Jus Politicum, revue de droit politique.

Martin A. Rogoff

Fifty years of constitutional evolution in France: The 2008 amendments and beyond

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Keywords : France - Vth Republic - Revision - Constitutional history - Constitution

The Constitution of France’s Fifth Republic, adopted in 1958, has proved remarkable in its ability to adapt to changing political, social, economic, and demographic conditions and values. This is quite a departure from most of post-revolutionary French history, which had witnessed extreme constitutional instability for more than 175 years, France having had 15 different constitutions during that period. The 1958 Constitution has evolved through amendments enacted by Parliament or referendum, decisions of the Constitutional Council interpreting and applying the Constitution, and the practice of governmental institutions. This mix of mechanisms (political, judicial, and customary practice) for legitimating change has resulted in a Constitution which now plays an increasingly important role in advancing the rule of law and symbolizing and promoting social and political integration.

The extensive constitutional amendments of July 2008 continue the “constitutionalization” of French law and politics. Rejecting calls for a more radical restructuring, the French Parliament pursued a cautious, evolutionary route to reform. Following for the most part the recommendations of a commission established by President Sarkozy (the Balladur Commission), Parliament amended the Constitution to better define the powers of the president of the Republic, to better balance the relationship between the Government (the executive branch) and Parliament, and to better protect the rights of citizens. In some areas change is modest (like better defining the powers of the president and his relationship to the prime minister); in some areas change may be significant or not, depending on the ability and willingness of institutions to use their new competences and resources (like the relationship between Parliament and the Government); and in some areas change is substantial (like allowing individual litigants to have the question of the constitutionality of a law already in force decided by the Constitutional Council during litigation in ordinary or administrative courts).

Constitutional developments in France since 1958 provide an excellent example of the progressive entrenchment of constitutionalism in a nation that had long been hostile to the “government of judges” by a combination of political and judicial techniques that assure continuity and legitimacy to fundamental changes in political and legal structures and values.

I. Introduction [1]

In October 2008, France celebrated the fiftieth anniversary of the Constitution of its Fifth Republic, which became effective on October 4, 1958. [2] The Constitution, inspired by and largely drafted for General Charles de Gaulle [3] following his call to power during a political crisis occasioned by a revolt of French military forces in Algeria, was not expected to outlast the general or his resolution of the Algerian matter. [4] Given France’s constitutional history, expectations of impermanence were eminently justified. During the period between the French Revolution of 1789 and the adoption of the Constitution of 1958, France had fifteen different constitutions, [5] fluctuating from parliamentary democracy to authoritarian rule. [6] The longest lasting regime during this period was the Third Republic, which endured from 1870 to 1940, but the regime fought for its life during much of that time and ultimately proved unable to provide an effective framework for government. [7] Nevertheless, in hindsight, there was reason for optimism in 1958. The Constitution did not represent the imposition of one view of government or one set of values, as past constitutions had, but was in effect the product of long historical experience, combining as it did, elements of parliamentary government [8] with a strong executive and the incorporation in its preamble of Enlightenment values (the Declaration of the Rights of Man and the Citizen of 1789), [9] the republican principles of the Third Republic (“the fundamental principles recognized by the laws of the Republic”), [10] and the social and humanitarian values of the post-World War II period (the preamble of the 1946 Constitution). [11] Also, importantly, the 1958 Constitution was sufficiently flexible to allow for development and adaptation through amendment, interpretation, and practice. [12]

Other modern constitutions have attracted attention as progressive and enlightened charters for government, particularly the post-war German Constitution (the Grundgesetz) [13] and the more recent South African Constitution. [14] These constitutions articulate and provide for judicial enforcement of a wide range of rights, establish institutions for effective democratic government, and confront and successfully resolve historic social and political fissures in their respective societies. [15] Another recent development that has attracted substantial interest is the emergence of constitutional-type documents and institutions at the regional and international levels. [16] The European Union [17] and the Council of Europe’s human rights regime [18] are the best examples of this phenomenon; but other regional and international agreements and institutions also attest to the recognition of the need for “constitutional” principles and institutions at supranational levels. [19]

