elements allowed the definition of the 19th Century liberal State
as a " legislative State " , underling the central relevance recognized to legislation in this model .
Constitutional flexibility , common to several of the European Constitutions in 19th Century , was a further
element of coherency with the features of the legislative State , because it avoided the constitutional
review of legislation . Consequently , the same constitutional enunciation of rights and fundamental
liberties was often subordinated to the purposes of the parliamentary legislation . Core of the legislative
State , and sample of the liberal values expressed by the European societies in this period , is the effort ,
common to all the Countries belonging to the Civil law legal system , toward the " codification " of civil and
criminal law . The Code Napoléon of 1804 that propagated as a model in the entire continental Europe
was considered the “ civil constitution of the French people ” ( Carbonnier ) . At the same time , it was the
structure of the legal private order in the bourgeois society , based in the contract and intended to
guarantee the owners [ Rodotà ) . Indeed , the pattern of liberties protected by the State , and the goals
embedded in the new legislative codifications , matched the only interests and values of bourgeoisie , the
sole class represented in the Parliament and with a political voice . There is no doubt that in the 19th
Century in Europe , the edification of the liberal State , with the relevance in its structure of the principle of
legality , represented a fundamental enhancement in the protection of formal equality and , more in
general , an essential contribution to the achievement of the claims raised by the legal values of the Age
of Enlightenment . Nonetheless , starting from the second half of the 19th Century , liberal State principles
promoted a « statua tic introversion > [ Ridola ] not consistent with the theoretical premises of
constitutionalism . In the Anglo - American side of western constitutionalism , the development of the
State in its modern features followed different paths . The affirmation of the rule of law as the pillar of the
legal order changed many settings of the previous order , but it did not imply an absolute prevalence of
the Parliament over the other branches of the Government , nor the monopolization of the system of
sources of law by the statutory law . In the United Kingdom , we have already described the extraordinary
expansion of the parliamentary control over national politics . Having regard to the system of the sources
of law , the supremacy of the Parliament brought a crisis in the peculiar balance established between
Common law and statute law - outcome of a unique historical path in which the Courts were able to avoid
the affirmation of the supremacy of statutory law . During the 19th Century , the Parliament tried to extend
the realm of positive legislation over subjects that were traditionally regulated by Common law precedents
and procedures . This effort led to positive outcomes , such as the reform of the system of the Courts of
Common law , inherited from the Middle Ages and no more consistent with the needs of modern society
( Samue ] . The main reform was the Judicature Act of 1875. Scholars , therefore , started talking of a
parliamentary sovereignty . In Albert Dicey , one of the main legal scholar of the 19th Century in England ,
the parliamentary sovereignty was the essential feature of English constitutional order , characterized by
the lack of a superior paramount law and , therefore , by the supremacy of the parliamentary statute law
over the other sources of law . Ac cording to Dicey , The principle of Parliamentary sovereignty means
neither more nor less than this , namely that Parliament ... has , under the English constitution , the right
to make or unmake any law whatever : and , further , that no person or body is recognized by the law of
England as having a right to override or set aside the legislation of Parliament . Therefore , the former "
rule of law ” – that in the past Century had been used to describe the peculiar combination of the
Common law precedents and the statutes of the Parliament - became , in Dicey , something comparable
to the principle of legality of the European legal systems . However , Dicey's vision of the new asset of the
Common law of England was not representing the actual situation . The transition toward the
parliamentary sovereignty , indeed , did not affect the key - role played by the jurisprudence . The
Parliament , in carrying out its legislative function , did not alter the long - established Common law
heritage ; on the contrary , it interpreted its role as meant at codifying the multilayered Common law
jurisprudence , consistently with the goals of legal positivism [ Bentham ) . In the United States of America
, protests against the Com mon law tradition began to appear immediately after the Revolution and the
Independence from the mother country . It is true , indeed , that one of the main critics that the
revolutionary generation launched against the mother country regarded the excessive role assumed by
the Parliament of Westminster and the alteration of the sound principles of the Common law sys tem ,
considered as the guarantees of liberties against the tyranny . However , immediately after the
Independence , the new Parliaments elected by the American people claimed a wide and unlimited power
to make new laws , and did not accept the bur dens imposed by a source of law , such as the precedents
coming from the English Courts , not linked with the people will . This critic became stronger throughout
the years , and conquered the aims of the middle class , especially in the West [ Miller ) . Ameri can
literature of the first half of the 19th Century explained with effective stories the critic to the old judges of
Common law , a kind of a judiciary aristocracy speaking a technical language not shared by the common
people . The affirmation of the Democratic party of Andrew Jackson , sensible to these arguments ,
fostered a reform of the legal sys tem Pound ) : codifications of law began to appear in many States ,
following the sample of the Civil Code of Louisiana . The spreading of written statutory law and
codification reduced , therefore , the role of Common law , which , in the United States was limited to a
rule of procedure - mainly the rule of precedent - and to a specific set of subjects . The legal system of the
Common law Countries was able to moderate the pervasive effects of the parliamentary interpretation of
the rule of law . This also allowed to limit the expansion of the State's administration . As in continental
Europe , also in England and in the United States the administrative functions of the State enormously
increased . However , the public administration did not achieve a special position in the legal order , as in
Europe , and the review of its acts remained entrusted to the judicial branch . Moreover , in the case of
the United States federalism also helped to limit the role of the Federal administration . In other words ,
the Common law legal system helped to avoid the excess of " statualism " that characterized European
Nations at the turn of the Century . In conclusion , the Anglo - American and the European legal orders
reached the crucial turning point of the 20th Century following divergent paths : this explains their different
reaction to the rising of mass society and to the related process of democratization.