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In the second research period of the Advanced Grant ReConFort (2016–17), precedence of constitution was the central interest for understanding historical constitutional discourses; these discussions have been further enriched by research into the Polish case study of 1815, which is also addressed in this volume. On the functional level as , precedence of constitution guarantees the normativity of the modern constitutional concept, comprising the conceptual differentiation from ordinary law, the aggravated alterability (sometimes even up to an ‘eternal’ restriction on the constituent power) and the hierarchically supreme justiciability as legal tests for subordinate laws. Arising out of the American and French Revolution, the new normativity of the ‘constitution’, now connoted as a legal text, fixed the political order into legal order. This claimed to be ‘the basis and foundation of government’, as the Virginia Declaration of Rights of 1776 starts, or ‘’, in the wording of the preamble of the French 1789 Declaration of the Rights of Man and Citizen. However, irrespective of the superficial linguistic commonalities, the revolutionary American and French discourses on constitutional precedence differ significantly, and met widely varying challenges. Nevertheless, both discourses provided the basic framework for European constitutional developments of decisive normativity in the late eighteenth and nineteenth century. Therefore, they act as cornerstones for comparative research on this key category, reconsidering constitutional formation between old liberties and new precedence. These foundations have guided not only the Principal Investigator’s following essay, but also the papers of the ReConFort postdocs and the contributions of the speakers at the international Brussels conference, on 14 March 2016, which are combined in this volume.

In the case of America, colonist resistance against Westminster produced a written superior law set above all political power, due to the efforts to justify the revolution as a legitimate breach of common law. The colonies’ legal argumentation conducted their case like a common-law litigation and borrowed from a long-standing constitutional semantic already traceable in early modern European monarchies. The subordination of ordinary legislative assemblies under fundamental laws ()—as demonstrated in the granting of religious freedom to all inhabitants in the founding document of the Colony of West New Jersey (1676)—remained based on the traditional grounds that fundamental laws had a specific importance that elevated them above ordinary laws. Neither legal legitimation nor the binding of political authority by very important laws was a new or even revolutionary concept. The British-American discursive common law community was built around the prominence of the and the Bill of Rights, and it was indeed these fundamental laws on which the colonists relied for recalling their customary old liberties as subjects of the British king. Facing Westminster’s unitarian legislative absoluteness in the imperial context, the colonists developed the differentiation between legal and constitutional; the Stamp Act and the Sugar Act, although , were argued to be due to the violation of common law liberties. A complementary legal argument was the distinction of the Empire from internal colonial polities, which were governed by the old liberties and privileges as English subjects and not by the superintending power of the British Parliament. In the unsettled connexion of the colonies to Britain, American lawyers relied on Coke’s supremacy concept of common law as immortal custom, as it was understood through Blackstone’s . As long as the legal debate was kept on the customary level of their old rights as Englishmen, all questions of precedence were mere questions of the applicability of ordinary law. This changed with the natural law ‘basis and foundation of government’ expressed in the Virginia Bill of Rights, which itself was not vested with any superior rank, but was still analogous to common law.

The Declaration of Independence invoked a united American people, distinct from the British colonial power. Thereby emerging, the constituent American people became the reference point for establishing the constitution as law, as well as its revision and interpretation, though there were only the people of the thirteen individual states of the Union. Due to the lack of an unitarian state, the supremacy of the United States Constitution rested not only on it being the legal benchmark for all political powers to protect freedom and property, but also on it being the guarantee for the existence of the Union. Such an interlinkage between the Constitution and the Union invigorated the distinction between superior constitutional law and ordinary statutory law (also of the single federal states), and opened up the discourse on constitutional jurisdiction. In bidding farewell to the Lockean idea that there was ‘no judge on earth between the legislative and the people’, the secular ‘judge’ filled the gap between the legislative branch and the people, which had been caused by the legal separation of the Constitution from the ordinary legislation. The ordinary jurisdiction of the Supreme Court became authorised to measure the statutory law against the ‘higher will of the people’, meaning the Constitution. The Lockean right to resistance—addressed in his god-judge equivalence—was taken up by the federal jurisdiction. (1803) accepted the latter’s prerogative to examine statutory constitutionality or unconstitutionality in a ‘judicial review.’

