17.1 Introduction
Approved in the aftermath of the democratic revolution of 1974, the Portuguese Constitution of 1976 (PC) was a solid success, both from political and constitutional points of view. With it, the basic pillars of a solid democratic political regime were established, as well as a broad catalogue of fundamental rights and institutional guarantees that have proved themselves to be essential elements of a new, transformed country. Both the post-revolutionary and pre-constitutional period and the first decades of democratic constitutionalism were marked by the public expression of very different ideologies and worldviews, as well as social, economic and political projects for the country that were deeply distinct. The content of the PC, in its various versions (it was amended seven times between 1982 and 2005), is the result of arduous political negotiations and broad social consensus.
The development of democratic constitutionalism in Portugal in the last (almost) fifty years has been marked by some important debates, which still influence different views and interpretations of the Constitution. I would like to highlight two of them: first, a discussion of the nature and limits of the ‘constitutional project’ enshrined in the CP, the normative strength of the constitution, and the margin of appreciation given to the democratic legislator. Second, the debate about constitutional openness, European integration, and the constitutional consequences of the overwhelmingly desired ‘European path’ of the country, which evolved more recently to be a reflection on the contradictions between such a path and national constitutional characteristics, especially during and after the euro crisis. The objective of this work will be to reflect on the constitutional imaginary of democratic Portugal, in particular on the discrepancies between national constitutional aspirations and European integration, which are particularly acute in what regards the so-called social question (i.e., the social project, including social rights as limits to the legislator, and views of the political economy that are strikingly different at the national and EU levels).
17.2 Constitutional Consensus
To understand Portuguese constitutionalism, one has to know a bit of national history and the idiosyncrasies of the country. The Portuguese Constitution entered into force on 25 April 1976, two exact years after the military coup d’état of 1974, which opened the path for a democratic revolution that brought deep structural transformations, not only at the political and constitutional levels, but also in the economic and social spheres.
Until 1974, and since 1926, Portugal lived under an authoritarian regime. Its concrete features are debated, varying between its classification as a parafascist State and a ‘Portuguese form of fascism’, without a fascist movement; nevertheless, it was certainly a dictatorship with corporatist and fascist characteristics.Footnote 1 However, a distinct element must be immediately pinpointed, as it is especially important for constitutional history and to understand its specific imaginary: the national dictator, the man who designed the Estado Novo (the ‘New State’) regime and ruled the country as ‘president of the council of ministers’ for decades, was a professor of law. The Portuguese dictatorship was, in many ways, a dictatorship of law professors who were protagonists – and not mere ideologues or side helpers – of the definition and implementation of the regime.Footnote 2 The main consequence of this fact is that almost half a century of authoritarianism was anchored on an ‘illusion of legality’, a sort of civilisational patine quite different from typical fascist military dictatorships, with which the authorities tried to disguise or justify the existence of censorship, political police and political prisoners, torture, colonialism, and an overall lack of pluralism and of democratic institutions. The ‘New State’ held a plebiscite to approve a constitution, in 1933, which stayed in force until the democratic revolution, in 1974. It was an interesting and eclectic legal document, with a list of fundamental rights (mainly civil and political rights, whose exercise depended on legal or administrative regulations and should not ‘hurt society or disrespect moral principles’Footnote 3), a strong corporatist trend and a clear illiberal identity.
The similarities and differences between the 1933 constitution and the democratic constitution of 1976 conditioned the early constitutional debates in the recently implanted Portuguese democracy. Both the constitutional imaginary and democratic constitutional settings were characterized at the time by utopian elements (what the democratic regime should aim at), very pragmatic agreements on constitutional design (how the new democratic institutions should work), but also by a clear rejection of the ‘constitutionalism’ of dictatorship (what the new regime should not do, or tolerate in any circumstance).
