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A New Understanding of Constitutional Formation The interplay of constitutional text, societal context, political practice and interpretation.

Contributed by: Universität Passau

More than a decade ago, the crisis surrounding the “Treaty establishing a Constitution for Europe” shed light on the need for a European constitutional public discourse. Two centuries earlier, the protagonists of early European constitutionalism had been fully aware of the necessity of a participating public as a vital part of the constitutional process. The ERC research project ReConFort investigated these historical processes and has drawn conclusions for the future of the European Union.
A New Understanding of Constitutional Formation 
The interplay of constitutional text, societal context, political practice and interpretation.
Nations, societies and governments are permanently facing new challenges. They constantly need to adapt to new circumstances. One basic legal foundation of all political acting and adaption is our constitutions. They define the organisation of the state and acknowledge human and civil rights. However, constitutions are not limited merely to the written text. They are not only logbooks for experts. They communicate basic ideas and transform the political consensus into legal rules.

The ERC project ReConFort (Reconsidering Constitutional Formation) focuses on constitutional formation as interplay of constitutional text, societal context, political practice and interpretation. The interdisciplinary team consists of historians and legal scholars from Australia, Belgium, Germany, Great Britain, Italy, Poland and Spain and is supervised by the principal investigator, Prof. Dr. Ulrike Müßig, at the University of Passau in Germany.

The historical constitutional discourses in Polish Sejm (1788-92), the Spanish Cortes (1812), the Belgian National Congress (1830-1), the Frankfurt Parliament (1848-9) and the Italian Parlamento Subalpino (1861) illustrate that 200 years ago, the constitutional discourse was closely accompanied and contributed to by the public, which played a vital role in their success in eighteenth and nineteenth-century Europe, and which arguably is missing in contemporary European Union contracts, treaties and constitutions.

The principal investigator of the ReConFort project, Prof. Dr. Ulrike Müßig elaborates: “The new, deeper understanding of the historical foundations of our common constitutional heritage empowers us to solve the contemporary issues of the European integration. Europe’s future depends on an informed public discussion. However, the ReConFort research focus can be of value for any integration process worldwide, where nation and statehood no longer determine political entities sufficiently.”

The main cornerstones of the research – ‘national sovereignty/constituent sovereignty’, ‘precedence of constitution’, ‘judiciary as constituted power’ and ‘justiciability of politics’ – in combination with the remotely-based working organisation of the team enabled ReConFort to combine comparative constitutional history and the history of the transferal of ideas, to open new avenues of approaching and understanding established European constitutional models.

“For us, our case studies on different historic constitutions show, that constitutional communication is the main cornerstone of any successful constitutional process. Our research on interplay of constitutional processes and public participation is based on a systematic analysis of different constitutional documents and combined with various documents of political actors, for example private cross-border correspondences of the protagonists and their publicist activities, national public media, or exile literature,” explains Dr. Giuseppe Mecca, the Italian postdoctoral researcher working within the ReConFort team.

Focusing on the communicative interdependencies of historic constitutions of European constitutionalism, the team has proven the experimental ambiguity or indetermination of constitutional texts with regard to state organisational core elements. This indecisiveness and openness for interpretation is the core element of their communication dependency. ReConFort has concluded that even a written constitution cannot statically fix the administrative-legal relations of power, as these depend on the legal interpretation and the conflict mentality of the political decision-makers. The main research results are published in open-access with Springer (ReConFort I: National Sovereignty, 2016; and ReConFort II: Decisive Constitutional Normativity, 2018) and the Journal of Constitutional History, while the archival source material underpinning this research is available via the ReConFort Open Access Database.

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Keywords

Europe, Constitution, Legal History, Communication, ReConFort, Constitutional History, Constitutional Discourse, Sovereignty, Judiciary as Constituted Power
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