Brecht Deseure

National Sovereignty in the Belgian Constitution of 1831. On the Meaning(s) of Article 25

Article 25 of the Belgian Constitution of 1831 specifies that all powers emanate from the nation, but fails to define who or what the nation is. This chapter aims at reconstructing the underdetermined meaning of national sovereignty by looking into a wide array of sources concerning the genesis and reception of the Belgian Constitution. It argues, firstly, that ‘nation’ and ‘King’ were conceptually differentiated notions, revealing a concern on the part of the Belgian National Congress to substitute the popular principle for the monarchical one. By vesting the origin of sovereignty exclusively in the nation, it relegated the monarch to the position of a constituted power. Secondly, it refutes the widely accepted definition of national sovereignty as the counterpart of popular sovereignty. The debates of the constituent assembly prove that the antithesis between the concepts ‘nation’ and ‘people’, supposedly originating in two rivalling political-theoretical traditions, is a false one. Not only were both terms used as synonyms, the Congress delegates themselves plainly proclaimed the sovereignty of the people. However, this did not imply the establishment of universal suffrage, since political participation was limited to the propertied classes. The revolutionary press generally endorsed the popular principle, too, without necessarily agreeing to the form it was given in practice. The legitimacy of the National Congress’s claim to speak in the name of the people was challenged both by the conservative press, which rejected the sovereignty of the people, and by the radical newspapers, which considered popular sovereignty invalidated by the instatement of census suffrage.

Constitutional Precedence and the Genesis of the Belgian Constitution of 1831

Constitutional precedence constitutes a defining element of modern constitutionalism. This chapter aims to elucidate the way in which this idea was embedded in the Belgian Constitution of 1831. It does so by combining a historical-genealogical approach with a legal one. The chapter begins with a discussion of the genesis of the Belgian Constitution in relation to the Fundamental Law of the United Kingdom of the Netherlands. It shows how the Belgian opposition’s constitutional resistance to government policy created a debate over the interpretation of the Fundamental Law, which in turn provided the conceptual building blocks for the understanding of constitutional precedence in the 1831 Constitution. After examining the concept of legal order, the chapter explains how, in the eyes of the Belgian revolutionaries, the Belgian Constitution could be a legitimate replacement for the Fundamental Law as the foundational document of the state. The concern for constitutional precedence was expressed furthermore by recurring debates within the National Congress and the press over the constitutionality of the acts of both the constituting and constituted powers. The chapter then turns to the constitutional text and analyzes the way the precedence of the Constitution was legally anchored into the Belgian state system. Constitutional precedence was expressed by a combination of measures concerning (a) the special status and the endurance of constitutional law as compared to ordinary law and (b) the Constitution’s status as the legally binding ground rule for the constituted powers. Finally, the precedence of the Constitution was symbolically expressed by a discourse of respect for the Constitution as the ultimate guarantee of the wellbeing of the state.