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).

[2See 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).

[3General 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].

[4See 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).

[5Jacques 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).

[6In 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).

[8General 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; ...”).

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

[10The “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.

[11The 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/pages/l-homme/accueil/discours/pendant-la-guerre-1940-1946/discours-du-palais-de-chaillot-12-septembre-1944.php.

[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/l07-387.html) [hereinafter Hyest Report].

[13For 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).

[14S. 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).

[15Although 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).

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

[17For 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).

[18See 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.

[19See, 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).

[20See 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.

[21While 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).

[22Comité 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).

[23Alternance 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.

[25Martin 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?].

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

[27Alexis 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.

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

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

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

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

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

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

[34Bruce 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.

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

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

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

[38See, 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.

[39See, 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.

[40See, 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.

[41See 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.

[42Single 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.

[43For a description of amendments to the Constitution from 1958 to 2008, see Gérard Conac, Les révisions constitutionnelles (1958-1986), in La Constitution de la République française: Analyses et commentaires, supra note 2, at 15 ; and Xavier Prétot, Les révisions constitutionnelles (1987-2008), in id. at 55. For a list of all constitutional amendments to date, see Duhamel, supra note 2, at 458. For a discussion of pre-2008 amendments organized by category (the popular vote, the rule of law, Europe, and decentralization), see Jean-Luc Warsmann, Rapport fait au nom de la Commission des lois constitutionnelles, de la législation et de l’administration générale de la République sur le projet de loi constitutionnelle de modernisation des institutions de la Ve République, Assemblée nationale, no. 892, 15 mai 2008, at 15-20 (page citation to pdf version, available at http://www.assemblee-nationale.fr/13/rapports/r0892.asp) [hereinafter Warsmann Report].

[44See Warsmann Report, id. at 11. See also Thomas C. Grey, Constitutionalism: An Analytic Framework, in J. Roland Pennock & John W. Chapman (eds.), Constitutionalism: Nomos XX (1979), at 41 (for a useful set of classifications for characterizing and analyzing constitutional systems).

[45“Government,” when capitalized, refers specifically to the institution described in Title III of the 1958 Const. (arts. 20-23). It is comprised of the Council of Ministers and its action is directed by the prime minister (art. 21).

[46“Too little rigidity empties the notion of the Constitution of its substance; too much rigidity risks ruining the edifice.” Duhamel, supra note 2, at 25. According to Dean Vedel, “if a constitution, the fundamental pact, must be more difficult to modify than ordinary legislation, its rigidity must not go to the extreme of permitting the indefinite freezing of institutions…” Moreover, if revision of the constitution is impossible, judicial review risks becoming illegitimate, since judicial power would not then be subordinate to the constituent power. Comité consultatif pour la révision de la Constitution, présidé par Georges Vedel, Propositions pour une révision de la Constitution, 15 février 1993, Rapport au président de la République (1993), Journal Officiel de la République Française [Official Gazette of France] [hereinafter J.O.], Feb. 16, 1993, at 2537, 2551 [hereinafter Vedel Report].

[471958 Const. art. 89.

[48Id.

[49For an enumeration in tabular form of all the revisions to the constitution of 1958, see Duhamel, supra note 2, at 458.

[50Direct election of the President by universal suffrage, Law No. 62-1292 of Nov. 6 1962, J.O., Nov. 7 1962, at 10775; Parliamentary referral to Constitutional Council, Law No. 74-904 of Oct. 29, 1974, J.O., Oct. 30, 1974, at 11035; Changes in High Council of the Judiciary, Law No. 93-952 of July 27, 1993, J.O., July 28, 1993, at 10600; Reduction of presidential term to five years, Law No. 2000-964 of Oct. 2, 2000, J.O., Oct. 3, 2000, at 15582. For other amendments that modified the operation of the legislative process, see Date of parliamentary sessions, Law No. 63-1327 of Dec. 30, 1963, J.O., Dec. 31, 1963, at 11892; Single session of Parliament, Law No. 95-880 of Aug. 4, 1995, J.O., Aug. 5, 1995, at 11744; Annual vote on social security financing law, Law No. 96-138 of February 22, 1996, J.O., Feb. 23, 1996, at 2911.

[51Charter for the Environment, Law No. 2005-205 of Mar. 1, 2005, J.O., Mar. 2, 2005, at 3697; Abolition of the death penalty, Law No. 2007-239 of February 23, 2007, J.O., Feb. 24, 2007, at 3355.

[52Revisions required for ratification of Treaty of Maastricht, Law No. 92-554 of June 25, 1992, J.O., June 26, 1992, at 8406; Revisions required for ratification of Treaty of Amsterdam, Law No. 99-49 of Jan. 25, 1999, J.O., Jan. 26, 1999, at 1343; International Criminal Court, Law No. 99-568 of July 8, 1999, J.O., July 9, 1999, at 10175; European arrest warrant, Law No. 2003-267 of Mar. 25, 2003, J.O., Mar. 26, 2003, at 5344; European Constitution, Law No. 2005-204 of Mar. 1, 2005, J.O., Mar. 2, 2005, at 3696.

[53Equal access of men and women to elective office, Law No. 99-569 of July 8, 1999, J.O., July 9, 1999, at 10175; Decentralization, Law No. 2003-276 of Mar. 28, 2003, J.O., Mar. 29, 2003, at 5568.

[54This amendment was enacted by referendum.

[55Balladur Report, supra note 22, at 27.

[56President de Gaulle relied on article 11 of the Constitution, which deals with referenda on “Government Bills,” rather than article 89, which deals specifically with referenda on constitutional amendments. The article 89 procedure requires parliamentary involvement in the amendment process, whereas parliamentary participation is not required under the article 11 procedure. By relying on article 11, President de Gaulle was able to avoid parliamentary participation.

[57Loi référendaire [Referendum Law], CC decision no. 62-20 DC, Nov. 6, 1962, Rec. 27. But see the comments of former Constitutional Council member Dominique Schnapper on this decision, Schnapper, supra note 2, at 62-66 (indicating that the majority of the members of the Council, as well as the General Assembly of the Council of State and most jurists, thought that use of the article 11 referendum procedure to amend the Constitution was unconstitutional, but that the Council refused to examine the constitutionality of the law on the basis of “the higher interest of the country.”). See also Conseil constitutionnel, Séance du 2 octobre 1952, Avis sur le référendum relatif à l’éelction du président de la République au suffrage universel direct, in B. Mathieu et al., Les grandes délibérations du Conseil constitutionnel: 1958-1983 (2009), at 99 [hereinafter Les grandes déliberations du Conseil constitutionnel]; Conseil constitutionnel, Séance du 6 novembre 1962, Décision No. 62-20 DC, Loi référendaire relative à l’élection du président de la République au suffrage universel direct, in id. at 113.

[58In 1974, article 61 of the Constitution was amended to allow sixty senators or sixty deputies to refer legislation to the Constitutional Council for review. For this reason, article 61 now virtually assures that all legislation can be brought before that body for review.

[59See generally Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (1992); F.L. Morton, Judicial Review in France: A Comparative Analysis, 36 Am. J. Comp. L. 89 (1988).

[60Dominique Rousseau refers to the 1974 amendment as “a veritable constitutional revolution.” Dominique Rousseau, Droit du contentieux constitutionnel 71 (8th ed. 2008). For a discussion of the politics leading to the enactment of the amendment, see id. at 70-73.

[61Reduction of presidential term to five years, Law No. 2000-964 of Oct. 2, 2000, J.O., Oct. 3, 2000, at 15582. See generally Jean-Éric Gicquel, Article 6, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 298, 306-10. See also Olivier Duhamel, Le quinquennat (2000).

