Faced with the difficulties of guaranteeing the full exercise of the rights recognized in the laws, certain proposals evoke the formula, apparently guaranteed, of constitutional protection of these rights. Thus, faced with the non-compliance with the mandate that the Constitution gives to public authorities to guarantee access to decent and adequate housing, some voices advocate its constitutional promotion, from article 47 to the status of fundamental right, enforceable before the courts.
This idea of constitutional protection first appeared at a time when Spain was suffering from rampant unemployment and someone had the brilliant idea of constitutionally protecting everyone’s right to employment. More recently, a controversial constitutional reform was proposed to protect the right to voluntary termination of pregnancy in the face of the right’s offensive against this conquest of women. In this case, moreover, the idea is quite strange because, if the proposed reform were implemented, abortion would benefit from less constitutional protection.
There are also those who argue that the annual revaluation of pensions should be guaranteed by a constitutional reform which ensures the revaluation forever, whatever the economic and political situation of the moment.
This type of well-intentioned proposals responds to a curious conception of society, in which the simplification of socially complex problems, a mythification of the power of laws and the naivety of considering that constitutions are like the tables of the Law of God come together.
To think that the text of a standard, even if it has the rank and binding nature of the Constitution, is protected from the vagaries of the economy and society is an act of voluntarism full of naivety. Furthermore, it implies an anti-political conception of politics, seeking to fossilize social life.
The Constitution, written at a unique moment in our history, has become a common good to be protected. It is true that there are aspects, such as those linked to the education system and the interference of religion in schools, or to the territorial structure of the State – to name just a few – which can clearly be improved. Furthermore, much of the social, civic, and political progress made in recent decades has been possible, among other factors, because of the constitutional text and the interpretation of it by the first constitutional courts.
But we must not ignore that constitutional jurisprudence is the result of the “social reality of the moment” to which the Civil Code alludes as a criterion for interpreting laws. A legal concept which has common roots with what the classics called correlation of forces, an idea incomprehensibly forgotten by certain sectors of the left.
Today, this increasingly global social reality – that is to say the balance of power – favors dismissal processes such as those promoted by the patriotic right. In some cases, successfully. For example, in the interpretation of Article 2 of the Basic Law and the complex balance it establishes between national unity and autonomy which aims for diversity – nationalities and regions – without ignoring the requirement for equality of people.
The 1978 Constitution is the expression of the balance of power of the moment and the result of a pact of shared impotence: that of the continuators of the Franco regime without Franco and that of the disruptive democratic forces. The result is a text open on many aspects – on others, such as the form of the State, much less – which protects the different political conceptions which are part of a democratic society. As it should be, by the way.
But fear of a repeat of our dramatic constitutional history led voters to establish very demanding conditions for its reform. Some voices complain about this rigidity and they are right. But with the winds blowing across Spain and the world, perhaps we should consider it a gift from heaven. I fear that if major constitutional reform were undertaken today, the result would be far more regressive than fifty years ago.
It is therefore surprising that some consider this type of armor politically viable, given the current balance of power. But the most important thing is that, in the unlikely event of success, they parchment shields. Popular wisdom says that paper resists everything, and that parchment is more resistant than papyrus, but not to the point of guaranteeing the exercise of rights forever.
The idea of armor contains a demobilizing message. This leads us to think and believe that, once won, rights last forever. It is worth remembering that, as always throughout history, the conquest, consolidation and defense of rights are not for life. Each generation must fight its own battles. We, leftists, should have much more confidence in the capacity of social struggles and their political structure than in a constitutional text transformed into a sort of tablet of Moses.
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