Analysis of the Spanish Constitution

I originally wrote this in Spanish.  I translated it into English to submit to a campus political journal.

Analysis of the Spanish Constitution

One of the greatest pleasures of my stay in Spain has been the opportunity to learn about its politics.  Although she and the United States are both Western nations, they are culturally distinct, and their constitutions reflect that, as well.  Spain lives in a unique situation: the nation is ancient, but the majority of its current citizens are older than their own constitution, so it is a living document in a way the American constitution isn’t, and the issues which were controversial during its writing are still relevant today.  In this paper, I will compare the Spanish Constitution of 1978 with the Constitution of the United States, especially with respect to its historical context, human rights, separation of powers, federalism, and the economy.  Finally, I will describe the effects of the Spanish Constitution and notable facets of Spanish political culture.

Historical Context

In my opinion, the biggest quandary for Spanish democracy is the history and culture of the country: it has been politically and religiously absolutist for most of the last five hundred years, and its previous republics have succumbed to military coups.  Although King Ferdinand II of Aragon devolved power to the territories during his reign, he also expelled the Muslims and Jews from the country in 1492.  His successors created the Inquisition in order to protect national religious unity.  Carlos V and the Hapsburgs reigned like absolutists, and the Bourbon King Ferdinand VII wished to do so, as well.  The bourgeoisie were weaker in Spain than in its European neighbors, the rich nobles’ domination of the poor is one of the country’s defining characteristics.  En the colonies, Spain established the same plantation system and forced the indigenous to work in their haciendas.  Two different generals, Antonio Primo de Rivera and Francisco Franco, overthrew republics to establish military states.  The Constitution of 1978 was written to establish a new government after thirty-seven years of Francoist fascism.  Says Miguel Herrero de Miñon, doctor of law and former spokesman of the Partido Popular, it is the “first truly normative Constitution.  That is, it is not limited to rhetorical statements, nor does it describe or camouflage situations of power…[1]

For example, consider the Constitution of Cádiz.  Written in 1812 during the Napoleonic occupation of Spain, it was the most liberal constitution in the nation’s history[2].  It admits that the power of the King comes from the people (Article 3), an idea Thomas Hobbes had already proposed two hundred years before.  It established that “the purpose of the government is the happiness of the Nation” (A13).  There is also equality among men (though not between men and women) (A5).  Even so, it says that God is the supreme legislator of society (Preamble).  It classifies Latin America as a Spanish territory (A10).  Catholicism is the religion of the state, and the exercise of others is forbidden (A12).  The King is the executive (A16).  He and the courts are the legislature (A15).  Despite all this, Ferdinand VII sought to ignore this constitution and rule as an absolute monarch during his reign.

On the contrary, the United States hailed from the English tradition, one of the most pluralist in Europe.  The nobles had limited the power of the King since the Magna Carta, and by 1688, Parliament removed James II from the throne and elevated William and Mary in his place[3].  The United States was even more free.  The Americans rebelled against the King of England for his “abuses and usurpations” and established their own country[4].  The original government was a confederation, but the Americans had to write a new constitution in 1789 because this state was too small.

The creators of the American Constitution were minimalists: they thought their powers delineated in their charter would be the only ones the state would have.  The Constitution contains only twenty-four articles, and its twenty-seven amendments require more pages than the original document.  On the contrary, the Spanish Constitution of 1978 contains 169 articles.  Also, while individual rights are protected in the United States by amendments (the Founding Fathers considered them so self-evident the Constitution did not need them), they are established in the first chapter of the Spanish Constitution, signifying that their protection was the highest priority of the Spanish founders.

Negotiation is an important process during the writing of a constitution.  In the United States, there were two main disagreements between the authors of the Constitution: the small states wanted to protect themselves against tyranny from the large states, and the southern states wanted to protect the institution of slavery while also counting their slaves toward the proportional distribution of seats in Congress.  To resolve the first problem, the Americans distributed seats in the lower house by population and in the upper house equally among the states (A1, S2-3).  They dealt with the second indirectly: Southern states were permitted to track down their fugitive slaves in other states (A4-S2), but the sale of slaves was prohibited after 1808 (A1-S9).  For electoral representation, each slave was counted as 3/5 of a person (A1-S2).

