Understanding Constitutions: A Study of French History PDF

**INTRODUCTION** **I - Definition of Constitution** **The 1st Constitution:** - adopted in September 1791 : was a reflection of the revolutionary ideas → goals : establish a constitutional monarchy → king = head of the executive ; legislative power was conferred to a unique assembly That...

**INTRODUCTION** **I - Definition of Constitution** **The 1st Constitution:** - adopted in September 1791 : was a reflection of the revolutionary ideas → goals : establish a constitutional monarchy → king = head of the executive ; legislative power was conferred to a unique assembly That Constitution was based on the idea of National sovereignty (the principle that each country has independent **sovereignty** over its domestic policies and arrangements). The right to vote was restricted, there was a distinction between active citizens and passive citizens. In order to vote, you had to PAY → voting was considered more as a function than as a right. **The 2nd Constitution:** - adopted in June 1793 → because of the circumstances (the Terror), that one was never fully applied. However, it remained a powerful source of inspiration → goals : popular sovereignty (pouvoir aux mains du peuple). It was widly inspired by the ideas of Jean-Jacques Rousseau (equality). Voting was a right, it was less restricted (all men could vote, no distinction between active/passive). Executive power → collective body (24 members), elected by the legislative body. → idea : weaken the executive. Those 24 members were considered as "agents/instruments" of the Assemblée. Assemblée = leading power. Democratic ideas, the goal was to establish a semi-direct democracy. That Constitution has been considered by some as a moment of utopia in french history (it guaranteed the right of "happiness"). Ps : "happiness" was also talked about in the declaration of independence (USA) **The 3rd Constitution:** → 1795 → "Le Directoire" → goal : restore order → reaction to the mess in the country. Starts with the declaration of the rights/duties of the men and citizens. → first time the notion of "duties" is mentioned. It reveals the strong will of restoring order. Legislative power was given to 2 assemblies, the executive one was conferred to directors. 3 very different constitutions ⇒ instability and diversity of the time. **Multiple changes:** France = 15 constitutions in less than 250 years. In contrary, USA = only 1 (1787) (even tho it was changed multiple times →27 amendments). The 1958 French Constitution was modified 24 times. Longest French regime = the 3rd Republic (1870-1940). The 5th Republic is on its way to overcome the 3rd one (63 years). **Most countries in the world have a constitution\... okay... but WHAT is a constitution?** supreme law of a country (=at the top of the hierarchy). It represents the fundamental choices made by a country and its people in order to establish the basis for a political/social life. A law MUST respect the Constitution + if u wanna change a Constitution, you need to vote through a SPECIAL procedure. \- tension between European treaties and French constitution \- goal of putting the rights in the Constitution = make them harder to change + those rights are at the top so they HAVE to be respected. **West Virginia V Barnette case (USA):** **Barnette**, 1943 : " the very purpose of a bill of right was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and to establish them as legal principles to be applied by the court." "Well they are legal principles that can be applied in court" the goal is to protect certain rights and make sure they'll be protected no matter what happens in the political life (controversy between left/right etc.) + rights are not symbolic, they are LEGAL PRINCIPLES **How was the Constitution perceived?** For a long time, Constitutions were not perceived as TRUE legal norms/higher law. They were symbolic, moral declarations. The Constitution is the supreme law but parliaments can still violate it → there is a paradox and a tension. For a very long time law statute enjoyed a special status in France. It's the "legicentrisme", the law is central in the system. DDHC : Article 6 says : "the law is the expression of the general will". For Rousseau, the general will cannot go wrong so the law is considered inviolable. It shows the immunity of the law. In 1936, the Council of State (Conseil d'état) affirmed that legislation can't be reviewed.  "Arrighi" case However, the law is more the will of the majority than the will of the general opinion. History has proved that majorities CAN go wrong. Therefore it appears necessary that that statute (law) is to be controlled by a constitutional judge. **The length of a Constitution:** the size is variable. - Iceland = a few thousand words - India = 200 pages (la plus longue ever)  - France = 112000 words In France, there is a constitutional block that is not limited to the text of the 1958 Constitution. Napoléon: "Constitution should be short and obscure" **II - How do we distinguish between constitutions?