Constitutional History ; Building Democracy and forming a constitutional

culture

A. Architecture of the French Constitutional Structure

Related to formal and material constitutions

French Constitutionalism influenced all the western philosophies

I. Writing Constitution

Novelty per say, the idea didn’t exist before,

i. Sieyès Constituent power

Important figure of the French revolution

Important doctrine, scholar and political function

“Qu’est ce que le Tiers-Etat » main book, published during the Revolution, all the main aspects of this
revolution are in this book

The 4rth first French constitution are linked to it

No longer the king or monarchy source of power it is the nation, it has no limit, abstract idea of all the
people in the past present and future generations

3 ordres

Third Estate is the most important in number but less powerful in number

The nation has the third estate as the most powerful part of it

But because the nation cannot express it self directly it needs representatives

Seyiès books has the representative principle

His ideas find their way in the Declareation of Rights of Man and Citizen
The principle of any Sovereignty lies primarly in the Nation. No co

ii. The procedures of constitution-making

How to write it?

Created a lot of constitutions for France that didn’t last long

The idea of Constitution making in France is to change everything that pre-existed in the political and
economic sphere

It is an instrument of change

Every constitution is made to bring about a new regime in order to fix the mistakes and defects of the
previous one

Very first constitution in 1791,

A new one, republican in 1793

After the Terror 1795, new constitution but not implemented

Return of the republic after the empire 1848,

Same goes for all of the other republics

That decision to change society and politics is an heritage of French Revolution. Part of French
constitutional culture where you need to write a new text to bring change

Third republic had been the longest regime with 65 years + some month

The French Vth constitution will soon be the longest lasting regime

What makes a constitution last?

Most common interpretation is that their flexibility ensured their survival

Third republic constitution was very flexible, being based only on 3 constitutional law that weren’t
entrenched

Vth republic Rigid entrenched but it is still considered quite flexible in constitutional conventions

It can be adapted to fit the phases of a regime

Today is a new phases of the Vth republic where there isn’t an absolute majority that supports the
government

Challenge for the Vth republic

Serment du Jeu de Paume, taken by the French Revolutionnaries and the representatives of the
Bourgeoisie

They decided that they will:

Be a self proclaimed constitutional assembly and start a constitution

Not separating until it is written, took 2 years, but only a few months for the DDHC

Because DDHC had important point and large principle but to organise power it took much longer

Controversy on constitutional making that was important at the time, especially in England but then
in France

How to create a new constitution, is it even possible to create a new constitution from scratch?

Yes it is possible, to use only new ideas

No it isn’t, culturalist approach

Edmund Berke and Thomas Pain, Burke thinks that the French are crazy enough to create a
constitution from scratch

Pain base his analysis on the British conventions, habits and tradition and argue that the constitution
cannot be created intellectually out of nothing

France demonstrated that Burke position was right in the sense that all of the constitutions tried
most of the form of separation of power

Question is how to make them last?

If history proves that every change in politics leads to a constitutional change, every constitution are
made to be stable and to last

At the same time there is a constradiction, the constitution needs to reflect the will of the people in
the contemporary way
The Nation has to be reflected in its own constitution

No generation should be submitted to the will of the previous one

In the DDHC of 1793 that wasn’t applied but contained this principle of generation

It must always be possible to amend the constitution

The power of amendment appears at the same time of the constituent power

Sieyès theorised this relation between a constituent power and the amendment power

The amendment power is not at the same level as the constituent power

Important distinction between the original constituent power and the derivated constituent power

One being the power of the nation the other being the power of amendment

Apart for the 3rd republic the constitution were made to be rigid, the power of amendment was
different from the legislative

II. Sanctioning Constitutions

Giving them a sanction power that will act in a legal power If constitution not respected

i. The initial refusal of constitutional review

Not something that appears naturally

After the French Revolution there is a rejection of the idea

The reason is summarised in article 10 and 13 of “The French separation of power” or law of 16 and
24 august 1790

It is a specific separation of the judiciary from the other two powers

Prohibit court to overrule legislative power and prohibit court out of the executive business

Article 10: separation from legislative and judiciary

Article 13: executive protected from judiciary

Very far from Marbury v Madison

Sieyès tries to introduce the idea of constitutional review with a constitutional jury

This idea he tries it in 1795 with two speeches in front of the Constituent Assembly who wants a new
constitution after the Terror

The Assembly rejected this proposal and considered itself as the main protector of constitutional
rights

In the Constitution Year I, all person are guardian of the constitution

In Constitution Year III, it is everyone but there is no special body entrusted

Moral sanction of the constitution very different from being a norm with a judge to apply

If the Constitution is not the supreme law what is it?