The Spanish Constitution was written by parties with much greater differences.  There were Francoists, communists, socialists, regionalists… Many of the anti-Francoists were upset about their oppression under the dictatorships, but they believed the Francoists were working in good faith with them to preserve the best of Francoism and to liberalize the rest[5].  For this reason, the Spanish Constitution is a brilliant work of negotiation, although it is also an incomplete one.  Sometimes, laws and details are left to be resolved in the future.  Other times, the constitution tries to give something to everyone, so it loses continuity.

Rights

To me, an American, many of the rights claimed in the Spanish Constitution do not seem revolutionary, but for the people who had lived under dictatorship, they were indeed.  For example, Catholicism was the official religion and the only one tolerated by Ferdinand and Isabella, the Hapsburgs, the Bourbons, and Franco, but the Constitution of 1978 establishes Spain as a secular state[6].  Some examples of rights guaranteed in both documents are equality under the law[7], freedom of speech[8], and habeas corpus[9].

Another advantage of a new constitution is its ability to resolve questions its antecedents could not because these problems hadn’t existed before.  For example, the Spanish Constitution protects the right of workers to unionize[10], resolving a matter that was very controversial in the United States during the 19th and 20th centuries and in Spain under Franco.

There are two visions of rights in the United States: that of Locke, supported in the Constitution, which guarantees the rights of life, liberty, and property, and that of Franklin Roosevelt, which claims that human beings also have the rights to freedom from fear and want.  These secondary rights are not mentioned in any part of the Constitution, but they are the basis of the 20th century welfare state.  The first vision limits the actions of the state while the second demands it to act.

The Spanish Constitution follows the vision of Roosevelt.  For instance, it guarantees access to different types of free education (Articles 27, 43, 44, 46, 51) and promises pensions to the elderly (50), support for the disabled (49), and Social Security for all (41).  It creates the basis for a national health system (15, 43).  Also, it promises the participation of the young in the development of the people (48).  There is a right to “honor, privacy, and one’s own image” and to matrimony between men and women (32).  This reminds me of the “Great Society” of President Lyndon Johnson in the 60s.

Interestingly, after a series of rights there is Article 53, which says that government officials can regulate rights if these rules respect the essence of the constitution.  This is an invitation for many legal headaches and in my opinion is an addition of the Francoists due to their love of order.  Regardless, I think it is necessary for this reason: it is a safeguard against those who use their rights to take away the rights of others, like a person who uses his “freedom of expression” to destroy a work of art with graffiti, and against absurd demands to the state, like a person who demands forty years of state-sponsored education.

Separation of Powers

The presence of a king[11] is a big symbolic difference between the politics of Spain and the United States.  When the Americans separated from the English government, they separated from its king, as well, and the Constitution prohibits the establishment of nobility in the country (A1-Sección 9).  The Spanish system reminds me of Edmund Burke’s theory of social contract: the agreement is not only between living citizens; it includes their ancestors and their descendants as well, in a community that extends towards eternity in both directions[12].  The King of Spain provides his country a traditional and emotional connection to all the kings and governments of the past without the risks of past monarchies.  He convokes and approves all government actions, and he is the international representative of Spain, but in practice, Juan Carlos has acted as a figurehead.  We don’t know what would occur in a serious power struggle between the royalty and the elected government.

Nevertheless, both countries really follow a classic tripartite system.  They have bicameral legislatures to make laws[13], an executive branch with a president to execute these laws[14], and an independent judiciary to interpret the laws[15].  These are the American checks and balances: the branches are elected separately, and they can come from different parties.  The president can veto laws, and a two-thirds majority of both congresses can overrule him (A1-S7).  If the president commits crimes, Congress can remove him from office through an impeachment process.

In Spain, Congress chooses the President, who then chooses a cabinet, but the legislative and executive powers are basically unitary.  The Government (or executive branch) can develop and propose laws (87), a power the American president only has informally.  The President holds power by the grace of Congress, and Congress can also reject his programs or remove him from office with a vote of censure (113).  The President, on the other hand, can dissolve Congress and call for new elections (115).

The judicial branch has a similar role in both countries: it decides the constitutionality of the laws.  In the United States, the judges are named by the President and approved by the upper house of Congress, and they serve life terms (A2-S2, A3-S1).  If they commit crimes, Congress can remove them from office by impeachment.  In Spain, there are two stages of selection: the judges elect twelve members and Congress eight to the Judicial Council, which elects the members of the Supreme Tribunal (A122-123).  So judges are largely self-selecting, but they only have nine-year terms[16].  It is interesating that there are no balances between the executive and judicial branches in the Spanish model.