[62Loi organique no. 2001-419 du 15 mai 2001 modifiant la date d’expiration des pouvoirs de l’Assemblée nationale, May 15, 2001. See Jean-Éric Gicquel, id. at 307-08. 1958 Const. art. 12 provides: “The President of the Republic may, after consulting the Prime Minister and the Presidents of the Houses of Parliament, declare the National Assembly dissolved. – A general election shall take place no fewer than twenty days and no more than forty days after the dissolution.” See also Pierre Avril, Article 12, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 472, 485.

[63The overt politicization of the presidency may be traced to a 1978 speech of President Valéry Giscard d’Estaing in which he sought to influence the outcome of the legislative elections of that year for the benefit of his political party and its parliamentary allies. Valéry Giscard d’Estaing, Speech at Verdun-sur-le-Doubs of January 27, 1978, in Les grands textes de la pratique constitutionnelle de la Ve République, supra note 3, at 44-45.

[641958 Const. art. 54 (“If the Constitutional Council… has declared that an international commitment contains a clause contrary to the Constitution, the authorization to ratify or approve it may be exercised only after amendment of the Constitution.”). For example, in a 1975 decision, the Council held that it lacked the competence to evaluate the legality of a law according to the terms of an international agreement. Interruption volontaire de grossesse I [Abortion I], CC decision no. 74-54 DC, Jan. 15, 1975; see also Interruption volontaire de grossesse II [Abortion II], CC decision no. 2001-446 DC, June 27, 2001. Moreover, under article 61 of the Constitution, the Council may review an ordinary law enacted by Parliament only prior to its promulgation and only if it is referred to the Council by the president of the Republic, the prime minister, the president of the Senate or of the National Assembly, or by sixty deputies or sixty senators.

[65 1958 Const. art. 37. The article provides that “[m]atters other than those within the domain of the law have an executive character (caractère réglementaire).” It thus recognizes an extensive autonomous normative power residing in the executive, which enables the executive to establish rules in many areas without parliamentary authorization. See generally Marcel Prélot & Jean Boulouis, Institutions politiques et droit constitutionnel 615-19 (11th ed. 1990); James E. Beardsley, Constitutional Review in France, 1975 Sup. Ct. Rev. 189, 213-19; Blocage des prix et des revenus [Freezing of Wages and Prices], CC decision no. 82-143 DC, July 30, 1982, Rec. 57.

[66Blocage des prix et des revenus [Freezing of Wages and Prices], CC decision no. 82-143 DC, July 30, 1982, Rec. 57.

[67R.A.T.P. [Régie autonome des transports parisiens], CC decision no. 59-1 L, Nov. 27, 1959, Rec. 67. See also Constitutional Council, Séance du 27 novembre 1959, Décisions No. 59-1 L, RATP et No. 59-FNR, Baux à ferme, in Les grandes déliberations du Conseil constitutionnel, supra note 57, at 53-55 (providing insight into the role of political factors and legal factors in the Council’s decision in this matter).

[68See generally Pierre Avril & Jean Gicquel, Droit parlementaire (4th ed. 2010); Pascal Jan, Les assemblées parlementaires françaises (2005).

[691958 Const. art. 48(1) (before 2008 amendment) (agenda of both parliamentary assemblies must accord priority to Government bills and to Members’ bills accepted by the Government in the order fixed by the Government).

[701958 Const. art. 39(1).

[711958 Const. art. 40 (“Private Members’ Bills and amendments introduced by Members of Parliament shall not be admissible where their enactment would result in either a diminution of public revenue or the creation or increase of any public expenditure.”); 1958 Const. art. 42(1) (before 2008 amendment) (discussion of a Government bill before the first assembly in which it is introduced begins with Government text); 1958 Const. art. 44(3) (“If the Government so requests, the House before which the Bill is tabled shall proceed to a single vote on all or part of the text under debate, on the sole basis of the amendments proposed or accepted by the Government.”); 1958 Const. art. 45(2) (before 2008 amendment) (allows the Government to utilize an emergency procedure (procédure d’urgence) to expedite legislation (and shortcut parliamentary debate) under certain circumstances). Moreover, even though Parliament could enact laws pursuant to 1958 Const. art. 34, it lacked the constitutional capacity to adopt advisory resolutions.

[721958 Const. art. 38. An ordinance is a rule-making act of the Government, done with the authorization of Parliament, with respect to matters that fall within the domain of the law. The power to adopt ordinances is limited in duration and object. Before ratification by Parliament, an ordinance is considered to be a regulatory (executive) act; after ratification it has the status of law.

[731958 Const. art. 43(2) (before 2008 amendment) (limits each parliamentary assembly to six permanent committees).

[741958 Const. art. 49(3). See infra notes 151-152 and accompanying text.

[75See generally Dominique Rousseau, Droit du contentieux constitutionnel (8th ed. 2008); Pascal Jan, Le procès constitutionnel (2nd ed. 2010). For other functions of the Constitutional Council, see notes 192-197 and accompanying text.

[76An institutional act (loi organique) is a law enacted by Parliament to define, supplement, and/or implement a provision of the Constitution. Institutional acts “create organs of the State and establish their structure.” Henri Capitant, Le vocabulaire juridique (1930), quoted in Xavier Prétot, Article 46, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 1116, 1117. The 1958 Const. art. 46 provides a special procedure for the adoption of institutional acts, including their mandatory referral to the Constitutional Council.

[771958 Const. art. 61(1).

[78See, e.g., Règlement de l’Assemblée nationale [National Assembly Rules], CC decision no. 59-2 DC, June 17, 18 & 24, 1959, Rec. 58; R.A.T.P. [Régie autonome des transports parisiens], CC decision no. 59-1 L, Nov. 27, 1959, Rec. 67.

[79See Peter L. Lindseth, Law, History, and Memory: “Republican Moments” and the Legitimacy of Constitutional Review, 3 Colum. J. Eur. L. 49 (1997); George D. Haimbaugh, Jr., Was It France’s Marbury v. Madison?, 35 Ohio St. L.J. 910 (1974).

[80Charter for the Environment, Law No. 2005-205 of Mar. 1, 2005, J.O., Mar. 2, 2005, at 3697.

[81Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (1992) (analyzing the political role of the Constitutional Council and analogizing the Council to a third house of Parliament).

[82R.A.T.P. [Régie autonome des transports parisiens], CC decision no. 59-1 L, Nov. 27, 1959, Rec. 67.

[83Protection des sites [Site Protection Law], CC decision no. 69-55 L, June 26, 1969, Rec. 27.

[84Blocage des prix et des revenus [Freezing of Wages and Prices], CC decision no. 82-143 DC, July 30, 1982, Rec. 57.

[85Avenir de l’école [Future of the School], CC decision no. 2005-512 DC, Apr. 21, 2005, Rec. 72.

[86Conseil de la concurrence [Council on Competition], CC decision no. 86-224 DC, Jan. 23, 1987, Rec. 8. See also Privatisations [Privatizations], CC decision no. 86-207 DC, June 25-26, 1986, Rec. 61.

[87Conseil de la concurrence [Council on Competition], id. In 2008 article 38 was amended to require that ordinances be ratified by express parliamentary action (“They may only be ratified in explicit terms”), rather than by implication from the enactment of subsequent laws.

[88Liberté d’association [Freedom of Association], CC decision no. 71-44 DC, July 16, 1971, Rec. 29.

[89Fouille des véhicules [Vehicle Searches], CC decision no. 76-75 DC, Jan. 12, 1977, Rec. 33. See also Sécurité et liberté [Security and Liberty], CC decision no. 80-127 DC, Jan. 20, 1981, Rec. 15; Maîtrise de l’immigration [Immigration Control], CC decision no. 93-325 DC, Aug. 12-13, 1993, Rec. 224.

