Unconstitutional laws and parliament’s selfsupervision under the 1812 Constitution

Abstract

The Spanish Constitution of 1812 was formally protected by the guarantee of the rigidity of the process of reform, and even through material guarantees as the procedure for infringements, which consisted of a control over the constitutionality of law application acts. But Rousseau’s theory, which undoubtedly inspired the concept of law in the Constitution of 1812, leaded to admit no control over the content of the activity of the legislature because of being the representation of sovereignty. Consequently it was not admitted that Parliament was subject to legal control of any organ. There was not even a formal control of the passage of the law. The «Cortes» were thus the guardian of the Constitution and his most faithful interpreter on the basis of artículos 131.1 and 261.10 of Constitution. For this reason the submission of legislative power to the Constitution depended exclusively on the practice of self-control or self-restraint. But this has given rise to much of the authors to consider that the lack of a mechanism to link the legislator to the Constitution is crucial to state the supremacy of law in the constitutional system. However, such a conclusion is not accurate, because from the parliamentary debates of the various legislatures arises that the Constitution had not only the vocation to rule, but also it was argued its juridicity, not only against officials and judges, but also against the legislature, who was therefore subjected to the statements of the Constitution, whose boundaries may not violate or ignore, for which it was boost a kind of constitutionality self-control in the exercise of legislative power.