CÁDIZ CONSTITUTION, 1812-2012: THOUGHTS ABOUT A BICENTENARY
Cadiz Constitution of 1812, cover page and page Nº 1.
Faustino Martínez Martínez
Law and Institutions History Dept.
Law School. Universidad Complutense, Madrid
We can unequivocally asset that there are two irreconciliable visions that entrap every historian: the one of the past time which they try to study; and the one of the present time from which the investigation is carried. We can then say, that there is one Cádiz Constitution of 1812, dated at that point in time; and many other interpretable Cádiz Constitutions, which have been read and outlined through 19th, 20th and now 21st century. There is a Cádiz Constitution that deputies and public personalities who support it tell us about it in their texts; and there are other Cádiz Constitutions which spring from this first one, that result in individual, partial and partisan lectures of it and become contemporary versions of the original which rarely match the spirit and the soul of the one they refer to. We must finish with the protagonist rolesome historians have given to their interpretations and constructions have taken the leading role, later used as basis for different speeches that always aim to justify the present through the past. This means, anticipateing modern constitutional solutions to preconstitutional times, projecting contemporary creations to past times; seeking to obtain bigger dossis of legitimacy using time as a means. Our mission is not to participate in Cádiz’s legacy, it is not to interfere in its creation and development, neither is it to reproduce the most relevant debates or controversies supporting one or the other;neither then is it to conect that past with our present, but to observe it, analyze it and understand it and place in its own moment in time; since there is where it has to be and from where it needs to be looked at in order to deeply understand it in its purity. Cádiz belongs to the past, it is no longer here and it is not for us, it does not exist other than as an aniversary. It must be understood according to its own constitutional culture and not according to the constitutional culture that will later appear. We must remember it the way it happened inasmuch testimonies allow it. We must go back to that past if we want to understand what happened then between 1810 and 1812.
Simply opening any exemplary of the Cádiz Constitution we can tell that we are in front of a Political Constitution of Spanish Monarchy. Just the title gives us enough hints about the direction the investigation will take. Political Constitution meant, back then, that it is not the only way to present a constitutional text at that given time. The adjective (political) goes a bit further; it defines the essence of that noun (Constitution) that it accompanies indisociably. There is a so called political Constitution, associated to the freedom called the same way, thus we can draw that there are other types of Constitution different to this one (militar, fiscal, ecclesiastical,etc.). These ones would be, in teory, excluded of the dynamics that the text from Cádiz wants to represent. Its goal is not political and, in the same context, neiter is it to assure the political freedom, which is in the first instance the goal of the so called political Constitution. That is its main purpose. To guarantee political freedom and to strenght it through constitutional ways. Later civil freedom of the individuals who form the Nation will come too, but firstly, political context is needed in an ultimate way. Political context with its power and authority, with its governmental moderation, its public happines as te goal of every action, its citizens obligations before their rights, with obedience, attatchment and submission. All these creates the main basis, the national-monarchic sceme in order to get political freedom back and to ensure it for the future, after years of oblivion and shame. Deep down, the Nation, more than the individual, is waiting for the rehabilitation of all those domination relationships that come together with the liberty that the birth of the Constitution implies. And Nation has just appeared showing itself. Freedom is defining it again in a solid way and using little adjustments. This so called freedom, understood in hispanic terms, i.e. in catholic terms, means unconditional acceptance and observance of every mandate issued by the sovereign authority properly trained and potentially legitimate, inside the ethic channels (religious, i.e. catholic) that work as foundation of the whole public structure. They mean the articulation of a complex net of power, rights and obligations that respond to some particular exigences, to a very specific vision of that freedom, closer to teological ideas of preconstitutional times than to the open and extenden individual spaces that freedom means today in its contemporary meaning, definetely a constitutional one. Sections 13 and 14 of the Constitution will be clear about this and throw light upon what wants to be rebuilt: Nation’s happines, welfare of its individuals and moderate Monarchy, as the political culmination of the whole thing and as a guarantee of the efectiveness of that freedom. From the Nation, including the individuals, unlit getting to the solidified form of power. This adjective, for that matter, does not longer calify the noun, but it has a deeper role: it introduces public references of obligation, obeisance and submission through which future constitutional life will go. It all, according to the right path that constitutional life had came through before or the one it should have. Avoiding abstractions, the pursued goal is not etheral freedom, without conditions and pure, but one which is the accumulation of many specific freedoms. Some of them in different forms, articulated arround the main idea of political freedom which is the only one able of leading the Nation, and within it, the individuals that