Constituent Assembly

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Constituent assembly is a constitutional and political science term. A constituent assembly is an extraordinary political institution , sometimes also called a constitutional convention , which has been set up temporarily and can be set up to give a state a first or a new constitution . It is - as an expression of the pouvoir constituant  - in the possession of the constituent power of the people .

Significant historical examples show that constituent assemblies were mostly constituted in a revolutionary environment. The first constituent assembly on German soil took place on March 24, 1525 in Memmingen in Upper Swabia . Here the federal order was drawn up by the rebellious peasants in the peasant war .

The term Constituent Assembly (with fugues-s ) is widely used but controversial.

Constitution and elimination of an old constitution

The constituent power of the people is concretized in a constituent assembly . According to the democratic legitimacy principle of popular sovereignty , it is in possession of the original pouvoir constituant , which is why it has a higher rank than the legislature , organ des pouvoir constitué , of the constitutional power, elected on the basis of an already enacted constitution :

“A constituent assembly has a higher rank than the representative body elected on the basis of the constitution. It is owned by the pouvoir constituant. It is incompatible with this special position that restrictions are imposed on it from outside. [...] Your independence in fulfilling this mandate does not only exist with regard to the decision on the content of the future constitution, but also with regard to the procedure in which the constitution is drawn up. "

Its members can be elected or appointed, or they can constitute themselves in the context of a coup or a revolution . This happened for example in the Tennis Court Oath , a key event at the beginning of the French Revolution : the members of the National Assembly declared in a revolutionary act to the Constituent Assembly, which finally as the Constituent Assembly , the absolutist France into a constitutional monarchy was transformed:

“ Thomas Paine , the great propagandist of the French Revolution, compared the American Revolution to that solid point Archimedes was looking for to turn the world off its hinges. The American Revolution realized the nation as a 'constituent power' and thus opened the door to the age of the democratic or Atlantic revolution. "

- Bruno Schoch : All power comes from the people. But who are the people?

So the metajuristic concept of constitutional power contains a certain paradox which - according to Martin Heckel  - makes it so difficult for lawyers to understand:

“The constitution-making power cannot be derived from norms, but it contains a normative decision that creates norms. It is the fruit of a historical moment that demands constancy beyond the moment. [...] It demands inviolability, although it comes from a breach of the constitutional law that has been in force up to now and can also sweep away the current constitutional order in upheaval. It expresses itself in the - often violently eruptive - revolution of the people, which, however, by virtue of its constitutional power, obliges the constituted organs of the state to strictly enforce the constitution against any attempt at revolution, coup d'état or breach of the constitution - as long as it [the people] bears the constitution . "

A constituent assembly is only active temporarily, for a limited period of time. Your order is objectively limited. It is only called to create the constitution of the state and the laws that are necessary for the state to act and function effectively through its constitutional organs. With the promulgation of a constitution, the new state authority arises as a will of the people derived (from it), the new pouvoir constitué . The Constituent Assembly has done its job and will dissolve itself after the elections for the new legislature . The state authority newly constituted by the entry into force of the constitution is bound to this new constitution.

Limits of Sovereignty

According to the principle of popular sovereignty, a constituent assembly would be independent of the requirements of the incumbent state authorities and would also not be bound by the provisions of an existing constitution. Since it is in possession of the original pouvoir constituant , it can only impose content and procedural restrictions on itself:

"Un peuple a toujours le droit de revoir, de reformer et de changer sa Constitution. Une génération ne peut assujettir à ses lois les générations futures. »

“A people always has the right to review, reform and change its constitution. A generation cannot subject the coming generations to their laws. "

Another legal philosophical view states that there are limits to popular sovereignty in exercising the pouvoir constituant . The Constituent Assembly is bound by overly positive legal principles , which include general principles of the rule of law and in particular universal human rights . These general legal principles, as natural law or right of reason , always preceded the popular will and positive, established law . In the judgment of the Federal Constitutional Court of October 23, 1951 already quoted above, it says:

“A constituent assembly is only bound by the positive legal principles that precede any written law […]. Otherwise it is essentially independent. It can only impose limits on itself. "

In this natural law context, the Austrian constitutional lawyer Peter Pernthaler emphasizes the importance of the preambles of modern constitutions. In religious or secularized formulas, such as B. invocatio Dei ("Invocation of God"), a " transcendent reference of the constituent power of the people" is legally established, which has the function of clarifying these limitations of popular sovereignty:

“It is not in these formulas, but in the presupposed limitation of popular sovereignty through human rights, the responsibility of state power and other over-positive legal principles that also limit the democratic constitution, that the importance of the transcendent relationship of the modern state constitution lies: After the experience of plebiscitarian totalitarian state power in dictatorships and authoritarian regimes, the basic idea of ​​the constitutional state is that the constituent power of the people does not justify unlimited power of the state over people, a particularly important element of the freedom of this order. "