Federalism

We already know that we have entered an area of ambiguity in the second article of the Spanish Constitution:

The Constitution is founded on the indissoluble unity of the Spanish Nation, indivisible fatherland of all Spaniards, and it recognizes and guarantees autonomy and solidarity for all nationalities and regions which it integrates. (A2)

The article continues to display the same conflict: it establishes Castilian as the official language of the country but permits more official languages between the Autonomous Communities.  Founding father Gabriel Cisneros Laborda says this abot the conflict:

We knew all this, that Title VIII [that which describes the Autonomous Communities] is what it is, and it has the tortured prose and syntax that is has, caught in its “without harm,” unauthentic promises, implausible balances, and an almost luxurious profusion of anacoluthons. (19)

The challenge for the Spanish was to satisfy the Catalan and Basque nationalists without giving them more autonomy than the other regions of the country.  So Title VIII does not mention any specific region; it simply describes the process to become an Autonomous Community (A143, 146-7, 151-2) and explains their numerous powers and limitations (A144-5, 148-9).  Clearly, these specifications were not enough, because the debate over Title VIII continues today.

An interesting contrast is the Tenth Amendment of the American Constitution: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  So the United States is inclined toward the independence of the states and Spain toward their unity, particularly through the language and the flag.  Regardless, there was a grand argument over regional rights in the United States, as well, and it proceeded from one of the two original constitutional controversies: slavery.  So polemical was the national debate that the southern states attempted to declare their independence and form their own country.  According to the states, it was their right under the Tenth Amendment, but President Lincoln rejected that and fought the Civil War (1861-1865) to return the South to the Union.  In comparison to this, the Spanish have handled their regional rivalries much better than the Americans.

The Economy

The Founding Fathers of the United States would turn in their graves if they read the section of the Spanish Constitution about the economy and social life.  Although the American government is now more socialist than its constitution indicates, the Spanish government claims a mountain of responsibility and privilege for the state.  Article 39 guarantees the freedom of the press in the market, but immediately afterward, in Article 40, the state begins to size territory.  To understand the violent difference between the powers of the two governments, a direct comparison is best.  It is another example of how the vision of Franklin Roosevelt extends the power of the state.  When the government has the responsibility to save its citizens from fear and want, it has to act aggressively in many areas.

These are the economic rights of the American government according to its constitution: it can tax income[17], consumption, and customs, borrow money, regulate interstate and international trade, regulate bankruptcies, coin money, raise a standing army, have a Post Office, fight piracy, and regulate federal land (A1-S8).

These are the economic rights of the Spanish government according to its Constitution: possess communication media (20), raise taxes (31), borrow money (135), and also pursue rent equilibrium, economic stability, total employment, professional formation, security and hygiene at work, including mandatory rest periods, limitation of the labor week, and guaranteed vacation, provide adequate civic centers (40), protect the rights of Spanish workers in other countries (42), assure a “dignified and adequate” living for all, participate in urban renewal projects (47), protect the health and economic interests of consumers, educate them, and regulate commerce and product authorization (51), regulate lobbyists (52), “effectively” promote participation in business and a cooperative society, including workers’ access to property and means of production (129), attend to “the modernization and development of all economic sectors, particularly agriculture, ranching, fishing, and artisans, with the goal of equalizing the living standards of all Spaniards,” give special treatment to mountainous areas (130), plan general economic activity by “attending to collective needs, equilibrating and harmonizing regional and sectional development, and stimulating the growth of rent and wealth in a more just distribution,” create planning projects through agreement with Autonomous Communities, syndicates, and businesses (131).  The jewel is this phrase: “all the wealth of the nation in its distinct forms, whatever its ownership, is subordinate to the general interest” (128).  Surely the Socialist Revolution did not fall along with the Berlin Wall.

However, in fairness to Spain, its system is not radically different from that of the United States, which also has executive departments for Agriculture, Commerce, Education, and Health.  America has simply created such departments extra-constitutionally.  The days in which the Constitution established only the limits of the federal government are have definitively ended.  Now state action is unconstitutional only if it explicitly violates the document.

