Abstract

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 tertium comparationis , 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 whole political order into one legal order. This claimed to be ‘the basis and foundation of government’, as the Virginia Declaration of Rights of 1776 starts, or ‘Le but de toute institution politique’, 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.

Highlights

  • 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 addressed in this volume

  • 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

  • The British-American discursive common law community was built around the prominence of the Magna Carta and the Bill of Rights, and it was these fundamental laws on which the colonists relied for recalling their customary old liberties as subjects of the British king

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Summary

Novus Ordo Seclorum

The motto Novus Ordo Seclorum (‘A new order of the ages’), appearing underneath the unfinished pyramid on the reverse side of the Great Seal of the United States, was coined in 1782 by Charles Thomson. He adapted it from Virgil’s Eclogue IV, a pastoral poem of the first century BCE, where a Sibyl prophesied the fate of the Roman Empire in her longing for a new era of peace and happiness.

Definitions of Normativity and Precedence
The British–American Discursive Common Law Community
Customary Old Liberties Against Parliamentary Absoluteness
American Sympathies for the Supremacy of Common Law
Liberty Defending Common Law Versus Discretion Granting Executive from an American Perspective
No Westminster Legislation on the Internal Colonial Polities
Systematic Distinction of ‘Internal’ and ‘External’ Spheres of Colonial Government
Specific Matters of the Colonies’ Own Nature Versus General Matters of the Empire
Self-reliance of the British Imperial ‘Constitution’
Legal Force of Custom in the Unsettled Connexion of the Colonies to Britain
Natural Law ‘Basis and Foundation of Government’
Independence from Being Subjects of the ‘Same’ King
Constitutional American People of the United Colonies (1776–8)
Focus on the Division of Sovereignty Between Union and Single States
The Constitution as Guarantee for the Existence of the Union
Constitutional Silence on Precedence
Farewell to the Lockean ‘Inter legislatorem et populum nullus in terris est judex’
Summary of Sections 3 and 4
Legal Transition of Philosophical Truths
Sieyès’ Constitutional Jury (jury constituionnaire)
Constitutional Debates of 2 and 18 Thermidor III (20 July and 5 August 1795)
Communicative Implications of the Jury’s Attributions in the Thermidorian Constitutional Debates
Defeat of Sieyès’ Jury Proposal and Its Consequences on the French Constitutional Jurisdiction
Avenues of New Constitutional Research
Conclusion

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