** - By using a formal criteria : formal and substancial Constitutions (formelle et matérielle) ////////// LEARN BY HEART Formal = idea that there is a **specific constitution form**, that constitution norms are produced by a specific entity, through a specific procedure, distinct from ordinary laws. Substantial = the **content**, the norms that deal with **constitutional matters** → norms dealing with the form of the state, the distribution of power, fundamental rights. //////////// These 2 approaches don't always align/coincide. We can find countries with a substantial constitution, but without a formal constitution. There are countries with a substantial constitution but without a formal one like in the UK, in the formal point of view there is no consti in the UK but in the substantial approach there is a consti. 2019 (context: Brexit), Miller case: "Although the UK doesn't have a single document entitled THE CONSTITUTION, it nevertheless possessed a Constitution established over the course of our history by Common Law, statutes, conventions, and practice. Since it hasn't been codified, it has developed pragmatically and remains sufficiently flexible to be capable of further developments" - the second court of the UK. - Flexible/rigid Constitution = level of difficulty to change the constitution. Is it easy or not to change the constitution ? Ex: the US one is very rigid, BUT IN PRACTICE, the Supreme Court changed an amendment (abortion). The UK seems flexible but it's not so easy because there are no formal constitution. The question cannot really be asked for the UK\... **III -  Modification of a Constitution:** Constitutions need to develop overtime to correct provisions that have proven to be inadequate/unworkable, also to respond to new needs/public demands, and to reflect evolving conviction of human rights. If the Constitution is modified too frequently, the risk is that it would **undermine its integrity/coherence**. If there are not enough changes = can become outdated + less relevant. ⇒ There needs to be a MIDDLEGROUND between **flexibly** and **rigidity**. **Process of changing a constitution:** The original constituent power (the authority that will establish the first constitution) **VS** the Amending power (the authority able to change the constitution). To change the Constitution in France, we have to respect the 89 articles. **Can we change everything?** - Ex : German constitution : basic principles are protected (eternity clause) tension between democracy that can do whatever it wants and fundamental rights that can be barrier to democracy. **IV - How do we protect a constitution?** 1 - Having a **special procedure to modify it** 2 - Having a **Constitutional justice** → the idea that a court will review the laws and will check whether those laws are accorded to the constitution. For a long time it was practiced only in the US. It was recognized by the Supreme court in 1903 in a famous case called **Marbury VS Madison**. Hens Kelsen (famous austrian lawyer) played an important role in the development of the constitutional justice in Austria. It was hard to establish it in France (because they considered the law infaillible). Constitutional justice was introduced in the Constitution of the 4th Republic (1946). Its name was : **Comité Constitutionnel (constitutional commitee)**. Constit. justice developed during the 5th Rep. with the creation of the **Conseil (Consul) Constitutionnel.**  Main issue raised by Judicial review = democratic legitimacy of judicial review How can we justify that 9 unelected people are able to modify laws voted by the representatives of the people? Tension between democracy and judicial review → Government by judiciary Ex: **Ulysseus**, going back to Ithaca, problem with mermaids, dilemma. in this example, Ulysseus represents the people → we can make mistakes, we can be seduced, we know we make mistakes THEREFORE we tie ourselves, with what? With the CONSTITUTION, and so, we will not be able to violate certain rights. The sailors in this context would be the judges tying the rope- thus the Constitution. What if the sailors don't understand Ulysseus' message? ⇒ How do we interpret the Constitution? How do we tie the rope? **V- The Current French Constitution** modified 24 times since 1958. Composed of: **[A Preamble, 16 titles, and 89 articles]** the French C is not limited to the text of the C of 1958. → the French C is broader, larger. → since the 1970s, the C has grown into what we call the C Block (le bloc de constitutionnalité) → this block consists of : - The C of 1958 - Declaration of the rights of men and the citizen (1789) - Preamble of the C of 1946 - Charter for the environment (2005) - The fundamental principles recognized in the laws of the Republic → Block created by the constitutional council in a very important decision "**freedom of association**" on July 16th 1971. How did the Council create the C block? In the Preamble of the C of 1958, you find a reference to the DDHC. And in this Preamble, you