Personal Observations of the Effects of the Spanish Constitution

Now, like Tocqueville, I will close my work about democracy in Spain with my personal experiences with its politics.  My biggest worry is the nationalized television channel TVE.  In my opinion, this station creates an atmosphere of fear and dependence on the state.  Each program is the same: to begin with, Rajoy says we should not speak with the Basque terrorists, and Zapatero says he only wants peace.  After that, there is a series of eight consecutive stories about deaths, crimes, and disasters that are occurring in Spain and the world.  During vacations, TVE does not report about how people will celebrate; it speaks of traffic problems and the dangers of driving in the rain.  If there were only one car accident in the entire country, TVE would come to broadcast the tragedy, with video of the blood and the corpses.  Afterward, there are comprehensive stories about different state programs and campaigns which intend to solve all our problems.  Finally, we have sports and art, the only parts of our lives that can function without the state, and at times scientists seeking the Prince of Asturias’s research award.  If I though the television news presented reality, I would believe the world is horrible, individuals are impotent, and the state is good.

This kind of journalism is useful for the government but bad for liberty.  I also laugh about the different manners in which TVE and Telemadrid report on politics.  In a debate, the man with the last word has the advantage.  On TVE, the last word always goes to the Socialists, and on Telemadrid to the Partido Popular, regardless of who is the attacking a policy and who is defending it.  TVE is the leader of television, and because all the other channels follow its model to make everything, I believe it must be privatized in order to break the cycle of desperation that is Spanish television journalism.  Yes, the American news is sad as well, but at least it shows inspirational stories sometimes.

This reminds me of another common practice of Spanish politics: the public address.  I have heard “Madrid needs more water” so many times that the state probably could construct a desalination plant with the money it has spent on advertisements.  Despite all this, I did not begin to curtail my water use until the state wrote our house and said it would fine us if we continued apace.  It seems the television campaign proceeds from the idealists who think public announcements change conduct, the fines from realists who know the purse moves everything.

I have told this story because it projects doubt about the ability of the state to fulfill its constitutional promises to educate the public about health, to promote youth participation in the development of the community, and so forth.  And if it doesn’t do these, how is it going to achieve objectives like rent equilibrium, full employment, and so forth?  When the state promises so much, it risks creating a perpetually angry and dissatisfied citizenry.

Citizenship isn’t totally dead: the Spanish love to protest.  They use this right much more than we do in the United States.  Although banding together to demand things from the government is not the most independent way to improve one’s life, especially if one skips work to do so, it seems to effect the politicians, and some action is better than none.  I am pleased that Spaniards understand and use this constitutional resource.

I understand the argument from tradition for having a king, but I am worried about the Prince of Asturias.  During the military parade of the Día de Hispanidad holiday, while Juan Carlos stood at attention for the entire ceremony, Felipe was joking with his wife.  He wants to change the primogeniture law in order to make his infant daughter second in line to the throne, before her older cousins, but he has never offered to abdicate his position as heir to his older sisters.  It’s one thing to have a king like Juan Carlos who respects traditions and inspires pride, but it’s another to have a sulky and hypocritical youth as a leader.  He could hurt the state.  Spain will decide on this within the next twenty years.

The electoral system of the country has created a different culture of elections than that of the United States.  In the U.S., there are elections for the entire lower house and a third of the upper house every two years (A1, S2-3).  After one year of government, we are already one year from our next opportunity to change the balance of power.  Members of the Spanish lower house, however, are elected every four years (A68).  Also, it seems there are not primary elections here; the leaders of the parties choose their own successors instead.  For this reason, American politicians seem more frenetic; they have to face more elections, and they need distinct qualities to survive both the primary and general elections.  In the fall of 2006, American pundits were already discussing the 2008 elections, but I have not heard a single mention of this cycle here in Spain.  This probably pushes American politicians to vote more for what they think the public wants while the Spanish representatives can vote more for their personal preferences.  There are advantages to both strategies.

