Constitutional Breach Apology
By: Geraldine Gonzalez de la Vega
published on 17 May 2010 the Power of Ideas in Central Axis
One of the features that characterized the failure of the Weimar Republic was founded in 1919, namely a constitutional breakdown ( Verfassungsdurchbrechung). By this concept, lawyers Germans refer to the material change of the Constitution by qualified majority by way of ordinary legislative procedure. That is, under the Constitution of 1919, it was felt that if a law inferior to the Constitution was accepted by the same majority required for constitutional amendment procedure, then even if is against the actual text of the Constitution, it was constitutional by default. In this way the Constitution of the first German republic was raped, legally. Passed over the clause reform and favored a formality, but supported by aconstitucional a qualified majority against the contents of the basic norm. Tyranny of the majority. If the majority decides, then is constitutional.
not necessary here to recall the services and licenses has caused a lack of constitutional norms, especially after Weimar. What if it is necessary to attract the attention of our legislators to the idea of \u200b\u200ba tyranny of the majority, disguised as democracy, which seems to be spreading in our houses and our streets.
The concept of constitutional norms revolutionary breaks with the notion of majority rule in majoritarian democracy, legitimate decisions taken by the fifty plus one. Well placed over them a set of principles and rules, encoded in what we call the constitution and to ensure their stay will be difficult to modify (constitutional rigidity). The norms of a constitution is in its capacity as primary legal norm, in terms of time and in their hierarchy in the legal order, in his capacity as founder and its ability to be an effective standard. This way is the Constitution a statement deontic (must be) and not a description of a state of things (being).
favorite line of many politicians and lawyers, "the Constitution are factual relations of power" based on nineteenth-union speech in Lasalle on the Constitution as a piece of worthless paper, "is an apology for breaking the constitution. The counterfactual suprerior standard is a basic feature to stabilize power relations. The basic rule is not a mirror in which to be reflected to legitimize them. The Mexican constitutional breakdown is even more gruesome than the Weimar, for our Statutory Body skips the meaning of the constitutional reform and adjust the rule as they please for it, project factual relations of power, in the tone of Lasalle, Jellinek and Laband, normativity of the factual . In this way the constitutionality in Mexico has become an ex-post measure.
It is really worrying not only the number of constitutional reform initiatives presented in both chambers, but the reforms already made to the Constitution that break with its internal logic. In this administration reforms have been made that contradict the principles upon which our democratic Constitution rests. For example, Article 22 with the forfeiture, which gives the contrast with the principles of rule of law and the fraction Article 73 XXI disappears federalism in criminal matters. The removal of the presence of the executive to the representatives to submit the report on the status of the administration, is also ill-fated reform, it provokes a silent gap between the two powers and hurt the principle of representative democracy. The reforms to Article 41, set in the "electoral reform" special rules in the supreme law to be modified resulting in a continuous manner, as any ordinary law is subject to trial and error. The continuous reforms to the basic rule, of having a hard character to ensure their survival, undermine its regulations and a constitution without regulation, is yes, as said Lasalle, a mere piece of paper.
Each occurrence legislation is proposed as a constitutional initiative, as if raising an occurrence policy range make her smart or effective. Views that some of our legislators seek in their short stay in our chambers, the trophy on its proposed constitutional pedigree or the more modest hope that the constitutional nature of a standard will magically effective. Some also believe that introducing a specific policy within the constitutional standard will invulnerable, even speak of "locks."
Similarly, we see today in several states how to modify the basic texts to impose the morality of the majority, resulting in a violation of the rights of minorities. A democratic constitution has the vocation to allow the coexistence of plural visions supported by universal principles that guarantee liberty. A democratic state is based on pluralism and tolerance.
urgent constitutional reform in Mexico is one to redesign the relationship between the federal authorities, the federation and the states and not one that legitimizes any preconceived political decision but unconstitutional. Nor write something in the narrative of the Basic Law on automatic makes the Constitution (in a material sense). If Mexico is intended to be a constitutional democracy should understand that there are principles and rules that can not be overlooked, although the end is good. In a hackneyed phrase "the end justifies the means." Perhaps at the time of Machiavelli, but not in the rule of law.
"Top" level a situation already covered in a general law, federal or local, will not be more more respected or enforced, nor does it give you a legitimate pedigree a political decision. Constitutional reform is an extraordinary mechanism to be used only when the standard has been overtaken by reality and through this interpretation can not meet the constitutional ideal: ensuring freedom. Otherwise, we rigged only disguise of self-regulation and constitutional and a decision by a majority eager to impose their will and this is what a Constitution that specifically combat rules, but it seems that humans do not learn anything from Weimar.
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