also find a reference to the Preamble of the C of 1946. → they thought bc those texts were mentioned in the Preamble, they should be part of the C. But the people who voted the C in 1958 didn't think that the Preamble had legal value: it was purely symbolic. **Chapter 1: The Constitution of the 5th Republic** ***Section 1: The adoption of the Constitution*** **A- The origins of the fall of the 4th Republic** - 4th republic was established in 1946 after WW2 and it ended in 1958 after a period of trouble that started in Algeria. context: in may 1958, there was a coup in Algeria. The president of the 4th Republic, René Coty appointed Pierre Pflimlin as the new head of government. Pflimlin was in favor of negotiating with the FLN. This nomination provoked an insurrection among the high ranking military officers. On may 28th 1958, Pierre Pflimlin resigned, and the following day, Coty asked Charles de Gaulle to take the role of Prime Minister (DG was perceived as the only person capable of solving those issues). The president Coty specified that he would resign if the Parliament did not support De Gaulle by a vote of confidence. June 1st 1958: De Gaulle becomes Prime Minister and gets the support of the National Assembly (329 votes for DG and 224 votes against). Question: Why did some people vote AGAINST De Gaulle? Fear: if we give DG this power, he will have all the power. The 4th republic fell and was swept away because of the Algerian crisis. But that was NOT the only reason that regime fell.... - government instability → under the 4th Republic, governments lasted in general for 6 months. One government actually lasted for only 10 days. The executive branch, power was WEAK. That kind of regime is called an "assembly regime" which illustrates the powers of parliament under the 4th Republic but also under the 3rd Republic. 3rd Republic: 1870 - 1940 The 5th Republic will try to correct those problems. June 1958: De Gaulle will try to solve one short term problem and one long term problem. short term problem → crisis in Algeria and politic uncertainty long term problem → structural problem, the need to change the C As a consequence, 3 important laws were adopted on June 7th 1958: **1st law**: Gives the government special powers in Algeria **2nd law**: Gives the government full legislative powers (the government can pass the powers instead of the Parliament) **3rd law**: The Constitutional Act of June 3rd → empowers the government with the mission to write a new Constitution *3 elements in this last law:* **1**- this law modifies the way the 4th Republic can be changed. DG wanted to modify the C but under the Constitution of the 4th Republic, it was very difficult. He manages to change article 90 and establishes a fast procedure to change the Constitution of the 4th Republic. **2**- that act provides the basic elements that DG, that the government must respect in order to draft the new Constitution. The government must respect 5 principles in the new C: - democracy → universal suffrage is the only source of power - concerning the separation of powers → executive and legislative branches should be separated - accountability of the government to the Parliament → fundamental element bc a key element of a Parliamentary regime - the judicial authority must be independent → the judge should not have too much power - the relations between France and the former colonies **3**- the law establishes the procedure for the elaboration of the Constitution. 2 elements: - Government has to consult an advisory committee (comité consultatif constitutionnel) - The draft Constitution has to be approved by the people by a referendum. elements were made to reassure those who feared. **B- The Drafting of the Constitution** it involves 2 teams : 1. A committee of experts (mostly lawyers) 2. An inter-ministerial committee (ministers, lawyers and CDG). The second team made proposals and amended the projects drafted by the first team. After 1 month of work, they had a preliminary draft. Very short and rapidly written, so consequences... That draft was sent to the **advisory committee**. This committee had 39 members: 16 from the national assembly, 10 from the Council of the Republic, and 13 appointed by the Government. Paul Reynaud was the head of that committee. Mission → give its opinion on the draft. August 4 1958: they agreed with the basic structure of the text, although there were some disagreements. It did not matter though, why? → it was only advisory, the government did not have to follow the advice. The text is then sent to the Council of state for an opinion. August 27th: Michel Debré (important role on the drafting) made a speech at the Council of State where he presented the C. Important speech bc Debré describes the intentions of the drafters. The goal of this C is to establish a rationalized parliamentary system and to restore the powers of the president. **C- The Adoption of the Constitution** DG presents the draft C to the people on September 4th 1958, Place de la République. ⇒ it's a very