The Antinomy ‘Fundamental Rights’ – ‘National sovereignty’ in the origins of Modern Constitutionalism

Abstract

This paper explores and describes the fragility of fundamental rights in the origins of Modern constitutionalism. Despite the fact that the protection of these rights constituted the raison d’être of the state and its limited powers, the introduction of both national sovereignty and legislative supremacy – regarding any law (lex) as the expression of the general will (Rousseau) – left fundamental rights in a fragile situation. The nineteenth and twentieth-century history of constitutional law shows clearly the outcomes of the fragility of many fundamental rights (liberty of movement, freedom of press, freedom of expression, religious liberty, etc.).