[90Bioéthique [Bioethics], CC decision no. 94-343/344 DC, July 27, 1994, Rec. 100. See also an important decision of the Council of State on the protection of human dignity. Commune de Morsang-sur-Orge CE Ass., Oct. 27, 1995, Rec. Lebon 372.

[91Taxation d’office [Ex Officio Taxation], CC decision no. 51 DC, Dec. 27, 1973, Rec. 25. See also Lois de nationalisation [Nationalization Laws], CC decision no. 82-139 DC, Jan. 16, 1982, Rec. 18.

[92See, e.g., Loi relative au statut général des fonctionnaires [Third Admission Track to the École nationale d’administration], CC decision no. 82-153, Jan. 14, 1983, Rec. 35; Loi portant diverses dispositions d’ordre social, éducatif et culturel [Admission to the Institut d’études politiques], CC decision no. 2001-450 DC, July 11, 2001, Rec. 82; Loi relative à l’égalité salariale entre les femmes et les hommes [Equal Pay for Men and Women], CC decision no. 2006-533 DC, Mar. 16, 2006, Rec. 39.

[93Lois de décentralisation [Decentralization Laws], CC decision no. 82-137 DC & 82-138 DC, Feb. 25, 1982, Rec. See also Loi relative à la Corse [Law on Corsica], CC decision no. 2001-454 DC, Jan. 17, 2002, Rec. 70.

[94Quotas par sexe I [Gender Quotas I], CC decision no. 82-146 DC, Nov. 18, 1982, Rec. 66; Quotas par sexe II [Gender Quotas II], CC decision no. 98-407 DC, Jan. 14, 1999, Rec. 21. See generally Cynthia A. Vroom, Equal Protection versus the Principle of Equality: American and French Views on Equality in the Law, 21 Capital U. L. Rev. 199 (1992).

[95Equal access of men and women to elective office, Law No. 99-569 of July 8, 1999, J.O., July 9, 1999, at 10175; Decentralization, Law No. 2003-276 of Mar. 28, 2003, J.O., Mar. 29, 2003, at 5568. See also Quotas par sexe III [Gender Quotas III], CC decision no. 2000-429 DC, May 30, 2000, Rec. 84 (upholding amendments to the Electoral Code establishing gender quotas for candidate slates in proportional elections at the local, departmental, regional, national, and European levels after the 1999 amendment to article 3 of the Constitution that provided that “Statutes shall promote equal access by women and men to electoral mandates and elective offices”).

[96Loi relative à l’égalité salariale entre les femmes et les hommes [Equal Pay for Men and Women], CC decision no. 2006-533 DC, Mar. 16, 2006, Rec. 39.

[97President Charles de Gaulle, Press Conference of January 31, 1964, in Charles de Gaulle, Mémoires d’Espoir, supra note 3, at 858. See Jean-Jacques Chevallier, Guy Carcassonne & Olivier Duhamel, La Ve République, 1958-2001 (9th ed. 2001), at 105-10 (calling President de Gaulle’s press conference of January 31, 1964, “extraordinary.” “[T]he Head of State ‘is presenting the tables of the law, describing the Constitution as a spirit, institutions, a practice... the poor document of 1958 caught in a sandwich between a spirit—which is naturally that of the arbiter [the 1958 Const. art. 5 provides that the president “shall ensure, by his arbitration, the proper functioning of the public authorities and the continuity of the State”]—and practice, which he had personally instituted, imposed, and modified.’” quoting Jean Lacouture, De Gaulle, at 105). See also Avril, supra note 4 (stressing the importance of practice in giving content to the terms of the Constitution); Vedel Report, supra note 46, at 2537 (“The political institutions of a country are not defined solely by the written Constitution and laws which effectuate it, but also by political practice.”).

[98See generally Martin A. Rogoff, A Sixth French Republic?, supra note 25.

[99See infra notes 103-107 and accompanying text.

[100Balladur Report, supra note 22, at 27.

[1011958 Const. art. 5 provides: “The President of the Republic shall ensure due respect for the Constitution. He shall ensure, by his arbitration, the proper functioning of the public authorities and the continuity of the State. – He shall be the guarantor of national independence, territorial integrity and due respect for Treaties.” See also General de Gaulle’s Bayeau and Épinal addresses, in Charles de Gaulle, Mémoires d’Espoir supra note 3, at 309 and 317.

[102See generally Pierre Bréchon, La France aux urnes: Soixante ans d’histoire électorale (2009). See also Laurent Touvet & Yves-Marie Doublet, Droit des élections (2007); Jean-Pierre Camby, Le Conseil constitutionnel, juge électoral (5th ed. 2009).

[103Jacques Chirac, Statement of March 20, 1986, in Les grands textes de la pratique constitutionnelle de la Ve République, supra note 3, at 140-141 (1998).

[104Id. On the use of ordinances by the Government to bypass Parliament, thus avoiding possible fractious debate and the need to compromise, see Dominique Rousseau, La Ve République se meurt, Vive la démocratie 103-104 (2007) (“To govern by ordinances is in effect to govern without Parliament.”).

[105François Mitterrand, Message to Parliament of April 8, 1986, in Constitution française du 4 octobre 1958 après la révision de juillet 2008 (La Documentation française, 2008), at 46-47.

[106Privatisations [Privatizations], CC decision no. 86-207 DC, June 25-26, 1986, Rec. 61; Découpage électoral [Electoral Apportionment I], CC decision no. 86-208 DC, July 1-2, 1986, Rec. 78. According to 1958 Const. art. 62, “a provision declared unconstitutional on the basis of article 61 shall be neither promulgated nor implemented.” Article 62 further provides that decisions of the Constitutional Council “shall be binding on public authorities and on all administrative authorities and all courts.” In about a third of its recent decisions involving the constitutionality of laws, rather than find a legislative provision contrary to the Constitution, the Constitutional Council declared that the provision conforms to the Constitution on the condition that the provision in question is interpreted or applied in the manner indicated by the Council. Such conditions are called interpretative reservations (réserves d’interprétation). Since 2002, the Council has systematically included in its holdings reference to the specific considérant or considérants in which its interpretative reservations are expressed, thus assuring that these reservations are binding.

[107See, e.g., statements of President Mitterrand and Prime Minister Chirac on the electoral apportionment ordinance. Communiqué from the President of the Republic of October 2, 1986, in Dmitri Georges Lavroff, le droit constitutionnel de la Ve Républiqie 603 (1996) (“After review of the proposed ordinances on the delimitation of legislative districts submitted to him on September 23, the President of the Republic deems it desirable to adhere to the republican tradition which requires that the National Assembly itself determines the methods of the election of deputies.”); Communiqué from the Prime Minister of October 2, 1986, in id. at 604 (“Without entering into a constitutional controversy, the government has decided to submit immediately to the Council of Ministers a bill (project de loi) for the delimitation of electoral districts for legislative elections, which shall be considered promptly by the Parliament.”). See generally Charles Reiplinger, Article 13, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 492-94.

[108Vedel Report, supra note 46. The Balladur Report followed the broad outline of the Vedel Report, whose three principal divisions were un exécutif mieux défini, un parlement plus actif, and un citoyen plus présen. It also adopted many of the proposals contained in the Vedel Report.

