Study sheet: Foundations of Constitutional Law

📋 Course Outline

1. Purpose and Scope of Constitutional Law
2. Constitutional Institutions and Norms
3. Constitutional Law as an Academic Discipline
4. Ancient Foundations of the Constitution
5. Liberal Origins of Constitutionalism
6. Constitutional Moderation of Power
7. Ancient and Modern Liberties
8. Modern Limits on Political Power
9. Emergence of the Modern Constitution
10. Political and Legal Conceptions
11. Constitutional Classifications
12. Constitutional Revision Procedures
13. Limits on Constitutional Revision
14. Constitutional Justice Models
15. The American Model
16. The European or Kelsenian Model

📅 Key Dates

1. 1689the Bill of Rights strengthened Parliament and limited royal authority after the English Revolution of 1688
2. 1787the American Revolution of 1776 led to the first major modern written federal Constitution
3. 1789the French Revolution affirmed liberty, equality, sovereignty, and the limitation of power as fundamental principles of modern constitutionalism
4. 24 February 1803The United States Supreme Court established clearly its power to review the constitutionality of legislation. — John Marshall, Marbury v. Madison, 1803
5. 1819Benjamin Constant distinguished ancient liberty from modern liberty in his speech De la liberté des Anciens comparée à celle des Modernes
6. 22 August 1834constitutional law teaching was organized at the Paris Faculty of Law and became compulsory in the context of teaching the Constitutional Charter
7. 16 July 1971the Constitutional Council’s decision Liberté d’association gave constitutional value to the Preamble of the 1958 Constitution and expanded constitutional review to fundamental rights and freedoms

📖 1. Purpose and Scope of Constitutional Law

🔑 Key Concepts & Definitions

• Constitutional law : institutionalizes political power by organizing, framing, and stabilizing its exercise through institutions and legal norms
• Political power : the power that organizes and directs a collective
• Institution : a human action or organization that progressively becomes detached from its author and continues to exist when its creator or officeholder disappears or is replaced

★ Must-know

• Constitutional law primarily addresses the President of the Republic, the Government, Parliament, and the Constitutional Council by organizing their powers, relationships, and limits.

📌 Constitutional law mainly concerns political organization, sovereignty, the Constitution, and relations between powers, whereas administrative law mainly concerns the administration and public services.

📌 In the organic sense, power refers to the institution or authority holding a competence, whereas in the functional sense, power refers to the activity or legal competence exercised by that organ.

Further detail

📌 Public law concerns the organization and operation of the state and relations between public persons and private individuals, whereas private law mainly governs relations between private persons.

💡 Memory Hook

Institutionalizing power detaches authority from individuals and stabilizes the state.

📖 2. Constitutional Institutions and Norms

🔑 Key Concepts & Definitions

• Constitutional supremacy : the Constitution stands at the top of the hierarchy of norms and that lower norms must comply with constitutional norms
• Positive law : the set of legal rules actually in force in a given legal order at a given time
• Norm of empowerment : A norm of empowerment grants an institution the legal competence necessary to act, such as Parliament’s competence to vote legislation or the President’s competence to appoint the Prime Minister.
• Natural law : the idea that principles of justice founded on human nature, reason, or universal values are superior to positive law

★ Must-know

• Article 24 of the 1958 Constitution provides that Parliament votes on legislation, assigning the legislative function to Parliament under constitutional conditions.

• The constitutional block includes: the 1958 Constitution, the Declaration of the Rights of Man and of the Citizen of 1789, the Preamble of the 1946 Constitution, the Environmental Charter of 2004

📌 Constitutionality asks whether an action complies with constitutional rules, whereas legitimacy asks whether it is considered acceptable, justified, or consistent with political and social will.

Further detail

• Hans Kelsen’s normativism conceives law as a hierarchy of legal norms in which each norm must respect superior norms, placing the Constitution at the top of the internal legal order.

💡 Memory Hook

Constitutional law both empowers institutions and limits their action.