The French experience with the Constitution of 1958, however, allows us to focus on an aspect of constitutionalism that is equally, if not more, important in the long run: the entrenchment of constitutionalism in a nation that lacked that tradition, and was even hostile to it, [20] through the peaceful evolution of institutional structures and the expansion and judicial enforcement of protected values. The dynamics of this constitutional evolution, occurring as it did through a combination of constitutional amendment, constitutional jurisprudence, and the practice of established institutions allows us to observe the process of legal adaptation to new political, economic, and social perspectives and realities that is often so troublesome for political societies.

The establishment of a particular constitutional order does not mark the end of history, politics (both within the established order and challenges to it), or economic, social, demographic, ideological, or cultural change. [21] A crucial inquiry regarding all constitutional systems, therefore, is how well a particular system is able to accommodate such changes within established structures. This is so important because the replacement of one constitutional regime with another usually occurs after a period of instability, often accompanied by violence, during which the established order is unable to adapt to or to accommodate change.

Following General de Gaulle’s withdrawal from the political scene with his resignation in 1969 (after French voters had rejected by referendum a proposal he had supported for modification of the Senate), and with new political, legal, economic, demographic, and social realities confronting the nation, the institutional arrangements established by the Constitution of 1958 appeared more and more unsuitable. [22] Particularly significant developments were the growth of European law and institutions, several alternances [23] and three “cohabitations,” [24] the desire to decentralize the highly centralized decision-making and administrative structures and processes of the French state, the rise of liberal economic theories, the increasing ethnic and religious diversity of French society, and the prominence of new values (like increased emphasis on democracy, pluralism, and the equality of men and women, increased concern for the protection of individual rights, and increased concern for the protection of the environment). In response to these changes and the perceived inability of existing political structures to accommodate them, many people called for the adoption of a new Constitution and the establishment of a Sixth Republic. [25] Between 1958 and February 2008, the Constitution was amended twenty-three times, sixteen of those amendments since 1996. In July 2008, the Constitution was substantially amended to take account of these new developments, needs, ideas, and values. The principal thrusts of the July 2008 amendments were to better define and control the power of the executive, to increase the powers of Parliament, and to better assure the protection of fundamental rights. [26]

The American and French experiences provide excellent examples of how different constitutional systems react to change. For the most part, the American system has been successful in containing change within established structures. Contending forces contest their interests and views within the legislative and judicial chambers of government, rather than in the streets or on the barricades. This is so largely because of the role played by the United States Supreme Court in interpreting the Constitution. As Alexis de Tocqueville remarked, “There is virtually no political question in the United States that does not sooner or later resolve itself into a judicial question.” [27] In resolving many of those questions, the Supreme Court has interpreted the Constitution flexibly so as to allow constitutional law to accommodate new political, economic, and social situations. Good examples are the Court’s legitimization of federal power when needed to deal with truly national matters, like civil rights, [28] economic regulation, [29] national defense, [30] or international relations; [31] but the limitation of federal power when the political, social, and ideological climate in the country regards problems as better handled at the state and local levels. [32] Eschewing, over time, a univocal interpretation of the powers delegated to the federal government by the Constitution, the Court has in effect adapted the Constitution incrementally to changing political configurations and different challenges facing American society. The most notable failure of the American constitutional system to accommodate contending forces within established structures was the crisis which ultimately led to the Civil War. [33] Following that failure, the integrity of the nation was preserved only by the force of arms rather than by the peaceful operation of the institutions of government. The constitutional system that emerged from the crucible of the Civil War, with the addition of the Thirteenth, Fourteenth, and Fifteenth Amendments, and the enactment of numerous Reconstruction laws, fundamentally altered the American social contract and in fact might—if the United States shared the French propensity for rupture and numeration (rather than seeking to preserve the appearance of continuity)—very well be called the Second Republic. [34]