symbolic way to illustrate the republican sensibility. Malraux "That's the rendez-vous of history and the republic" September 28th: vote. The C was approved by a big majority, the YES won by 79%. October 4th : the C was promulgated The institutions created by the C were progressively established **D- The Inspiration of the Constitution** Main sources of inspiration: 1- The thoughts of DG, his legal views → he gave a very famous speech in 1946, in a town called Bayeux "le discours de Bayeux" : that speech was made after the 1st referendum for the adoption of the 4th C. IDEAS: he wanted... → efficient institutions → to restore the authority of the executive branch → constrain parliaments → mistrust of political parties → a "certain vision of France" The president must be someone above political parties. Article 5 of the C of 1958 : "The president of the Rep shall ensure due respect for the C, he shall guarantee by his arbitrations the proper functioning of the public authorities and the continuity of the State" "He shall be the guarantee of national independence, territorial integrity, and due respect for treaties." - player than referee, important because of DG's own experience of the war → for dg, the outcome in1940 would have been different if France had at that time a strong leader and strong institutions. "All my life I had a certain idea of France" - DG 2- The ideas of Michel Debré - important role in the drafting of the C, agrees with DG on the need to establish state authority, brings legal expertise. - develops certain techniques to rationalize the Parliamentary system ⇒ weaken so the President could have more power Strict delimitation between the competence of statutes, laws / decrees (executive orders) August 27th 1958: presentation of the C ⇒ establish a true parliamentary system 3- The ideas of senior officials, former council presidents ⇒ emphasize the need to prevent government instability 4- scholars, lawyers, politicians who under the 3rd Rep and under the 4th Rep argued for changes ex: Carré de Malberg Maurice Hauriou ⇒ in favor of constitutional justice ***Section 2: Key Elements of the Constitution*** Key elements: structure of the C title 1: Sovereignty title 2: President title 3: Government title 4: Parliament ⇒ the order has meaning, we want to restore and develop the power of the president for ex, in the C of the 4th rep: title 1: Sovereignty title 2: Parliament title3: Economic council title 4: treaties title 5: the President ⇒ shift, the role of the President has increased **A) A theoretical framework** mix of a parliamentary system and a presidential system **Parliamentary regime:** ⇒ the most obvious example would be the UK system, the primary characteristic of this regime would be that the Parliament is dominant, a chamber of the Par is democratically elected and the head of government is also the leader of the political party leading the chamber of the Par. collaboration of powers between the Par / Gov The gov is accountable to the Par ⇒ the Par will be able to check the work of government and they may remove the gov through for ex a vote consequences: head of gov will have no incentive to dissolve the assembly and vice versa separation of powers but also separation of parties **Presidential regime:** ex: the US system Under a presidential regime the president is elected by the public directly OR indirectly. 2 chambers in the Parliament the president cannot dissolve the parliament and the parliament cannot remove the president **B) The main characteristics of the French Constitution** "No conventional regime, no presidential regime, the way is narrow for us, it is that of the parliamentary regime" - Michel Debré, speech of August 27th 1958 " the gov wants to renovate the parliamentary system, I will be tempted to say that the gov wants to establish a parliamentary system because of many reasons, the Rep has never succeeded in establishing a parliamentary regime" - Debré "The reason for this choice is simple, the assembly regime is impractical and dangerous. The presidential regime is currently unable to function in France" "the system of Assembly is one where the totality of power in law and in fact belongs to a Parliament. The presidential regime is the form of the democratic regime which is the opposite of the Assembly regime. It is marked by the importance of the power given in law and in fact to a head of state elected by universal suffrage." The establishment of the 5th Rep was driven by several objectives 1- break away from years of instability (1 gov every 6 months) 2- restore the power of the State and head of State 3- restore the balance between the executive and the legislative branch ⇒ rationalize the parliamentary system rationalized Par system with the pre-eminence of the president of the Rep the executive can dissolve the Assembly (art 12) other characteristics: division of the initiative of the laws between Gov / Par. Other members of the gov cannot be members but they can come to assemblies. restoring the power of the executives? more