Hans Kelsen , constitutional judge and main author of the Austrian constitution of 1920 , once formulated the opposite right-wing positivist position as follows:

“The question that aims at natural law is the eternal question of what is behind positive law. And whoever seeks the answer will find, I fear, not the absolute truth of a metaphysics, nor the absolute justice of a natural law. Whoever lifts the veil and does not close his eye, stares at the Gorgon head of power. "

Draft constitution of the round table of the GDR

During the fall of 1989/1990, a working group commissioned by the Round Table developed a draft for a new constitution for the German Democratic Republic based on the Basic Law . But within the framework of German unification , the GDR and the Federal Republic of Germany jointly decided on the path of accession of the GDR according to Article 23 GG (old) - see Unification Treaty  - and not for the path of a constitutional replacement according to Art. 146 GG (old) . No use was made of the possibility of being able to call a constituent assembly at extraordinary historical moments. One relied on constitutional continuity instead of discontinuity through constitutional amendment .

The Basic Law in the tension between provisionality and the guarantee of eternity

Article 146 of the Basic Law for the Federal Republic of Germany , revised after German unification in 1990 , now reads:

"This Basic Law, which applies to the entire German people after completion of the unity and freedom of Germany , loses its validity on the day on which a constitution comes into force that has been freely decided by the German people."

The possibility of being able to convene a federal German constitutional assembly through the rule of law - not just through revolution - therefore remains. Since the free democratic basic order on the one hand and the eternity clause according to Article 79.3 of the Basic Law on the other hand are two different things, it is controversial in the constitutional literature whether and which elements of the free democratic basic order can be changed by a constituent assembly or whether a total revision can even be carried out. To what extent, therefore, a hypothetical future constituent assembly according to Art. 146 GG would be bound to these even more far-reaching restrictions of the Basic Law - such as B. to the eternity guarantee for the federal state structure of Germany  - is just as controversial among constitutional lawyers.

EU and constitutional treaty

According to the definition of the Federal Constitutional Court, the supranationally organized European Union is an association of states , the legitimacy of which is not based on a European nation, but on the collective will of its sovereign member states as a result of the treaty :

"(LS 8) The Union Treaty establishes an association of states to realize an ever closer union of the - state-organized - peoples of Europe, not a state based on a European state people.
(LS 3a) Thus, democratic legitimation takes place through the feedback of the actions of European bodies to the parliaments of the member states; in addition - as the European nations grow closer together - within the institutional structure of the European Union there is the mediation of democratic legitimation through the European Parliament elected by the citizens of the member states. "

The European Convention , sometimes wrongly called the Constitutional Convention , developed a Charter of Fundamental Rights of the European Union and a draft constitutional treaty for Europe on behalf of the European Council , i.e. the national EU governments . In doing so, he never referred to the possible constitutional power of a European Union people , which would have been a truly revolutionary act . The project of the EU Constitutional Treaty failed because of the negative national referendums in France and the Netherlands in 2005. In this context, critics speak of a democratic deficit of the European Union and demand rather than individual national ratifications a pan-European decision on the Union constitution by a Union-wide referendum by the Union people . The European lawyer Thomas Schmitz from Göttingen also considers a strong participation of the Union people in the constitution-making process in the Union to be essential and demands

"A. a leading representation of the Union people in the preparation of the draft constitution,
b. the activation of the Union people in a Union-wide public constitutional discussion,
c. a political decision on the Union constitution in a Union-wide referendum . "

Only a paradigm shift, an exchange of the basis of legitimation, would make it possible to adopt a European Union constitution instead of a treaty:

“If the Union were to break away from its legal basis under international treaty law and change its basis of legitimacy by no longer relying on the collective will of its member states, but on the constitutional power of the Union's citizens. Such an exchange of the basis of legitimation would be truly revolutionary. "

It is currently unlikely that the European Parliament - like the French National Assembly in 1789 - could declare itself a Union-European Constituent Assembly in a revolutionary act :

“It is theoretically conceivable that such a paradigm shift will take place as a result of a formal constitution and that the European peoples will constitute themselves as a political unit in the manner indicated, but it is currently not foreseeable. The citizens of the EU member states see themselves as 'Europeans', but their European collective identity is still weak and in particular has hardly any political dimension. Therefore, there is currently nothing to support the assumption that - as once in France - the European peoples would declare themselves to be a European constituent and, using the constituent power of a people as the unified subject of legitimation, would create a European constitution. "

On December 13, 2007, the members of the European Council signed the Lisbon Treaty , which is largely based on the rejected EU Constitutional Treaty . As for the form, it is no longer a constitutional treaty, but a reform treaty. He reforms the Treaty on European Union and the Treaty establishing the European Community . The reform treaty was denied until November 3, 2009 by the national parliaments of the member states . There were no national referendums or a Europe-wide referendum, only Ireland was the only EU country to hold a referendum on the treaty for national constitutional reasons.