Until the establishment of the Fifth Republic in 1958, and really not until the famous Freedom of Association decision of the Constitutional Council in 1971 [35] and the equally crucial 1974 constitutional amendment that allowed opposition legislators to refer a parliamentary enactment to the Council, [36] France did not have an effective system for the judicial application and modification of its Constitution through interpretation. Throughout its post-revolutionary history prior to the adoption of the Constitution of 1958, constitutional change was effected either by legislative amendment or by the adoption of a new constitution. It is hard to speak of a true constitutional order if the constitution can be altered by ordinary law; in such case, the constitution is continually subject to the vicissitudes of the political process. Moreover, if the constitution cannot be interpreted to accommodate change, it ceases to be a useful framework for political life. It is thus no accident that since the Revolution, France has had so many different constitutions. In almost all cases, the adoption of a new constitution was accompanied by significant political and social disorder, and often by violence. In effect, the winners impose a constitutional order on the losers. Since constitution-making is not regarded as a one-time enterprise, the losers can look forward to other chances in the future. Why, then, give one’s allegiance to the particular constitution that has been adopted? After all, it represents the triumph of the political opposition. Rather than being the symbol of the nation, as is the Constitution in the United States, in France the Constitution has historically been a “contested document.” [37]

The European Union (EU) provides an example of a constitutional system that has responded to change by a combination of judicial and political means. The European Court of Justice (ECJ) has, since the 1960s, “constitutionalized” the Treaty of Rome in a series of important decisions, [38] and had, for nearly three decades, interpreted expansively EU power under the Treaty. [39] Responding, more recently, to concerns that EU legislation was too intrusive in areas of primary concern to member states, the ECJ has been more reluctant to approve EU legislation. [40] The ECJ has also been sensitive to the responsibilities of national constitutional courts, and has taken their views into account as it developed EU law. [41] On the political side, the Treaty of Rome has been revised several times by the agreement of member states. [42] In fact, the process of amendment, which has occurred through periodic conferences since the mid 1980s, may be described as an ongoing process of revision to allow the Treaty to accommodate new needs, initiatives, and political imperatives as they arise. Constitutional developments in France since 1958 have taken a somewhat analogous course, with constitutional change and accommodation occurring through a combination of legal (constitutional jurisprudence) and political (constitutional revision) mechanisms. Another important modality of adaptation has been institutional practice.

Footnotes

[1] © The Author 2011. Some portions of this article are adapted from the Author’s book French Constitutional Law: Cases and Materials (2010).