The approval of the Portuguese Constitution of 1976, following a revolutionary two-year period (1974–1976), was the culmination of a difficult path, which entailed serious political conflict and a long negotiating process. I believe this is one of the reasons why the PC has proved to be quite resilient during the last decades: the fact that it was born out of true conflict and not of fake consensus. The divergences between the participants in the constituent process were clear (and quite considerable) and the final text was a good mixture between different elements and distinct political affiliations and traditions, from the catholic social doctrine and Christian democracy to the more prevailing socialist and social-democratic views. Although the very idea of constitutional consensus was disputed by some,Footnote 4 who stated that the 1976 PC was transitory in nature or necessarily contradictory, the dominant opinion today is that the constitution embodied a political compromise, combining the pluralist and representative political democracy, typical of liberal western thinking, with an economic, social and cultural democracy of socialist tradition. Furthermore, the consolidation and the persistence of the PC (that is about to celebrate its forty-eighth anniversary) was accomplished through complex political agreements, which went beyond the time of the constituent assembly and had important manifestations in the constitutional amendments of 1982 and 1989.Footnote 5
17.2.1 A Normative Constitution
The main elements of the PC confirm this idea of compromise and a common political project embodied in the constitution.Footnote 6
First and foremost, the PC was conceived as a normative constitution in pure German terms. As such, it is considered, in line with the teachings of K. Hesse, to be the general objective order of the complex relations of life, the fundamental act of the polity. The Constitution not only regulates the division of power (establishing who can do what, when, and how) but also imposes concrete tasks.Footnote 7 Having normative primacy over the entire legal order, it conforms the actions of the state, creating legal limits to political choices.
It is important to bear in mind that many of the members of the constituent assembly (1975–1976) and other key political actors were lawyers and legal academics, heavily influenced by German legal tradition, which was very strong in Portuguese academia at the time. The idea of constitutional supremacy enshrined in the PC echoes not only the known teachings of H. Kelsen, but also the works of H. Heller and K. Hesse.Footnote 8 The normative strength of the constitution conferred legitimacy on the state’s powers, but also directed and limited their action. An intricate system of constitutional justice, which combined European centralized abstract review with the common law judicial review of constitutionality (allowing every single judge to refuse to apply any norm that they deemed in contradiction with constitutional rules and principles), was set in place; initially, the final decision in the process of abstract review of constitutionality belonged to a military organ (the Council of the Revolution), whereas, after the first amendment of the constitution, in 1982, such powers were conferred upon the Constitutional Court, created after the extinction of said Council.
The PC encapsulated a vision of social transformation through law, akin to a Weimar Constitutional Moment.Footnote 9 The constitutional norms aimed at liberating Portuguese society from the previous decades of political suppression and economic destitution, relying on the establishment of new public institutions and strong legal frameworks, which were supposed to organize, condition and direct the actions of State’s organs. The discussion about the normative strength of the constitution therefore encompasses the debate about the so-called margin of appreciation or scope for action of the democratic legislator and the limits imposed on everyday political decisions by the text and the constitutional project.
17.2.2 Centrality of Fundamental Rights
The second important feature of the PC is the centrality of fundamental rights: it has one of the largest catalogues of fundamental rights, spread over fifty-six articles. It includes civil and political rights (called rights, freedoms and guarantees) and economic, social and cultural rights. There are different legal rules regulating the application of both sets of rights, with more stringent constitutional norms regarding the first one, which has allowed for their more effective judicial protection. Still, economic, social and cultural rights are conceived as true, subjective, fundamental rights that may be used to justify claims against the State and not only principles according to which public policies should be designed. It should also be noted that the completeness and detail of fundamental rights provisions are much larger than in most similar constitutional texts, including issues such as the right to data protection, a general prohibition of interference in telecommunications, or the right to an ecologically balanced environment (and the duty to defend it) decades before they were main political and constitutional concerns. This is, of course, generally useful, but it can also prove troublesome in the context of multilevel fundamental rights protection. General correspondences are easily made between international human rights and national fundamental rights catalogues; however, as often happens, the devil is in the details. Therefore, the comprehensive provisions of the PC sometimes make the contradictions emerging between the content or meaning of a given right at the national and international spheres particularly evident. Now, this is not a very difficult problem to solve if international human rights standards are regarded as minimum levels of protection, to be guaranteed in a given constitutional space, with the States being able to confer a higher level of protection. It may, however, prove a lot more complicated when the quest for a uniform application of EU law is interpreted in such a way as to prevent the strengthening of the guarantees afforded to a certain right at the national level (situation in which it is conceivable that a demand imposed by EU law is contrary to the PC).
17.2.3 Openness
Another distinctive element of the PC is its openness, also said to be a manifestation of legal internationalism. There are several examples of this: the constitutional consecration of a general principle of equal treatment of foreigners (who enjoy the same fundamental rights as Portuguese citizens, with a few exceptions); the duty to interpret fundamental rights’ norms according to the Universal Declaration of Human Rights and to apply internationally recognized rights in the national legal order; the principle of respect for human rights in international relations and a general integration of international and EU law into the Portuguese legal order.