There isn’t much to say about the current Spanish politicians because in my five months in the country, Zapatero and Rajoy only debate two things: the Catalan Statute and ETA.  They seem to speak more than they do, and it is probably good because a politician can do much good, but he can do even more damage.  The true laborers in Madrid seem to be the mayor and the president of the Autonomous Community.  Two laws which passed during my stay were especially distinctive: (1) the prohibition of models who were “too thin” from the Cibeles fashion show in order to discourage anorexia among youths and (2) the decision to extend the benefits that state workers receive to independent contractors.  For me, both laws are crazy, but they are possible in Spain because of the multiple rights the government has to intervene in the economy.

When the Constitution was written, the Catholic Church was strongly associated with the state and Franco.  This does not seem to be the case now.  Yes, the bishops appear in the news now, but the church and state are separate, so much so that the state now permits gay marriage.  The separation pioneered in the Constitution has succeeded, and now the religious climate is similar to America’s.

I do not know if this is a product of the Constitution or the political culture, but there does not seem to be an advocate for minimalist government and individual liberty in the government.  I hear neither stories about state inefficiencies and monetary waste nor any of the ideas of American conservatives.  Indeed, the Spanish Constitution guarantees much that is antithetical to conservatism.  While laws exist outside the Constitution, they can be abrogated by a majority or less.  Perhaps the movement of Reagan is not possible in this country, an interesting effect of the constitution’s control over political culture.

The Spanish Constitution, like the American Constitution, never mentions the possibility of ceding sovereignty to an international organization.  It is not surprising in the case of the United States, where the founders preferred isolationism[18].   The U.S. still does not cede sovereignty to any organizations.  For the Spaniards of 1978, international involvement is strange as well.  Perhaps they wanted to stay neutral and free of trouble during the Cold War.  Regardless, Spain is now a member of the UN, NATO, and most importantly, the EU, where it cedes its economic sovereignty for the good of all.  Also, whereas France rejected the European Constitution, Spain approved this effort to extend the powers of the union.  This Iberian country as abandoned a neutral position to be an avid participant in international agreements.

Until now, the majority of my observations have not been positive, and this is not just to Spain.  Things like the Metro are well-made state products, and the role of the state in the economy clearly has not spoiled things: the country has grown very much in the last thirty years.  The Spanish Constitution has not provided me a brilliant example for how to reform the U.S., but it has added depth to my political thought.  Congratulations to Spain for organizing such a successful state.

Works Cited

Burke, Edmund.  Reflections on the Revolution in France.  <http://www.constitution.org/eb/rev_fran.htm&gt;

Constitución de Cádiz de 1812.  <http://club.telepolis.com/erbez/1812.htm&gt;.

Constitution of 4 October 1958 [Francia]. <http://www.assemblee-nationale.fr/english/8ab.asp&gt;.

The Declaration of Independence.  <http://www.usconstitution.net/declar.html&gt;.

Farewell Address of George Washington.  <http://www.yale.edu/lawweb/avalon/washing.htm&gt;.

Laborda; Iribarne; et al.  20 años después: La Constitución cara al siglo XXI.  Taurus: Madrid, 1998.

López Guerra, Luis, ed.  Constitución española.  13ª edición.  Editorial Tecnos: Madrid, 2004.

The United Status Constitution.  <http://www.usconstitution.net/const.html&gt;.

Vicens Vives, J.  Aproximación de la historia de España.  Ediciones Vicens-Vives: Barcelona, 2003.


[1] Laborda 9

[2] Laborda 23

[3] Burke, Reflections on the Revolution in France

[4] The Declaration of Independence.

[5] Laborda 25-26

[6] Spanish Article 20

[7] American 14th Amendment, Spanish Article 14

[8] American 1st Amendment, Spanish Article 20

[9] American Article 1 Section 9, Spanish Article 17

[10] Spanish Article 7, the second right mentioned after the right to political parties

[11] Title 2

[12] Reflections on the Revolution in France.  P27-72, begins “SOCIETY is indeed a contract…”

[13] Amreican Article 1, Spanish Title 3.

[14] American Article 2, Spanish Title 4

[15] American Article 3, Spanish Title 6

[16] The Spanish Supreme Tribunal is very similar to the French Constitutional Council, which has 9 members with mandates of 9 years, 3 elected every 3 years.  Three members are selected by the President, three by the National Assembly, and 3 by the Senate.  The Constitutional Council has sovereignty over questions of constitutionality and elections.  (French Constitution Articles 56-63)

[17] American 16th Amendment, ratified in 1913, 124 years after the original Constitution

[18] Farewell Address of George Washington

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