[2] See generally Bernard Mathieu (ed.), Cinquantième anniversaire de la constitution française: 1958-2008 (2008) (a collection of short essays by seventy-three leading constitutional scholars dealing with all aspects of the Constitution of 1958) [hereinafter Cinquantième anniversaire de la constitution française: 1958-2008]; François Luchaire, Gérard Conac & Xavier Prétot (eds.), La Constitution de la République française: Analyses et commentaires (3rd ed. 2009) (an article-by-article analysis of the Constitution of 1958) [hereinafter La Constitution de la République française: Analyses et commentaires]; Pascal Jan (ed.), La Constitution de la Ve République: Réflexions pour un cinquantenaire (La Documentation française, 2008); Les Cahiers du Conseil constitutionnel, Cinquantenaire du Conseil constitutionnel, Actes des colloques du 3 novembre 2008 et du 30 janvier 2009 (hors série, 2009). For an overview and general evaluation of constitutional developments since 1958, see Bertrand Mathieu, Propos introductifs: La constitution à cinquante ans: continuités et ruptures, Cinquantième anniversaire de la constitution française: 1958-2008, op. cit. supra, at 1. Principal treatises on the Constitution of 1958, updated to include consideration of the 2008 amendments, are: Jean Gicquel & Jean-Éric-Gicquel, Droit constitutionnel et institutions politiques (23rd ed. 2009); Louis Favoreau et al., Droit constitutionnel (11th ed. 2008); Olivier Duhamel, Droit constitutionnel et institutions politiques (2009) [hereinafter Duhamel]. The indispensable source for leading Constitutional Council decisions with commentary is L. Favoreu & L. Philip, Les grandes décisions du Conseil constitutionnel (14th ed. 2007). See also Sophie Boyron, The Constitution of France: A Contextual Analysis (2011); Martin A. Rogoff, French Constitutional Law: Cases and Materials (2010); Dominique Schnapper, Une sociologue au Conseil constututionnel (2010) [hereinafter Schnapper]; Sylvain Brouard, Andrew M. Appleton & Amy Mazur (eds.), The French Republic at Fifty: Beyond Stereotypes (2009); Jean Garrigues, Sylvie Guillaume & Jean-François Sirinelli (eds.), Comprendre la Ve République (2010); Une nouvelle Ve République?, Revue française de Droit constitutionnel (no. 82, Apr. 2010) (symposium issue on the constitutional amendments of July 2008); Andrew Knapp & Vincent Wright, The Government and Politics of France (5th ed. 2006). Older but still very useful English language books are John Bell, French Constitutional Law (1992); and Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (1992).

[3] General de Gaulle presented the broad outline of his ideas for a constitution in two important speeches in 1946. See Charles de Gaulle, Speech Delivered at Bayeux (June 16, 1946), in Charles de Gaulle, Mémoires d’Espoir, suivi d’un choix d’allocutions et messages sur la IVe et la Ve Républiques: 1946-1969, at 309 (1970) [hereinafter Charles de Gaulle, Mémoires d’Espoir]; Charles de Gaulle, Speech Delivered at Épinal (September 29, 1946), in id., at 317. See also Michel Debré, Speech before the Council of State of August 27, 1958, in Didier Maus (ed.), Les grands textes de la pratique constitutionnelle de la Ve République 2-8 (La Documentation française, 1998) [hereinafter Les grands textes de la pratique constitutionnelle de la Ve République].

[4] See Dominique Rousseau, La Ve R République publique se meurt, vive la démocratie 116 (2007); see also id. at 21-91 (describing the events surrounding de Gaulle’s call to power, the drafting and ratification of the Constitution of 1958, and the Constitution during de Gaulle’s years in power (1958-1969)); Pierre Avril, Changeante et immuable?, in Cinquantième anniversaire de la constitution française: 1958-2008, supra note 2, at 13. In 1964, future President François Mitterrand, a political opponent of de Gaulle, characterized the Constitution of 1958 as a coup d’état permanent. François Mitterrand, Le coup d’état permanent (1964); but when he was elected President in 1981, he said: “The institutions weren’t made for me, but they are well suited for me.” Cited by Dmitri Georges Lavroff, Feue la Ve République, in Cinquantième anniversaire de la Constitution française: 1958-2008, supra note 2, at 37 (2008).

[5] Jacques Godechot, Les constitutions de la France depuis 1789 (1979) (containing the texts, with commentary, of all French constitutions since the French Revolution of 1789). It is interesting to note that the same code of private law, the Code civil, which was adopted in 1804, is (as amended) still in force today. In fact, the Code civil has, until recently, been regarded as the fundamental legal document in France, rather than any of the more or less ephemeral constitutions. See Jean Carbonnier, Le Code Civil, in Pierre Nora (ed.), 2 Les Lieux de mémoire: La Nation 293 (1986); Shael Herman, From Philosophers to Legislators, and Legislators to Gods: The French Civil Code as Secular Scripture, 1984 U. Ill. L. Rev. 597 (1984). But see Antonio Gambaro, Codes and Constitutions in Civil Law, in Alfredo Mordechai Rabello (ed.), European Legal Traditions and Israel 157 (1994). For concise, comprehensive descriptions of the Code civil, see Jean-Louis Halpérin, Le Code civil (1996); Jean-Michel Poughon, Le Code civil (1992). On the pre-history of the Code civil, see Jean-Louis Halpérin, L’Impossible Code civil (1992); André-Jean Arnaud, Les origines doctrinales du Code civil Français (1969). For a collection of essays on various aspects of the Code civil, see Bernard Schwartz (ed.), The Code Napoleon and the Common-Law World (1956). For a collection of important texts related to the drafting and promulgation of the Code civil, see François Ewald (ed.), Naissance du Code civil (1989). For a study of codification in France from the Middle Ages through the Revolution, see J. Van Kan, Les efforts de codification en France: Étude historique et psychologique (1929).