Also, in the realm of international relations, the PC has consistently embraced a remarkably open approach, evident, for example, in the prevision of an automatic incorporation of general and conventional international law into the domestic legal order. The emancipatory and optimistic narrative of the Constitution is apparent in its vision for Portugal’s integration in the European Union and the global community, outlined since the first version of the constitutional text. Over subsequent constitutional amendments, these principles were either maintained or reinforced; this is especially noticeable in the 1992 amendment, whereby an addition to Article 7 of a provision allowing agreements with other Member States for the joint exercise of powers necessary for EU construction was approved. Additionally, Article 8(4), introduced in the 2004 constitutional amendment, underscores the openness of the national constitutional order to the EU legal framework, subject to conditions defined by the EU itself. The constituent legislator acknowledged the imperative to adapt the PC to the evolving reality of ‘inter-constitutionality’ or ‘multi-level constitutionalism’Footnote 10 and did so with enthusiasm and under a large consensus.
17.2.4 Political Pluralism and Democratic Governance
The constitution also designed a political regime firmly based on democratic decision-making and political pluralism. This is a distinctive feature of the Portuguese constitutional project, in slightly different terms than compared to similar legal orders, as the constitution goes much further than the establishment of a democratic form of government, with a hybrid semi-parliamentarian regime, a directly elected Head of State, with relevant powers, a government with broad legislative competences and independent courts.
The idea of democratic governance and pluralism goes way beyond that, with a significant number of constitutional provisions regarding self-government and participation in many spheres of public life. Examples of this are, of course, the institution of free political parties and a general freedom of association, but also the right to broadcasting time conferred to both political parties and unions; the fundamental right of workers’ commissions to participate in the drafting of labour legislation and to oversee companies’ management; the principle of decentralized and participated management of the national health service; the right to take part in the drafting of urban planning instruments; or the right of students and teachers to take part in the democratic governance of schools. The idea of an effective, decentralized, popular and prevailing democracy is displayed throughout the constitutional text, with a much deeper meaning and scope than mere representative democracy, although representative institutions are the basis of the democratic regime.
This particular concept of self-government is, therefore, both an important part of national constitutional imagination, deriving from an anti-oligarchic narrativeFootnote 11 shared by a large majority during the period of democratic consolidation. Therefore, throughout the Portuguese Constitution – from the catalogue of fundamental rights and respective institutional guarantees, to the legal provisions on the form of government, including the economic constitution – there is an implicit ideal of popular participation and democratic legitimization of the management of public affairs and of political decision-making. This is a relevant feature, not only because it falls within the scope of national constitutional imagination, but also because, if taken seriously, it constitutes an important limit regarding the design of institutions and public policies under the responsibility of the democratic legislator.
17.2.5 Regulation of Economic Infrastructure and Public Policies
Lastly, I would like to notice one important feature of the PC, largely ignored in the last few decades: the detailed regulation of the economic infrastructure and policies. The PC has general rules regarding economic government and planning, with emphasis on the subordination of the economic organization to democratic political power; the public, private and cooperative property of production resources; public/common goods; and industrial, commercial and agricultural policies. Also, the PC establishes the right to property as a fundamental social and economic right (and not a civic right) and affords the private sector a central position in the economic process, but gives the State very relevant powers in terms of guidance and control of economic activities and income (re-)distribution.
Some of the provisions of the economic constitution have been overtaken by contemporary reality and especially by European integration and policies. This is one of the problematic dissonances between the national constitutional order (the national constitutional imaginary?) and the EU. Whereas EU constitutional law, particularly the Treaties, intend to design and protect an economic system of neoliberal features, the PC presupposes a strong degree of State intervention in the economy and a very strong subordination of economic policies to the fulfilment of constitutionally defined State’s fundamental objectives and fundamental rights. This is combined with the central role of work and workers in the PC, which is also problematic in some areas of European integration and a possible source of tension (the constitutional right to strike, for example, clearly affords a higher standard of protection to workers and unions in the national legal order than what results from the ECJ jurisprudence, and there is a constitutional express prohibition of lock-down).Footnote 12
The constitution was amended seven times between 1982 and 2005. The current text is strikingly different from the original one in a few symbolic aspects, namely the fundamental aim of the Republic, stated in Article 1, which changed from ‘the transformation into a classless society’ to ‘the construction of a free, just and solidary society’. Still, it has been able to maintain its most relevant and unique elements, and I think one may say that the PC remains the same, although it has changed significantly.