[109Décret no. 2007-1108 du 18 juillet 2007 portant sur la création d’un comité de réflexion et de proposition sur la modernisation et le rééquilibrage des institutions de la Ve République, reprinted in Balladur Report, supra note 22, at 203. See also paragraph 1 of the Lettre de mission du président de la République, July 18, 2007, reprinted in Balladur Report, id. at 206:

The Constitution, which fixes the present organization of our institutions, was established nearly fifty years ago. Inspired by the ideas of General de Gaulle and his determination to give our country strong and stable institutions, it presents qualities that no longer have to be justified. Incontestably, however, due to the effect of numerous changes which have occurred in our country and abroad since 1958, our democracy today needs to see its institutions modernized and rebalanced (modernisées et rééquilbrées). Our citizens expect from the State a renewed authority and more efficiency in government, but they also want more transparency, more debate, and more simplicity. They want political action to be in the service of the general interest, not of special interests. They profoundly aspire to an exemplary democracy, to an irreproachable Republic.

Id
. at 206. See also President Nicolas Sarkozy, Speech at Épinal of July 12, 2007, in Constitution française du 4 octobre 1958 après la révision de juillet 2008 (La Documentation française, 2008), at 52. For a discussion of the political forces leading to the comprehensive amendments of July 2008, see Xavier Prétot, supra note 43, at 77-82 (“Although the constitutional law of July 23, 2008, bears the imprint of the President of the Republic elected in May 2007, in the way in which it was adopted as well as in its content, it did not spring fully armed from the head of some demiurge and is in fact responsive to the thinking engaged in during preceding years about the evolution of institutions pursuant to the Constitution of October 4, 1958.” Id. at 77).

[110Lettre de mission du président de la République, July 18, 2007, reprinted in Balladur Report, supra note 22, at 206.

[111See infra note 120 and accompanying text.

[112Balladur Report, supra note 22, at 136-38 (the institution of a system of “compensatory” proportional representation (répresentation proportionelle “compensatrice”) for the election of 20 to 30 members of the Chamber of Deputies to allow minority points of view to be represented).

[113Balladur Report, supra note 22, at 64-65 (to prohibit ministers from holding elective office), 127-28 (to prohibit members of Parliament from exercising a local executive function). The term cumul des mandats refers to the practice of holding several political offices at multiple levels of government. While officials cannot hold multiple offices at the same level, they can hold offices in any combination of communal, departmental, regional, national, and European levels. For a discussion of the political effects of the practice and of the 1985 law limiting it, see Vivien A. Schmidt, Democratizing France: The Political and Administrative History of Decentralization 144-49 (1990).

[114Balladur Report, supra note 22, at 138-40 (to provide for more demographic equality in the election of senators).

[1151958 Const. art. 6.

[116Balladur Report, supra note 22, at 27.

[1171958 Const. art. 8: “The President shall appoint the Prime Minister. He shall terminate the appointment of the Prime Minister when the latter tenders the resignation of the Government.”

[118Ballaudur Report, supra note 22, at 28-33.

[119Id. at 28. To allow the president to dismiss the prime minister during periods of cohabitation would very seriously impair the functioning of the parliamentary aspect of the French governmental scheme by in effect giving the president a veto power over Parliament’s confidence in the prime minister and his Government.

[120Id. at 33-34. Additional modifications to articles 20 and 21 would clarify the Government’s role in national defense and in administering the armed forces. It would implement policies and decisions in these areas determined by the president, rather than determine them itself.

[121Id. at 36. Jean-Claude Colliard has characterized the Fifth Republic as a “parliamentarianism with a presidential corrective.” Quoted in Warsmann Report, supra note 43, at 41. See also Constitutional Law of June 3, 1958, Providing for Temporary Derogation from the Provisions of Article 90 of the Constitution, supra note 8 (requiring that the Constitution drafted by the Government adhere to certain principles, including: “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;...”).

[122The Constitution was not amended to allow the president, at his request, to appear before a parliamentary commission of enquiry (commission parlementaire d’enquête). For a presentation of this proposal, see Balladur Report, supra note 22, at 38-39.

[1231958 Const. art. 18(1).

[124See generally Véronique Champeil-Desplats, Article 18, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 567. On June 22, 2009, President Sarkozy addressed the Parliament assembled in Congress at Versailles. He began his remarks with these words: “In addressing you today, I am aware of inaugurating a profound change in our republican tradition. Since 1875, the Head of State did not have the right to come before the houses of Parliament. He could communicate with them only by written messages which would be read for him. This rule had been established in a climate of mistrust in which the Republic felt fragile and threatened. This time has long since passed. The Republic is solidly anchored in our country. So the time has come for the legislative power and the executive power to establish between them relations more in accord with the spirit of a tranquil democracy. A tranquil democracy isn’t a democracy where everyone agrees, but where everyone listens to each other and respects each other.” Déclaration de M. le président de la République devant le Parlement réuni en Congrès (June 22, 2009), available at http://www.scribd.com/doc/16660460/Discours-de-Nicolas-Sarkozy-devant-le-Congres.

[1251958 Const. art. 13.

[126Ordinance organique no. 58-1136, Nov. 28, 1958. For a discussion of this ordinance, see Warsmann Report, supra note 43, at 136-37 (“The somewhat byzantine division of the power of appointment between the prime minister and the president of the Republic is the result of the desire of the adopters of the 1958 Constitution who wanted to increase the list of high officials appointed by the president, without at the same time making a detailed enumeration in the Constitution.”).

[127Charles Reiplinger, Article 13, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 494-95.

[1281958 Const. art. 13. Other provisions of the Constitution were also amended to subject nominations to certain positions to the article 13(5) procedure: members of the Constitutional Council (1958 Const. art. 56), members of the High Council of the Judiciary (1958 Const. art 65), and the Defender of Rights (1958 Const. art. 71-1). The Constitutional Council held that the institutional act to implement article 13(5) conformed to the Constitution. Loi organique relative à l’application du cinquième alinéa de l’article 13 de la Constitution [Institutional Act on the Application of the Fifth Paragraph of Article 13 of the Constitution], CC decision no. 2010-609 DC, July 12, 2010, Rec. —, J.O. , July 24, 2010, at 13669 (no. 18). The Council also held that the law enacted to implement the institutional act conformed to the Constitution. Loi relative à l’application du cinquième alinéa de l’article 13 de la Constitution, [Law on the Application of the Fifth Paragraph of Article of the Constitution], CC decision 2010-610 DC, July 12, 2010, Rec. —, J.O. , July 24 2010, at 13670 (no. 19).

[129Balladur Report, supra note 22, at 40-43.

[130Id. at 45-59. Some of these recommendations involved changes in existing laws, rather than amendments to the Constitution: reforming the allocation of media time with respect to presidential statements in electoral campaigns; reforming accounting procedures for the budget of the presidential office; and reforming the nomination process for presidential elections.

[131See generally Xavier Prétot, Article 17, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 545.

[132Balladur Report, supra note 22, at 47-50.

[1331958 Const. art. 16. Jack Lang, Vice Chairman of the Balladur Commission, appended his “personal observations” to the Report in which he called for the complete repeal of article 16. Balladur Report, supra note 22, at 187 (“Je souhaite que l’article 16 soit purement et simplement abrogé.”). Article 16 has been invoked only once, in April 1961, by President de Gaulle following an attempted putsch by French military officers in Algeria. The Constitutional Council upheld President de Gaulle’s application of article 16. Avis du 23 avril 1961 (réunion des conditions exigées par la Constitution pour l’application de son article 16) [Application of Article 16 of the Constitution], CC opinion, Apr. 23, 1961, Rec. 69. President de Gaulle maintained the state of emergency for five months, well beyond the period of threat to the Republic, raising serious concerns about the desirability and operation of the emergency powers provision of the Constitution. See Schnapper, supra note 2, at 58-60. See also Constitutional Council, Séance du 23 avril 1961, Avis sur la mise en œuvre de l’article 16 de la Constitution, in Les grandes déliberations du Conseil constitutionnel, supra note 57, at 82.