The Civil Code was considered for a long time as the actual constitution of France in a material state

1rst it is stable, it is for the judiciary to protect and implement it, it is the source of the law

The reason is also related to the place of the Legislative power

It is entrusted in a parliament representing the will of the people

Rousseau theory particulary influencal

With his idea of the general will of the people as the main expression of democracy is almost word by
word implemented in the declaration of rights

In this “THE LAW” not the constitution is the general will of the people

In France the “legislator” is a lax term that included the legislative power but also the executive if it
can propose laws

In nowadays separation of power, it is about separating the function from the orgna

B. The substance of French Constitutional Culture

Article 16 contains separation of powers and fundamental rights, they both stayed until today in two
aspect
 I. Representation and semi-direct democracy

Representation as a way to express the Nation

Sieyès

Debate with Rousseau who pushed for a direct democracy and Sieyès for a representative one

Sieyès won with the first constitution

King and parliament both representatives of the nation

Nicolas de Condorcet “My electors choose me to defend not their ideas but mine”

Representatives mandate not imperative

Imperatives mandates are prohibited in all French constitution

Article 27 de 1958 defines it

Rousseau comes out from time to time

Some attempt at semi direct were done

Constitution Year I

Article 2, 59, 60, 115

They organise the direct expression of the people

Protest can be made to oppose a law, it remains an illusion, because this constitution never really
functioned, the distrust toward the general population was strongest

National sovereignty and not popular sovereignty

Exempt a few attempt of consulting the people directly

The only example are plebiscite, organised by Bonaparte

Plebiscite not referendum, because plebiscite = personal referendum

Plebiscite of 1851 for Bonapartes coup

 II. The Heritage of the 1789 Declaration of Rights

For some it is so important that it could be supra constitutional so fundamental that it couldn’t be
changed

There is a debate today to know if it is possible to change it or not because it is included in the
Constitutional Bloc

The answer is mostly no, without any clear reason

There is no legal reason

If we accept that those rights are part of constitutional right today it is legally possible to change it,
but it is politically impossible to

DDHC starts with the “representative” of the French people, not the French people directly

The right are not created bye explicit law, the DDHC stating “natural rights” and because they are
inherent to human nature, the only thing the constituent assembly did, is to show the people the
right they are entitled to

The DDHC contains the first generation rights, freedom, liberty, equality, freedom of association, right
to be judge on the basis of the law, freedom of speech article 11, article 14 the right to accept taxes
(same principle as USA, no taxation without representation), right to private property article 17

Constantly reaffirmed principles

Article 12 law of Brumaire Year VIII, reaffirmed the DDHC principles even though it didn’t take this
principles as such

During the Consulate, same principle are there, they are suppose to be the conclusion of the
Revolution

The principles of the declaration survived most of the regimes

It is reaffirmed in the preamble of the 4rth and Vth French Republic

The DDHC is part of the positive law of France

In a way that is activable in front of court especially in front of the constitutional council

It used to be more of a political statement when constitutional review wasn’t applied

Because today there is a form of consituttional review the principle that were before political
statements, a matter of principle, they are now a positive law

Most of the constitutional reviews are based on the DDHC because the constitution isn’t focus on
rights because it relies on the DDHC

Gender equality, right to no discrimination are examples that are in the Constitution and not in the
DDHC

In Vth constitution kept the 1946 preamble

The current constitution brings preamble of the past one, because in its preamble you had socio-
economic rights which aren’t included in the DDHC

The 1946 preamble is another declaration of rights

Right to asylum, education, strike, employment….