The common law tradition of the American idea of law was far removed from the French Rousseauist understanding of law as the expression of the . Freedom by participation in legislation—articulated in Art. 6 Declaration of the Rights of Man and Citizen as (fraternal-political) equality ()—is and was totally unknown to the American constitutional discourse. Furthermore, ‘’ of the 1789 declaration reached for the same universal validity, but its philosophical wording only achieved the appropriate legal status by incorporation in the preamble of the September Constitution (1791). Whereas the American resistors differentiated constitutional law and ordinary law conceptually in their effort to justify the revolution as legitimate, the French discourse is, even now, very reluctant to review the unconstitutionality of acts of the legislative assembly, disregarding the difference between the ordinary legislative assembly and the constituent assembly (representing national sovereignty), following Sieyès’ differentiation between constituent national sovereignty and constituted sovereignty. Even under the current French Constitution (enacted on 4 October 1958), there is no review of statutes for unconstitutionality except for the narrow scope of the ‘prior question of constitutionality’ ( or QPC) dealing with the control of promulgated statutes being compatible with the rights and liberties guaranteed by the constitution in Art. 61-1. The failure of Sieyès’ draft of a ‘’ in the Thermidorian debates of the year III (1795; reproduced here in the French original in Appendix A and in the English translation in Appendix B) was only the first link in a chain of reasoning to refuse any judicial authority to declare statutory law to be unconstitutional and overrule it. Sieyès planned for his jury to be staffed with former congressmen rather than professional judges. However, the Rousseauistic dogma of the general will and the continuous constituent power of the French people did not allow for Sieyès’ project to open a window of opportunity for constitutional complaints to be addressed even by individual citizens in their own name to the constitutional jury. Together with the skepticism of the Constitutional Convention about the jury’s resemblance to the judicial privileges of the , this led to Sieyès’ petition being rejected unanimously in the Constitutional Convention of the year III.

Finally, sketching matters of juridification, supremacy, and revision in the public sphere around the constituent St. Paul’s Church Assembly underlines the interconnection not only between the discourses established in the above case studies (applied in a different context), but also between the key issues of the ReConFort project as a whole. In spite of the fact that it ultimately failed to come into force, the German Imperial Constitution of 1849 is a clear example that national sovereignty ( I) marked the starting point for the process of juridification of sovereignty; constitutional precedence ( II) was the legal tool to complete the process of juridification of sovereignty.

The first part concentrates on the emergence in England of “fundamental laws” in the sense of individual rights, the “liberties and properties” of Englishmen. I also show how notably in the case of the notorious “Septennial Act” of 1716, criticism that Parliament violated the “constitution” was expressed, and how about three decades later in the writings of Bolingbroke the word “unconstitutional” was born, gaining wide currency in the North American polemics against the British Parliament prior to independence. In the second part I concentrate on one of the most important aspects of early modern western constitutional history, the dissociation—in North America—of the “higher” positive law of constitutions as opposed to the inferior “normal” law of legislatures, at the same time also relativising the supreme character of “law” in the writings of Hobbes and Rousseau, and closely connected to this development, the upgrading of many individual rights to “constitutional rights”, in other words, their constitutionalisation. In the third part I concentrate on two judgments of the U.S. Supreme Court throwing into particularly sharp relief the superiority of constitutional law vis-à-vis ordinarily legislature-made law: the first, long famous, is Marbury v. Madison of 1803, and the second one, Obergefell v. Hodges of 2015, is fast becoming one of the landmark cases of human rights protection, with the Court stating: “An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.” In the fourth part I concentrate on the development, in Europe, of the only direct connections between individual persons and human rights enshrined in the highest law of the land or even beyond: first, the “Verfassungsbeschwerde” (constitutional complaint) first developed in Austria, particularly successful in Germany (commenting also on the different situation in France and in Great Britain); and second, the “Individualbeschwerde” (individual complaint) before the European Court of Human Rights, enabling the individual to appeal even against his or her own state for the protection of rights guaranteed by the European Convention of Human Rights.

