THEORY OF THE CONSTITUTION

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Institute for Political Studies - Portuguese Catholic University, Lisbon

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PORTUGUESE CONSTITUTIONS AND EUROPEAN CONSTITUTION

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"Being Portuguese is also an art.

The end of this art is the renaissance of Portugal. "

Teixeira Pascoaes

M. Sc. EDUARDO CURRITO (Ph. D. Student)

Email: eduardo-currito@clix.pt

Sites: www.zintro.com/expert/EDUARDO-CURRITO

utl.academia.edu/EDUARDOCURRITO

2003/9

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TABLE OF CONTENTS

1. JOHN LOCKE AND LIBERALISM ......... ...... ... ...... .............................................................. 3

2. CONSTITUTION ........................ .. ......................................................................................... ... 5

3. THE PORTUGUESE CONSTITUTIONS OF XIX CENTURY: AN HISTORICAL

APPROACH ... ................................................................................... ..................................... ... ... 6

4. THE PORTUGUESE CONTEMPORARY CONSTITUTIONS: CONSIDERATIONS,

CONSTITUTIONAL VICISSITUDES AND FUNDAMENTAL RIGHTS................................13

5. EUROPEAN CONSTITUTION, REFERENDUM AND UTOPIA.........................................19

REFERENCES

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1. JOHN LOCKE AND LIBERALISM

The Enlightenment was a cultural movement that, beginning in England and the Netherlands

in the late seventeenth century, extended during the following century, thanks to the mediation of

France, throughout the Western world.

"Based on the search for truth through the theory and deduction, or "reason raciocinante",

operated a break with tradition, faith and authority, hitherto accepted as the main sources of

knowledge, and clarifies the radical transformation of of human thought structures, guided the

reason" (Amaral, 1997). In the words of Kant "Have the courage to serve you from your own

understanding! This is the word of the Enlightenment order" (Kant, 1995)

In this context John Locke (1632-1704) is presented as the philosopher of the English

Revolution of 1688, moderate conservative revolution. It was a great inspirer of the American

Revolution in 1776 (it's a great reference in the US), and also the French Revolution of 1789,

radical revolution.

The great innovation of Locke is that all government should be limited in their powers, and

exists only by the consent of the governed, because all men are born free and equal. Political power

is the right to make laws, only to ensure the public good.

For the author initially there is a state of nature, initial state of freedom and equality.

Respecting the limits of natural law, the right to life, property and freedom. Chapter 6 of the main

work (Locke, 1999) was inspiring the American Constitution.

Passes from the state of nature to the state of society in which there is already political

power, through a contract between men, a social pact made with the consent of all to assign to some

the power to govern the Community (Amaral, 1997: 18-19). It is the contractual will of all citizens

that creates the state.

"But unlike than Hobbes advocated, Locke believes that the transfer of individual powers in

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favor of political power is not unlimited, before intended to enable life in society, protecting and

effectively guaranteeing the freedom and property of every citizen (.-based ideas of the liberal

doctrine, as perfilhada by Locke)" (Amaral, 1997: 20). This transfer is a delegation of power -

which is more a contrast to the theory of alienation formulated by Hobbes (Hobbes, 1995),

Rousseau call, a century later, the contract social (Rousseau, 1989).

The state should not invade privacy, whether family or economic, the state is conceived as a

"limited liability company".

Locke defended the division of political powers in legislative, executive and federative

power, not being what currently exists, Montesquieu (Montesquieu, 2002) inheritance, is

nonetheless a coated design of remarkable importance. The legislature should be entrusted to a

parliament, and the executive and federative power should be entrusted to the King and his

government. To defend liberty and property of each to ensure the existence of a limited government,

there should be a division of powers within the state.

"For Locke, the majorities are not always right: therefore, although they have the right to

rule, can not crush minorities simply because possess this power. This thesis Locke influenced the

constitutionalism of the nineteenth century, in which note a great effort limiting the power of

legislative majorities, through written constitutions - which can not be violated by ordinary

legislation, even if approved or confirmed by the parliamentary majority under penalty of

unconstitutionality " (Amaral, 1997: 20).

The principles of the great patriarch of European political liberalism today maintain full

today, and part of the cultural heritage of Western Europe and the world.

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2. CONSTITUTION

In the eighteenth century is put into question the absolute power, and control by the political

freedom (John Locke, American and French Revolutions). Modern politics is based on the concept

that truth is to be found through informed debate, and with the greatest number of people. It is from

here that appears the modern concept of the Constitution. Want to become a rationalism,

enlightenment, defense of individual rights leading to the development of a written constitution with

all items, designated by Constitutional law with: separation of powers (Locke and Montesquieu)

and protection of individual rights (Law of Nature Locke), liberal tradition. Began in France and

England, and then was taken to the US. The Constitution is linked to liberal thought, which is

associated with economic liberalism (Adam Smith).