The democratic presidentialism of the French 5th republic

This title is one way of defining the current regime of the 5th republic

It is a hybrid regime, you name it depending on the characteristic we want to stress

Semi-presidential, because the regime contains both parliamentary characteristics and presidential

Bottini is not a fan of this definition because it does not put forward of the parliamentary character

The constitution establishes a parliamentary system that put forward a president

The most visible in practice is presidentialism but it is counter balance by other factors

The origin of the Regime is Charles de Gaulle

He made the main constituent of the French republic himself with Michel Debre who practically
wrote the constitution of the 5th Republic based on the ideas of De Gaulle

In 1958 the constitution was written by a group of experts and executives

France was instabled due to the Algerian War

The end of the 4th republic was due to a too extreme instability

De Gaulle when into power negotiates to be able to change the constitution into a new one

The second part negotiate extraordinary powers

De Gaulle with Debré take the constituent power as part of De Gaulle negotiations

Very Technical aspect of this new constituent power

Article 90 of the French 4th Republic

It establishes constitutional amendments,

It is a rigid constitution so the amendments are hard to do with a need of 2/3 majority of both
chalmbers assembled together

What De Gaulle does is to use article 90 to revise article 90

Change the way to change the constitution in order to give this power of amendment to the
government

At first it gives De Gaulle the power to amend differently

The result of the auto amendment is contained in the law of 3 Juin 1959

It is a special derogation for De Gaulle in order to create a small group of experts that would rewrite
the constitution of France

The ambiguity is solved with the consequences of this group because it will be a completely new
constitution

In the law of June 3rd are contained some constraints that De Gaulle accepts to follow

He will actually follow them

In theory the constituent power is supposed to be free of constraint, here it isn’t

5 principles are:

- Universal suffrage is the sole source of power

- Separation of powers, especially the two main power, executive and legislative needs to have power
to control each other

- Government accountability to parliament

- The independence of the judiciary Judiciary in charge of protecting freedom Reference to the 2
declarations of rights  1789 and 1946

- Govern the relations between oversees territories and metropole

De Gaulle accepted to respect them, he could have legally but politically couldn’t

The procedure that followed was quick 3 months

A draft was made by the expert committee

Then the committee consults with members of parliament over the draft. Suggestions are made but
the government doesn’t have to follow

The council of states is also consulted, it can comment on the draft

Then it is presented to the council of ministers

In the End there is a referendum

All this takes 3 months, even less

On 4 october 1958 constitution goes into effect

A. The End of the representation paradigm

How to legitimise power in a new constitution?

For De Gaulle representation alone is not enough, because at the time it meant political parties and
De Gaulle doesn’t like them, he thinks they take away sovereignty from the people and are the
reason of the instability

He thinks that the only solution is to give back a form of primacy to the executive power, it would be
a source of stability

Just by looking at the order of chapters in Constitution it is showed

Title 1 people

Title 2 President
Title 4 the parliament

How to give this primacy?

Creating a powerful president, it didn’t exist in the 3rd and 4th republic

The president in Title II will have a series of personal powers

List of personal powers in Article 8,9,10,11,12, 16, 18, 54, 56 and 61 cf article 19

IT states that there is a rule and a execption

The rule is the typical rule of parliamentary system, the head of state can only act if his act are
counter signed by government. This is because the government is responsible before parliament,
there cannot be someone unresponsible for something

But Article 19 introduces a huge novelty, it is a list of execptions to the rule of counter signature,
those are personal power of the president that don’t need to be countersigned

Article 8 nomination of prime minister

Article 12 dissolution of the national assembly

Nominating Prime Minister, President of the Council of Ministers, Dissolution of Parliament,

Article 16 emergency power

Article 18 right to communicate with the parliament

Article 64 nomination of the members of the constitutional council

Article 66 nomination of the president of the council

Article 61 it is the power of the president to defer a law to the CC for CCR

All those powers are execptions to the general rule of counter signature

It is important because the legitimacy of those act don’ t belong ot the legislative responsibility

It comes from the people, because the president is chosen by the people that those things are not
countersigned

Direct election allow those powers

But the problem is that the president is not accountable in France

Article 67: non accountability

No political (no possibility to force him to resign) or legal responsibility, Only one execption to this
Article 68: formely article on high treason that has now been modified and has become the case of
“breach of duties patently incompatible with his continuing in office” Never been used

This can only be recognised by the parliament assembled as a high court

He is irresponsible for when he is in presidency and what has been done during his presidency  if
he commit a crime not related to his presidency the victim has to wait until he isn’t president
anymore

That is why De Gaulle wanted direct presidential elections but Debré didn’t want for multiple reason

But De Gaulle only waited 4 years to change it, Since 1962 the constitution establish that the French
president is directly elected

The President is responsible but in front of the voters, the people

This is why it is an hybrid regime

2. The political existence of the people

French parliamentarism was a traditional form where the parliament was the general expression of
the will of the people