Understanding of the principle of constitutional precedence raises numerous doubts in the Polish case. Although this rule was stated in the Declaration of the Assembled Estates from 5 May 1791 joining May Constitution, following studies allow for the ascertainment that its content and significance for the legal order was perceived differently. In light of experienced practice, we may not accept without reservations the claim of a general recognition of a superior position of constitution towards other sources of law. We may agree as to the purpose of introducing the supremacy clause: first and foremost, it was the desire to guarantee the desired stability of the system against foreign powers’ and internal conservative opposition threats. The author developed the title issue in the field of former Polish legal tradition of fundamental law and French influences; analyzed also the extraordinary procedure of adopting and revision of the 3rd May Constitution 1791. Furthermore the perception of the analyzed relationship between the Constitution and acts of ordinary legislation should be regarded as inconsistent. In the following days and months, the deputies of the Great Sejm made attempts to introduce regulations into ordinary legislation that were contrary to the May Constitution, but at the same time the clauses related to the obligation to adjust legislation to the provisions of the Government Act are a much more progressive systemic solution than the previous ones. Contemporary acceptance of the assumption of supremacy of the Constitution leads to the innovative effect of accepting the concept of unconstitutionality, the obligation to eliminate from the legal order acts which are incompatible with the Constitution. And again, at the level of the acts comprising the “3 May system” (on the Sejm and the Extraordinary Sejm), this conception remains implemented to a limited degree even when the Sejm deputation was entrusted with the power of preventative constitutional control of draft legislation. It would thus seem that the existing situation can be interpreted as a sort of intermediate stage, symbolizing the arrival of a substantive and axiological legal understanding of the Constitution’s supremacy. However, we should objectively assess the innovative Polish steps along the path of encapsulating the state order in a constitutional act, as well as hierarchization of the legal system, however imperfect they may have been.

This article is devoted to the question of the precedence of the 1815 Constitution of the Kingdom of Poland. The paper has been divided into three major parts.

In the first, introductory part the origins of the 1815 Constitution are discussed. This part of the article presents the current state of the art of the polish legal history concerning the genesis of this highest normative act of the 1815–1830 Polish Kingdom. Following the explanations provided by of S. Askenazy, H. Izdebski, D. Nawrot and S. Smolka, it has been expounded that the idea of a Constitution for a semi-independent Polish Kingdom was conceptualised as a propaganda instrument in the intellectual tug of war between France and Russia over the Polish society during the Napoleonic Wars. The Constitution itself had been being elaborated since 1811 with the participation of various polish politicians of the pro-Russian party, including F. K. Drucki-Lubecki, M. K. Ogiński, L. Plater and prince A. Czartoryski. After the ground-breaking victory of the sixth coalition spearheaded by Alexander I Romanov over the French forces, it became a founding stone of the newly re-established Polish Kingdom.

In the next part of the this short study, the main regulations of the Polish 1815 Constitution have been outlined, with the special focus on those regulations which pertain to the precedence of Constitution and to the criminal law.

The third main part of the article discusses the issue of the supremacy of the 1815 Constitution with reference to its relationship with the ordinary legislation adopted in the Polish Kingdom. It has been illustrated with an analysis of legislative process of the only (apart from the Civil Code of the Kingdom of Poland 1825, which was a very slight modification of the Napoleonic Civil Code) fully-fledged codification of the entire branch of law which succeeded in being adopted by the Parliament (“Sejm”) of the Kingdom of Poland: the Criminal Code of 1818. Those parliamentary debates have so far not been analysed more extensively (the valuable, yet short reference made by J. Śliwowski—to whom I am very indebted for his great and inspiring study on this piece of legislation—in his monograph almost 60 years ago can hardly be considered to be exhausting in this respect) in the literature of the subject. The speeches held by the polish deputies to Sejm of the year 1818 explicitly corroborate that a rhetorical argument of a possible unconstitutionality or conversely, congruence with the 1815 Constitution, was widely invoked by both the supporters and opponents of the project. This striving for coherence of the to-be-legislated normative act with the Constitution was also reflected in the adopted legal text of the Code itself, which was to a great extent compatible with the stipulations of the 1815 Constitution. Thus, this short investigation leads to the conclusion that at this point of the development of the Polish constitutional discourse it can be stated that ground-breaking idea of the supremacy of the Constitution was already clearly recognised.