[134Vedel Report, supra note 46, at 2540.

[135See supra note 78.

[136Warsmann Report, supra note 43, at 22.

[137Charles de Gaulle, Press Conference of January 31, 1964, in Les grands textes de la pratique constitutionnelle de la Ve République, supra note 3, at 42-44. See also supra note 97.

[138See Olivier Duhamel, Vive la VIe République! 38-66 (2002) (discussing the effect of the media and “pollingism” (“sondagisme”) on politics in France).

[139One of the most important and immediate consequences [of General de Gaulle’s resignation] was to make the presidential election [of 1969] a veritable test of our institutions...
I draw two conclusions [from the absolute calm of the electoral campaign]: the first is that it is desirable, and even essential, that all political parties, except those which pursue revolution purely and simply, from now on to situate their actions and their hopes within the framework of our institutions...
The second conclusion is that I believe that the choice made by the French people demonstrates its adherence to General de Gaulle’s conception of the role of the President of the Republic: both supreme head of the executive branch, as well as guardian and guarantor of the Constitution. He is, in this dual role, responsible for setting fundamental policies, defining essential directions, and assuring and overseeing the proper functioning of public powers, both as national arbiter and as principal responsible party.
Georges Pompidou, Press Conference of July 10, 1969, in Les grands textes de la pratique constitutionnelle de la Ve République, supra note 3, at 44.

[140See generally Stéphane Baumont, Un président pour une VIe République? (2002).

[1411958 Const. art. 39 provides: “Both the Prime Minister and Members of Parliament shall have the right to initiate legislation.” But, “[f]or the facial equality described by the text of the Constitution of October 4, 1958, institutional practice has substituted an inequality in fact, revealing the dominant place of the Government with respect to the initiation of legislation under presidential leadership. Government bills and Members’ bill are not considered in the same way; from this inequality in legislative procedure there results in effect the displacement of the legislative power of the [parliamentary] assemblies.” Clémence Zacharie, Article 39, in La Constitution de la République française: Analyses et commentaires, at 975, 982.

[142On the political effect of the five-year presidential term (le quinquennat) on the relations of the president, the Government, and Parliament, see Vedel Report, supra note 46, at 2539.

[143Balladur Report, supra note 22, at 67.

[144Id. at 67-68. “The weakening of parliament written into key provisions at the heart of the 1958 constitution now appears irrevocable... Yet there has been a reaction against the corseting of parliament under the early Fifth Republic; and polls show a continuing demand, among Deputies and voters, for parliament to be more active in holding the government to account.” Andrew Knapp & Vincent Wright, The Government and Politics of France 155 (5th ed. 2006). Perhaps the principal problem for Parliament’s asserting itself politically against the president and/or Government is the French tradition of party discipline. It appears, however, that party discipline may be loosening somewhat, as deputies with strong local support are able to withstand party pressures, and that National Assembly presidents are not always “compliant links in the disciplinary chain stretching from government to individual Deputies...” Id. at 162.

[145Id. at 68. See also Pierre Rosanvallon, La légitimité démocratique: Impartialité, réflexivité, proximité (2008); Olivier Duhamel, Vive la VIe République! (2002); Paul Allies, Pourquoi et Comment une VIe République (2002).

[146The political role of Parliament has also been enhanced by amendments concerning the powers of the president and the Government, such as allowing the president to appear before the two houses of Parliament in Congress (1958 Const. art. 18), requiring parliamentary participation in certain presidential appointments (1958 Const. art. 13), and giving Parliament a role in the Government’s decision to commit armed forces abroad (1958 Const. art. 35).

[1471958 Const. art. 48 (before 2008 amendment). Article 48 (before amendment) also provided that one session per week is reserved for questions by members of Parliament and responses from the Government; and that one session per month is reserved for the agenda fixed by each house.

[148Jean-Louis Pezant, Article 48, in La Constitution de la République française: Analyses et commentaires, at 1204, 1208-09. See also Pierre Avril & Jean Gicquel, Le droit parlementaire 125-32 (4th ed. 2010).

[149Pezant, supra note 148, at 1209. For citation to Constitutional Council decisions, see id. at 1209-10.

[150Id. at 1217.

[151 See Dominique Rousseau, La Ve République se meurt, vive la démocratie 103-05 (2007).

[1521958 Const. art. 49(3). Vice Chairman Jack Lang dissented. He recommended the abrogation of article 49(3) in toto. Balladur Report, supra note 22, at 187.

[153Jean-Louis Hérin, Article 44, in La Constitution de la République française: Analyses et commentaires, at 1064, 1077. See also Pierre Avril & Jean Gicquel, Le droit parlementaire 195-96 (4th ed. 2010).

[154Balladur Report, supra note 22, at 77. Vice Chairman Jack Lang dissented. He recommended the abrogation of the single vote procedure of article 44(3). Id. at 187.

[1551958 Const. art. 44(3).

[156See generally Georges Bergougnous, Article 45, in La Constitution de la République française: Analyses et commentaires, at 1087, 1094-98. See also Pierre Avril & Jean Gicquel, Le droit parlementaire 217-18 (4th ed. 2010).

[157Balladur Report, supra note 22, at 77-79. The amendment as subsequently adopted differed in certain respects from the Report’s proposal.

[158The Conference of Presidents of each respective house is composed of its president, vice presidents, presidents of standing committees, the Rapporteur général of its Finance Committee, the president of each party group, and the president of its European Affairs committee.

[159Balladur Report, supra note 22, at 80-85.

[160The only proposal in this category that was adopted was to expand Parliament’s authority to enact programming acts (lois de programmation) which previously had been restrictively construed by the Constitutional Council. See, e.g., Avenir de l’École [Future of the School], CC decision no. 2005-512 DC, Apr. 21, 2005, Rec. 72. Programming acts are statutes which establish qualitative or quantitative objectives for governmental action, although they do not necessarily have normative effect. Article 34 now reads: “Programming Acts shall determine the objectives of the action of the State.” Before the 2008 amendment, article 34 authorized programming acts only with respect to “economic and social actions of the State.” The following sentence was also added to article 34: “The multiannual guidelines for public finances shall be established by Programming Acts. They shall be part of the objective of balanced accounts for public administrations.” See Juliette Gaté & Marie-Laure Gély, Article 34, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 879, 887 (indicating that the amendment to article 34 now provides a constitutional basis for program laws). But such legislation must, in most cases, be submitted to the Economic, Social, and Environmental Council before enactment. (“Any plan or Programming Bill of an economic, social or environmental nature shall be submitted to it for its opinion.” 1958 Const. art. 70). See also Avenir de l’École [Future of the School], id. considérant 14.

[1611958 Const. art. 43.

[1621958 Const. art. 42.

[1631958 Const. art 24. See also François Colly, Article 24, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 677-85.

[1641958 Const. art. 47-2. See also Loi organique relative aux lois de finances [Institutional Act on Finance Laws], CC decision no. 2001-448 DC, July 25, 2001, Rec. 99 (which had previously limited Parliament’s ability to rely on assistance from the Cour des comptes). The Cour des comptes is an administrative court, which exercises supervision over public expenditures, from the annual budget enacted by Parliament to the expenditures of public authorities and local administrative units. It also reviews decision of the twenty-four Chambres régionales des comptes and the six Chambres territoriales des comptes. Its decisions may be appealed to the Council of State. Before the 2008 addition of article 47-2, the Cour des comptes was limited to advising Parliament only with respect to finance laws. See generally Rémi Pellet, Article 47-2, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 1191.

[165Règlement de l’Assemblée nationale [National Assembly Rules], CC decision no. 59-2 DC, June 17, 18 and 24, 1959, Rec. 58.

