THE DIFFICULTIES IN REFORMING THE SPANISH CONSTITUTION

One striking feature of Spanish constitutionalism, while not exclusive to Spain, is the failure to reform the Constitution, even though both the characteristics of the constitutional text and changes in political and social circumstances over the last thirty years have made such reform highly advisable.

There are at least three aspects of the Constitution’s treatment of the territorial power structure that Spanish experts have identified as requiring reform or, at the very least, an in-depth reappraisal of their appropriateness. First among these is the Senate, which has proven unworkable as a vehicle for representing the autonomous communities and allowing them to participate in the central government’s decision-making processes. Second is the lack of any constitutional reference to Spain’s incorporation in the European Union, beyond the generic and insufficient procedural measures contained in Article 93 of the Constitution.³ And third is the failure to complete the constitutionalization of the system of political decentralization, that is, to incorporate into the Spanish Constitution provisions pertaining to the territorial power structure. Whereas in other federal systems such provisions normally appear in the federal constitution, in Spain they are relegated above all to the statutes of autonomy and to legislation.

The issue of constitutional reform was put on the central government’s agenda for the first time in 2004. The then newly elected government of the Spanish Socialist Worker’s Party (Partido Socialista Obrero Español, or PSOE) proposed the reform of four very specific aspects of the Spanish Constitution: the Senate, the incorporation of the name of the autonomous communities (thereby enshrining their existence in the constitution), the inclusion of a specific reference to the European Union, and the equality of the sexes in the succession to the throne.

Several factors prevent constitutional reform. One is the difficulty of complying with the procedural requirements that the Constitution establishes for reform. But even though they are complex and make reform difficult, a comparison with the requirements for amendment in other constitutions suggests that they do not impose unusually high barriers.⁴ A more deep-rooted reason is related to Spanish political culture. Historically, the Spanish people have overvalued the stability of constitutions, stability being wrongly understood as the untouchability of the constitutional text. In fact, in Spain there is no tradition of modifying constitutions. Thus, over the course of the nineteenth and twentieth centuries, constitutions that were not reformed were simply no longer applied, and then finally after some years, new ones were drawn up.

The difficulty that parliamentary political forces have had in reaching the required minimum arithmetical consensus to carry out constitutional reform also forms a part of constitutional tradition and more recent political experience. Historically Spain’s Constitutions have, with rare exceptions, been party rather than consensus constitutions. The 1978 Constitution was one of those exceptions, and present-day political forces do not want to run the risk of initiating reform unless there is a clear possibility of achieving a consensus similar to that of 1978. And this is where other, more contextual, though clearly crucial, elements help to explain the lack of reform in the present day.

Although other causes may also have impeded constitutional reform, for present purposes it is enough to note the absence of formal reform, while emphasizing that the failure to reform the Spanish Constitution has not precluded changes in the organization of territorial power but has simply meant that these changes have been produced by alternative means, which have therefore taken on a special significance.

These alternative means have not necessarily had greater practical significance in Spain than elsewhere. Indeed, it is possible that even if the Spanish Constitution were reformed on a regular basis, these other means would also play an important role in adapting the system, as in fact occurs in other countries. Nevertheless, most often adaptations of the system require formal reform of the constitution. Thus, although some de facto changes have taken place, the failure of formal constitutional reform has prevented necessary alterations in the system.⁶ What is clear is that when constitutional reform is not produced through formal channels, other ways of adapting the constitutional system, such as legislative and de facto approaches, gain prominence by the simple fact that they are the only ones available. They are also strengthened by another characteristic of the Spanish Constitution, namely, its vagueness, or low normative density, in terms of regulations concerning the territorial power structure.

In concluding this introduction and in counterpoint to what has just been said, one should note that in reaction to the ongoing process of reform of the statutes of autonomy that began in 2003, the PP has begun to reconsider its opposition to the reform of the Spanish Constitution. During the campaign for the 2008 General Elections, it proposed to strengthen the position of the central government and institutions in relation to the autonomous communities through reforms aimed at specifying the scope of central powers, limiting the situations in which the central government could delegate powers to the autonomous communities and increasing the majorities needed in the Spanish Parliament to pass the reforms of the autonomous communities. These proposals have been sympathetically received by many in the PSOE and by a number of political and legal specialists and academics. Such constitutional changes would have an initially rationalizing aim and justification, namely, the rebuilding of unity following the reform of the statutes of autonomy, and yet they would also serve to recentralize and close the system.