📖 3. Constitutional Law as an Academic Discipline

🔑 Key Concepts & Definitions

• Constitutional doctrine : the body of studies and reflections produced by jurists and academics that helps interpret, classify, and intellectually construct constitutional law

★ Must-know

• From the 1950s, constitutional scholars increasingly studied political practices, electoral behavior, political parties, and the concrete functioning of regimes because constitutional texts did not always match political reality.

• The Constitutional Council’s expanded role was reinforced by the constitutional revision creating the Question prioritaire de constitutionnalité in 2008, whose mechanism entered into force in 2010.

Further detail

• During the nineteenth century, constitutional law progressively sought to become an autonomous legal discipline by studying, organizing, and interpreting positive constitutional rules.

💡 Memory Hook

Texts, practices, judges, and society progressively reshape the discipline.

📖 4. Ancient Foundations of the Constitution

🔑 Key Concepts & Definitions

• Politeia : the ancient Greek concept describing how a city is politically organized and how power operates within it

★ Must-know

• Aristotle’s regime pairs are:
  • monarchy and tyranny
  • aristocracy and oligarchy
  • polity and democracy

📌 Ancient natural law concerns human nature and the natural organization of the city, whereas modern natural law emphasizes individual liberty, equality, and consent.

Further detail

• Roman law distinguished public law from private law and developed the notion of public power, contributing to the modern distinction between an institution and the person exercising authority.

• Cicero’s De Republica, written from 54 BC, reflects on the existence of a mixed regime.

💡 Memory Hook

Ancient polity describes power, whereas the modern Constitution prescribes and limits it.

📖 5. Liberal Origins of Constitutionalism

★ Must-know

📌 Political liberty can be understood as security ensured by sovereign power, participation in forming the general will, or protection against abuses of power.

• Locke’s principal natural rights are:
  • life
  • liberty
  • property

Further detail

• The contractualist thinkers Hobbes, Locke, Montesquieu, and Rousseau conceive political society as resting on a social contract, although they differ in their accounts of human nature and the state of nature.

💡 Memory Hook

England 1688–1689, America 1776–1787, France 1789.

📖 6. Constitutional Moderation of Power

🔑 Key Concepts & Definitions

• Separation of powers : organizes institutions so that power checks power and political authority is moderated
• Civil society : an autonomous sphere distinct from the state in which individual, collective, and economic liberties can be protected

📝 Essential Points

• In De l’esprit des lois, Montesquieu links political liberty to a moderate government and to the separation of powers.

• Montesquieu identifies the English balance of powers through the monarchy, the House of Lords, and the House of Commons. — De l’esprit des lois

💡 Memory Hook

Three English institutions—monarch, Lords, and Commons—hold power in balance.

📖 7. Ancient and Modern Liberties

★ Must-know

📌 For the Ancients, liberty primarily consisted in direct participation in the political life of the city, whereas for the Moderns it primarily consisted in security in private enjoyment. — Benjamin Constant, De la liberté des Anciens comparée à celle des Modernes, 1819

Further detail

• Modern liberty requires personal and private freedoms and an area in which the state must not intervene excessively.

💡 Memory Hook

Ancient liberty is collective political participation; modern liberty protects private independence.

📖 8. Modern Limits on Political Power

🔑 Key Concepts & Definitions

• Civil society : An autonomous sphere distinct from the state, whose autonomy protects individual, collective, and economic liberties.

📝 Essential Points

• Montesquieu identifies the English political system as balancing the monarchy, the House of Lords, and the House of Commons in order to limit the concentration of power.

• Benjamin Constant distinguishes the liberty of the Ancients, based mainly on direct participation in civic political life, from the liberty of the Moderns, based mainly on security in private enjoyments and protection of the private sphere. — De la liberté des Anciens comparée à celle des Modernes, 1819

• Horizontal limitation separates and balances state powers, whereas vertical limitation restricts the state through rights and freedoms guaranteed to individuals.