[1661958 Const. art. 34-1. Loi organique relatif à l’application des articles 34-1, 39 et 44 de la Constitution [Institutional Act on the Application of Articles 34-1, 39, and 44 of the Constitution], CC decision no. 2009-579 DC, Apr. 9, 2009, Rec. —, J.O., Apr. 16, 2009, at 6530 (no. 2).

[167Balladur Report, supra note 22, at 128. The Warsmann Report, supra note 43, is equally emphatic about the importance of recognizing and empowering the parliamentary opposition. “The real separation of powers [today] is not to be sought between the Parliament and the Government, but between the majority and the opposition.” Id. at 55. “The opposition has to accept that the majority was put in place to enact its policies into law. On the other hand, the majority has to admit that monitoring is the function of the opposition. The minority must be allowed to participate equally in the responsibility for the activities of supervision. To recognize to the opposition its rightful place implies a sort of ‘affirmative action’ (discrimination positive) on its behalf, which is difficult to formalize.” Id. at 57.

[168Entreprises de presse [Press Law], CC decision no. 84-181 DC, Oct. 10-11, 1984, Rec. 73; Loi relative à la liberté de communication audiovisuelle [Freedom of Audiovisual Communication], CC decision no. 86-217 DC, Sept. 18, 1986, Rec. 141.

[169Jean-Jacques Israël, Article 4, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 218, 224.

[170Résolution modifiant le règlement de l’Assemblée nationale [National Assembly Rules], CC decision no. 2006-537, June 22, 2006, Rec. 67. See also Charles Reiplinger, Article 51-1, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 1280, 1284. See also Pierre Avril & Jean Gicquel, Le droit parlementaire 97-98 (4th ed. 2010).

[171Balladur Report, supra note 22, at 135-36.

[172See generally Alexandre Gohier del Re, Titre XI (Le Conseil économique, social et environnemental), in La Constitution de la République française: Analyses et commentaires, supra note 2, at 1631. See also J. Frayssinet, Le Conseil économique et social (La Documentation française, 1996); P. Rosanvallon, Le modèle politique français: la société civile contre le jacobinisme de 1789 À nos jours (2004).

[173“This profoundly innovative development [seizure of the CSEC by petition], after it will have been implemented, will lead to the introduction of a dose of direct, participatory democracy in the modes of seizing the council.” Alexandre Gohier de Re, id. at 1648.

[174Ordonnance no. 58-1360 du 29 décembre 1958 portant law organique relative au Conseil économique et social (as last modified by article 17 of institutional act no. 2000-294 of April 5, 2000, J.O, Apr. 6, 2000. Article 7 of the Ordonnance enumerates 10 categories of members: 69 employee representatives, 69 representatives from enterprises (27 from private sector enterprises, 10 from trades enterprises, 10 from public sector enterprises, 25 from agricultural enterprises), 3 from the liberal professions, 10 from agricultural insurance and credit cooperatives, 5 from non-agricultural cooperatives, 4 from non-agricultural insurance cooperatives, 17 from social activities (including 10 from family associations, one from the housing sector, one from the savings sector, and five from other associations), 9 from the economic and social activities of the departments, territories, and overseas territories, 2 from Frenchmen living outside of France, and 4 experts in the social, economic, scientific, or cultural domains. Balladur Report, supra note 2, at 144-45, recommended revising ESEC membership to better reflect the contemporary economic, social, and environmental interests, activities, and groups in the country.

[175Balladur Report, supra note 22, at 146-47.

[1761958 Const. art. 11(3). See Gérard Conac & Jacques Le Gall, Article 11, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 402, 410-12.

[177For example, the question of the independence of the judicial authorities from political influence was dramatically at issue during the so-called Clearstream affair, which captivated the French media from 2004 and is still ongoing. Former Prime Minister and Minister of the Interior Dominique de Villepin was accused of complicity in falsely accusing his political rival Nicolas Sarkozy of involvement in financial wrongdoing. When Villepin was acquitted in January 2010, the public prosecutor appealed the verdict, giving rise to the suspicion that he did so on orders from President Sarkozy. Affaire Clearstream: le gouverenment face au soupçon, Le Monde, Jan. 31, 2010.

[178Concern and outrage with respect to judicial competence resulted from the so-called Outreau affair, a high-profile investigation and prosecution, that went on from 2001 through 2005, of 18 people for pedophilia and incest based on the testimony of one adult witness (who later admitted when the case was on appeal that she had lied), the unreliable testimony of young children, and questionable psychiatric evidence. The accused were kept in custody from one to three years awaiting trial, and one accused person committed suicide while being held. The cause of the problem was apparently the inexperience and poor judgment of the investigating magistrate (juge d’instruction), a recent graduate of the École de la Magistrature. President Jacques Chirac called the proceedings a judicial disaster (catastrophe judiciaire) and Yves Bot, Chief Prosecutor in Paris, presented his apologies to the defendants on behalf of the legal system at the time of their acquittal at their second trial before the Cour d’Assises of Paris. The Institutional Act on the Recruitment, Training, and Responsibility of Magistrates was enacted to subject magistrates to more rigorous supervision and disciplinary rules and procedures. That act was considered by the Constitutional Council, which held that certain provisions were contrary to the Constitution on the ground that they compromised the independence of judges. Loi organique relative au recrutement, à la formation et à la responsabilité des magistrats [Institutional Act on the Recruitment, Training, and Responsibility of Magistrates], CC decision no. 2007-551 DC, Mar. 1, 2007, Rec. 86.

[1791958 Const. art. 64 provides: “The President of the Republic shall be the guarantor of the independence of the Judicial Authority. – He shall be assisted by the High Council of the Judiciary.” The Balladur Report recommended that the second sentence of article 64 be deleted in recognition of the principle that the High Council was an independent body and was not an instrument of the president in supervising the judiciary. Balladur Report, supra note 22, at 160. Article 64, however, was not so amended.

[180See Gilbert Mangin, Article 65, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 1522, 1544-51.

[181Balladur Report, supra note 22, at 156.

[182Each section has fifteen members. The judges section is composed of the Chief President of the Court of Cassation, five judges, one public prosecutor, one member of the Council of State, one lawyer, and six prominent qualified persons. The public prosecutors section is composed of the Chief Public Prosecutor of the Court of Cassation, five public prosecutors, one judge, one member of the Council of State, one lawyer, and six prominent qualified persons.

[183See Gilbert Mangin, supra note 172, at 1551-52.

[1841958 Const. art. 65(11).

[185Loi organique relative à l’application de l’article 65 of the Constitution [Institutional Act on the Application of Article 65 of the Constitution], CC decision no. 2010-611 DC, July 19, 2010, Rec. —, J.O., July 23, 2010, at 13583 (no. 4).

[186The Balladur Commission considered whether or not to recommend amending the preamble to resolve conflicts between the principles contained by reference therein (the Declaration of Rights of Man and the Citizen and the preamble to the Constitution of 1946) and also whether to specifically recognize new principles and rights (like human dignity). It decided not to do so. Balladur Report, supra note 22, at 165-67. Subsequently, President Sarkozy appointed a commission to study the question of amending the preamble. Décret no. 2008-328 du 9 avril 2008 portant création d’un comité de réflexion sur le Préambule de la Constitution, J.O., Apr. 10, 2008 (no. 1). The Commission concluded that modification of the preamble was not necessary, as existing law, interpreted by the Constitutional Council and the judicial and administrative courts, adequately protected fundamental rights. The Commission did suggest, however, that it may be desirable to add a reference to the principle of human dignity to the preamble (“un principe d’égale dignité de chacun”) “to bring the text of the Constitution more into line with the spirit of the values to which the nation is most fundamentally committed since the end of the Second World War... ” Comité de réflexion sur le Préambule de la Constitution, présidé par Simone Veil, Rapport au Président de la République, Redécouvrir le Préambule de la Constitution 97 (La Documentation française, 2009).

