A constitution is a special law which regulates the basis for all matters that concern the state. It determines what is the state’s structure and who has the power to adopt laws and to make and enforce decisions on behalf of the state. The constitution also regulates the status of individuals in the state: it safeguards and guarantees human rights.
Wherever such a constitution exists, all acts performed on behalf of the state must have a constitutional basis. Nobody must disregard the constitution and act in violation of it.
A constitution does, however, not regulate in detail all that is going on in the state. It provides the basic framework and the „rules of the game“ which are to remain in force over time. They should be a matter of consensus. They provide the framework for organising communal life in a state. For this reason, amendments to the constitution are subject to specific rules.
The Austrian constitution is called the Federal Constitution. It actually consists of several laws, the most important of which is called „Federal Constitutional Act“ (Bundes-Verfassungsgesetz). The federal constitution can only be amended if two thirds of the members of the National Council, and in certain cases also two thirds of the members of the Federal Council, agree. Far-reaching changes of the federal constitution require the additional agreement of a majority of the citizens in a referendum.
Description and standard
In many languages, the word „constitution“/„Verfassung“ is also used in everyday language. In English, it usually refers to the act of setting up or establishing something or to the physical makeup of somebody or something. If we say that someone „has a strong constitution“, we mean that he enjoys robust health. If we are talking of the constitution of something, we mean its structure or composition.
In German, when we say that somebody is „in guter Verfassung“, we mean that he or she is fine. The phrase may also be used with reference to business enterprises or states. When a state is said to be „in keiner guten Verfassung“, this may imply that politicians and the police in that state are corrupt or that people can no longer be safe there.
A term frequently used in discussions or descriptions of Austrian politics is „Realverfassung“ („constitutional reality“, or „the constitution as it works“). It means that „in real life“, or in practice, the influence of the federal government, the political parties and other organisations is often much greater than the law would provide.
It is important to know these two meanings of the German word „Verfassung“ – the special law on the one hand and the description of a concrete state of affairs on the other hand. What makes a constitution so special is that it is precisely not a mere description of „the way things are going on“ in a state. Rather, it clearly determines who has which powers and in which manner the state and all those who hold offices or responsibility in a state, are to act. The constitution sets limits to, and standards for, the actions of the state and of those who are acting on its behalf (e.g. the Federal President, the government, police, a mayor, …)
It is not self-evident that laws are discussed in detail before they are enacted, that courts of law decide independently, that the administration is acting in a fair manner towards everyone. Even today, there are many states in which arbitrary decisions are the order of the day or where corruption prevails. A constitution sets as a standard that such things do not occur. The constitution provides the standard against which all state action – the acts performed by Parliament, government, the administration and the courts of law – is to be measured. This also requires watchful citizens, committed parliaments and responsible media which keep insisting on compliance with the standards set by the constitution.
Response to injustice
Constitutions of this kind have been in existence for over 200 years. The oldest constitution still in force is that of the USA. It was enacted in 1787, and although new passages were added over time, overall it has undergone only minor amendment. The history of all modern democratic states is very closely linked to the demand for, and the achievement of, a constitution. Only by enacting modern constitutions was it possible to put an end to the rule, or limit the power, of kings or influential groups of individuals. Only modern constitutions permitted to guarantee the freedom and rights of all individuals living in a state.
In the history of many states, the constitution was enacted after a war or civil war or after the end of despotic rule. It thus was a response to the experience of injustice. It established principles for organising communal life in the future. In this sense, the constitution is a promise to be willing to go another way in the future. This is why, in many states, people are particularly proud of „their constitution“, and it is important to learn about it at school.
The Austrian Federal Constitution
The history of Austria’s modern constitution began in the year 1848. At that time, Austria was a big empire where individual families, such as Habsburg, and the military had much power. In a revolution in 1848 it was demanded that this power be limited and freedom granted to all individuals throughout the country, in particular also to the peasants. The revolution at that time was put down. It was not until 1867 that much of what it had called for became reality. Some of these laws are still in force today.
Austria’s present constitution goes back to 1920. At the end of World War I the big empire broke apart. In 1918, the Republic of Austria was established as a new state. From its beginning, the political parties were opposing each other in major conflicts. Whoever reads the text of the constitution of 1920 will notice that it contains only matters on which unanimous consensus could be reached – but not more. Many politicians were nevertheless dissatisfied with the new democracy and the constitution. In 1929 the federal constitution was amended – the Federal President was vested with more powers, while Parliament lost its strong position. A political overthrow in 1933 and a short civil war were followed by a period of dictatorial rule. In 1938, Austria ceased to exist – it became part of the German Reich under National Socialist rule.
When Austria was re-established in 1945, the constitution of 1920 (as amended in 1929) was re-enacted. Unlike in earlier years, however, it was no longer considered merely a legal basis of the state which had to be complied with whether one liked it or not. In the Second Republic, the constitution was to become the basis of a democratic society.
The Constitutional Court
In building this democratic society, the Constitutional Court was to play a very special role. This court was established already in 1920 – as one of the first of its kind worldwide! The Constitutional Court is independent of Parliament, government and the administration. It reviews compliance with the constitutional provisions by Parliament, the Federal Government, the administration and the courts of law. If a law is found to be unconstitutional, the Constitutional Court can annul it. In such a case, Parliament must adopt a new law and, in doing so, is to take into account the Constitutional Court’s decision. When the Constitutional Court reviews elections (e.g. parliamentary or presidential elections), it may rule that the election has to be re-run.
The constitution as a basis for communal life
The constitution is the basis of all legislation in force in a state, and the standard against which it is to be measured. In a democratic state under the rule of law, the law of the state serves as the basis for the coexistence of individuals in a society. It regulates the relationships between all individuals living in that state – no matter whether they are rich or poor, related to each other, have the same religion or belong to the same party, do or do not know each other. No matter whether individuals consider laws to be good or bad, right or wrong: everyone must adhere to them when dealing with others. In matters concerning the coexistence of individuals in a state, the constitution is the highest-ranking law – religious rules, political convictions or traditions cannot have priority over the constitution.
The history of the Roman Catholic Church is a good example: For a long time, it rejected the guarantee of human rights (in particular the freedom of conscience and of religion) by state constitutions. It considered them a danger to true belief. It has, however, learnt to come to terms with it. Christians have shown that it is precisely the sobriety of the text of constitutions that allows it to reflect the concerns of multiple individuals. Today the Catholic Church is an advocate of human rights and underlines that the Christian belief can also serve as a source for justifying and understanding human rights.