All societies have structural rules, as are examples of associations and particular

Constitutions. Monarchies had calls fundamental rules. The Constitution binds the State, has no

dependency on any other law (heritage of the American and French Revolutions), the State

approving the other rights.

In the words of Zippelius "All the basic rules for living together in the form of state

community can be referred to as" constitution materially ", but the rules belong to it can not define

exactly but only approximately. Are among them, according to the current design of the

Constitution, the fundamental rules for the state organization, mainly the provisions that specify

which supreme organs of the state, as they are established, what their tasks and regulatory

responsibilities, they ensure and collaborate, and also rules on other fundamental structures of the

Community system, p. ex., on the separation of powers and the federal state structur" (Zippelius,

1997: 65)

According to Jorge Miranda "... as a share of the state's legal system, the Constitution is

shaped element and shaper element of social relations, as well as income and political integration

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factor . It reflects the training, beliefs, mental attitudes, geography and economic conditions of a

society and simultaneously print it character, works as an organizing principle, provides for the

rights and duties of individuals and groups, governing their behavior, rationalizing their reciprocal

positions before the collective life as a whole, can be either conservation agent, sometimes

processing. However, being the Constitution, Basic Law, the laws Law, it is more than that.

Becomes the immediate expression of hosted or dominant basic legal values in the political

community, the seat of the idea of law it triumphant, the reference framework of political power that

is to be the service of this idea, the last instrument of public safety claim front to power. And lies in

state sovereignty, it also becomes bridge between your internal order and the international order"

(Miranda, 2000: 67-68).

In the US there is the Constitution over the jurisprudence of the Supreme Court in England

there is the Constitution over the Costume in Portugal there is the Constitution over the decisions of

the Constitutional Court.

The Constitution is what gives, set of rules representing structure of stay (eg., The

Portuguese Constitution). Restricts the term Constitution for the state. Because it has its own power,

Constituent.

3. THE PORTUGUESE CONSTITUTIONS OF THE NINETEENTH CENTURY: AN

HISTORICAL APPROACH

In the early nineteenth century existed in Portugal a pure monarchy. Limited awareness in

the Religion and the Moral, and still subject to observe the natural constitution of the kingdom, but

the Kings considered themselves detached from legal constraints from any other power, and in this

sense it said absolute.

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But the doctrine of absolutism admitted the existence of certain fundamental laws of the

kingdom higher than the sovereign will, in which some have wanted to see the principle of written

constitutions.

With the first French invasion led to the transfer of the Court from Lisbon to Rio de Janeiro,

in 1807. After the war, the permanence of King John VI in Brazil has increased resentment in

Portuguese, to find that the King had not returned to share with the vassals the care of the material

and moral reconstruction of the kingdom (leaving this delivered to a regency council with little

authority before the estrangeirados, foreign armies liberators).

"The sense of abandonment that will generalize the country due to the prolonged absence of

the King has no justification, the sums of money that, at a time when the nation he was ruined and

impoverished, were annually sent from Portugal to the sovereign and to the nobles who

accompanied him in Brazil, the anger against the British authorities that preponderance in

government, created the conducive environment that the revolution came popping in 1820"

(Caetano, 1963: 328-329).

There were many supporters of the new ideas of the French Revolution, as well as others

who admired the liberal and representative institutions of Great Britain, but the vast majority of

those who supported the revolution especially wanted the return of the King, national independence

and a better government. The liberals had influence of Freemasonry, the "Free Masons", Grand

Orient Lusitano (Dias, 1986).

The 1820 revolution was a 'Junta Provisional Government of the Kingdom Supreme' which

has arranged the election of deputies to the Constituent Cortes convened Extraordinary to Lisbon.

The election was made according to the provisions on the subject is contained in the Spanish

Constitution voted in Cadiz in 1812, and set out a indirecto suffrage (Segado, 1982).

In 1821 the Cortes discussed a draft "bases of the Portuguese Constitution" the chairman of

the committee that drew up apologized saying that the members of the committee, far from peek in

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the maze of theories of modern publicists, fetched the main bases for the new Constitution in the old

Public Law, which had fallen into disuse by the despotic Ministers that flattered the Kings at the

expense of the people. The committee-girded the so-called good and ancient customs and traditions,

but agreed to split and balance the three powers to prevent despotism that results from their

accumulation and order other precautions to put the covered attempts of arbitrary power.

