The beginning of the story I've told here before. In 1978, when the Constitution was enacted, no one could think that this country of emigrants going to have millions of foreign nationals residing in the territory of the State as a permanent (not counting the foreign "nationalized.") Nor had reached the new wave of globalization of the 90 or theoretically had deepened transnationalism, and had expanded the notion of citizenship. At that time, there were only with the classical categories of nineteenth-century nationalism, under which all the inhabitants of the territory subject to state power-real or claimed, constituted a nation. This had an immediate reflection in the legal category of "nationality", the link between the subject and the State to which that displays effects of public and private law. In the nineteenth century had no legal barriers in industrialized countries for the passage of people from one country to another but, in practice, the interest was in unifying the scattered regions to build a "nation" where none existed. In nations built on the old states tax, the appropriation of the labor force "foreign" was conducted primarily through colonial rule, whereas in the relatively young states built on European migration, particularly in the United States, the emphasis was on " assimilation 'of migrants to the conditions imposed by the dominant ethnic groups to build the nation. Thus, social and legal categories did not allow for many nuances members of society were "national" and "foreigners" were seen as subjects interacted only with the power of the state of a marginal or casual. In this basic scheme, half measures do not fit, or are "national", or you're not and if you're not, then it basically means that you interact with a different state.
Although these categories in 1978 had been already old, were the only ones that were in the collective imagination available to the English Constitution. Indeed, the nationalist ideology and the old category and nationality still remain a very important role in other northern European countries, but these countries have had the opportunity to assimilate in their legal tradition going back to immigration to World War II with workers from the former colonies of Mediterranean Europe. In 1978, the English were concerned about immigrants, not immigrants. It should be noted that for us, a "foreigner" is someone who has no nationality is English, while an "immigrant" is someone who is moving from another country with the intention to work and reside in Spain. I imagine that this time no one thought that the relationship of "foreigners" with the English or English society would significantly beyond casual contact, marginal, sporadic or exceptional. The "stranger" was not actually a "member of society", but rather the tourists who came in summer to seek sun and sand and scandalized the old guard with its liberal traditions, perhaps some eccentric master of business who came for work temporarily and then return to their country or, at most, the typical European bohemian artist in the purest Robert Graves style, that after all I wanted was to live his quiet hippie life, at your leisure and find inspiration in that I do not know that I know who has the bull skin for the tourists. Who would have thought that this country virtually undeveloped at that time were to have a labor market that exert such a powerful attraction for foreigners?
In this context, article 13 of the Constitution merely says that aliens have constitutional rights to say the treaties and laws and "dot ball." Well, that and that as a general rule can not vote in elections or stand as candidates. A first reading of this article could lead us to believe that the granting of constitutional rights to "aliens" is a purely arbitrary, that laws and treaties have an unlimited scope to determine the list of rights of those without English nationality. Moreover, such is the carelessness of the English Constitution the question of nationality (then its identification seemed a particularly problematic), which, contrary to what other constitutions, does not provide the most minimal definition or regulation of this institution in this way also at first glance it might seem that the laws are free to establish who are English and who are not. The result of the combination of these two readings is hasty, of course, absurd, given that it would suffice to define the national legislature at his discretion to restrict or eliminate the constitutional rights (which is not so foreign to the actual practice construction of "nation", historically represented by men white owners). What if he says that only English who descend from four generations of people born in Spain and that only the white skin? For in that case we would find discriminatory definitions of nationality, but that classification as discriminatory has no effect if we have understood that the prohibition of discrimination applies only to the English, unless the law says otherwise: " The English are equal before the law without any discrimination on grounds of birth, race, sex, religion, opinion, or any other condition or personal or social circumstance . " O For example, it could go to the strange conclusion that foreign women be discriminated against on grounds of sex in Spain if the law does not expressly preclude.
The first reading was, therefore, inappropriate from the beginning. Moreover, although no one could expect, the truth is that, slowly, Spain itself was beginning to attract foreign "immigrants." This contradiction had to be addressed by the Constitutional Court in a very early date. In its rulings establishing the famous tripartite classification of constitutional rights, which has survived to this day thanks to the inertia classical jurisprudence: there are rights inherent to human dignity belong equally to English and foreign rights in any case can be granted to foreigners (only refers to voting in the terms set forth in art. 23 EC) and rights which may or may not correspond to foreigners under the terms in treaties and laws.
If we analyze this case from a sociological point of view than legal, we can conclude that the doctrine of the TC met in this case, two functions. First, facing the above mentioned contradiction: while the English legislature is mandated to define citizenship and to develop the content of the rights of "foreigners", the task has limits, as some constitutional rights "are inherent to human dignity." Second, it provides solutions (apparent) to the contradiction in this case between the "ideal" and "structural requirements" , but from a universal value of human dignity could dream of a world of equals, without borders or nationally based legal distinctions in the exercise of rights, there are structural pressures of the social system that prevent the absolute realization of this utopia, in this way, when the TC considers that a right is very important and is acceptable by society, will determine that inherent human dignity, while that if a right is considered less essential as is required by limited social needs, establish that it is not and it was granted to foreigners will depend on the decision of the legislature.
From this perspective, the classification is very clever, as it meets these social functions properly. However, from a theoretical point of view is a very weak classification. For this reason, it is impossible to apply consistently and TC has not done before. If you look closely, we discover right away that this classification has never truly served to structure, joint or casuistic decision set Tribunal. In this context, it has served more (surely unwittingly) as a smoke screen that provides a semblance of motivation to the decision taken in each case. Inertia jurisprudential and social functionality of this smokescreen, the tripartite classification of rights is repeated over and over in sentences, but in reality does not apply . Fortunately, because, due to its theoretical weakness, not allowed to build appropriate solutions. Try to prove those matters in the next inning.
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