conform it. A freedom made to assure the foundation of the National Monarchy which presided the whole constitutional design before ensuring spaces of immunity for each and every single citizen. Political freedom is the source of the remainig freedoms, but it is not individual but national (at least in the first instance) and it is not natural but historical. A type of freedom, at the service of power, not of the individual, citizen or subject. Catholic freedom focuses on the acceptance of what legitimately stablished authority says, instead of focusing on liberty on its own. It is the ability to obey or disobey, to do what is right, in accordance with free will, but always in the frame of prior institutional channels which end up predeterminating it in an extreme wayprecio, pp. 37 ss.olaiedad. en su momento por J. pokl. The Constitution -and to assure it suffices to read sections 4, 67, 8 and 9, with its extention to section 366 – is seen in terms of obligations instead of rights, in terms of obedience instead of immunity or exepmtion, in terms -we must insist- of ancient freedom instead of modern freedom. The particual idea of equality, shaped by codes which were just old recopilations a bit more stilysh, more perfect and more complete; as well as an unique power which was completely absent, along with corporations and forums of all kinds which were not erradicated from the social and political scenario, neither did that help to strengthen the liberal charm of the text of 1812.
But it is too, a Constitution that protects a kind of political freedom adressed to a specific subject, and here is where we find another relevant component: Spanish Monarchy (not te Nation, which appears in consequence, comprehended within the first one, where the king is the head of the State). This implies that it is a Monarchy of the Nation which, consecuentely, has to be called monarchical Nation without any doubt. This places us facing a complex institutional and territorial scenario, which is at the same time, more than a perpetual form of government, built up in History, which is unavailable for most of the people, and is deeply entrenched in the political spirit of those men and women and those territories. Monarchy is more than that, more than the traditional weaving of public and private people, corporations, provinces and territories arround the monarch: it is the definition itself of the hispanic political essence. It is its soul as it has been for years now. The Constitution is the Monarchy’s Constitution, because looking at Spanish history, Monarchy is and the sole possible and fasiable constitutional way. We can conclude that the Constitution is Monarhy itself and it cannot be any other way without breaking the historical path and pervert the spirit of the political comunity. If another political form was adopted, Spain would dissappear as it is now. The existance of a different thing would start. A new historical subject would be borned, not Spanish anymore, it would be different, and as such, unpredictable, out of control, out of the paths that History has defined to define the borders of the political power with certain dossis of regularity, measure and order. This is the foundamental part of the Constitution, without which the text could never be understood as a whole. What is done in Cádiz is a kind of Constitution that is adressed to a specific subject (the Monarchy). But, what Constitution does actually spring during those years? What is the debate about? What are they exactly fighting for, if there is womething they actually fight for? We need to look to Cádiz’s immediate past to understand what is taking place.
The essential key stands in the perspective through which the complex material created from 1810 to 1812 has to be examined. That world of the past which evaporated to the eyes of many contemporary and dissapeared for coevals in an obvious and unforgiveable way. Those who decided to agree a sort of an organized and gradual dissolution from the past, an exhausted continuity or about to be, and this way decided to create or imagine a new universe, for which they put together many pieces, used many materials, instruments and elements taken out of tat same past which was about to dissapear. They started to built a new cosmos out of the waste, left overs and reminiscences that were left of the old regime, the only one they knew well. The result can hardly be called “this” or “that”. Cádiz is an exotic place that is presented as a remote location, far away, unknown: it appears as a being without time, difficult to frame in an specific era, the one that finished or the one that started to open. The world in Cádiz turned arround that duality of temporal scenarios that approach together, that touch each other and distort themselves, and somehow, they get mixed up. Past and present hold hands because the constitutional horizont was built without defining any censorship with the most immediate or most recent past. Not only there wasn’t any break (and the nonexistance of any clause in the text of 1812 that erased the past is an evidence) but the text stablishes a fruitful dialoge with it, inviting the past to participate on the constitutional experience that back in 1810 started to grow in a new shape, with a new strength, method and system. The whole legislative work done in Cádiz mut be regarded through this prism: past and present overlaped, mixed, melted together, resulting in an open and natural relationship betwen past and present. Betwen today and yesterday, betwen 1812 and gothic, medieval or modern times; or even the immediately preceding royal and ministerial despotism times: Law from the past was still Law from the present. The basis were the same. That was the ususal. Yesterday was still today. That is how the legal order of Common Law worked; i.e., a traditional, teological, jurisprudential, open, plural, cumulative and sedimentary regulation. A cliche itself and full of them.