The foundation came to be converted in the Decree of the Courts, and enshrine the most

appropriate principles to ensure the individual rights of citizens and establish the organization and

limits of the political branches of government. It appears here the general influence of the French

rights declarations and the Spanish Constitution of 1812.

After long discussion, the Constitution came to be completed and signed in 1822. The

Constitution is practically equal to the Constitution of 1821 Masonry (internal statutes, large base of

conduct). Contains 240 items. With the content: I - From individual rights and duties of the

Portuguese; II - Portuguese nation and its territory, religion, government and dynasty; III - The

legislature or the courts; IV - Executive King Power; V - Judiciary; VI - Administrative and

economic Government (Canotilho, 2002: 188).

Fundamental rights are liberty, personal security and property, not to mention another of

equal if not that "the law is equal for all." Where it is understood the prohibition of detention

without charge, the inviolability of the home, freedom of expression, freedom of the press, the right

to petition, the right to respect for correspondence, the right of access to public office, equality

before the law, criminal justice and the abolition of cruel. An important point to note is the denial of

religious freedom to the Portuguese.

In relation to national sovereignty, the Constitution enshrined in absolute and unambiguous

terms the doctrine of the French Revolution on the indivisible and inalienable sovereignty of the

nation.

The Constitution admitted the three powers, legislative, executive and judicial. The first lies

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in the Cortes with dependence on King's sanction. The second is the King and the Secretaries of

State, the exercise under the royal authority. The third is in the Judges. The three powers are

independent and no one can arrogate to itself powers of the other.

The Constitution of 1822 instaurava a Democratic liberal regime, that the circumstances did

not give time to be implemented, no one could criticize the Constitution (intolerance of liberals),

and who does not swear the Constitution was asked to leave the kingdom, no longer Portuguese.

The revolt which became known by Vilafrancada, 1823, under the leadership of Prince Miguel, led

to the repeal of the law of 1822 and the restoration of the absolute regime.

With the death of John VI in 1826 (and now with the proclamation of the independence of

Brazil in 1822), put up the problem of succession, including Pedro 'Emperor of Brazil and Crown

Prince of Portugal and the Algarve "solution did not like the Brazilian and Portuguese, by the

junction of the Realms.

"The Emperor searched, so a political solution which seemed able: to give satisfaction to

liberal aspirations, already very spread in Portugal, decided to grant the first, in the full exercise of

his royal prerogatives, the Portuguese Constitutional Monarchy (29 April 1826); then (2 May)

abdicated in his daughter Maria da Gloria, on the condition that she marry her uncle, Miguel, and to

be put into force the Constitutional Charter" (Caetano, 1963: 341-342).

The Charter has 145 articles divided into 8 titles, namely: I - The Kingdom of Portugal, its

territory, government and religion; II - Portuguese citizens; III - powers and national representation;

IV - Legislative power; V - King; VI - Judiciary; VII - administration and economy of the

provinces; VIII - General Provisions and guarantee of civil and political rights of portuguese

citizens (Canotilho, 2002: 188).

In relation to the rights and guarantees of Portuguese citizens, in addition to the rights

already listed in 1822 and on the same basis - freedom, personal safety and property - contains

several state commitments, corresponding to what would be called social rights: for example the

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guarantee of public aid; free primary education; ensuring the existence of colleges and universities

for science education, fine arts and letters.

The biggest news of the Charter is to recognize four powers: the legislative, the moderator,

the executive and the judicial. The design of the moderating power belonged to Benjamin Constant,

according to which, the three powers of Montesquieu must be added a fourth power, neutral, with

authority to intervene in due course by a preservative and restorative action, devoid of any hostility:

it would be the real power (can not fail to be recognized that the Portuguese Charter was one of the

monarchical, but the more monarchical, the constitutions of his time).

The Portuguese Constitutional Charter is part of the current in Europe formed after the

Napoleonic defeat in favor of limited monarchy designed according to the British model.

The first term of the Charter was from 1826 to 1828, with the Infanta Maria the only regent.

Problems began, the suspicion with which the Charter was welcomed became shortly in

general open hostility, with military revolts to hatch by the province.

Were the circumstances that advised D. Pedro IV to be appointed, in 1827, Miguel his

Lieutenant. Arrived in 1828, as Miguel was in Vienna, found an enthusiastic environment that King

cheered. It seems that initially was his purpose to remain in the role of Regent and observe the

Charter, but the pressure exerted on him led him to dissolve the Cortes and to summon the three

states of the Kingdom, which corresponded to replace the traditional laws in force, leaving aside the

Constitutional Charter. In 1828 the Cortes, gathered in the old way, I proclaimed Miguel rightful

King of Portugal.