Constitutional precedence constitutes a defining element of modern constitutionalism. This chapter aims to elucidate the way in which this idea was embedded in the Belgian Constitution of 1831. It does so by combining a historical-genealogical approach with a legal one. The chapter begins with a discussion of the genesis of the Belgian Constitution in relation to the Fundamental Law of the United Kingdom of the Netherlands. It shows how the Belgian opposition’s constitutional resistance to government policy created a debate over the interpretation of the Fundamental Law, which in turn provided the conceptual building blocks for the understanding of constitutional precedence in the 1831 Constitution. After examining the concept of legal order, the chapter explains how, in the eyes of the Belgian revolutionaries, the Belgian Constitution could be a legitimate replacement for the Fundamental Law as the foundational document of the state. The concern for constitutional precedence was expressed furthermore by recurring debates within the National Congress and the press over the constitutionality of the acts of both the constituting and constituted powers. The chapter then turns to the constitutional text and analyzes the way the precedence of the Constitution was legally anchored into the Belgian state system. Constitutional precedence was expressed by a combination of measures concerning (a) the special status and the endurance of constitutional law as compared to ordinary law and (b) the Constitution’s status as the legally binding ground rule for the constituted powers. Finally, the precedence of the Constitution was symbolically expressed by a discourse of respect for the Constitution as the ultimate guarantee of the wellbeing of the state.

The 1815 constitution of the United Kingdom of the Netherlands established a deferential control on the sovereign power to declare war and conclude treaties. Following articles 57 and 58, international agreements could be concluded and ratified by the monarch, save for peacetime cessions of territory. The constitutional committee’s debates treat the matter rather hastily. William I (1772–1843)’s role at the establishment of the Kingdom of the United Netherlands had been so decisive, that the advent of a less qualified successor seemed inconceivable. The monarch personified the common interest. Foreign policy, the privileged terrain of princes and diplomats, was judged unsuitable for domestic political bickering. Finally, the Estates Generals’ budgetary powers were seen as an indirect brake on potential royal martial ardours. The incidental objections formulated by Jan Jozef Raepsaet, a Southern conservative publicist, show the more structural deficiencies of the constitution as a pact between the monarch and the nation. Leaning both on feudal law and law of nations doctrine, Raepsaetdemonstrated how William I had been dressed in Napoleon’s clothes. The King had a nearly unchecked competence in foreign affairs, beyond the usual Old Regime safeguards, contrary to Enlightenment criticism of autocratic rule. John Gilissen aptly labeled William I as a “monocrat”. Vattelor Pufendorf’s opinion on the ruler as a mere usufructuary seemed to have evaporated. Raepsaet’s arguments on the inconsistent nature of Art. 57 and 58 are echoed in the 1831 Belgian constitution’s Art. 67—subjecting most treaties to parliamentary consent—as well in Thorbecke’s criticism of the document.