legitimacy to the president → he has to be elected in 1958: the president was designated by the Par Art 16 of the C → full powers to the president in times of crisis rationalize the powers of the Par → strict delimitation of the competence of Par (art 34) C of 1958: roots of imbalance, political instability 5th rep: whether we are in a time of concordance of majorities / **Content of the Constitution** the C is broader, C → block of constitutionality The French system has to establish if we are in a time of cohabitation or in a time of concordance of majorities (the fact that the president is in the same party as the assembly), cohabitation is when the president and the head of government are from different parties. The notion of constitutionality **A) The elements included in the block** block of 1958: 89 articles, the text deals mostly with articles related to institutional and normative constitutional laws Principle of equality (art 1) Individual liberty (art 66) ⇒prohibitions of arbitrary detention "The principal of a republic shall be government by the people, of the people, and for the people."- Lincoln Declaration of the Rights of Man of 1789 → not formally included in the C of 1958 but was mentioned in the preamble of the C of 58 ("The french people solemnly proclaim their attachment to human rights and to the principles of national sovereignty has defined by the Declaration of 1789, confirmed and complemented by the preamble of the C of 1 946") The Preamble of the C of 58 has Constitutional value - Decision by the CC on July 16th 1971 - December 27th 1973 ⇒ First generation rights "Declaration" → the State is merely declaring the rights and not creating them "Ignorance, forgetting our content for human rights are the only clauses of public misfortune and government corruption" ⇒ included in the Preamble of the Declaration ⇒ need to declare those rights, because if we forget our rights = corruption "We must constantly remind all members of the social body of their rights and powers" 5 core elements concerning the Declaration: 1. **The influence of natural law** ⇒ this Declaration is linked to the philosophy of natural law Art 2 of the D: "the aim of any political association is the conservation of the natural and imprescriptible rights of men. These rights are liberty, property, safety, and resistance to oppression." natural law/positive law 1. **The notion of individualism** ⇒ change from the structure of the "Ancien Régime" based on order and bodies No more groups, we are focusing on individuals. Rights can be exercised individually. Freedom of association is thus not protected explicitly in the text. Laws adopted in the R era that would try to PREVENT individualized freedom. 1. **Liberalism** 1789 → classical example of liberalism you need to PROTECT and GUARANTEE the rights and freedom of individuals by limiting the State's powers. Social rights are not protected. 1. **Legicentrism** The law is the expression of the general will. Art 6: "The law is the expression of the general will" ⇒ influence of JJ Rousseau LEARN === Arrighi 1936 ⇒ law statutes cannot be reviewed 1. **Universality of the rights** Everyone is entitled to his rights, those rights are proclaimed without consideration of concrete effectiveness and without specific guarantees being established ⇒ difference between French and English Declarations **The Preamble of the C of 1946** ⇒ C of the 4th Republic, October 27th 1946 - referred to in the preamble of the C of 58 → argument used by the CC to recognize the Preamble of 46 (bloc de consti argument) added value : the preamble protects certain political rights but especially economic and social rights ⇒ those rights were absent in the text of 1789, that's why the Preamble of 46b enriches the principles of 1789 Rights that were protected: - education (actions taken by the State) - employment - housing first use of the Preamble: made by the CC in a very important decision on January 15th 1975 → IVG, abortion law **Fundamental principles recognized by the laws of the Republic** the CC declared certain principles to be fundamental principles recognized by the laws of the Republic issue? the powers of the CC Fear of government in the 80s, the CC established certain conditions: - 1st criteria: those principles have to emerge in laws adopted under a republic ⇒ cannot work under the second empire or the monarchy for instance - 2nd criteria: the laws in question must be adopted before the C of the 4th republic, before 1946 ⇒ because the category itself is mentioned in the preamble of 46 - 3rd criteria: the principle in question must have been applied in a continuous matter over time ⇒ the application or the principle must not have been interrupted in any way - 4th criteria: the principle must be sufficiently general - 5th criteria (recent, 2013): the principle must deal with fondamental rights, national sovereignty or the organization of public powers. counter argument → do you really have limits when you're the one creating those limits? The first use of that