This was followed by six years of the reign of King Miguel (1828-1834), during which the

flower of the Liberal Party emigrated to England and France.

"In exile formed three groups, which had enormous influence on later events: the

conservative group headed by Palmela, aristocrat, anxious to avoid social unrest and seeking to

enter liberalism in national traditions, the English manner; Democratic group, heir to the vintismo

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frankly revolutionary in the French manner, admirer of the Jacobins and had by chiefs then

Saldanha General and Colonel Pinto Pizarro, although the heads were the brothers Steps; and a third

group, the bourgeois group (later called the "friends of Pedro '), which professed that Herculano

later called the" liberal positivism ", made up of middle-class men with law practice, public

administration and business and advocating the effective action and legal reforms necessary to

establish a system where disappear the privileges of the nobility and the clergy and the medieval

survivals, giving rise to the bourgeois class that develop their entrepreneurial activity. This third

group (Silva Carvalho da Silveira Mousinho, Augustine J. Freire) was encouraged by the success of

the July Revolution of 1830 in France, representative of the same tendencies" (Caetano, 1963: 350-

351).

However Pedro also abdicated the Imperial Crown of Brazil (1831), repudiated by his

subjects for too prone to personal power. Arrived in Europe, assumed the regency on behalf of her

daughter and in 1832 was already in the Third, stronghold that had been true to the liberal cause,

and then organized ministry with a preponderance of men who were the bourgeois group.

Then came the Civil War, where the Constitutional Charter was then just a flag in which

fought the liberal troops, and that only after the triumph would be possible to put in place again.

The war was considered ended in 1834, and met again the Cortes, started the second term of the

Constitutional Charter (1834-1836).

With three parties in the Cortes, and the dictatorship modes of liberal government, led to

widespread dissatisfaction. So the Revolution of 1836 overthrew the government and lifted to

power the democratic opposition, which, to mark its renewing intention, abolished the

Constitutional Charter and declared in force the Constitution of 1822.

However, it was impossible to execute the Constitution of 1822. So the regime violated the

Constitution when it was necessary. The second term of the Constitution of 1822, only lasted until

1838.

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The contradictions were so many that the Constituent met in 1837 and completed the new

constitution in 1838, very similar in structure to that of 1822, but then submitted to the approval of

Queen Maria II, who accepted it, unlike 1822, this was therefore subject to the royal sanction.

Has 139 articles over a transitional article, divided by ten titles: I - Portuguese nation, its

territory, religion, government and dynasty; II - Portuguese citizens; III - Rights and guarantees of

the Portuguese; IV - Political Powers; V - The Legislative Branch; VI - The Executive Branch; VII -

Judiciary; VIII - Administrative and Municipal Power; IX - Overseas Provinces; X - The reform of

Constituição (Canotilho, 2002: 188).

For the text of the 1822 wording of the provisions is in general more careful, less

doctrinaire, less demagogic, more moderate. Returning to the classical conception of the three

powers.

The 1838 Constitution turned out to be a middle ground between the 1822 and the Charter.

The Spanish Constitution of 1837 was very followed in its preparation. The French Revolution of

1830 served as a model for both, in that it led to the reconciliation of monarchy established by

Louis XVIII chart with the principle of national sovereignty.

The 1838 Constitution stated, as in 1822, that sovereignty resides essentially in the nation.

However it was a 'bourgeois monarchy "with a parliament in which staff would figure the elite

bureaucracy, wealth and military.

This moderate Constitution lasted only from 1838 to 1842, and had a rough life.

The man who had imposed order in the country, Costa Cabral, but did restore the

Constitutional Charter, not only as anti-revolutionary symbol but be convinced that the shade it

would become possible to restore order.

The Charter thus had his third term, from 1842 to 1910, ie the long period of 68 years, which

corresponds to the consolidation and standardization of the liberal regime between us and the

beginning of its decline.

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4. THE PORTUGUESE CONTEMPORARY CONSTITUTIONS: CONSIDERATIONS,

CONSTITUTIONAL VICISSITUDES AND FUNDAMENTAL RIGHTS

Internationally, in the nineteenth century there is a critique of the liberal state (Karl Marx),

in the twentieth century with the 1st World War we have the liberal state of crisis, and the

appearance of three lines: liberal; Marxist-Leninist, is put into question the separation of powers,

freedom and rights, and the concept of people (eg appearance in Russia in 1918, after the 1917

Revolution); Fascist and Nazi +, is put into question the separation of powers, and the rights and

freedom. Note that the Constitutions are sets of standards, and the term can be applied to any

system político.

