A militant Constitution

It is repeated with some levity that the Spanish Constitution "is not militant" in the sense that, being an "open Constitution", it welcomes with outstretched arms any political project. There would be no taboos, like those incorporated into other constitutions. We disagree with this idea: on the contrary, we defend that our Constitution is militant. "Open", yes, in certain respects, but (thankfully) firmly militant in others.

Its 'open' character is largely the result of the g

Januaryness of the consensus of the Transition, a blessed time in which the "no is no" had not been invented, but the renunciation of the representative groups to their approaches was practiced daily when this was required by a negotiation to achieve a better concord. But that

, which cannot be touched without contributing to their brokenness. Is the Constitution not militant when its Preamble proclaims that 'Spain is constituted as a social and democratic State governed by the rule of law which upholds freedom, justice, equality and political pluralism as the highest values of its legal system'? The Constitution, by making these statements in its frontispiece, announces its militant condition because it "supports a certain project" (DRAE), fully that of the political system expressively defined in that text.

And this thesis is the one that we must defend, unambiguously, those who believe in its content and do not accept that it is done with it balance or auction.

of our Constitution. And they do it with as much perfidy as joy.

We, on the contrary, must insist that the Constitution militates when, for example, it establishes a table of fundamental rights and duties. Let us think of the abolition of the death penalty, which implies that anyone involved in terrorist actions who has committed murder, as the perpetrator, cooperator or accomplice, must be expelled from the representative political system. Similarly

and anchoring means "clinging tenaciously to an idea or attitude" (DRAE). And so we could continue with a string extracted from its Title I.

Likewise, the Constitution militates

and senators within the exercise of their functions so that they can perform them freely. Or when it proclaims judicial independence or the protection of coasts, beaches or communal property.

If that were not enough, all this has been reinforced by our accession to the European Union. Because the Europe of the Treaties is also militant, embracing the values of pluralism, non-discrimination, tolerance, justice, solidarity... On its flag are stars such as the European Charter of Fundamental Rights, binding in Spain, which, among other requirements,

or guarantees "the right of parents to the education and teaching of their children in accordance with their religious, philosophical and pedagogical convictions".

It is those who ignore that our Constitution contains precisely militant principles and procedures who allow the abuses committed daily by the Government and its partners. One of the signatories of this article has contributed to list them in the collective book, promoted by the Free College of Emeritus, entitled

. Let's take stock of some of them.

Regulatory degradation:

and that reach, in a breath, the publication in the Official Gazette omitting a sufficient parliamentary deliberation. As their harmful effects are then verified (for example, hundreds of reductions of sentences), it is necessary to modify them with the same or similar imprudence. Or projects, such as that of the public service, which includes the possibility that for a few months the Government makes and undoes in bodies, scales and positions what is reserved to the law (by the way in another of its militant principles, article 103.2).

All this in a Cortes where their Presidencies seem to attend more to the dictates of the Government than to their true constitutional function. And where deputies and senators have to follow the indication to press a button when voting, at the risk of being fined, contradicting the militant prohibition of the imperative mandate. Item more: agreements of the Congress declaring the "urgency" of some procedure

That then, thanks to successive and blatant extensions of the amendment process, months and months pass without anyone waking them up.

More examples? Appointments to sensitive constitutional positions in favor of people who are politically contaminated by the functions they have previously assumed (Attorney General of the State and constitutional magistrates). Or proceeding to the appointment of the direction of RTVE without the participation of the parliamentary groups, which in application of the militant article 20 was declared unconstitutional. If we do not abandon the path of excesses, we will note the creation, to benefit an autonomous community that had experienced a coup d'état organized by its authorities, of

Here we can see with transparency how the Constitution is, for those who sign that infamous pact, a piece of paper without precepts that deserve to be taken seriously. Just the opposite is what those of us who defend its militant character maintain, in favour of the model of the rule of law of which the Preamble and Article 1 speak.

Advancing along that path our eyes will be wounded when contemplating

, making sleeves and hoods with the militant principle of the Constitution that attributes to judges the power to judge and enforce what has been judged (article 117.3).

In short, because the disregard for the constitutional order is so continuous, it is necessary to create argumentative barricades to defend oneself. Let us recall what happened with the formula of compliance with the Constitution, shamelessly distorted in order to signify itself with crazy flourishes. Ask the presidents of the Congress and the Senate how they would react if any deputy or senator came up with the idea of taking office.

expressly repealed by the militant derogation clause of the Constitution.

We could follow the litany... It is, we believe, sufficient for us to have proof that defending the non-militant character of the 1978 Constitution does it little favor just when it is most needed.

and not from outlaw colonies, but from the very heart of state institutions.

It is necessary to maintain the opposite, namely that the Constitution contains indispensable ingredients (militants) to maintain the liberal, social and democratic rule of law that we are obliged to protect because there are those who, in the long or short term, seek to establish a totalitarian or corporate State and/or a fragmented Spain.

Francisco Sosa Wagner

and

are professors and authors of 'Pamphlet against political trapping. New altarpiece of wonders' (Editorial Triacastela, 2021)