[6] In a régime bonapartiste, power is concentrated in a single person. The régime bonapartiste has the capacity to act firmly and decisively but is not necessarily representative of differing views or interests. In a régime d’assemblée, power resides in the popularly elected legislative chamber to which the Government (i.e., the prime minister and other ministers) is responsible. The régime d’assemblée has often been characterized by factiousness, indecisiveness, and instability.

[7] See generally H.S. Jones, The French State in Question: Public law and political argument in the Third Republic (1993).

[8] General de Gaulle was named prime minister on June 1, 1958, following a political crisis occasioned by the insurrection of French military forces in Algeria. His Government received a vote of confidence of 329 to 224 in the National Assembly. The law of June 3, 1958, accorded power to that Government alone (“the Government which took office on June 1, 1958”) to draft a new constitution (although some parliamentarians did participate in the process). The legislative authorization to the Government, however, contained certain guarantees to safeguard the essential interests of Parliament. Constitutional Law of June 3, 1958, Providing for Temporary Derogation from the Provisions of Article 90 of the Constitution (“Sole Article. By derogation from the provisions of Article 90 [of the 1946 Constitution, providing for its revision], the Constitution shall be revised by the Government which took office on June 1, 1958, with the following formalities: The Government of the Republic shall prepare the draft of a constitutional law implementing the following principles: 1. Universal suffrage shall be the sole source of power; Legislative and executive power shall emanate from universal suffrage or from bodies elected thereby; 2. The executive power and the legislative power must be separated effectively in such a manner that the Government and the Parliament shall each, for itself and on its own responsibility, exercise fully the powers attributed to it; 3. The Government must be responsible to the Parliament; ...”).

[9] Stéphane Rials, La déclaration des droits de l’homme et du citoyen (1988) (containing the Declaration, related documents, and extensive notes and commentaries).

[10] The “fundamental principles recognized by the laws of the Republic” are principles that provide the basis for laws of the Republic that predate the Constitution of 1946 and that are recognized as having constitutional status (valeur constitutionnelle) by the Constitutional Council. For criteria for determining whether a particular principle falls within this category, see Loi portant amnistie [Amnesty Law], CC, decision no. 88-244 DC, July 20, 1988, Rec. 119; Loi d’orientation et de programmation pour la justice [Juvenile Justice], CC, decision no. 2002-461 DC, Aug. 29, 2002, Rec. 204.