The constitution, a new constitution appears during a period of discontinuance, which can be

a revolution. It happened in Portugal, with the 1910 revolution that implemented the Republic,

which in 1911 approved the draft Constitution, which strove to be a conciliatory formula, without

offending the democratic principles or harm national interests.

"The Constitution of 1911 aims to bring to its logical conclusion the principles 1820-1822,

seeing in the republic the most perfect expression of those ideas. The political project is therefore

on democratic liberalism and not in any form of social democracy (unknown before the 1st World

War), in democratic liberalism that seasoning of secularism and anti-clericalism, on the one hand,

and romantic municipalism, on the other side" (Miranda, 2003: 291).

Emphasizing the rights and individual guarantees: a more demanding level of legal and

political egalitarianism, due to the republican principles and translated in the extinction of noble

titles and honorary orders; as novelties, the consecration of religious freedom, the abolition of the

death penalty in any case and the perpetual corporal punishment, habeas corpus, the inclusion of

passive resistance against unconstitutional taxes, and also the obligation of elementary primary

education. Also worth mentioning the establishment of compulsory military service for all

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Portuguese.

The system of government is composed of the so-called "organs of National Sovereignty":

the legislative power exercised by the Congress of the Republic, formed by the House of

Representatives and the Senate; the executive power exercised by the President and the Ministers;

and the judicial power exercised by the courts. With a much greater weight of the Congress, if he

was in the presence of an exaggerated parliamentarism, in which the President of the Republic,

elected by the Congress had few powers of intervention.

In a period of great political instability and social, that would cause a huge frequency crises

of Governments and even Presidents of the Republic, to the fall in 1926.

In response to the prevailing disorder, gave the military revolution in 1926, with the 1933

Constitution consequential or 'military dictatorship' authoritarian constitutionalism called State

Novo4. Where there is the aggrandizement of executive power or the Government, the compression

system of public freedoms of its practice, state intervention in society and the economy,

administrative, and the qualification of the state as corporate state and the creation of a Board

Corporate reflect the attention paid to Italian fascism.

With regard to fundamental rights stand out: the express provision for the first time among

us, the right to life and personal integrity; the aforementioned authoritarian character of the system

of rights and freedoms, with special laws to regulate the exercise of the freedoms of expression,

education, assembly and association; the emergence of various social rights, family protection,

labor association to the company, the right to education and culture, the right to work (from 1951),

and defense commission of public health, as well as collective bargaining, to add the social function

of property.

"The Basic Law of 1933 is the first Portuguese Constitution that gives the economy a

specific and comprehensive treatment, ruling on its mechanisms through a set of guidelines and

means of action of unimaginable State by individualistic liberalism" (Miranda, 2003: 309).

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The Government system consisted of the 'sovereign bodies', namely the Head of State, the

National Assembly (in a 'state without parties'), the Government and the courts. "The new features

consist in the abandonment of the term 'State authorities', using the term 'Head of State' alongside

the President and the empowerment of the Government." 6 The government system is not

parliamentary or presidential, being rather a simple representative system, because the plurality of

governing bodies is concealed by the concentration of power in Chief Estado.7 in fact, the entire

field of political life was operated by the Chairman, who ran the Government and the entire system.

There has thus the stability and continuity unparalleled in Europe of an authoritarian regime

of right, which can sort of fascistic (even without nickname of fascism).

It was the 1974 revolution that ended the dictatorship, revolutionary process (with reference

to the Universal Declaration of Human Rights) which ended with the 1976 Constitution (democratic

constitutionalism, with separation of powers, and which enshrines universal suffrage). Whence

comes out a system of government with four political organs of sovereignty: President of the

Republic (corresponding to a semi-type), Council of the Revolution (which would persist for a few

years), Parliament (with representation from various parties), and Government.

There are two views of the Portuguese Constitution of 1976: vision authoritatively dirigente

and open view.

It was the MFA / Parties pact that led to the 1976 Constitution with two incompatible

aspects: Democratic - fundamental rights; and Socialist - command economy.

The democratic vision was gradually, preventing the socialist vision. In 1976, in particular the

request of Portugal to join the European Community. In 1979 with the rise to power of AD, "fell"

the Constitution (1979/80 - the Constitution debate period). A Constitution to fulfill its role has to

be a general consensus.

It was not until 1982 to the fall of the Council of the Revolution, and finally by 1989 to a

Constitution of European blueprint, constitutional revision to change the economic system without

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socializing component. Since 1989 the vision of the Constitution is open to the legislature be able to

allow the political game (according to history), gives space to the legislature (constantly changing).

