In my article Violència constitucional (literally "Constitutional violence") of 19th February on El Nacional, I emphasised the fact that both the prosecutions in the trial of Catalan politicians and the majority of Spaniards see the 1978 Constitution as an indispensable requirement or precondition to establish and maintain a peaceful and democratic society. Without the Constitution, they insist constantly, democracy is not possible. And, at the same time, this democratic coexistence, which comes through constitutionally-specified mechanisms (like elections or specific legal structures), legitimises the Constitution. To say it another way, democracy and the rule of law were "constituted" jointly in 1978, supporting each other in a kind of reciprocal, symbiotic relationship.
The speech made by Felipe VI to the World Jurist Association Congress on 20th February summarises this position quite accurately. For the Spanish monarch, "democracy and the rule of law are (...) inseparable realities, since they create the only space in which liberty can live and the only framework within which equality can flourish. As such, the defence of democracy has to be at the same time the defence of the rule of law. Without democracy, the law would not be legitimate; but without law, democracy would not be real nor effective. As such, it doesn't make sense, it's not admissible to call upon a supposed democracy over and above the law, because without respect for the law, neither social harmony nor democracy exist, only insecurity, arbitrariness and, in short, a rupture in society's moral and civil principles".
Any action to break the Constitution or even to change it outside of the mechanisms the Constitution sets out to reform itself is illegal, non-democratic and illegitimate. The decision by the Catalan Parliament and government to hold an independence referendum which, ignoring the reform mechanisms set out in the 1978 Constitution, could come to deny the unity of Spain, constituted an all-out (and impossible to justify) attack against the constitutional contract that all the Spanish people had given themselves and which consisted of governing themselves in accordance with democratic rules. Acting against the Constitution was and is, in short, to act against democracy.
In the king's speech, the assertion of this equivalence between the rule of law and democracy is, therefore, practically complete. The rule of law is the beholdening of everyone to the law (to the constitutional order) and, as such, to the obligations and government structures it imposes. For its part, democracy is above all (and I say "above all" because there's a certain ambiguity in the meaning of that word in Felipe VI's speech) a procedure to take decisions by majorities in which every citizen has the same value (one vote). Electoral equality of the citizens legitimises their beholdening to the law (the Constitution): everyone decides (as equals) on the rules they're (equally) subject to. And this submission (as equals) to the Constitutions ensures, in turn, the legitimacy of the rule of one person, one vote.
Contrary to the king's speech, however, the use of democracy does not necessarily and automatically create the political equality, the legal guarantees and the legitimacy that Felipe VI predicts
Contrary to the formulation developed in the king's speech, however, the use of democracy does not necessarily and automatically create the political equality, the legal guarantees and the legitimacy that Felipe VI (or, more likely, his legal advisers) predicts. Let's imagine a situation where, as a result of an election (held regularly), a majority of the population not only permanently excludes a minority from the government, but also votes for laws which distribute public resources unevenly in material questions like health or education, or in symbolic dimensions like the treatment of the minority's language. Let's suppose that that majority uses the existing constitutional procedures to transform, for its own benefit, the legal institutions which have to arbitrate in conflicts between the majority and the minority. Let's consider the case where the majority acts to reinterpret, in its own favour and against the minority, the terms of the constitutional agreements which they had initially agreed upon. Finally, let's imagine a situation in which the majority limits the fundamental rights of the minority because, although the text of the Constitution includes those rights, nothing prevents the majority using its control of the legislative and legal bodies to adapt the meaning and application of each right according to its interests.
In all these hypothetical cases, the majority uses all the existing constitutional (democratic) procedures in an formally impeccable way. Doing so, however, destroys the foundations of the rule of law themselves (understood as equality before the law). Democracy and the rule of law contradict each other. And, as such, the equivalence mentioned in the king's speech doesn't exist. The democracy of the majority, which is the ultimate arbiter of the whole democratic-liberal structure, doesn't automatically guarantee the principles which inspire or define the rule of law. The constitutional order doesn't prevent possible violations of the democratic spirit (which goes beyond a system of votes and elections) which it's based on.
In any case, the keystone (of the error) of the royal speech is in its refusal to admit the existence of a "supposed democracy over and above the law". If we understand democracy as a decision-making procedure, the refusal is reasonable (although for the reasons which I've expressed more than enough above). Now, if we understand democracy to be a system of ideas which requires all parties to agree to submit themselves voluntarily to a system which treats them all equally and respects their fundamental rights, then the refusal is unacceptable. The king's speech adopts a strict constitutionalism or, in other words, a positivist formalism (according to which positive law is enough to legitimise itself) which leaves both the rule of law and democracy without a solid foundation, without lines of defence. Taken to its furthest conclusion, the king's argument makes it very difficult to consider the process which allowed the Weimar Republic to turn into the Third Reich illegitimate. In the same way, it prevents questioning of the progressive manipulation of the judiciary underway today in Hungary, Poland and Romania.
By denying that democratic and liberal ideals always precede the Constitution and that, as such, they have to inspire its interpretation and application, the monarch and Spanish public opinion are doing nothing other than intensifying the crisis of legitimacy faced by the 1978 constitutional regime
The position of the king (and, it seems, of the majority of the Spanish media) is the opposite of the Supreme Court of Canada's declaration in its well-known opinion on a possible self-determination referendum in Quebec when, in according with truly liberal principles, it established that "the [Canadian] Constitution is more than a written text", that it "embraces the entire global system of rules and principles which govern the exercise of constitutional authority (...) including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities"
Now, by denying that democratic and liberal ideals always precede the Constitution and that, as such, they have to inspire its interpretation and application, the monarch and Spanish public opinion are doing nothing other than intensifying the crisis of legitimacy faced by the 1978 constitutional regime. At least in Catalonia, the constitutional pact from the transition to democracy has lost the strength of a contract agreed to voluntarily by all parties, made for the benefit of all parties. The only possibility to restore that legitimacy is, from the Spanish side, to move beyond the monarch's speech and agree to a referendum. Otherwise, the Constitution will remain a cage, useful for the majority but destructive for the minority.