17.3 Constitutional Debates
The constitution was a key element of the political stabilization of the country, and it allowed Portugal to affirm itself as a consolidated democracy and to begin the path towards European integration. Nevertheless, the initial consensus quickly gave way to fierce debates about certain constitutional questions, which were, in reality, the legal side of broader political divergence.
17.3.1 Social Transformation through Constitutional Law
The first dogmatic and ideological confrontation over constitutional interpretation that I would like to signal occurred mainly in the 1980s, just before, and after, the significant – and politically divisive – constitutional reform of 1982. It was a debate about the role of the constitution in conforming the action of the State, around the concept of directive constitution (‘Constituição Dirigente’). It was also, truly, a discussion about the very nature of a constitution, what it is, what it does and how it works and, therefore, a conversation about constitutional imaginaries and traditions and about constitutional utopia.
Extensively grounded in German doctrine and scholarship (especially in the works of K. Hesse) and the object of significant revision over the years, even by its main proponents, the idea of a directive constitution is based on an understanding of the constitution as much more than an instrument of government; it is conceived as the container of a shared political, economic and social project that is, in its origin, primarily counter-factual, but aims at being progressively accomplished and institutionalized. Therefore, the purpose of a directive constitution is to achieve deep social change through law, engaging all State’s organs in that task.
However, insofar as these objectives are intensely political, its primary actors should also be political ones – the directive constitutionalism’s main subject is the legislator, and not the courts, unlike its later evolution towards transformative constitutionalism, particularly in the Global South. The idea of achieving transformation through constitutional law presupposes the legal effectiveness of the so-called programmatic norms, otherwise often understood (and consequently interpreted and applied) as mere political declarations. The theory also presupposes a theory of the State and a theory of sovereignty, because the existence of a sovereign State is both an unsurpassable precondition and an essential tool of directive constitutionalism.
The long, deep and fierce debate about this issue still resonates today and it had significant consequences in constitutional jurisprudence that I will briefly analyse later. It was also exported to Brazil (and Latin America in general) through the active participation of Portuguese leading academics in the country’s constituent process in 1988 and other academic ties. It is, however, in essence, the Latin version of a German debate. The main proponents of the interpretation of the PC as a directive constitution were professors of the University of CoimbraFootnote 13 under the influence of K. HesseFootnote 14 and also of the work by P. LercheFootnote 15 on the binding of the legislature by constitutional principles and the teachings of W. AbendrothFootnote 16 about the Social State. Their intention was to use legal tools and the usual dogmatic instruments to interpret and apply constitutional norms regarding the social dimension of the social and democratic State in a way to allow them to be as effective as other kinds of legal provisions. Still, more than a conflict over the so-called programmatic norms, there was a serious disagreement on whether or not the legislator was completely free to pursue any goals, independently of their constitutional conformity, or if the constitutional rules and principles about State’s aims and duties had a binding effect.
Some of the adversaries of the directive constitution were influenced by the work of E. Forsthoff,Footnote 17 and favoured the idea of a broad power of command of the State, with a very wide margin of discretion of the legislator regarding not only the means, but also the ends of the norms it enacted. Also, almost all the opponent authors shared a notable preference by the notion of Rechtsstaat, or rule of law, opposed to the more socialist leaning Sozialstaat, or welfare state; they stood for limited judicial constraints over the democratic legislator, even if grounded on the constitution, and debated the possibility of existence of unconstitutional constitutional norms, after O. Bachof’s work.Footnote 18
As I said before, the debate had important consequences not only in the academic world, but also in constitutional jurisprudence. The problem regarding the existence and extension of a directive dimension of the constitution was the framework under which a more specific and practical problem was discussed: to determine whether or not the PC enshrined a general principle of prohibition of social regression, implying that, once a certain level of development of social rights has been achieved, such standard becomes both an institutional guarantee and a subjective fundamental right, binding to the legislature. The recognition of said principle does not mean there can be no reversion or change of social policies according to the democratic will and the political context, but it does entail that legislation that completely reverses the standard of achievement of a social right or seriously threatens to do so, without providing alternatives or compensation, should be ruled unconstitutional. Early constitutional jurisprudence often mobilized this argument, although in a very limited and sensitive way: the prohibition of social regression should be applied only where there are clear and concrete constitutional injunctions for State’s action (and not general principles of action or an enunciation of the objectives of public institutions), whenever the legislator annuls or totally reverses previous legislation that enacts it. This was the basis for the ruling of unconstitutionality of a law that abolished the National Health Service (see Judgement of the Portuguese Constitutional Court no. 39/1984) and an important element in various other decisions. Still, the principle was contested from the beginning, initially by a minority of constitutional judges, whose view grew more popular over time. In the decades of 1990 and early 2000, the Court seemed to abandon it completely, often expressly mentioning the idea of prohibition of social regression in order to refuse it, on the basis of the need to accommodate a large margin of appreciation of the legislator, who should be able to approve new norms and design public policies according to its democratically sanctioned views. Overall, the Court consciously acted as a weak counter-majoritarian organ, self-restraining its potential to influence or condition political actions and choices.