In the limit the power of the Constitutional Court (which guarantees the power of minorities)

is the legitimacy of democracy (where the Constitution is a unifying factor of a people).

Constitutional Vicissitudes

The Constitutions are intended to be definitive, forward-looking, but to adapt to the

circumstances and the changing times, they need to be modified. "To situate the constitutional

changes, it, however, from a broader concept (and even a little vague, deliberately) - the concept of

constitutional vicissitudes, or may be, any events that protrude on the livelihoods of the Constitution

or of some its rules.

Such events are a varied range, with different nature and manifestation, and can trimmed

second five main criteria: as to how, in the aim, on the scope, the consequences on the constitutional

order, as the duration of the effects" (Miranda, 2000: 132). Existing various combinations. The

constitutional vicissitudes in the aim, can be total (the core is changed, changes to the Constitution,

constitutional revolution or transition) or partial (change only in some constitutional provisions,

constitutional review).

The constitutional vicissitudes will suffer the hardships of situations, changes in society

which involve changes in the law. If society moves faster, so there may be breaks (or other

revolutionary phenomena, eg the end of the 1933 Constitution, society progressed more rapidly); if

conciliation then there will be change, particularly in Constitution.

Changes have different effects across countries and cultures. The German Civil Code was

transplanted to Japan, and the reading of the law was different. Another example was the American

presidential applied to Brazil, did not produce the expected effects.

The constitucional review is the expedited review of the Constitution, according to the rules

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written in it. In the eighteenth and nineteenth centuries had Constitutions that the review was not

intended. For constitutional revisions "means legal constitution changes to the existing constitution

which predetermines the authorization, the procedure and limits; they take place, because, by the

powers that be." (Zippelius: 1997: 79).

The Portuguese constitutional reform is currently made by Parliament, ordinary revisions of

5 in 5 years, and extraordinary revisions, all the time since the Parliament's sole discretion by 4/5 of

the members. Ordinary laws are passed by a simple majority, these are by 2/3 of members. One

example is the government administration, which was not in the text 1976 (but already existed in

other countries). After the 1977 crisis, it was understood that a dismissed Government should only

take decisions valid for everyday, hence the Management of Government name first emerged in

practice.

Note that there are material limits of constitutional review, and some argue that it is anti-

democratic and anti-constitutional, constraint of a generation for the following.

"Revolution in the legal sense means a non-statutory modification of the fundamental

principles of the existing constitutional order. But not all constitutional changes are necessarily

"revolutionary" in this restricted sense. The revolution in direction "classic" includes breaking the

old tables of the law, and awareness of this action is a symbolic expression when assault and open

courthouses and prisons, considered as "symbolic bastions of the previous law." The fact that the

illegality be inherent in the concept of revolution does not mean that revolutionaries can not serve

also the legal toolbox to set in motion a process whose result is illegal break the existing

constitutional order" (Zippelius, 1997: 191).

Fundamental Rights

There is a link between Democracy (Huntington, 2001) , pluralist and representative, with

religious freedom and freedom of association, and fundamental rights of Man, is inseparable. "The

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main function of fundamental rights is to protect individual freedom of space against the

interference of state power and against their totalitarian expansion" (Zipellius, 1997: 419).

Fundamental rights are related to the individual, the person's permanent, corresponding to

the dignity of the human person. The Portuguese Constitution dedicates its first part to

'Fundamental Rights and Duties' 15: human condition of the person; relations with the state.

"Fundamental rights in the formal sense is not only the Part I of the catalog contained in the

Constitution (arts. 12 to 79) or other rights such as nominees (eg, the Art. 268). Are those that are

set out any rules of formal constitution, which includes both instrumental Constitution and the

Universal Declaration: the place does not invalidate the nature of the rights, although the scope of

rights located in Parts II, III or IV or the "transitional and final provisions', may be affected by their

relative ancillary relative to other institutes" (Miranda, 2000: 139).

An example of fundamental rights is the Property Law: we become owners of something;

Right of ownership; no one can deprive others of their property, preservation of property (so is a

Fundamental Right); if the individual run out of the well, the law means a indeminização; Right to

the preservation of property, against the will (Basic Law).

The State shall ensure the minimum of existence to ensure human dignity (there are to many

decisions of the Constitutional Court to that effect), resulting in eg .: guaranteed minimum income;

housing guarantees; can not take pensions or salaries, so values people to be less than the minimum

wage.

To Articles 12 and 13 of the Portuguese Constitution correspond to universality and equality

of fundamental rights. The state (including the Portuguese) must protect its citizens worldwide. And

there are treaties of reciprocity between countries. The fundamental rights are the basis of modern

constitutions.