But with the new constitution it changes

Article 3: National sovereignty shall vest In the people who shall exercise it through their
representatives and by means of referendum

Temporary come back because they are only related to De Gaulle presidency, more than half of the
referendum took place during his presidency

Article 11: One of the personal power of the president

About the referendum. It wasn’t always like this, was modified and expanded in 2008. Before 2008
only the president could organise a referendum, only 2 first paragraph of the article existed before
reform
The terms of subject for the referendum are quite large and that is what De Gaulle used to change
presidential election from undirect to direct through a referendum

Article 11 mentions BILLS not the constitution but this became a problem to know who was the final
interpreter of the constitution itself. In this episode there are two final interpreter that prevailed, the
president himself, the final interpreter was the people itself, the reason in the end De Gaulle
succeeded was because the referendum was successful

De Gaulle argued that because of Article 3 about people sovereignty this was an exercise of it

New possibility in 2008, paragraph 3 to the end

IT is also possible ot initiate a RF with a combined initiative from members of the parliament 1/5 and
the support of 1/10 of the electorate almost 4,7 million people today

This mixed RF initiative is in a organic law that was adopted in 2013  shows how hard it was to find
an agreement about it

Since then only 5 time when people tried to call for one, but they all couldn’t achieve to be organised,
the one that got closer to do the entire procedure was the first referendum about the privatisation of
the Compangy of Paris airport  attempt of privatising, referendum was initiated to prevent it, 1/5 of
the members of parliament wrote a bill but then need the support of 1/10 of the electorate  have 9
months to gather then  electronic site to gather them  after 9 months only 1,8? Million vote were
gathered

Extremely complicated to use the new article 11, that is why Macron on the 4 th October actually
announced in a unspecified way, that this article would be modified in order to make it more
accessible, the more probable change that could be done it is to lower the number of required
signatures

Hybrid or semi presidential regime (Bottini doesn’t like them)

She use a “parliamentary system”

Article 50 about montion de censure which is the essence of parliamentary regimes

Article 7, since 1962 that organise the direct election of the president is of a presidential nature

“Presidentialised parliamentary regime”

B. The rationalisation of parliamentarism

Parliament is constrained in its power

There is no void in power, if a power is constrained the other one is gonna get more power
“Rationalised parliamentarism” Boris Mirkine Guetzevitch created this term for the French IV republic
who attempted it but failed

To understand rationalised parliamentarism we have to understand the role of the Prime Minister

The PrM is behind the president in the Vth republic,

Situation that has been common, the president has a majority and is the leader of this majority and
the head of state

So Who is the head of government?

The executive power as a whole is 2 headed but who us the real leader

Article 20 gives the general mission of the government “The government shall determine and
conduct the policy of the Nation”

Article 21 gives the general mission of the Prime Minister

The head of government is the prime minster and the government is technically the leadership of the
executive itself

But in practice?

Power of the President to appoint the Prime Minister, it is a personal power, first indication of the
power that the president has on the government

Because of the power of appointment and the direct election of the president it is the president who
gives the legitimacy to the prime minister

It is the power of the president to preside over the council of minister  once a week meeting of the
ministers where the main priorities of the government are discussed  the president fixes the
agenda of this council

In theory the president certainly conduct the discussion of the minister but doesnot determine the
policy of the nation

In practise the president decides the policies of the nation

Only exception are the periods of Cohabitation, only three times where the prime minister really had
all of his powers
One of the reasons why it happened 3 times, nowadays it is theoretically still possible,

Happened before when the Presidency lasted 7 years meant that you could have sort of midterm
election with the national assembly, it could provoke a renewal of the national assembly

It was changed in 2000 in order to avoid cohabitations

2008, 50 years of mainly presidential system, Constitutional amendments for

“better controlled executive”

“strengthen Parliament”

“ new rights for citizens”

This recognised the unbalance in the powers where the executive was much stronger that the
parliament

This lead to new opposition rights, one day a month for each group to initiate legislation by itself

More importance of the parliamentary commissions

Bottini doesn’t think this reform achieved its goals

I. The creation of the law: The rationalized legislative procedure

The legislative procedure is very much influenced by the government

Article 24 Parliament shall pass statutes

A. The national assembly 577 constituency with majoritarian uninominal elections with two
rounds instead of 1 like in the UK