Still, the debate about the directive dimension of the constitution and the prohibition of social regression would soon return, under new robes: the general principle of the protection of legitimate expectations that would go on to be the constitutional parameter on which many rulings of unconstitutionality were grounded, in particular during the period of the so-called crisis jurisprudence. According to several constitutional decisions, some of which are prior to the economic crisis, such principles should operate when the reduction of the content of a certain social right affects its minimum core or when it entails an ‘arbitrary or manifestly unreasonable’ reversal (see, for example, Judgements of the Portuguese Constitutional Court no. 509/2002 and 188/2009). Again and again, Portuguese constitutionalism and constitutional jurisprudence are confronted with the meaning of the constitution, its possibilities and limits and the consequences they entail to State’s actions, democratic choices and fundamental rights. With a very rich and far-reaching constitutional text, this question – nowadays usually framed under the question of whether the State can undo what it previously did – remains central to the national constitutional imaginary.
17.3.2 Constitutional Contradictions: Between Social-Democratic Origins and European Neoliberalization
Portugal joined the EU in 1986, ten years after the approval of its Constitution, only four years after its first amendment, in 1982, in which the military were definitely removed from power.
For a long time, the potential problems arising from the dissonances between national and European constitutional law were largely ignored. The main argument was that the existence of a common constitutional tradition would help solve any difficulties, and that serious sources of stress regarding the relationship between the national and the European legal orders were not really foreseeable. There was some debate about this around the period of 2003–2008, when the process of approval of a constitution for Europe was taking place, and when the ECJ’s Judgements in Laval and Viking came out, showing that the very different standards of protection of workers’ rights at the EU and national level could perhaps cause some trouble. Still, European integration and its legal and constitutional consequences were generally welcomed.
The most important contradictions obviously regard the EU’s and the Portuguese economic constitution. Whereas the former has a neoliberal nature, especially after the Maastricht Treaty, favouring market freedoms, limited States’ intervention in the economy and tight budgetary and fiscal rules, the latter’s main features (and, actually, the political and economic project underlying the whole PC) have a clear social-democratic inclination. As I said before, the economic chapter of the PC has been largely ignored during the last few decades, but the differences seem almost unsurmountable. Nevertheless, this did not seem to pose a serious hurdle, as the most problematic national constitutional norms regarding the economy are mostly principles and not rules and are not usually used in constitutional adjudication.
However, the economic chapter of the constitution and the catalogue of fundamental rights are not watertight compartments, especially when that catalogue is as large and detailed as the Portuguese. Some social and economic rights, such as the right to health and the right to education, are to be ensured, first and foremost, by public services (the National Health Service and the public-school system), very thoroughly regulated at the constitutional level. Although the PC recognizes the existence of private schools and private medicine, such goods are thought to be largely outside of the market, due to their fundamental status. Moreover, the idea of subordination of the economy to the democratic political powers, which prevails in the national constitution, may lead to very different outcomes regarding constitutional adjudication at national and EU level.
The country tragically realized this during the period of economic crisis, from 2010 to 2015, when the clash between the PC’s social-democratic origins and the later European neoliberalization became evident. In 2011, a bailout programme was negotiated with the European Commission, the European Central Bank and the International Monetary Fund, which took the form of an agreement on a Financial and Economic Adjustment Programme in exchange for a financial loan of EUR 78 billion. Not all of the austerity measures adopted during that period were coming from pressure of the EU bodies but many of them indeed corresponded to demands made in the Memoranda, as acknowledged even by the Constitutional Court.Footnote 19
The contradictions surrounding the main elements of the national constitutional imaginary posed difficult questions and raised a harsh debate: how could Portugal combine its European vocation – and fulfil the demands of the EU’s budgetary rules – with its social-democratic political project? Did we have to accept social regression and a significantly lower standard of fundamental rights, in particular social rights (or even the absence thereof), in order to maintain the desired openness of our constitutional legal order? Did the national constitution still have clear normative strength? Suddenly, the country was facing its very own Sophie’s choice: it could affirm the normative strength of its constitution and to uphold its social-democratic constitutional project or it could willingly abide by EU demands, under a very difficult financial and economic crisis; but it could not have both.