After the 2nd World War and Totalitarian governments, which violated all possible rights,

protection at international level is mirrored by the United Nations Charter and Universal

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Declaration of Human Rights (1948). In Europe, the European Declaration of Human Rights allows

all citizens can complain to the European Court of Human Rights after exhausting all internal

possibilities within each country.

During the seventeenth and eighteenth centuries, in liberalism (individualist conception,

contrary to corporate trends of the Middle Ages), fundamental rights were Freedom (individual) and

the Property. The twentieth century adds the economic social and political rights, social policy of

the modern state, protects individuals but now embedded in organizations and associations. As

some examples: Article 41 - Freedom of conscience, religion and worship; Article 51 - Political

parties and associations; Article 60 - Rights of consumidores.

However, sometimes, the Constitution prohibits certain Rights, restriction: Military -

Political Rights, can not be part of political parties; Police - have the right of association, but they

have no right to strike; Magistrates and diplomats - Right to self-restraint policy, should not enroll

in political parties.

In constitutional revisions are always new additions Rights, new recipients of Rights.

Fundamental rights there is no end of history.

5. EUROPEAN CONSTITUTION, REFERENDUM AND UTOPIA

International organizations lie in international treaties, with the agreement of the countries.

The European Union has not coersivo power, member states are running. There is no common

policy on defense and international relations.

Ended the short time one European Convention between the member states, who wrote,

preparatory work, basic text one for a Treaty, which then has to be rectified / ratified by the states,

the IGC called - Intergovernmental Conference.

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It only makes sense to talk about European Constitution, if and only if the European Union

evolve into a federation (a federation, there is a constitution of the federation and after each State

has its Constitution). Will present the EU an Unidentified Legal Object? Where applicable, the

change of the Constitutions of each country is required. If you move towards a European

Constitution, then that's inevitable.

"The basic type of federalism is the federal state. But the structure "federal", understood in

the broadest sense, has a range that extends from the "democratic decentralization" of member

states in regions, districts and municipalities on the one hand, to the international unions of States

on the other. To all these levels, the largest political units are divided territorially into "subsystems"

politicians. Is a traditional requirement of state theory, structurally divide the political units in

"subsystems" and assign the hierarchy of political units below a maximum of autonomy in

regulating their affairs and should not be pin down-these "subsystems" exclusively in terms of

region-federation" (Zippelius, 1997: 504).

The future of the issues called European Constitution are: the Union will have President or

not, how many members of the Commission, which the structure and power of the Assembly, and

enhanced subsidiarity. We as citizens are not informed, there is a democratic deficit in the European

Union. Only by indirectly obtained information (eg Internet), there very serious violations against

democracy, they say they represent.

As noted the main positive and negative aspects of the draft "Constitution", "Positive

aspects: condensation in a single text the different texts existing in this moment; a balance between

matters subject to qualified majority voting or unanimity in the Council of Ministers; the principle

of equal rotation of members "as of right" of the Commission. Negative aspects: the aforementioned

designations, more characteristic of a state that a non-state entity (other than "Letter" instead of

"Constitution" or "normative resolution" instead of "law", or "coordinator Foreign Policy "instead

of" foreign minister "); the involvement of national parliaments in the legislative procedures only

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through a right of objection or opposition on the basis of the principle of subsidiarity, rather than a

positive participation by subjecting the advice (if possible, binding) of the main legislative measures

of the Union; the end of the rotating Presidency of the European Council, with the creation of a

President of the Council, the potential to become the instrument of the "big countries" and open

conflict with President of the Commission (it would not be possible to maintain national rotating

presidencies, together with the existence of a permanent coordinator); incorporating the Charter of

Fundamental Rights in the draft "Constitution"" (Miranda, 2003).

Even if you come to be called Constitution is not a constitution. It is a organizatório act, like

any contract, in this sense we can call Constitution. But in the sense of the Constitution of a people,

is not a constitution. The final word will be given by heads of state, and the people, eventually by

referendo1. It has been argued the difference of states, and the equality of states, is to be feared that

forms the Directory Great choice with the President. The outcome of the Convention is a

Constitutional Treaty (Constitutive), which can lead to binding by member states.

Referendum

Regarding referendum, this reborn, in relation to the Middle Age with constitutionalism (late

eighteenth century), liberal current (Montesquieu) and democratic current (Rosseau).

After the 1st World War, back the call for the referendum, the Weimar Constitution was the

figure of the referendum. After the 2nd World War, the referendum will make your journey in

democracies.

