The positions taken by a few personalities or political groups, following the decision of the Constitutional Council to censor certain provisions of the law to control immigration and improve integration, reveal less of the dangers of the advent of the government of judges , than a long process of weakening of our institutions, to which everyone now seems to adapt. To be convinced of this, it is enough to invoke both the law and the facts and to analyze, in the light of the text and the spirit of the Constitution itself, the abuses which accompanied the adoption of the government bill.
The first argument to be made to the detractors of the constitutional judge is that we cannot attribute to those who judge the constitutionality of laws the weaknesses of which Parliament or the government are guilty in the course of the legislative procedure. The entire French legal order is based on this idea, dear to Montesquieu, that through the arrangement of things, power must stop power: if the development of laws responds to clear rules, it is precisely in order to guarantee rights of the executive and legislative powers and, beyond that, those of the opposition. The possibility open to parliamentarians, from 1974, to refer the matter to the Constitutional Council was primarily intended to protect them from the ills of rationalized parliamentarism, when the government became comfortable with the legislative procedure. In the present case, the text proposed by the government, for deliberation by Parliament, was profoundly distorted by the desire of the senatorial right to substitute its own, sometimes benefiting from the complicity of the executive, the both resorting to backroom arrangements, worthy of the most disastrous errors of the Fourth Republic.
We could have hoped that the National Assembly would choose to take up the bill, by tackling its excesses, to assert a position of wisdom. But the majority of deputies preferred to give in to the convenience of politics, by renouncing to legislate. As for the President of the Republic, he sought to preempt the decision of the Constitutional Council, by making it known, before the Sages made their decision, what he expected of them, thus giving the feeling that he too was accommodating of a process which resulted in the adoption of a law of which certain provisions were manifestly unconstitutional. The actors of inconsistency were therefore logically the first to turn their guns in the direction of rue de Montpensier, as part of a courageous discard strategy.
The confusion that arises
The second argument, to be opposed to the senatorial right and the extreme right, who now consider themselves legitimate to speak out for the people, whose will and deep aspirations have allegedly been flouted, is that the reform of the Constitution that they recommend not correcting any of the effects of the decision of the Sages, which only slightly censored the substance of the text, to stick to old and constant jurisprudence on legislative riders. The aim here was to ensure the quality of legislative work and, in the long term, its consistency.
The only constitutional reform that could quench the dissatisfaction of the extreme right would consist of modifying the conditions for the admissibility of parliamentary amendments, by modifying the content of article 45 of the Constitution. But where demagoguery dominates, the well-understood interests of the most vocal of elected officials remain, and their cynicism prevents them from venturing down this path.
Finally, the last argument, in my view the most fundamental, is that if nothing can oppose the will of Parliament to modify the Constitution, everything opposes, on the other hand, in a State governed by the rule of law that it calls into question the decisions of the Constitutional Council at will, by adopting, in identical terms and by a qualified majority, provisions censored by the Wise Men. From this point of view, Jean-Eric Schoettl’s proposal, advocating that in deadlock situations, when a Supreme Court censures a law, “the last word goes to Parliament” is both irresponsible and dangerous. If, in the confusion that is establishing itself, we were to accept such mistakes, the process of weakening of our institutions would be definitively established, which would cause the rule of law and the fundamental freedoms it still protects to falter. The people, under the pressure of the crowd and its demagogues, would then be the greatest victims.