The role played by the Constitutional Court in this dilemma is well known. Called to adjudicate in several cases of abstract review of constitutionality of austerity measures – both by the President of the Republic, the Ombudsman, and parliamentary minorities, who made a conscious decision to constitutionalize the political conflict – the Court assumed a role of intervention and defence of fundamental rights, against the mentioned measures of austerity. Still, a more detailed analysis of the so-called crisis jurisprudence actually shows that the position of the Constitutional Court has been much more complex and nuanced; far from the judicial activism of which it has been accused, the Court has exercised a remarkable degree of self-restraint in its decisions about the measures taken by the government in response to the economic and financial crisis.Footnote 20
In general, during the crisis period, the Constitutional Court was called on to assess the constitutionality of norms concerning three main types of measures: (i) legislation on the public employment sector, in particular provisions regarding pay-cuts and reducing the payment of overtime; (ii) legislation on social security benefits, especially pay-cuts and ‘special contributions’ imposed upon pensions, as well as changes to the legal regime of old age pensions; and (iii) lastly, legislation concerning taxes and the fiscal system. This was the very core of the social state: in a crisis, who pays for what? Which fundamental rights may be affected, which social benefits are to be cut and which are to be maintained, and what is the constitutional framework to do so?
Initially, in the first two judgments (see Judgements of the Portuguese Constitutional Court no. 399/2010 and 396/2011), the Court did not strike down any element of the recent austerity policy. On the contrary, it adopted a deferential stance towards the legislature, recalling its frequent argument regarding the margin of appreciation of the democratic parliament and the epistemic limitations to the exercise of constitutional adjudication in such cases. Furthermore, the Court relied on an evaluation of exceptionality and proportionality, claiming that the reviewed measures did not breach the principle of protection of legitimate expectations nor the prohibition of retroactive taxation. As time went by, however, the Constitutional Court’s stance changed. Several judgments of unconstitutionality of State’s budgetary laws and labour and social security reforms (see Judgements of the Portuguese Constitutional Court no. 353/2012, 187/2013, 474/2013, 862/2013, 413/2014, 572/2014, 574/2014 and 575/2014) were adopted and external political criticism of the Court’s position grew stronger and more aggressive. Even though there was a clear division inside the Court itself – with some of its justices’ dissenting opinions openly criticizing the majority for interfering with the political options, claiming epistemic insufficiency to review public policies’ choices and arguing for a weak scrutiny and for an interpretation of the constitution in light of the constitutional commitment to European integration – the building of a quite coherent body of case-law, based upon the principles of the protection of legitimate expectations, equality and proportionality went on, gaining huge popular support and reaffirming some of the key elements of the national constitutional imaginary: the primacy of fundamental rights, including social rights, enshrined in a normative constitution that, though opened to the European legal order, had not lost its central role in national political life. Political pluralism and democratic governance also proved relevant, as the intervention of the Constitutional Court was rendered possible by initiative of several key political actors, namely minority MPs.
17.4 Multiple Constitutional Personalities or the Search for Constitutional Identity
The contemporary Portuguese constitutional imaginary faces a crossroads. Although it has overcome the financial crisis’ period without a clear rupture between one or more of its main components, the truth is that it is becoming increasingly difficult to find a compromise. As the European integration process advances in an unbalanced way (or stalls) and new crises arise, one must question the opportunity and usefulness of the constitutional debates that fill the Portuguese imaginary.
Yet, interestingly enough, the contradictions that came about during the financial crisis’ period were neither a crisis of the idea of directive constitution nor of the idea of social transformation through (constitutional) law. Such ideas emerged from that time reinforced, only not at the national level. What became evident during the years of economic disaster was the prevalence of the European political project and its own directive constitutionalism, imposing significative restraints on the legislator and other national bodies, upholding its own balances between fundamental rights and economic organization and promoting its own idea of systemic change and evolution. The paradoxes and contradictions resulting from this phenomenon, from a constitutional point of view, have more to do with the (at least partial) opposition between the national and European constitutional projects than with any other fact.