category was in an important decision : **July 16th 1971, freedom of association** Elements: - freedom of association - respect of the rights of the defense - individual liberty - freedom of education - freedom of conscious - independence of the administrative judge - independence of university professors - specific competence for the administrative judge - the judicial judge protects private property - apply specific rules for juvenile, criminal law - specific law in Alsace principals to be fundamental those elements have constitutional value and the cc can use them to check to see if a law is conform or not distinction between **judicial judge and administrative judge** ⇒ clear distinction safer to go to the written aspect than the elements. Those principles are rare now, they were mostly used in the 80s/90s. **The environmental charter** adopted in 2004 and added to the Preamble of 1958, through a constitutional revision in 2005. it protects issues related to the environment at the C level → importance of these issues ⇒ laws passed by the Parliament MUST respect this charter it protects the "le principe de précaution" → they thought it would be an obstacle to research and innovation the right to live in a balanced environment: health also protects the right to participate in the development of public decisions, had been consequences on the environment you have rights but also DUTIES. not all of them can be evoked in the new procedure created in 2008: *the Priority Preliminary Ruling on Constitutionality (QPC)* goal ⇒ thanks to the new procedure we can differ the law to the Conseil you could challenge a law BEFORE the law was promulgated who were the authorities? The prsdt of the Rep, the Prime Minister, the prsdt of the Senate, the prsdt of the Assembly, 60 deputies or 60 members of the National Assembly Risk? **Certain constitutional principles** principles that can't fit in the other categories mentioned → like the continuity of public service **A) the elements not included in the block** the block includes the C and only the C. So there are elements not included in the block, like international and European treaties. Treaties \> Statutes (in art 55) and C\> Statutes BUT Treaties are not in the C so the CC cannot declare a law unconstitutional just because it is contrary to a treaty. "règlements of the Senate" Organic laws are not written, they are a specific kind of laws distinct of the ordinary laws. Implement provisions of the C. The C is limited, it cannot go into details, so the organic laws have the details. Therefore these laws are very important. The procedure of these organic laws is more complexe than with ordinary laws. International and European norms. International agreements, treaties, are not included in the block. Examples of individuals to appeal to the court of human rights in Strasbourg when they consider that the state has violated their rights and freedom guaranteed by the convention. The convention is important. B\) EU convention / European convention of human rights EU → eu legal order is divided into primary legislation and secondary legislation primary: European treaties and now codified into 2 trees (TFEU & TEU) secondary: norms adopted based on the treaties like the directives or regulations of the UE treaties \> laws adopted but treaties and C \> statutes; Costa vs Enel, 1964 (un arrêt important qui a affirmé la primauté du droit de communautaire sur le droit national) : 2 different solutions **Control of constitutionality** (review whether a low respects the C) / **Control of conventionality** (respects the international, all the other judges, all the ordinary judges) example: in May 1975, important decision, CC distinguished between control of constitutionality/conventionality, decision about abortion. L\'arrêt Nicolo du Conseil d\'État du 20 octobre 1989 rappelle, conformément à l\'article 55 de la Constitution, que les traités internationaux priment les lois, mêmes postérieures, dans l\'ordre interne. Problem, difficulty? ⇒ you could have a law violating the C but not a treaty and vice versa There are specific rules that are governing the reviews of French laws trespassing the EU conventions. **C) The Unity of the block** content of the block: different norms from different times, different inspirations etc... so there might be contradictions/tensions between these In 1992, the CC ("la nationalisation") emphasized the unity of the block and equality between the elements of the block. The declaration of 1789 does not prevail over the C of 1946, no hierarchy. BUT in that decision there was a contradiction between the right of property of 1789 and the possibility of having nationalisation mentioned in the preamble of 1946. **In theory no hierarchy but 1789 can prevail.** tension between 2 rights guaranteed by the same text for example ⇒ freedom of expression / religion. No hierarchy but it seems there is actually a hierarchy. The environmental charter → *a posteriori* review, certain elements are less protected than others. First gen rights \>.