If there is not past neither present from a legal point of view, if the ancient Law is present no matter the time when it was formulated, if pieces of this puzzle are not taken away but mixed together and these does not birng up new general norms or universal guidelines; if nothing is rejected from that legal scenario, since everything is part of the same old prescriptive and cumulative order, of a traditional and sedimentary kind (comming from a theological approach); an uncertain and abstract order subjected to the probabilities that jurists, judges or kings determine; if this whole aforementioned scenario is the general picture of the Spain of the Old Regime we cannot, neither should we, under no circumstances, look at the process that started in 1810 from the optics of what came afterwards: the positivist, legal and state perspective. A pure legal paragidm and its consequences are not useful to approach that opposed reality. An effort has to be made in order to understand what happened before and see how that “before” influenced what was done later. If we keep all these in mind (and above all, the lack of isolation between past and present, but its more or less pacific coexistance; as well as the persistance of the legal order and its recovery through improvement or correction), the vision of the Constitution of 1812 has to change in a clear and notorious way. It is not a new Constitution what is presented in Cádiz. It is an old one, historic, traditional, buit out of the habits, with pieces of the past and employing structures and institutions taken from a former reality that samed to be falling appart. A Constitution that had no derogatory clause because it lacked power enough to cancel the historic flow that defined and nourished it. What was done -and so they say those who were there , specially in the wellknow Preliminary Disourse made by Constitutional Comission that drafted the project of the Constitution in 1811- is to asset old laws and institutions, recuperate them, made them stronger and assure the aplication of the monarchical and catholical model that Spain had had since medieval times. Through this process this whole structure is given a new appearance that makes its recognition easier and avoids possible masking or ambiguity at the immeadiate future. The past is not only a source of power and institutions; it is the model of what has to be done in order to avoid the risks that degeneration had caused in modern times That is why the past is useful: because it is the source where everything that must exist is found, and, at the same time, it is the teaching that avoids possible digressions. The various pieces that integrate Cádiz are not an invention of the Courts, nor of their deputies; they are a creation of History, they are pieces that identify with the past, thus God is considered to be their creator. Creator of the Courts as well as of the whole political frame to which his creatures give now a new order. Lets think about the begining of the constitutional text, where, using a usual enacment formule from the Old Regime, it mentions the king Fernando VII, who is so by God’s grace, not by the Constitution’s grace (which comes second). This hierarchy is not pacific nor neutral, it is indeed full of legal and political meaning: the king is the supreme authorityon Earth, but undeniably owes his power to this Almighty God, “Father, Son and Holy Ghost, creator and supreme ruler of society“. By means of History, where the Constitution gets inspiration from, we have come to the Theology which is the founder of the political-legal order, the resulting consitutional order accepted by all men who conform the Nation, and whithin it, the Monarchy. It is a sort of reminiscence of the Old Regime, where a political model that was criticized and obsolete still can conditionate the norms. It still can make old schemes preveal disguised with new words and new concepts, which will quicly get old from a pragmatic and legitimate point of view. In vane. Those words and those concepts do not innovate at all, instead they resemble the the past. The legal order that they belonged to was not something that could not change or be modified. The Law from the Old Regime was about to evolve too, however, its divine origine (i.e. its absolute perfection) buit mechanisms of self regeneration which always ment the addition, never the subtraction or disappearance of legal elements so that they could be part of the al ready defined order. Everything was already created. Men just had to foutind out about that Law in order to improve God’s creation or just correct the impurities that human activity could have introduced in God’s plan. This way the process that leads to Cádiz is conceived: the old leads to the slightly reformed, improved or corrected kind of old; that seems to be new but cannot be. The past goes through a recomposition process. Nothing is lost on the way; nothing is ignored; nothing is distroyed or dismissed; nothing changes substantially. Everything remains under different words. On the other hand, its existance is strengthened. And this way a persistance that allows to follow the spirit of the new era is assured. And this is how it is done, this is how society acted. Take back and assure the continuity of what has been restored. The past invades the present in an uncontested way. There is not any horizon of future expectations.
