This open access book can be downloaded from link.springer.comLegal studies and consequently
legal history focus on constitutional documents believing in a nominalist autonomy of
constitutional semantics. Reconsidering Constitutional Formation in the late 18th and 19th
century kept historic constitutions from being simply log-books for political experts through
a functional approach to the interdependencies between constitution and public discourse.
Sovereignty had to be 'believed' by the subjects and the political élites. Such a communicative
orientation of constitutional processes became palpable in the 'religious' affinities of the
constitutional preambles. They were held as 'creeds' of a new order not only due to their
occasional recourse to divine authority but rather due to the claim for eternal validity
contexts of constitutional guarantees. The communication dependency of constitutions was of
less concern in terms of the preamble than the constituents' big worriesabout government
organisation. Their indecisiveness between monarchical and popular sovereignty was established
through the discrediting of the Republic in the Jacobean reign of terror and the 'renaissance'
of the monarchy in the military resistance against the French revolutionary and later
Napoleonic campaigns. The constitutional formation as a legal act of constituting could
therefore defend the monarchy from the threat of the people (Albertine Statute 1848) could be
a legal decision of a national constituent assembly (Belgian Constitution 1831) could borrow
from the old liberties (Polish May Constitution 1791) or try to remain in between by referring
to the Nation as sovereign (French September Constitution 1791 Cádiz Constitution 1812).
Common to all contexts is the use of national sovereignty as a legal starting point. The
consequent differentiation between constituent and constituted power manages to justify the
self-commitment of political power in legal terms. National sovereignty is the synonym for the
juridification of sovereignty by means of the constitution. The novelty of the constitutions of
the late 18th and 19th century is the normativity the positivity of the constitutional law as
one unified law to be the measure for the legality of all other law. Therefore ReConFort will
continue with the precedence of constitution. (www.reconfort.eu)