[1871958 Const. art. 61-1. See generally Dominique Rousseau (ed.), La question prioritaire de constitutionnalité (2010); Valérie Bernaud, Article 61-1, in La Constitution de la République française: Analyses et commentaires, supra note 2, at 1280.
[T]he QPC entered into application on March 1, 2010. Incontestably a new era is opening. For at least three reasons. First, with a priori review constitutional adjudication is restricted by the procedure for the elaboration of the law; with a posteriori review it becomes integrated into general adjudication. It is an integral part of the judicial or administrative trial and a determinative part since the outcome of the trial depends on it. This change of position will necessarily have the effect of submitting constitutional adjudication to the requirements of the rules of due process and of completing the transformation of the Constitutional Council into a true court. Also, the responsibility of judicial and administrative judges to assure the “filtration” of constitutional questions is not only going to oblige them to undertake a preliminary constitutional analysis in order to determine whether the question raised is serious or not, but also will establish an organic link between the supreme courts of the two judicial orders [the Council of State and Court of Cassation] and the Constitutional Council. Eventually, the French legal landscape may find itself profoundly changed. Finally, the Constitution will become, as the Constitutional Council said in its decision of December 3, 2009, a “means.” For a long time, the Constitution was a neglected text; during the 1980s and still more during the 1990s, it became an object of study, of academic theses, of conferences; today, the Constitution is becoming a means for the litigant to defend his rights against the law. The Constitution is leaving the University to capture (gagner) the courts.

[188ominique Rousseau, id. at 3 (emphasis in original).
Loi organique no. 2009-1523 du 10 décembre 2009 relative à l’application de l’article 61-1 de la Constitution [Institutional Act on the Application of Article 61-1 of the Constitution], J.O. Dec. 11, 2009.

[189Loi organique relative à l’application de l’article 61-1 de la Constitution [Institutional Act on the Application of Article 61-1 of the Constitution, CC decision no. 2009-595, Dec. 3, 2009, Rec. —, J.O., Dec. 11, 2009, at 21381 (no. 2).

[190Sieyès, Qu’est-ce que le Tiers État? (1789); Raymond Carré de Malberg, La loi, expression de la volunté générale (1931).

[191This theoretical view of the law expresses French hostility to what is pejoratively called “the government of judges” (le gouvernement des juges). This hostility has its roots in the conservative role played by French judges during the old regime, when for the benefit of the aristocracy they opposed royal attempts at reform, John P. Dawson, Oracles of the Law (1968), and the later perception that judicial review exercised by a conservative judiciary was a means of nullifying progressive social and economic legislation. Édouard Lambert, Le gouvernement des juges, supra note 20.

[1921958 Const. art. 60.

[1931958 Const. art. 58.

[1941958 Const. art. 59.

[1951958 Const. art. 54.

[1961958 Const. art. 61(1).

[1971958 Const. art. 61(2). The Constitutional Council also has the competence to decide whether a matter proposed to be enacted as a law is “regulatory” in nature and therefore could not be enacted by Parliament. 1958 Const. art. 41. The purpose of this provision is to prevent Parliament from encroaching on the executive’s autonomous regulatory authority, as defined in 1958 Const. art. 37. Also, 1958 Const. art. 37(2) allows the Government to petition the Constitutional Council to “delegalize” legislation in force that is regulatory in nature, so that these matters can be dealt with by executive decree.

[198See, e.g., George D. Haimbaugh, Jr., Was It France’s Marbury v. Madison?, 35 Ohio St. L.J. 910 (1974).

[1991958 Const. art. 62(1).

[200See generally Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (1992).

[201The Constitutional Council held that the institutional act conformed to the Constitution (with three minor interpretative reservations). Loi organique relative à l’application de l’article 61-1 de la Constitution [Institutional Act on the Application of Article 61-1 of the Constitution], CC decision 2009-595 DC, Dec. 10, 2009, Rec. —, J.O., December 11, 2009, at 21381(no. 2). The act entered into force on March 1, 2010. The act reads, in relevant part:
Chapter II bis – Priority Question of Constitutionality
Section 1 – Provisions applicable before tribunals coming within the jurisdiction of the Council of State or the Court of Cassation
Article 23-1. Before tribunals coming within the jurisdiction of the Council of State or Court of Cassation, the objection that a legislative provision infringes on rights and freedoms guaranteed by the Constitution shall be admissible only if presented by a written petition with reasons stated. Such objection may be raised for the first time on appeal. It cannot be raised ex officio.
(…)
Such ground may not be raised before an Assize Court (Cour d’assises). In case of an appeal from the decision of an Assize Court of first instance, it may be raised in a written statement accompanying the petition of appeal. This petition shall be transmitted immediately to the Court of Cassation.
Article 23-2. The tribunal shall decide promptly by a reasoned decision on the transmission of the priority question of constitutionality to the Council of State or to the Court of Cassation. It shall make such transmission if the following conditions are satisfied:
1. The challenged provision is applicable to the litigation or to its procedure, or constitutes the basis of the prosecution;
2. It has not been declared to conform to the Constitution by the reasoning or the disposition of a decision of the Constitutional Council, unless there is a change of circumstances;
3. The question presented is not devoid of a serious character.
In any case, the tribunal shall, when seized with a petition challenging the conformity of a legislative provision to the rights and freedoms guaranteed by the Constitution or to the international obligations of France, decide with priority on the transmission of the question of constitutionality to the Council of State or to the Court of Cassation...
The decision to transmit the question is addressed to the Council of State or the Court of Cassation within eight days of its pronouncement, along with the mémoires or the conclusions of the parties. It is not subject to appeal. The refusal to transmit the question may only be challenged on the appeal of the decision of all or part of the case.
Article 23-3. When the question is transmitted, the tribunal shall stay its decision until it receives the decision of the Council of State or of the Court of Cassation, or, if it is seized, of the Constitutional Council…
Section 2 – Provisions applicable before the Council of State or the Court of Cassation
Article 23-4. The Council of State or the Court of Cassation shall render a decision on the referral of the priority question of constitutionality within three months from the receipt of the transmission... It shall consider the referral if the conditions stipulated in 1, 2, and 3 of article 23-2 are fulfilled and if the question is new or presents a serious character.
Article 23-5. The objection that a legislative provision violates the rights and freedoms guaranteed by the Constitution may be raised, even for the first time on appeal, in a proceeding before the Council of State or the Court of Cassation. The objection shall be admissible only if presented by a separate petition with reasons stated. It cannot be raised ex officio.
In any case, the Council of State or the Court of Cassation shall, when seized with a petition challenging the conformity of a legislative provision to the rights and freedoms guaranteed by the Constitution or to the international obligations of France, decide with priority on the transmission of the question of constitutionality to the Constitutional Council.
The Council of State or the Court of Cassation shall render its decision within three months from the time of the presentation of the objection. The Constitutional Council may be seized of the priority question of constitutionality if the conditions stipulated in 1 and 2 of article 23-2 are fulfilled and if the question is new or presents a serious character.
(...)
Section 3 – Provisions applicable before the Constitutional Council
Article 23-8. The Constitutional Council shall, when seized in application of the provisions of this chapter, immediately inform the President of the Republic, the Prime Minister, and the Presidents of the National Assembly and the Senate. These persons may present their observations to the Constitutional Council on the priority question of constitutionality which has been submitted to it.
Article 23-9. When the Constitutional Council has been seized with a priority question of constitutionality, the termination, for whatever reason, of the proceeding which was the occasion for raising the question shall not affect the examination of the question.
Article 23-10. The Constitutional Council shall render its decision within three months after being seized. The parties may present their opposing observations. The hearing shall be open to the public, except in exceptional cases, as determined by the internal rules of the Constitutional Council.
Institutional Act 2009-1523 of December 10, 2009 on the Application of Article 61-1 of the Constitution, J.O., Dec. 11, 2009.

