Constitutions and Constitutional Trends since World War II: An Examination of Significant Aspects of Postwar Public Law with Particular Reference to the New Constitutions of Western Europe

By Arnold J. Zurcher | Go to book overview

2
The Political Theory of the New Democratic Constitutions

By Carl J. Friedrich HARVARD UNIVERSITY

ANY attempt to assess the political theory of the new constitutions is confronted with the problem whether to treat the constitutional documents as prima-facie evidence or to search for underlying trends that these documents may or may not express. When Charles A. Beard threw out his challenge concerning "the economic interpretation" of the American Constitution -- a challenge which in later years he sought to soften considerably -- he implied, if he did not state explicitly, that the words the constitution-makers at Philadelphia used were modeled upon their economic interests and the views which stemmed from them. In an interesting detailed application of this general thought, Walton Hamilton and Douglass Adair in their The Power to Govern argued that the word "commerce" must be interpreted in accordance with what "commerce" meant to the fathers: that a broad, mercantilist notion was what the constitution-makers "intended" to have understood in the commerce clause. An examination of the political thought of the new constitutions in such exacting and refined terms would be a Herculean task, little short of an intellectual and social history of Continental Europe during the last two generations. All that is being attempted here is to indicate the broad framework of general ideas on politics into which these constitutions are set.1

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1
The constitutions to be considered here include the French Constitution of 1946, the Italian Constitution of 1947, and the German Basic Law of 1949 -- with occasional references to the German Land constitutions of 1946 to the present; attention is also given to the emergent Constitution of Europe. Regarding leading commentaries for the French Constitution, mention might be made of Maurice Duverger , Manuel de droit constitutionnel et de science politique ( 5th ed.; Paris, 1948), Julien LaFerriere, Manuel de droit constitutionnel ( 2d ed.; Paris, 1947), Georges Burdeau , Manuel de droit public -- les libertés publiques, les droits sociaux ( Paris, 1948), Marcel Prélot, Précis de droit constitutionnel ( Paris, 1948); for Italy, Oreste Raneletti , Istituzioni di diritto pubblico ( 13th ed.; Naples, 1948), P. B. di Ruffia, Diritto costituzionale (lo stato democratico moderno) (Vol. I; Milan, 1949); on the Italian Constitutional Assembly, V. E. Orlando La costituzione della repubblica italiana, which gives textual extracts and an interesting introduction by the editor, is valuable; the Italian text is contained in the volume published by the general secretariat of the Chamber of Deputies in 1949, entitled L'assemblea costituente, which also contains other legislation in summary; for Germany, no good commentaries have yet made their appearance. Three divergent American accounts may be mentioned, however: A. Brecht, "The New German Constitution," Social Research, XVI ( December 1949), 425-73; Hans Simons, "The Bonn Constitution and Its Government,"Proceedings of the Twenty-sixth Institute of the Norman Wait Harris Memorial Foundation, pp. 204-14; and Carl J. Friedrich, "Rebuilding the German Constitution," American Political Science Review, XLIII ( 1949), 461-82 and 704-20. The text of the important constitutional documents is contained in Germany Under Occupation, Illustrative Materials and Documents, eds. Pollock, Meisel, and Bretton ( Ann Arbor, 1949). See also, for a general discussion of the constitutions within the longer perspective of constitutional development, Carl J. Friedrich, Constitutional Government and Democracy ( Boston, 1950), and the literature cited there at length.

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