Cádiz and its Constitution have been looked at form the distorting perspective of romanticism of the 19th century as well as from the eyes of liberal historers. These researchers, loyal to this adjective that defined them, wanted to see in Cádiz the logical order of the regime in which they were living, so they did not hesitate to transform the absolute failure of 1812 into a successfull liberal mith. At the same time, they criticized the Old Regime, bluring it untill it was completely unrecognizable. Neither the Constitution was any liberal culmination, nor the Old Regime was the chaos they want us to belive. Cádiz wanted to be seen as the source of the prevailing ideology in Spain during the most part of the 19th century. From this unfair optics, it is not surprising that the most part of the liberal creed later, at the begining of the 19th century, belonged to a primeval ideology looking at the very well defined preferences of their first written declaration in 1812. This distort vision is the sin of misunderstanding the Cádiz taxt and considering it as a liberal and democratic Constitution, when these adjective and noun hardly match those times neither those minds. The Constitution that was adopted the 19th march 1812, later spread and sworned all along the Spanish territories, can hardly be considered as a real constitutional text, neither a revolutionaryly constitutional understood in its most current way; we cannot see that this text was rationally and firmly written; neither founded on nature-based values, abstract values that conform self-evident truths. We cannot say that it was created by a constituent power that worked freely and respected the Nation’s wills, without any duress or conditions, no exigences from the middle class, the religious community, historians or other traditional spheres. It is not a modern Constitution if by such idea we understand a rational and prescriptive Constitution, made out of te abstract truth, a result of the willingness of the subject who wants to create it and establish with it a new political order, free, global, complete, without bondages. Facing the new born and free Nation and the constitutionalised Reason, architect of the whole system, Cádiz oposes History to God as powerful and exclusive constituent factors, derivated from a strong catholic shield that banned any difussion outside the fronteers and at the same time avoided any external contamination. This is: facing the constituent avant la lettre, History raises above everything, and a Divinity claims its ownership based on the necessity. And this happens this way because of the role played by the Spanish Enlightment (Jovellanos might be its role model), which was reformist before revolutionary.
The enligtment mentality ment looking at the past as the salvation, as the myth where everything was lovely but over time only had corrupted, so a depuration was needed (polically, historically, etc.). And this process wa never constituent, at most, it was reconstituent or reformist, more or less deep, but never stoped relaying in the essential pillars where the past was settled. On the first place, the regeneration of the Monarchy was seeked, wit all the attributes that defined it; a reappeareance of it but without eraseing it from the legal or political scenario. Monarchy had to be taken back in its purest version, in order to be adjusted to the comming times later so that its continuity was assured over years. Together with the Monarchy came many elements derivated from it and essential to sttle it and assure it in the right way. We must use the 1812 glasses to look at every detail of what was being defined on that date and that would affect the Spanish Monarchy destiny. There was a common political belief shared by every important men and deputoes on that irregular corpus they were about to define the constitutional wolrd they wanted to bring back.
If we stick to the aforementioned premises, the most relevant new element is the absence of a real constitutional power at the General and the Exceptional Courts (inaugurated in September 1810) as an original and illimitated power with residence in the Nation. Out of this, we can conclude that the Constitution of 1812 cannot be called a modern constitution given the amount of impossibilities we identify within it. Firstly, the impossibility of a Nation in a completely liberal style (the conjunction of free and equal citizens, a fully democratic, equal and free civil society is missing) that has to be reduced to the existance of a Nation in th terms of the Old Regime, dominated by the religious, military and legal elite. This is not a free Nation neither founded on the value of te individual, but integrated by old bodies, with a political scenario that silences people, where current citizens are never present in the decisions that are adopted. Out of this first, comes the second impossibility: the lack of a real national soverignity with the omnipresent shade of the Monarch that underlies in each and every line of the constitutional debates and sections. What leads us to a kind of cooperative, broken and shared soveraignity, not to a soveraignity exert exclusively by the Nation. Finally, out of the two previous points, the impossibility of an absolute freedom of the diputies. The means of representation used to write the script for the future since Cádiz does not reverse anything from the past, but it stands on it and uses it as the support to achieve its objectives. It is a Constitution written with open doors to the past and to everything that the past ment. Only slight changes are made in order to make it effective, valid and unassailable so that it can overcome crisis as severe as the one taking place since March 1808. As fas as possible, the essence of the Monarchy has to preveal and should not be modified. This is what is done since 1810 and what culminates on March 1812. At any point, as it happeden in France with the revolution, did the fathers of the Constitution have the will of breaking with the past, of starting from scratch and send past to the pit of History, of listing all those elements that there would not be in Spain any longer, of explaining that derogatory effect that is visibly lacking. In the Spanish case, there is not the intention of setting a censorship; on the contrary, we can easily identify in its very different elements (form of government, citizenship, religion, territory policies, etc.) the presence of History tat could not be rejected possible way. A presence that could not be fought without risking to lose the uniqueness of Spain as a Nation and as a Monarchy. History writes the script of the Constitution and no power can oppose to it. The past defines the present and in that remote world the whole constitutional precept can be identified. It is a mirror and a model. If Spain wanted to become someting at that uncertain moment in 1812, it had to be something from History, never without taking it into account. The contrary would have supposed a political suicide as a community.