[11] The preamble to the 1946 Constitution provides that “the people of France proclaim anew that each human being, without distinction of race, religion or creed, possesses sacred and inalienable rights. They solemnly reaffirm the rights and freedoms of man and the citizen enshrined in the Declaration of Rights of 1789 and the fundamental principles acknowledged in the laws of the Republic.” The 1946 preamble “further proclaim[s], as being especially necessary to our times, the [16] political, economic and social principles enumerated below.” These principles focus on economic and social rights, like the right to employment (Section 5), the right to union action and to join a union of choice (Section 6), the right to strike (Section 7), the right of workers to participate in the collective determination of their working conditions and the management of the workplace (Section 8), the principle that “all property and all enterprises that have or that may acquire the character of a public service or de facto monopoly shall become the property of society” (Section 9), the obligation of the nation “to provide the individual and the family with the conditions necessary to their development” (Section 10), etc. While General de Gaulle was certainly a leader in the authoritarian mold, he did embrace certain similar social and economic values. “To summarize the principles that France intends to place at the foundation of its national activity, we will say that, while assuring to all the maximum liberty possible and while furthering the spirit of enterprise in all matters, she should see to it that the particular interest is always obliged to give way to the general interest, that the principal sources of our common wealth are exploited and managed not for the profit of some, but for the benefit of all, that combinations of interests which have weighed so heavily on the condition of men and even on the policies of State be abolished once and for all, and finally, that each of her sons and daughters can live, work, and raise their children in security and dignity.” General Charles de Gaulle, Speech at the Palais de Chaillot (September 12, 1944), available at http://www.charles-de-gaulle.org/pa....

[12] “The Fifth Republic owes its strength and longevity to the malleability (plasticité) of its arrangements (dispositions) and to the efficacy of the executive.” Jean-Jacques Hyest, Rapport fait au nom de la commision des Lois constitutionnnelles, de législation, du suffrage universel, de règlement et d’administration générale sur le projet de loi constitutionnelle adopté par l’Assemblée national, de modernisation des institutions de la Ve République, Sénat, no. 387, 11 juin 2008, at 38 (page citation to pdf version, available at http://www.senat.fr/rap/l07-387/l07...) [hereinafter Hyest Report].

[13] For an overview of the German Constitution, see David P. Currie, The Constitution of the Federal Republic of Germany (1994); Donald Kommers & Paul Kirchhof (eds.), Germany and the Basic Law (1993); Donald Kommers, The Government of Germany, in Michael Curtis (ed.), Introduction to Comparative Government 159 (4th ed. 1997); Donald Kommers et al. (eds.), Politics and Government in the Federal Republic of Germany: Basic Documents (1995). For an overview of how the German Constitution has been interpreted and applied by the Federal Constitutional Court [Bundesverfassungsgericht], see Donald Kommers & Russell A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (3rd ed. 2011).

[14] S. Afr. Const. 1996, in Rüdiger Wolfrum & Rainer Grote (eds.), XVI Constitutions of the Countries of the World (2008). See also Francois Venter, The Republic of South Africa: Introductory Note and Select Bibliography, in id.; Heinz Klug, The Constitution of South Africa: A Contextual Analysis (2010).

[15] Although this benign outcome may have been in doubt for a while, it is now commonly accepted. See Ronald Tiersky, Mitterrand’s Legacies, 74 Foreign Aff. 112, 115 (No. 1, Jan.-Feb. 1995). (“[Mitterrand’s] new realism made possible a historic left-right accommodation, expanding the heretofore contested nature of the Fifth Republic’s political institutions and liberal economy. The willingness of both right and left to abandon France’s two-century-old ‘silent civil war’ inspired historians in the mid-1980s to declare that ‘the French Revolution is finally over.’”). See also Steven Laurence Kaplan, Farewell, Revolution: Disputed Legacies, France, 1789-1989 (1995).

[16] See generally Bruce Ackerman, The Rise of World Constitutionalism, 83 Va. L. Rev. 771 (1997).

[17] For the latest versions of the principal European Union treaties, see consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, Official Journal of the European Union, 2010/C 83/01(Mar. 30, 2010); Charter of Fundamental Rights of the European Union, Official Journal of the European Union 2010/C 83/02 (Mar. 30, 2010).

[18] See European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, as amended by Protocol 11), E.T.S. 5, as amended by E.T.S. No. 155; 213 U.N.T.S. 221.