• Article 16 of the Declaration of the Rights of Man and of the Citizen of 1789 states that a society without guaranteed rights or determined separation of powers has no Constitution.

💡 Memory Hook

Horizontal limits restrain institutions from each other; vertical limits protect individuals from the state.

📖 9. Emergence of the Modern Constitution

🔑 Key Concepts & Definitions

• Constitution : The set of fundamental rules that organizes the state, determines the exercise of political power, and constrains public authorities.
• Fundamental regulation : Emer de Vattel defines the Constitution as the fundamental regulation determining how public authority must be exercised.

★ Must-know

📌 Thomas Paine and Sieyès present the Constitution as preceding constituted government and organizing the powers of the nation.

Further detail

• The Latin term constitutio derives from constituo, meaning notably to establish, arrange, organize, or institute.

• In religious contexts, pontifical constitutions designated normative acts or decisions of the pope and helped give the term a broader legal meaning.

• Under the French Ancien Régime, the fundamental laws of the kingdom included rules on succession to the throne, notably traditions associated with Salic law.

💡 Memory Hook

Constituo → religious rules → fundamental laws → citizen-made Constitution.

📖 10. Political and Legal Conceptions

🔑 Key Concepts & Definitions

• Legal norm : A rule prescribing human behavior by determining what must or must not be done.

★ Must-know

📌 The institutionalist approach studies institutions and the political balances between them, whereas the normativist approach studies the Constitution as a superior set of legal norms. — Hans Kelsen

📌 Michel Troper distinguishes an idealist legal conception of the Constitution as a solemn binding text from a realist conception of the Constitution as the actual organization of political power and its power relations.

Further detail

• Contemporary constitutional law is largely dominated by the normativist conception associated with Hans Kelsen, while retaining the Constitution's political dimension.

💡 Memory Hook

Institutionalism observes power in institutions, whereas normativism studies binding legal norms.

📖 11. Constitutional Classifications

★ Must-know

• A written Constitution groups constitutional rules in one or more written texts, whereas an unwritten Constitution also relies on conventions, jurisprudence, historical principles, and other unwritten rules.

• A flexible Constitution can be amended through a procedure similar or identical to ordinary legislation, whereas a rigid Constitution requires a special and more demanding amendment procedure.

• The formal approach defines constitutional rules by their adoption, amendment, or repeal procedure, whereas the material approach defines them by their content concerning public powers and institutional competences.

Further detail

• France's Constitution of 4 October 1958 is supplemented by other constitutional texts and principles grouped under the bloc de constitutionnalité.

• Carl Schmitt distinguishes constitutional laws adopted through the constitutional procedure from the Constitution in the true sense, which concerns the fundamental political existence of the state, including sovereignty and its political form. — Théorie de la Constitution

💡 Memory Hook

Written/unwritten concerns form; flexible/rigid concerns amendment; formal/material concerns procedure versus content.

📖 12. Constitutional Revision Procedures

★ Must-know

📌 A total revision modifies the entire existing Constitution while maintaining continuity, whereas constituent power creates a new Constitution after a fundamental rupture.

• 🔄 Constitutional revision proceeds through:
  1. initiative
  2. elaboration and adoption
  3. ratification

📌 Under Article 89 of the French Constitution, revision initiative is shared between the President of the Republic on the Prime Minister's proposal and members of Parliament.

📌 A French constitutional revision is normally ratified by referendum, but an executive-initiated project may be submitted to Parliament sitting in Congress and requires three-fifths of votes cast.

Further detail

📌 In France, the National Assembly and the Senate must adopt an identical revision text before ratification can occur.

💡 Memory Hook

Initiative → elaboration and adoption → ratification.

📖 13. Limits on Constitutional Revision

🔑 Key Concepts & Definitions

• Eternity clause : A constitutional provision that makes certain fundamental principles immune from constitutional revision.

★ Must-know

📌 Temporal limits determine when constitutional revision may occur, whereas material limits determine which constitutional principles may be revised.