Therefore, the main problem seems to be the future of the social state, and of the idea of social, economic and cultural democracy, guaranteed through law, whose implementation and promotion is binding upon all State’s powers. In other words: if the EU is intrinsically neoliberal, can we be social-democratic at the national level? Is it possible for our constitutional framework to remain opened but plural and democratic, normatively strong and constitutionally coherent, with a strong commitment towards all fundamental rights enshrined in the national constitution? Is there even a choice, after the Brexit experience? Abandoning the European integration project does not sound like a sensible answer nor would it have the support of the majority of the citizenship. On the other hand, it is doubtful that the same citizenship would endorse the clear and honest assumption of limits to the exercise of sovereignty and free democratic choice in non-harmonized matters or in the sphere of exclusive national competences.
Portuguese constitutionalism needs an honest discussion on what we want to keep, what we are willing to change and what we have already lost. However, that must be done within an environment of political honesty, where those who argue in favour of openness do not do so only because they prefer neoliberalism to social-democracy; and those who sustain the normative strength of the constitution and the use of law as an instrument of social transformation bear in mind that such transformation may or may not be the one that they would defend.
The years ahead, with new and more difficult crises looming on the horizon, promise to make the tension between the written constitution and its imaginary, on one hand, and the real constitution, on the other, much clearer. In other words, the strain between constitutional imagination and the effective application (or lack thereof) of constitutional norms in a context of inter-constitutional and inter-normative dialectic exchanges will probably become more evident.
The main problem seems to be the ability to determine whether this tension is simply the result of the limits of the normative strength of the Constitution, due to social and economic factors, or the manifestation of a new type of limit, not only economic, but also institutional and systemic, in the current EU context. In other words, rather than to a situation of economic and/or political fragility per se, are these tensions due to the resizing and complexification of the constitutional system in the European framework? If so, what methodological approach – if any – may be useful to preserve national constitutional consensus, while still fundamentally respecting the obligations of EU membership? Will the constraints dictated by the economic system be so strong that, in the long-term, and even within the framework of the European Union, they make it impossible to change or alter other elements of the system (social, political, legal and economic)?
Constitutional law is, at the same time, a limit to the exercise of power, and a socio-political project, a repository of the fundamental objectives of a social and political community. If it proves incapable of binding the sovereign bodies to its own hierarchy of values, which should preside over the design of any public norm or policy, and if it allows the deterioration of legal and institutional guarantees of fundamental rights – that is, the pillars of the constitution – very little remains.
Naturally, it will ultimately be up to citizens to decide which dimensions of the original constitutional project they want to rescue, which features are so fundamental that they still identify with them. There is a strong political dimension to the problems described above that is not something to be denied, nor is it to be solved solely through legal means. But the truth is that it is the task of constitutionalism to explain and propose conditions for guaranteeing the greatest possible effectiveness to the constitutional norms in force.
I believe that there are two fundamental methodological premises to achieve this objective. Reconciling them will not always be easy – perhaps not always even possible – but they constitute a starting point for a discussion that deserves to be deepened.
17.4.1 Preserving Openness, with Feet on the Ground
First of all, I think we would benefit from highlighting the possibilities allowed by the very idea of openness and the concrete constitutional provisions that support it – especially in what concerns the relationship with the EU’s legal order – without losing sight of sovereignty, normativity and a tiny bit of constitutional utopia. Openness is a good feature more often than not and, in order to walk a shared path, one needs to listen and learn. Many fundamental rights provisions may not be read through a single national lens anymore and the search for meaning, the definition of limits to the actions of public powers in every level of the European constitutional space, as well as a balancing of parameters through comparative constitutional law seems a good way to go forward. Therefore, whenever that is necessary, the interpretation of constitutional parameters should take European standards of protection of fundamental rights into account, allowing the interpretation of national constitutional provisions to change and widen, in order to promote similarity and coherence regarding EU law. As an example, I would highlight the reasoning in the Judgments of the Portuguese Constitutional Court no. 268/2022 and 800/2023, on metadata retention, where the majority of judges upheld an interpretation of relevant national constitutional norms according to the standards drawn by the European Court of Justice on the same subject.