[19] See, e.g., Rome Statute of the International Criminal Court, U.N. Doc. 32/A/CONF. 183/9, reprinted at 37 I.L.M. 999 (1998); World Trade Organization Understanding on Rules and Procedures Governing the Settlement of Disputes, Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, Annex 2 (1994), reprinted at 33 I.L.M. 1125, 1226 (1994).

[20] See Édouard Lambert, Le gouvernement des juges et la lutte contre la législation sociale aux États-Unis: L’expérience américaine du contrÔle judiciaire de la constitutionnalité des lois (1921) [hereinafter Lambert, Le gouvernement des juges]. The book appeared in France in 1921 and struck a formidable blow against judicial review. Reacting to indications that courts in France might be amenable to considering social and economic matters in arriving at their decisions, rather than following the strict letter of the law, Lambert delivered a comprehensive critique of the American practice of judicial review, which he regarded as providing an opportunity for the judiciary to impose its conservative social and economic views on the country, while overriding the more progressive views expressed in state and federal legislation. Lambert, of course, was writing during the so-called “Lochner era,” which in the United States had produced Charles Beard’s famous critique, An Economic Interpretation of the Constitution, which appeared in 1913. Beard’s book, like Lambert’s, was written in response to the Supreme Court’s striking down such progressive measures as the graduated income tax, regulations to protect workers from long hours, and dangerous working conditions, etc.

[21] While change does occur over time, the “formative era” of a particular political regime is of great significance for future political and legal developments. As Jean-Jacques Rousseau remarked: “Montesquieu says that at the birth of political societies, it is the leaders of the republic who shape the institutions, but that afterwards it is the institutions that shape the leaders of the republic…” The Social Contract 84 (1762) (Maurice Cranston, trans., 1968). According to Alexis de Tocqueville, in a chapter entitled “On the Point of Departure and Its Importance for the Future of the Anglo-Americans”: “Every people bears the mark of its origins. The circumstances that surround its birth and aid its development also influence the subsequent course of its existence.” Democracy in America 31 (1835) (Arthur Goldhammer, trans., 2004). See also Carl J. Friedrich, Man and His Government: An Empirical Theory of Politics, chap. 22, Founding the Political Order (1963).

[22] Comité de réflexion et de proposition sur la modernisation et le rééquilibrage des institutions de la Ve République, présidé par Édouard Balladur, Une Ve République plus démocratique (2008) (“Today, society’s needs have evolved.” at 7) [hereinafter Balladur Report]. See also Pierre Rosanvallon, La légitimité démocratique: Impartialité, réflexivité, proximité (2008) (arguing that new ideas regarding the legitimate exercise of authority require new institutional arrangements).

[23] Alternance refers to the phenomenon of political parties with different political tendencies succeeding each other in power. See generally Jean Massot, Alternances et cohabitation sous la Ve République (La Documentation française, 1997).

[24] “Cohabitation” occurs when the president is from a different political party than the majority of the members of the Chamber of Deputies. In this situation, the president is obliged to name a prime minister who will be acceptable to the majority party within the National Assembly. See generally Jean Massot, id.

[25] Martin A. Rogoff, One, Two, Three, Four, Five, and Counting: A Sixth French Republic?, 10 Colum. J. Eur. L. 157 (2003) [hereinafter Rogoff, A Sixth French Republic?].

[26] Balladur Report, supra note 22, at 15-25.

[27] Alexis de Tocqueville, Democracy in America 310 (1835) (Arthur Goldhammer, trans., 2004). The role of the courts in the United States in adapting the Constitution to contemporary needs, perspectives, and changing configurations of power is due in large part to the almost total impossibility of amending the Constitution itself through the political process. The Constitution is “inflexible,” as the requirements of U.S. Const. art. VII are extremely difficult to satisfy. Since the ratification of the constitution in 1788, it has been amended only 27 times, and the first ten amendments are, in effect, better considered as part of the original Constitution.

[28] Brown v. Board of Education, 347 U.S. 483 (1954).

[29] NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937).