Critics see this as a perpetuation of the democratic deficit of the EU and the remoteness of its political power elite .

Historical examples

In the period up to the 19th century

From the 19th century to the Second World War

After the Second World War

Artistic processing

In 1804, Friedrich Schiller masterfully staged a constituent assembly in the 2nd act of his Wilhelm Tell , including debates on the rules of procedure, unanimous founding resolutions and individual resolutions with a majority and minority.

See also

literature

Web links

References and comments

  1. ↑ The term “(constitutional) convention” is used in the literature with different meanings. In expressions such as the National Convention or the Philadelphia Convention , “convention” is synonymous with “constituent assembly”; in expressions such as the Constitutional Convention on Herrenchiemsee and the European Convention , the term “convention” is used to mean “constitutional advisory assembly”. In the latter, the draft constitution requires additional ratification , e.g. B. by referendum before it can come into force as a new constitution.
  2. ↑ In her book On the Revolution , the political theorist Hannah Arendt examines the question of the legitimacy of constituent assemblies and how such assemblies come about. She works out the differences in the revolutionary development process of the American constitution and the French constitution. In contrast to the case of the French constitution, the constitution in the United States in 1787 was discussed section by section down to the last detail with lively citizen participation in town hall meetings and state parliaments, and supplemented with additional articles . The famous Federalist Papers , 85 newspaper articles in which the constitutional authors defended their draft of an indirect democracy , played an important role .
  3. ↑ The Society for the German Language also considers “constitution makers” to be justifiable. Response of the Petitions Committee to a petition directed against the removal of the joint ; see. on this, the Bundestag has to correct decades-old grammatical errors in the Basic Law , Spiegel Online , October 2, 2004.
  4. ^ Judgment of the Federal Constitutional Court of October 23, 1951, Second Senate, guiding principle 21 and 21c ( BVerfGE 1, 14 - Südweststaat )
  5. ↑ Bruno Schoch: All power comes from the people. But who are the people? Hessian Foundation for Peace and Conflict Research, Frankfurt 2000, ISBN 3-933293-40-5 , p. 14 in full text (PDF).
  6. ↑ Thomas Paine: The rights of people , ed., Trans. and a. v. Wolfgang Mönke , Berlin 1962, ISBN 3-518-06375-8 , p. 163.
  7. ↑ Martin Heckel: The legitimation of the Basic Law by the German people. In: Collected Writings. State Church Law History , Volume III (Jus Ecclesiasticum 58), Mohr Siebeck, 1997, pp. 34–35 .
  8. ↑ Constitution of the French Republic of June 24, 1793, Declaration of Human Rights and Citizens' Rights, Art. 28. Constitution de l'an I (1793), Déclaration des droits de l'homme et du citoyen, article 28 .
  9. ↑ BVerfGE 1, 14 - Südweststaat, Second Senate, guiding principle 21a
  10. ^ Peter Pernthaler : Free democracy is the rule of human rights . In: Genius , 1/2005, Vienna.
  11. ↑ Hans Kelsen : Contribution to the discussion in: Publications of the Association of German Constitutional Lawyers , VVDStRL 3 (1927), p. 54 f.
  12. ^ Draft of a new constitution for the GDR , see also: Klaus Michael Rogner: The draft constitution of the Central Round Table of the GDR . Berlin 1993, ISBN 3-428-07807-1 ; Ulrich K. Preuss : The attempt to create a constitution for the declining GDR - a workshop report , in: Dieter Grimm, Alexandra Kemmerer, Christoph Möllers (eds.), Rumors of law. Lectures and discussions from the Berlin seminar Law in Context (= Law in Context, Vol. 1), Baden-Baden 2015, ISBN 978-3-8487-1181-9 , pp. 49–96.
  13. ↑ BVerfGE 89, 155 - Maastricht, principles 8 and 3a
  14. ↑ a b Thomas Schmitz: The European people and its role in a constitution in the European Union . In: Europarecht , 2003, pp. 217–243 ( summary of the article , University of Göttingen).
  15. ↑ Christian Hillgruber : Sovereignty - Defense of a Legal Concept . In: Juristenteitung (JZ) 11/2002, p. 1078.
  16. ↑ Christian Hillgruber: Sovereignty - Defense of a Legal Concept . In: JZ 11/2002, pp. 1078-1079.
  17. ↑ Vera Kissler: Treaty of Lisbon: What about the democratic deficit of the European Union?
  18. ↑ La Pepa in the Spanish language Wikipedia
  19. ^ Assembleia Constituinte in the Portuguese language Wikipedia