[202On the QPC, see Dominique Rousseau (ed.), La question prioritaire de constitutionnalité (2010).

[203Mme L. [Mrs. L.], Council of State, decision no. 329290, Apr. 14, 2010, Rec. Lebon —.

[204Consorts L. [Mr. and Mrs. L.], CC decision no. 2020-1 QPC, May 28, 2010, Rec. —, J.O., May 29, at 9728 (no. 67).

[205Id.

[206Attorneys’ presentations before the Constitutional Council in QPC proceedings can be viewed on the website of the Constitutional Council. To view videos of QPC proceedings, see http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/videos/toutes-les-videos.48281.html#ancrePresentationQPC. English translations of QPC decisions are also available on the Council’s website. See http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/priority-preliminary-rulings-on-the-issue-of-constitutionality/decisions-of-the-constitutional-coucil-qpc.48658.html.

[207Balladur Report, supra note 22, at 174.

[208See the critical comments of Dominique Schnapper regarding the membership on the Constitutional Council of former presidents of the Republic. Schnapper, supra note 2, at 124-25.

[2091958 Const. art. 71-1. See generally Nathalie Marcon, Le Défenseur des droits (Article 71-1), in La Constitution de la République française: Analyses et commentaires, supra note 2, at 1682.

[210Balladur Report, supra note 22, at 179. See also Nathalie Marcon, id. at 1684.

[211Loi organique relative au statut de la magistrature et au Conseil supérieur de la magistrature [Institutional Act on the Status of the Judiciary and the High Council of the Judiciary], CC decision no. 2001-445 DC, June 19, 2001, Rec. 63; Loi relative à l’égalité salariale entre les femmes et les hommes [Law on Equal Pay for Women and Men], CC decision no. 2006-533, Mar. 16, 2006, Rec. 39.

[212There was a long tradition in France that refused to recognize regional or minority languages. In 1982, however, President Mitterrand declared: “The time has come for a status of the languages and cultures of France which recognizes in them a true existence. The time has come to open the doors of schools, of radio and television in order to allow their diffusion and to give them the place they deserve.” Quoted in Dominique Breillat, The European Charter for Regional or Minority Languages: The French Case, Paper for the Coimbra-Group Conference “Migration, Minorities, Compensation” in Siena, Italy, March 2001. In 1999, the president of the Republic, pursuant to article 54 of the Constitution, referred to the Constitutional Council the question of whether the ratification of the European Charter for Regional or Minority Languages required amendment of the Constitution. In its decision, the Council indicated that ratification would require amendment. Charte européenne des langues régionales ou minoritaires [European Charter for Regional or Minority Languages], CC decision no. 99-412 DC, June 15, 1999, Rec. 71. In July 2008, article 75-1 was added to the Constitution. As of August 1, 2010, France had not ratified the Charter.

[213Balladur Report, supra note 22, at 10-11; Warsmann Report, supra note 43, at 37-42. But see the point of view of the Socialist Party, as expressed by deputy Arnaud Montebourg, who believes that “in the face of the profound crisis of democracy which the country is experiencing,... a thoroughgoing reform of the national political system [is necessary]... The Fifth Republic has a tendency toward authoritarianism or toward personalized power, and has shown itself to be powerless to make durable political compromises permitting the country to resolve its problems.” Id. at 74-75. More specifically, the Socialist Party wanted to consider amending the preamble, as suggested in the Veil Report, supra note 186; it found “unacceptable” the nomination process provided for by 1958 Const. art. 13(5) (concerned with the creation of a “comité Théodule” [a term coined by President de Gaulle, that has come to mean a rubberstamp committee]); the changes to the High Council of the Judiciary now in 1958 Const. art. 65 (fearing a “repoliticization” of the Council); allowing the president to appear before the Parliament in person (it is the prime minister who directs the work of Parliament); and the retention of the article 49(3) procedure for enacting legislation. Id. at 74-76. “More generally, the proposals of the Socialists seek to combat anything that augments the powers of the executive and to encourage anything that improves the separation and the equilibrium of powers.” Id. at 75. Finally, “The opposition wants to reach a compromise which will shake up (ébranlera) the constitutional history of France by giving a new direction to the Fifth Republic.” Id. at 89. In short, the Socialists wanted to make major changes to move France away from the president-dominated regime of the 1958 Constitution toward a parliamentary democracy. Although they found many, if not most, of the proposed amendments unobjectionable, they feared that nothing of substance would really change, or, as the French would say, plus ça change, plus c’est la même chose.

[214Quoted in Warsmann Report, supra note 43, at 41.

[215Warsmann Report, supra note 43, at 10.

[216Id. at 37.

[217 Id.

[218Hyest Report, supra note 12, at 38.

[219Administration des Douanes v. Sociétés Cafés Jacques Vabre, Cass. Ch. Mixte, May 24, 1975, D. 1975, 497.

[220Nicolo, CE Ass., Oct. 20, 1989, Rec. Lebon 190.

[221Martin A. Rogoff, Application of Treaties and the Decisions of International Tribunals in the United States and France: Reflections on Recent Practice, 58 Maine L. Rev. 405, 433-69 (2006).

[222Art. 93(1)(4a) GG: “(1) The Federal Constitutional Court shall rule: 4a. on constitutional complaints, which may be filed by any person alleging that one of his basic rights... has been infringed by public authority...”

[223 See Jean-Jacques Chevallier, Guy Carcassonne & Olivier Duhamel, La Ve République, 1958-2001 (9th ed. 2001), at 1-8; Duhamel, supra note 2, at 385-98.

[224See Jean-Jacques Chevallier, Guy Carcassonne & Olivier Duhamel, id. at 65-68.

[225On the events of 1968 and their political significance, see id. at 141-56.

[226See Rogoff, A Sixth French Republic, supra note 25, at 158-59.

[227Dominique Rousseau (ed.), La question prioritaire de constitutionnalité 3 (2010).

[228There is virtually no political question in the United States that does not sooner or later resolve itself into a judicial question. Hence the parties in their daily polemics find themselves obliged to borrow the ideas and language of the courts... In a sense the language of the judiciary becomes the vulgar tongue. Thus the legal spirit, born in law schools and courtrooms, gradually spreads beyond their walls. It infiltrates all of society, as it were, filtering down to the lowest ranks, with the result that in the end all the people acquire some of the habits and tastes of the magistrate.
Alexis de Tocqueville, Democracy in America 310-11 (1835) (Arthur Goldhammer, trans., 2004). See also Jean Carbonnier, Droit et passion du droit sous la Ve République (1996); Martin A. Rogoff, The French (R)evolution of 1958-1998, Colum. J. Eur. L. 453 (1997/98) (reviewing Jean Carbonnier, Droit et passion du droit sous la Ve République).

[229Martin A. Rogoff, A Comparison of Constitutionalism in France and the United States, 49 Maine L. Rev. 21, 60-64. available at http://www.juspoliticum.com/L-histoire-du-concept-de.html.

[230See generally Olivier Beaud, L’histoire du concept de constitution en France. De la constitution politique à la constitution comme statut juridique de l’État, 3 Jus Politicum (No. 3, Dec. 2009), available at http://www.juspoliticum.com/L-histoire-du-concept-de.html.

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