📌 Under Article 89 of the French Constitution, revision cannot be initiated or continued when the integrity of the territory is threatened, during a vacancy or definitive incapacity of the presidency, or during the exercise of Article 16 exceptional powers.

• Article 79(3) of Germany's Basic Law protects principles including human dignity, fundamental rights, the federal state, the democratic and social state, and the rule of law from constitutional revision.

Further detail

• Under Article 284 of the Portuguese Constitution, an ordinary revision may in principle occur only five years after the previous ordinary revision, while an extraordinary revision may be decided by a four-fifths majority of the Assembly of the Republic.

• In Switzerland, constitutional revision requires approval by the people nationally and by the cantons, while in the United States Article V requires a two-thirds majority in each congressional chamber and ratification by three-quarters of the states.

💡 Memory Hook

Temporal limits determine when revision is possible; material limits determine what may be revised.

📖 14. Constitutional Justice Models

🔑 Key Concepts & Definitions

• Constitutional review : Verifies whether laws and regulations comply with the Constitution and allows contrary rules to be set aside or sanctioned.

★ Must-know

• The American model is:
  • diffuse
  • concrete
  • subjective
  • a posteriori

📌 The European or Kelsenian model is concentrated in a specialized constitutional court, abstract and objective, and may operate a priori before a law enters into force. — Hans Kelsen

Further detail

• In Marbury v. Madison, the Supreme Court compared a federal statute with the Constitution, found that the statute granted a power not provided by the Constitution, and set the conflicting provision aside. — John Marshall, 1803

• Hans Kelsen's theory of a hierarchy of legal norms was institutionalized after the First World War through the creation of a specialized Austrian Constitutional Court.

💡 Memory Hook

American review is diffuse and concrete; European review is concentrated and abstract.

📖 15. The American Model

★ Must-know

📌 Under Article VI of the United States Constitution, the Constitution and laws of the United States that conform to it constitute the supreme law of the land, so the Constitution prevails over any ordinary law that conflicts with it.

📌 The American model of constitutional justice is diffuse, concrete, subjective, and a posteriori: any court may review constitutionality in a real dispute, from the situation and rights of the parties, after the law has been adopted and when it must be applied.

• In the American model, a judge reviews whether a rule conforms to the Constitution when the judge must apply that rule in a concrete case.

Further detail

• Constitutional justice, which initially had a relatively limited role, became much more important after the Second World War, particularly from the 1950s and 1960s, with the development of different models of constitutional justice in democratic states.

💡 Memory Hook

D-C-S-A: diffuse, concrete, subjective, a posteriori

📖 16. The European or Kelsenian Model

🔑 Key Concepts & Definitions

• Normativism : Hans Kelsen — the conception that law forms a hierarchical set of legal norms

★ Must-know

📌 The European or Kelsenian model is concentrated, abstract, and objective: constitutional review is entrusted to a specialized constitutional court and may occur before a law enters into force as well as after its adoption.

📌 For Hans Kelsen, the Constitution is a genuine legal norm, and guaranteeing it requires a judge capable of reviewing and sanctioning norms that violate it.

Further detail

• Hans Kelsen developed his ideas after the First World War through the creation in Austria of a specialized constitutional court, the Austrian Constitutional Court.

💡 Memory Hook

American control is diffuse and pragmatic; Kelsenian control is concentrated and doctrinal

📊 Synthesis Tables

Ancient and Modern Conceptions of Liberty

Dimension	Ancient liberty	Modern liberty
Main focus	Direct participation in political life	Security in private enjoyment
Relation to public and private spheres	Weak separation	Protected private sphere
Role of the state	Collective political participation	Limited intervention in personal freedoms

Main Constitutional Review Models

Dimension	American model	European or Kelsenian model
Institution	Ordinary courts, including federal judges	Specialized constitutional court
Timing	A posteriori	A priori or a posteriori
Nature	Diffuse, concrete, subjective	Concentrated, abstract, objective