The Norwegian 1814 constitution became in the middle of the nineteenth century an intellectual battleground between the constitutional ideals of the French revolution on the one hand, and the constitutional ideals of the restoration era on the other hand. According to the former understanding, the constitution was meant as an instrument of delegation from the sovereign people as pouvoir constituant to the state institutions as pouvoirs constituées. According to the latter understanding, the constitution was a contract for sharing sovereignty between the king and the people. Being an act of rebellion against the Treaty of Kiel, which stipulated that Norway would enter into a personal union with Sweden, the constitution-making process was consistently legitimized with the sovereignty of the people. The Norwegian framers’ understanding of constitution was entirely conventional in American and European revolutionary constitutionalism. The constitution was considered by the framers as an instrument of delegation from the people to the state institutions. There was no trace of contract theory in neither the 1814 constitution’s text nor the discussions at the constitutional assembly. The Norwegian 1814 constitution did not follow the path European constitutionalism was heading at the time. The post 1814 European constitutions followed the so-called monarchical principle, which rejected the sovereignty of the people and were legitimized by monarchical sovereignty and contract theory. In the early 1820s, the monarchical principle entered the Norwegian constitutional discourse with the question about a kings’ absolute veto on laws and constitutional amendments. King Carl Johan attempted to reshape the constitution’s system of separation of powers in accordance with the monarchical principle by a series of amendment proposals in 1821 to curb the parliament’s power. These spurred an intense public debate in journals and pamphlets and were firmly rejected by the parliament in 1824. After the debates on constitutional reform in the 1820s a contractual interpretation of the constitution emerged. For the next 60 years, two contradictory interpretations of the 1814 constitution’s character existed side-by-side: One based on the sovereignty of the people, the other based on contract theory and the monarchical principle. In the 1860s, the debate on the constitution’s character spilled over into a related issue, namely the uniquely early Norwegian development of judicial review on the constitutionality of laws and administrative acts. Norway was the first country in Europe to develop a consistent and lasting system of judicial review. The Supreme Court’s enforcement of the constitution as higher law was grounded in the notion of the constitution being an act of the sovereign people as pouvoir constituant with precedence over laws and administrative acts, being only decisions of delegated authority by pouvoirs constituées. In the 1870s the long debated issue of the royal veto was be put to the test and triggered a political crisis. The king claimed an absolute veto on constitutional amendments, after the parliament adopted an amendment allowing government ministers to attend debates in the parliament. The liberal majority in the parliament rejected the royal veto with reference to the sovereignty of the people. In 1883 the crisis reached its climax as impeachment proceedings were instituted against the government for violating the constitution. In 1884 the Court of Impeachment finally pronounced that the constitution did not allow the king to veto constitutional amendments, and that the exercise of such a veto violated the constitution. The Court’s decision also settled the debate on the constitution’s character as it firmly rejected the contractual interpretation and instead entrenched the 1814 constitution in the constitutional ideals of the French revolution.

This chapter deals with the difficult process of constitutionalisation which characterised Italian Unification. Constitutionalisation is a long-term phenomenon which had the purpose of giving constitutional forms to the Nation. The promulgation of the Albertine Statute is more the start than the arrival of this phenomenon. The focus of this investigation is, therefore, to study the Constitution through its evolution paying particular attention to the process of legal integration within the structures of the Albertine Statute and to the amendment mechanisms of the constitutional text. The preamble of the Albertine Statute speaks of «perpetual and irrevocable fundamental law». The word «perpetual» meant the prohibition of revoking constitutional concession, while the word «irrevocable» was intended as a pact between the Sovereign and the Nation. Over the years, very few were the changes to the letter of the Albertine Statute. The interpretation and the practice represented the most important mechanisms of constitutional change (implicit constitutional changes). A primary role was acknowledged to non-written norms. In this perspective, it may well be said that the Italian Constitution consisted in something more than the written text and dwelt in the spirit and not in the letter of the Albertine Statute.

At Austrian universities, the problem of ‘Precedence of Constitution’ is usually taught within the framework of the ‘theory of the hierarchical structure of the legal order’, an essential part of the so-called ‘Pure Theory of Law.’ Whilst the famous jurist Hans Kelsen (1881–1973) was the founder of the Pure Theory, the ‘theory of the hierarchical structure’ has been introduced by Kelsen’s disciple Adolf J. Merkl (1890–1970) in 1918 and is accepted also by those who do not follow Kelsen’s Pure Theory. According to the Pure Theory, the basis of the validity of a norm can only be another norm, which can be seen as the ‘higher’ norm. The legal order can be seen as a structure of ‘higher’ and ‘lower’ norms, and within the legal order of a certain state, its constitution is the highest norm of all—the ‘paramount law’, as has been said by US Supreme Court in its famous case , in 1803. The ‘theory of the hierarchical structure’ also gives the justification for constitutional justice: the constitutional court reviews whether the legislator has remained within the framework of the constitution.