Still, there is a lot that is worth preserving from the specific national constitutional imaginary. First and foremost, the idea of a much deeper and significant meaning of democracy, one that is pursued across different levels of society, and goes beyond civil rights, encompassing demands of democratic governance of many public (and even private) institutions, and the guarantee of social conditions to do so. Any contradictions with EU law in this sphere should, therefore, be resolved, favouring democracy, as a more effective and decentralized democracy is probably a pathway to solve some of the European hurdles anyway. The greatest difficulty in applying this principle comes from the European Union itself, and from the idea apparently inherent in the discourse of its institutions, in particular the ECJ, according to which constitutional idiosyncrasies (sometimes even the institutional and organizational schemes on which national constitutions are grounded) must yield in all circumstances to guarantee the principle of the primacy and uniform application of Union law.
However, EU constitutionalism seems to remain today insufficient to provide any operative notion of collective self-representation, to be able to replace the national sphere as the core of the constitutional imagination of European peoples (the Portuguese certainly included).Footnote 21 In this sense, the preservation of openness at national level requires, at the very least, a fruitful dialectic with European institutions, and a set of mutual concessions without which, sooner than later, the conflict over the meaning of rights and the implications of dissonant political projects will arise.
In the specific realm of fundamental rights, it is important to notice that regarding rights more is often better and a good instrument of protection of political and cultural minorities. Therefore, we should not give up on either our own catalogue of fundamental rights nor on the national understanding of their practical meaning (which is an important part of our constitutional imagination), in order to maintain openness. Openness is not structurally incompatible with strong national fundamental rights’ standards, not even with a political and socio-economic constitutional program of social democratic nature, in which social and economic rights have a strong stance. Also, openness allows for the reinforcement of rights regarding new issues, being especially useful with regard to complex and transnational problems, the solution of which requires international cooperation and even a joint exercise of sovereign powers.
Finally, the boundaries that limit the application of fundamental rights should preferably be defined at the national constitutional level or at least with its participation, unless very specific problems of EU law are at stake. Subsidiarity provides context, closeness and more thorough proportionality reviews and I believe it avoids many problems. In the motto ‘united in diversity’, promoting respect for diversity seems to be a sensitive way to go. The re-emergence of the individual States in every successive crisis actually shows it is even in part unavoidable. The search for a shared constitutional identity at EU level seems to give way to national interests and needs and to national democratic claims whenever there are serious problems. As such, the normative strength of both legal orders would be strengthened if both the scope of application of the principle of subsidiarity and the insurmountable borders of the common European project were more clearly and wisely defined.
17.4.2 Preserving the Transformative Nature of the (National and European) Constitution
The transformative nature of constitutionalism depends on its ability to promote agreed social changes and to resist setbacks. Such transformation is multidimensional, acting at the political-ideological, legal and social levels. Under the influence of a certain constitutional framework, it is possible to observe profound alterations in the sphere of individual rights, in the economic organization, in the system of legal sources, in the organic distribution of competences and in the institutional framework of a given community, in a given sovereign space and in a relatively short period of time. This is what happened in Portugal after the approval of the constitution in 1976, which was followed by a period of expansion of the fundamental rights effectively ensured, with the consequent improvement of a series of social indicators. The constitutional framework was thus an essential element in the impulse of social progress in the sense of the promotion of fundamental rights – both in the civil and political dimension, as well as in relation to economic, social and cultural rights.
The process of European integration is also an example of the transformative potential of constitutional law, since the adoption of European Union constitutional law changed in an equally profound way the countries that progressively joined the EU. In a short period of time, these states opened up to the outside world, accepting the free movement of workers, services and capital, recognized an additional status of citizenship conferring rights to non-nationals (European citizenship) and reorganized their economic system in the sense of opening up markets, guaranteeing respect for competition rules and strengthening the role of the private sector in the economy.
The clash between the two transformative impulses inevitably came about when, in an everchanging crisis scenario, it is becoming increasingly clear that the two transformational projects, enshrined in the different constitutional levels (national and European), are not always on a path of complementarity, as had long been advocated. The future reconciliation of the two tendencies, within the framework of a genuine European constitutional law, will therefore require the clear predominance of one of the two dimensions – the social or the market dimension – in the service of a true European constitutional law.
Thus, preserving the transformative potential of national constitutional law requires, in the Portuguese case, increased attention to the dimensions of EU constitutional law that reinforce it, to the detriment of those that contribute to its weakening. The idea of a socially committed Europe and the strengthening of the normative force of the provisions of the European Pillar of Social Rights and the European Social Charter could perhaps help. The problems of democratic legitimacy for the imposition of certain measures and the difficulties arising from contradictory claims to sovereignty, however, remain unresolved issues.Footnote 22
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