What is a Constitution? The text which organizes the functioning of institutions, a law student would respond diligently. Fair, but incomplete definition. It does not reflect the evolution of our fundamental norm, an actor in the political debate. For some, it is a safe of individual rights, an essential shield against the abuses of the legislator. For others, a brake on public action due to the jurisprudence of the Constitutional Council. Lookout or obstacle. Sometimes both. Tell me how you speak of the supreme text, I will tell you who you are.
The Constitution is praised this Monday, March 4 as guardian, on the occasion of the Congress meeting in Versailles to include the “freedom” to resort to voluntary termination of pregnancy (IVG). The opportunity for this reform has divided the political class. President LR of the Senate Gérard Larcher is hostile to it, judging that the Constitution is not a “catalogue of social and societal rights”. On the right, we sometimes deplore a desire to keep up with the times. To use constitutional revision as a political communication tool. Supporters of the reform, on the other hand, praise its symbolic value and an additional barrier to protect a right threatened abroad. “The Constitution is a political object which constructs the figure of the citizen, defends the professor of constitutional law Dominique Rousseau. The latter constructs his identity by integrating rights.”
“Two possible philosophies”
Nothing new. Should the Constitution be the receptacle of new rights? Should she embrace the times? This debate preceded the election of Emmanuel Macron. He will survive him. “There are two possible philosophies,” notes former President of the Republic François Hollande. “Considering that the Constitution is so solemn that it should not be touched. Or revising it regularly in the name of developments in society.” Simone Veil belonged to the first school. In 2008, a committee chaired by the former Minister of Health did not consider it useful to add new rights to the preamble to the Constitution. His report judges that a reform of this text can only be implemented “within a certain national consensus”. “The constitutional rule presupposes some sort of agreement on the essentials,” the authors write. Way of removing any passionate and political charge from our fundamental norm.
Jacques Chirac placed himself in the second category. Gender equality, environmental charter, ban on the death penalty… The former president multiplied the revisions, soaking up the political atmosphere of the moment. This approach seems to be gaining ground, under pressure from public opinion. Many LR senators have resigned themselves to accepting the inclusion of abortion in the Constitution, for fear of being accused of reactionaries. Before new rights? Other principles are knocking at the door. “Dignity of the human person”, “common good”, “right to water”, “property rights”… Several constitutional law proposals (PPLC) have been tabled in recent years. During the examination of the draft constitutional law on the environment, the socialists wanted to strengthen the right to retirement and unemployment insurance by prohibiting any “regression of the rights of policyholders.”
French paradox
These initiatives illustrate the symbolic charge of the Constitution. They also strengthen the Constitutional Council, guardian of the text. “The more elements you put in your toolbox, the more you strengthen your power,” analyzes Bertrand Mathieu, professor of constitutional law at Paris I Panthéon-Sorbonne. The legislator knows this and plays with the Constitution to advance his pawns. In 2022, Green deputies tabled a PPLC aimed at guaranteeing the “right to a dignified life”, in particular to strengthen the right to housing. Senator LR Stéphane Le Rudulier defended the inclusion of the “right to property”, after the censorship of an article of the “anti-squat” law. An ideological battle is being played out behind the inclusion of each right.
Therein lies a paradox. This movement is accompanied by a growing challenge to the constitutional judge, accused of restricting the action of the legislator. The criticism is old. In 1982, the left was unleashed against the Constitutional Council, after the partial censorship of the nationalization law. This animosity has gradually shifted to the right. Republicans suspect the supreme judge of prioritizing individual rights over the general interest. To fuel distrust of politics by condemning it to impotence. Laurent Wauquiez places this criticism at the heart of his political discourse. The putative candidate for the 2027 presidential election thus described the partial censorship of the immigration text as a “coup d’état de j’état”… he who voted in 2005 for the integration of the environmental charter into the Constitution. This judgment certainly concerns the constitutional judge more than our supreme text. But it affects it by collateral effect.
Political instrumentalization
The Constitution is an obstacle here. It hinders, but does not protect. The planned revisions to the text serve less to strengthen it than to circumvent its guardian. Thus, the PPLC defended by LR this fall aimed to introduce migration quotas to avoid censorship of a law in the name of the right to family reunification. As early as 2016, Nicolas Sarkozy denounced the “quibbles” of the executive not to modify the Constitution after the wave of terrorist attacks. Forgetting that he himself had created the priority question of constitutionality (QPC) in 2008 to allow each citizen to challenge the conformity of a law with the fundamental norm. Here is the Constitution à la carte, which we model as we wish. “All of this is schizophrenic,” laments Bertrand Mathieu. “Politicians create a sort of ‘bed of justice’ to overcome a decision of the Constitutional Council, and at the same time give it more power.”
The Constitution is an autonomous political object. Sometimes an actor. The text played a role in the lying poker played by the executive during the immigration text. The government has made numerous concessions to the right, praying that the Sages come to its aid and sweep away these provisions. What happend. A third of the text was censored at the cost of an extensive design by legislative riders. “Politicians have taken the Constitutional Council hostage, mocks Bertrand Mathieu. He removed the obstacle based on procedure. It has come back with a boomerang among politicians who see their right to amend considerably limited.” If you play too much with a text, everyone ends up getting burned.