The Spanish Constitution, the Constitutional Court and the Catalan Referendum

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This chapter deals with a core topic in constitutional law, that of the conflict between constitutions and will of the demos. Aristotle in Book IV of the Politics had already anticipated the possible conflict between these two forms of Politeia (constitutions), when defining the types of democracy. He also distinguished the role that the Nomophylakes (guardians of the laws) should play in this sort of anticipated conflict after what Madison v. Marbury called had globally referred to it around the world as “judicial review”. But the concept of a constitution as a form of government; and as a document that organised the offices of a state changed through the history. The Magna Carta, the French and American revolutionaries provided gave the concept a new meaning to the concept. After these historical episodes, constitutions were not simply political or legal norms to knowshowing how to play politics in a concrete state, but they also represented the conquest of fundamental rights, liberties and the juridification of each new independent state. This epic and romantic aura helped the universal triumph of constitutionalism around the world. But at the same time, the conflict between demos and politeia that Aristotle defined now clashes between two powerful symbolic and romantic phenomena.
In the Spanish-Catalan binomial scenario, there are some elements that need to be analysed to obtain a complete picture of the constitutional possibilities to of accommodating a Catalan self-determination referendum. These issues demonstrate that the conceptual antagonism are not new, but on the contrary, it comes from far away, at least from the diverse constitutional interpretations and understandings of the nature of a state´s nature. This chapter deals with the current constitutional text, but the some of the differences have direct antecedents in the events of 14 April 1931 in Catalonia, the path of the Catalan statute of autonomy of 1931, and the events of 6 October of 1934. What has changed is that now Catalans now are simply demanding to be consulted, and they expect that the European Union and other international actors will players will be involved a role in case of if there is any predictable escalation of violence.
Original languageEnglish
Title of host publicationCatalonia in Spain and Europe : Is There a Way to Independence?
EditorsKlaus-Jürgen Nagel, Stephan Rixen
Number of pages10
Place of PublicationBaden Baden
PublisherNomos Verlagsgesellschaft
Publication date2 May 2015
Pages42-51
ISBN (Print)978-3-8487-1828-3
ISBN (Electronic)978-3-8452-5825-6
Publication statusPublished - 2 May 2015

ID: 137585850