[30] Dames & Moore v. Regan, 453 U.S. 654 (1981).

[31] Missouri v. Holland, 252 U.S. 416 (1920).

[32] United States v. Lopez, 514 U.S. 549 (1995); Printz v. United States, 521 U.S. 898 (1997).

[33] Scott v. Sandford, 60 U.S. 393 (1856).

[34] Bruce Ackerman, Constitutional Politics/Constitutional Law, 99 Yale L. J. 453 (1989) (describing three “great constitutional transformations”: the Founding, the Reconstruction, and the New Deal). For a broader and more detailed analysis, see Bruce Ackerman, We the People: Foundations (1991) and Bruce Ackerman, We the People: Transformations (1998). But see Walter Dean Burnham, Constitutional Moments and Punctuated Equilibria: A Political Scientist Confronts Bruce Ackerman’s We the People, 108 Yale. L. J. 2237 (1999). The French experience, even the traumatic Revolution of 1789, may be more continuous than is generally thought: No nation had ever before embarked on so resolute an attempt as that of the French in 1789 to break with the past, to make, as it were, a scission in their life line and to create an unbridgeable gulf between all they had hitherto been and all they now aspired to be... I have always felt that they were far less successful in this curious attempt than is generally supposed in other countries and then they themselves at first believed. For I am convinced that though they had no inkling of this, they took over from the old régime not only most of its customs, conventions, and modes of thought, but even those very ideas which prompted our revolutionaries to destroy it; that, in fact, though nothing was further from their intentions, they used the debris of the old order for building up the new.

Alexis de Tocqueville, The Old Régime and the French Revolution (1856) (Stuart Gilbert, trans. 1995), at vii.

[35] Liberté d’association [Freedom of Association], CC decision no. 71-44 DC, July 16, 1971, Rec. 29.

[36] Parliamentary referral to Constitutional Council, Law No. 74-904 of Oct. 29, 1974, J.O., Oct. 30, 1974, at 11035.

[37] Martin A. Rogoff, Constitutionalism in the United States and France, 49 Maine L. Rev. 21, 60-64 (1997).

[38] See, e.g., Case 26/62, Van Gend & Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1; Case 6/44, Costa v. ENEL, 1964 E.C.R. I-585.

[39] See, e.g., Van Gend & Loos, id.; Costa v. ENEL, id.; Case 41/74, Van Duyn v. Home Office, 1974 E.C.R. 1337; Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA [Simmenthal II], 1978 E.C.R. 629; Case C-106/89, Marleasing SA v. La Comercial Internacional de Alimentacion SA, 1990 E.C.R. I-4135; Case C-213-89, The Queen v. Secretary of State for Transport, ex parte Factortame Ltd. [Factortame I], 1990 E.C.R. I-2433.

[40] See, e.g., Cases 267/91 & 268/91, Keck and Mithouard, 1993 E.C.R. I-6097; Case 69/93, Punta Casa SpA v. Sindaco del Commune di Capena, 1994 E.C.R. I-2355; Joined Cases 401/92 and 402/92, Criminal proceedings against Tankstation t’Heukske vof and J.B.E. Boermans, 1994 E.C.R. I-2199.

[41] See Anne-Marie Slaughter, A New World Order 82-85 (2004). See also the decisions, articles, and books cited in id., notes 81-97, at 285-87.

[42] Single European Act, Feb. 28, 1987, 1987 O.J. (L 169) 1; Maastricht Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 224) 1; Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1; Treaty of Nice amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Feb. 26, 2001, 2001 O.J. (C 80) 1. The introduction of the principle of subsidiarity (analogous to the Tenth Amendment to the U.S. Constitution) in the Maastricht Treaty of 1992 is a good example of amendment to the constitutive document through the political process to reflect changing perspectives and needs. That principle is now contained in article 5(3) of the Treaty on European Union (consolidated version following the Treaty of Lisbon, which entered into force on December 1, 2009), supra note 17.

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