Without a constituent power, this is, without a free Nation that decides to stand up to define the soveraignity as the deposit of the public power and lead it this way to its highest essence; without a power able to create the new and destroy the old, we wont ever be able to find any Constitution anywhere. The Constitution, in its current meaning, is missing the author that every Constitution has to have; it misses too the minimum elements needed as the approval criteria regarding its American and French peers. To sum up, we do not want to identify any Cádiz Constitution because Cádiz is not the result of a popular proclamation of constituent power. Unlike what happened the cenuty before with the revolutionary movements that succeeded in America or France, where these gave the people a Nation on the first case; and the most effective and complete form of determination for the political power orgabisation in the second one. In those other places, there was a constituent power able to break with the past, able to define the fronteer betwen now and yesterday; this process sent back to History all the consequences from the past without the chance of comming back under no circumstances. That constituent power, the American as well as the French, were able to write a categorically new text that settled a moment in history and determined what was liable to happen and what was not; what was useful and new, facing what was old and unnecessary. A text that clearly separated the new constitutional world from the old feudal one, and this last one becamed wiped out, ignored, historic; that is to say, no vaild, thus of no relevance from the legal and politicla point of view. Out of the Constitution understood as such, as Americans and French did, there were only ruins and debris, elements and ideas that should be abandoned and ellimninated. The new era that the new Constitutions inagurated, were, in fact, new times since they oppened new paths to the future and buried the past once and for all.
For the same reasons, Cádiz is not and could never be reputated as the yield of the abstract truth, as a product of rationalism, as executional body of absolute authority, but, on the other hand: it is yield of historical truth, the one that lives for and inside the past, that wants to turn the current men into hiers of his ancestors; that was based on the old Fundamental Laws which settled the limits of the sovereign power almost as absolute and justified every single of its actions; that believed in a past inseparable from the present. Cádiz does not create a truly new Constitution; Cádiz just reorganizes the Fundamental Laws of the Old Regime, recomposes the essential principles on which the Spanish Catholic Monarchy sustained, without giving rise to a radical, drastic and original power. In 1812, a recuperation, a reinstauration of the hispanic past takes place in the shape of a legal-plotical resurection of everything tat had happened back on those days of constitutional hapiness and that had been lost in time.
There is no creation without tradition. The great ancient wise understood it well when they clearly separated the traditio from the imitatio. The new is actually a new form of conjugateing everything that precedes it; the specific way that each age faces, reads, understands and interpretates the common past. Newness is just a new version of the past. The constitutional events that took place in Cádiz seem to support this last statement. F. Tomás y Valiente was wrong when he explained the constitutional moment in Cádiz as the moment when many Fundamental Laws became a sole Constitution, asseting like this the validity of the constitutional process. What actually happened was the transit of many Fundamental Laws into many other Fundamental Laws, better organized and clarified and with important institutional adjustments in order to make them preveal. THe intended modern face barely had strenght enough to govern the fate of that essentilly gothic body, which was who eventually governed the whole political machine, the whole rebuilt system. There wasn’t and there couldn’t be a modern Constitution; maybe a historical one, that is to say, History to the service of the already constitued power, that experience had already prooved valid, incompatible with the enlighted ideology that was the basis of the legacy from Cádiz.
Ciudad Universitaria, Madrid, April 2013.