Over representation of the winning party and only big parties can hope to go to the parliament, not
as extreme as UK but not as a good as other countries

B. Senate

Representatives of the local communities, 6 years renovated every 3 years by half, proportional for
big constituencies and majoritarian for smaller one –> more conservative assembly

Does not have the same majority as national assembly, elected by great electors thus less legitimate
than the national assembly. This is the reason why the national assembly is more powerful than the
Senate and can overrule the decision of the Senate
A big limitation of the Legislative power during the Vth Republic is the distinction in the Constitution
with the domain of the law and the domain of regulation

Article 34 list the domain of the law what is important is that there is a domain of the law  this
doesn’t exist in parliamentary regime, in ideal type parliament do what it wants and makes law what
is wants. But now the law is what parliament vote in the list of the law. Even if it list all the most
important things in a state

Article 37 domain of regulations

This distinction benefit the government in an anormal way for Palriamentary regime

“Autonomous regulations” not executions of the law but are decisions made autonomously on
subject not included in the domain of the law

The power of initiative of legislation is shared between the PrM and MP

Article 39 about this share

Should be half half be in practise 90% of the proposition of laws are form the PM, this is explained by
the fact that the government fixes half of the schedule, This shared initiative + the power the
government has to control schedule leads to the government control

Article 40 related to the limitation of the right of parliament when it comes to parliamentary initiative
concerning finances

Cannot propose legislation that should increase or create any public expenditure or reduce public
revenue

Parliament cannot cost money to the country apart if the government agrees to

The government has the role of organizing the state budget and propose it to parliament for approval
(here similar to the US)

This explain why parliament has this important prerogative

Example was in May 2023, a group of members of the opposition tried to counter the government
reformed by initiating a law that said that they would go back to the situation before the law in April

Government used Article 40 to stop it

Article 49 (3)

The government can activate its responsibility in front of NA on a certain bill

Either the parliament reverse the government on a motion of no confidence  need a absolute
majority, if no vote of no confidence the bill is passed without a vote

Only time motion of no confidence passed (not even related to 49 (3) ) was in 1962 against De Gaulle,
government overthrown  De Gaulle then dissolved the NA

This precedent shows that one of the potential consequences of the vote of no confidence is that the
NA is dissolved

Since 2008 limited to 3 laws, financing bills, social security bills and one other bill per session
(equivalent of a year)

The two financial one are the most important

It cannot be used 3 times per but on 3 laws per session, this means that on the same law it can be
used multiple times

No one apart the prime Minister can use it (Dussopt read the letter written by Borne to use it)

2. The control of the law: the development of constitutional review of legislation

Constitutional reviews in France never existed until the Vth

1958 with the Vth republic  Constitutional council appear, organed created especially to check that
parliament does not go outside its prerogatives

The initial idea of the CC is to check the respect of the domain of the law

This is also why it is a “Council” and not a “Court”, they did not have in mind constitutional review
and human rights

Article 56 about the organization of the council

Currently No law professor on the court, one former judge and one administrator of the NA

+ Honorary members ancient president if they want to they can join for life

That is outrageous but no one wants to do anything about it

Why is it more and more like a constitutional court?

Article 61 and Article 61-1 articles on the role of the CC (other functions like electoral judge other
article)

Those article are the two articles about constitutional review

EX-ANTE before the law is enforced  existed since 1958

Other after the article is enforced  added in 2008

Both exist and work differently

Ex-ante, series of public authorities that can differ a law to the CC for its constitutionality before its
application, abstract review typic of the European review, abstract because there is no case. Authority
are, president of R, PM, President of both assemblies and 60 members of NA or Senate

Council has one month to decide

Article 61-1

Creates a new procedure QPC (priority question of constitutionality)

The law in question is actually in effect

Articles used to judge someone can be questioned, the lawyer can first write the question to the
judge, then he filters the question to see if it is relevant (with criteria), if relevant it is then send to
one of the two supreme court, (cour de cassation or conseil d’etat) then they evaluate its relevance
the question gets send to the constitutional council

They are fairly new in France constitutional culture (QPC applied n 2010 (took 2 years to write
organice law))

Evolution of the CC to human rights protection and constitutional review

1971  first time the CC included in its decision a freedom (freedom of association) after that the CC
started to include fundamental rights and freedoms

With that the CC started to deal more and more with fundamental rights and freedoms  looks more
like a constitutional court but isn’t composed like one and doesn’t work like one