Portugal has a model based on the French model. Has its first referendum in 1872. With the

first Republic back the idea at the municipal level, the Constitution of 1911 had the figure of the

referendum municipal. With the dictatorship of 1933, there were only plebiscite Napoleonic type,

abstentions counted as votes. After the Revolution of 1974 to referendum idea was linked to

possible ditadura. In 1989 around the idea of the referendum, enters the Constitution, but with very

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restrictive elements, with Assembly decision more President of the Republic (have to agree). In

1992, the Treaty of Maastricht, several countries have referenda, but in Portugal it was not possible,

our Constitution did not, as in the case of membership. In 1997 there may be referenda on Treaties

(eg European Union). It is mandatory only with an absolute majority, "50%, examples of Abortion

and Regionalization, which did not pass. However political parties agreed on a referendum to the

Treaty of Amsterdam, but the Constitutional Court chumbou, because the questions were

complicated (must be simple), returned to the Assembly, but not corrected.

Today there can be a referendum on treaties, including the result of the European

Convention.

"The announced and desirable referendum on EC -If culminate in aprovação- has the sense

of a founding decision and certify the advent of a new era constitutional (which, paradoxically, like

all revolutions, comes from a long doing your course) : the era of interconstitucionalidade "

(Rangel, 2003).

Utopia

Note that the EU project has a basic Kantian utopia, particularly in order to end the wars in

Europe. In its analysis of international relations of today, Robert Kagan points in the same direction

"Europe is to move away from power or, in other words, to move beyond the power towards a self-

contained world of laws, rules, trading and supranational cooperation. Is entering a post-historical

paradise of peace and relative prosperity, the realization of "perpetual peace" 8 Immanuel Kant.

However, the United States remains closed in history, exercising power in an anarchic Hobbesian

world where international laws and rules do not inspire confidence and true security and the defense

and promotion of the liberal order still depend on the possession and use of military power" (Kagan,

2003: 11). Also according to the same author, the situation is partly explained by the current

transatlantic relationship between Europe and the US "In fact, the United States solved the Kantian

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paradox to Europeans. Kant had stated that the only solution to the immoral horrors of the

Hobbesian world is the setting of a world government. But he also feared that the 'universal peace

status' made possible by world government constituted an even greater threat to freedom than the

Hobbesian international order, to the extent that, with its monopoly of power, such a government

would become in "the most horrible despotism '. How nations could achieve perpetual peace

without destroying freedom was problem that Kant could not solve. But for Europe, the issue is

resolved by the United States. By providing security from the outside, the United States made

unnecessary the supply by the supranational governance in Europe. Europeans do not need to be

able to achieve peace, and not need to be able to keep it" (Kagan, 2003: 67).

The 'constitution' that people sometimes speak in utopia stands above all of its model of

government, or political institutions, in the abstract or in operation, we are not referring to a written

text, a sacred law. So, not having Constitution codified or even writing, utopias are full of

constitutionality. In them is the constitutional commands that truly all society because it is the

policy that commands, but not a free policy before tightly regulated. In the background, reducing

the utopias to its simplest expression, we found a constitution.

"Of course there are constitutional aspects of utopias - immediately descriptions of the

powers, functions, honors, guarantees, freedoms and major rights - if they arise, and the very social

happiness and state program embodied in the ends and means the State reserves to itself. Of course

there are utopian facets in the Constitutions, in particular the task of legally epitomize a state and its

political life, present and future, a couple of hundred articles. This task requires the design of the

political, constitutional, and the world at large as a closed system, rational, geometric and

mechanical able to be controlled - perhaps forever - by the magic of a text by the will of a

constituent. Furthermore, the programmatic flag wielded by social and socialist constitutions (but

already the liberal - but with another program). Will be a very clear element of social transformation

will of the Constitutions, and therefore perhaps the most patently identifiable with its utopianism"

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(Cunha, 1996: 351-352).

Constitution settings, the result of constitutional theories that is not alien an ideological

option and how often utopian, mirror, better or worse, that the mythical-political reality in question

or their utopian project of social reorganization policy.

"The line of demarcation between Constitution and utopia ends up presenting faint, faint,

and consequently be in danger the very concept of utopia - for the officers of the Constitution and

all the surrounding legal ritual away from the conceptual difficulties in this area" (Cunha, 1996:

355).

However, in reality, unhappy world, will have to be each to seek happiness. And this demand

is the basis of freedom and protection for the free development of personality of each one, that is, in

other words (which will not be hedonistic if we consider the interests of each of course, as caring

person and not as selfish individual) or the individual pursuit of happiness for each. And that was

already explicitly recognized as one of the inalienable rights of men by the Creator:. Is the famous'

pursuit of hapiness "of the US Declaration of Independence" (Cunha, 1996: 368)

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