Extract from "The development of devolution in post-Francoist Spain" by Ana María Sánchez Pérez
In the process of constitution-making that followed the June 1977 elections, most matters had been settled beforehand in the Spanish society, quite democratically and economically mature by the end of the dictatorship shows, at least compared to previous attempts at developing a genuine democratic framework, such as 1869 and 1931.
The issues that had traditionally split Spanish socio-political élites, such as the issue of monarch vs. republic, the relationship between the State and the Church or the particular origin of sovereignty had been relatively settled (1). The Constitution of 1978 reflects that, the majority of these issues being agreed upon in the Constitutional Commission (2), the main question to be tackled by the parlamentarians was that of the precise organisation of the State, or more accurately, the degree of devolution to be allowed and the special status (or lack thereof) of the Catalan, Basque and Galician 'nacionalidades'.
Prior to the elections of 1977, the position of Moncloa was to emulate the Italian or the Second Republic's model of organisation. As a result, the three historical regions would obtain a higher degree of autonomy and a special status within the territorial system, whereas the 'ordinary' regions would lack legislative competencies but would enjoy a certain degree of administrative autonomy to adjust legislation to regional needs. In this way, it emulated the difference in French administrative law between 'décentralisation' and 'déconcentration'. However, following the election, and perceiving the very different positions held by society, the other parliamentary forces and most importantly, by important sectors of the party.
Meanwhile, the PCE put forward a more decentralised model of organisation, although with two important caveats: It sought to maintain the organisation and the jurisdiction of labour and economic relations at the national level and defended the relatively complicated process of forming an Autonomous Territory put forward by the Constitutional Commission. That is to say, that it sought to emulate the process of forming an autonomy of the 1931 Constitution, creating a de facto, but not de iure, differentiation between the historical and non-historical regions.
The end-result of the constituent process was a one-size-fits all territorial system, with 'autonomous territories', provinces (although these could be eliminated) and municipalities. All the autonomous territories would be entitled to the same competencies - which were not laid down in the Constitution, which only established the exclusive competencies of the central government. In order to obtain the status of autonomous territory, a series of neighbouring provinces (with "cultural affinities", according to the Constitutional text) needed a two-third of the municipalities comprising the majority of the population of each province to demand it or for the Government to propose in the name of the 'general interest'. Although this last measure was only been taken in the case of the creation of the Region of Madrid in 1985.
The new Constitution, while relatively ambiguous on the exact composition of powers for the territories - left to the various regional Statutes - did create a solid division of the administrative structure of the State, with a three tiered-system (with the possibility to being reduced to two or a new intermediary one) as well as established a "right to autonomy" within the limits of the exclusive competencies of the State and without infringing the "unity of Spain and the solidarity between its peoples". In order to round up the constitutional settlement of the organisation of the State, the Constitution would provide for the creation of a territorial upper chamber (3), with considerable powers to stop the interference of the Government on regional autonomy, by requiring two-thirds or three-fifths majorities in order for the Government or the lower chamber to impose its criteria or to force the regional territories' Councils of Government to act against their own will, although it did not provide for a similar mechanism with regards to the Constitutional Court, which is elected half by the lower and half by the upper chamber.
The Constitution's final text was voted by the Cortes and received a near-unanimous support, with the sole exception of 4 deputies from AP, the one PSOE deputy and the deputy from EE, showing the consensus developed amongst all parties - and despite reticence of both PS and PNV - on the territorial model, the liberties protected and codified in the text and the role - and nature - of the head of state.
Notes:
(1) This is a slight simplification. While it was the territorial question - and the exact nature of the Senate - what arose more controversy and debate in the Constituent Cortes, it was not the only question. Civil liberties for example, and their precise listing, were also important. For instance, the PCE proposed the legalisation of both divorce and abortion in the constitutional text, whereas the PSOE proposed to ban non-public schools. These proposals were unacceptable to the UCD, which for instance wanted the Constitution to recognise the liberty of education (the right to open Catholic schools basically), the liberty of entrepreneurship or define marriage as between a man and a woman.
(2) TTL formed by 9 people, as opposed to 7. Two UCD members (Cisneros and Herrero Rodríguez de Miñón), two PCE (Turé and someone else), and one each for AP, PS, Catalan Minority, PNV and for Tierno Galván's PSP.
(3) TTL's Senate is formed by 10 members for each Autonomous Territory, plus another for every 500,000 inhabitants (or fraction over 250,000) within the limit that the biggest region's representation can not double the representation of the smallest. I haven't done the math yet. The Senate's composition would be determined by the legislative assemblies of the Autonomous Territories in a proportional manner to their own composition.
For reference, I actually mostly just took the
original draft of the Constitution, as published in January 1978. Since most changes were done precisely because the PSOE was the most unhappy partner, whereas the PCE was much more conciliatory, I think the final text TTL would be much closer to the original draft than OTL's. I have not included any reference to the Basque and Navarrese fueros, but these would be included in the disposiciones part of the text, although it would still not recognise its historic and pre-constitutional character, I believe.