The Constitutional Council and the Transformation of the Republic

Abstract

The 1958 Constitution is France’s fifteenth since the Great Revolution. Over two centuries of turmoil and change, one feature of French constitutionalism remained remarkably stable: the sovereignty of la Loi within the juridical order. In the Republican tradition, Parliamentary acts were understood to incarnate la Volonté générale, and la Volonté générale comprised its own higher law ideology. Separation of powers doctrines subjugated the courts to legislative authority, prohibiting the judicial review of statutes. Under the Fifth Republic, Parliament lost its centrality, but legislative sovereignty remained intact in an important formal sense. Statutes could only enter into force with the consent of Parliament and, once promulgated, no law could be challenged before a judge. On July 22, 2008, legislative sovereignty died a painless death, when Deputies and Senators gave the Conseil constitutionnel the power to review the constitutionality of laws on the books, in collaboration with the Cour de cassation and the Conseil d’état. The Council will now become a bonafide member of the family of European constitutional courts. The 2008 constitutional revision completes the “transformation” of the Fifth Republic, a process initiated by the Council’s 1971 “freedom of association” decision. The political parties have, in effect, ratified the “juridical coup d’état” that took place when the Council successfully incorporated a charter of rights into the Constitution. In this brief article, I examine the effects of this transformation on the exercise of legislative and judicial power, focusing on the authority of the Council within the constitutional order. Looking ahead, the 2008 revision will open a new phase in the evolution of the Fifth Republic, one of pluralism and fragmented authority in the process of protecting and developing fundamental rights.