France-Amérique: The Americans worship their Constitution, yet the French do not. Which of the two is right?
Alain Juppé: The relationship with the Constitution is vastly different on either side of the Atlantic. For the Americans, the Constitution is the founding act of their nation. A short yet solemn text, and while it has had 27 amendments, its general spirit has remained the same since 1787. In France, we have had 15 constitutions since 1789. If the most recent 1958 Constitution survives until 2024, it will have lasted longer than the 65-year Constitution of the Third Republic. The current one has been amended 24 times. We could see this propensity to modify the Constitution as a sign of trust in the protection that it provides. But it may also show instability at a time in which the rule of law is being attacked from all sides.
De Gaulle tried to sanctify the Constitution of the Fifth Republic by introducing constitutional oversight. Has this come to fruition?
The 1958 Constitution, supported by General de Gaulle, provided for the creation of the very first Conseil Constitutionnel, a council tasked with monitoring the constitutionality of laws. However, de Gaulle initially hoped that it would protect the powers of the executive. The Constitutional Council – the government’s “watchdog” – could only be referred to by the president, the prime minister, and the presidents of the National Assembly and the Senate. In 1974, following a decision by President Valérie Giscard d’Estaing, this power of referral was expanded to include 60 representatives or 60 senators, thereby bolstering the prerogatives of the opposition. The 2008 revision was what truly revolutionized the mission of the Constitutional Council by creating the priority question of constitutionality (question prioritaire de consitutionalité, or QPC). This tool is used to invoke the unconstitutionality of a law currently in force. These requests are filtered by the State Council or the Court of Cassation, which verifies the credible nature of the question. The assessment of QPCs represents 80% of the Council’s work, making it the guardian of freedoms that the Constitution provides, or not, to citizens. For example, last November, we refused a request from a family who wanted to keep one of their relatives alive, at any cost, after he had been hospitalized following an accident. The victim had left instructions to pursue treatment in the case of an accident. The Constitutional Council, despite this prior directive, judged that the cessation of treatment was justified as the alternative implied the use of intensive medical care and the mobilization of a hospital unit for a brain-dead patient.
Has the U.S. Supreme Court been a model for France? And should it be?
The Supreme Court and the Constitutional Council both have nine judges and a relatively similar nomination process – by the American president with the approval of the Senate in the United States, and by the French president and the presidents of the National Assembly and the Senate in France. There are no limits on age or background. However, the two institutions are different. One is part of a federal state, while the other is part of a unitary state. The Supreme Court is not actually specialized in assessing constitutionality, which only makes up between two-thirds and three-quarters of its work depending on the year. It has the discretionary power to choose the cases it wishes to address (around 100 per year out of 10,000). It can also change or revoke the decisions of every jurisdiction in the country. This is not the case in France. The conditions for referral (by members of the National Assembly or the Senate) and submitting QPCs are strictly defined. Our Constitutional Council takes an in abstracto approach in assessing the constitutional compliance of legislative matters that are referred to it, but it cannot change decisions made by ordinary judges. The main difference probably resides in the relationship that each of these institutions has with the political world. From a French perspective, the Supreme Court justices are clearly defined as conservative or liberal; they do not shy away from taking political stances, and dissenting opinions are made public. In France, even though certain figures within the Constitutional Council have a background in politics, all members swear to remain strictly neutral and protect the secrecy of their deliberations.
The Supreme Court is comprised of professional judges, while the Constitutional Council instead draws on the political class. In real terms, which is the better system of recruitment?
The nomination procedure for the Constitutional Council is a constant target of criticism – particularly by constitutional law professors who would like to be members. Some claim a better procedure would be an election by parliamentary assemblies, but this would politicize the system. The idea of a random draw has become quite fashionable, but the most important thing is the impartiality of the appointed judges. We take a solemn oath upon assuming our roles. Our nine-year mandate, which is not renewable, means we expect nothing from the authorities that appointed us and have a “duty of ingratitude” towards them. France’s Constitutional Council is not seen as a politicized institution. After almost four years on the Council, I can say that we specialize in law, not politics. Our debates never lead to political controversies, and we rarely vote as solutions often appear as a consensus. The diversity of backgrounds among its members is also one of its strengths.
The Supreme Court shapes American society more than Congress does. We have just seen this exemplified by the ruling on abortion, and in the past in decisions against racial discrimination. Would the French accept such a government of judges?
I would disagree with the claim that there is a “government of judges” in France. Judges apply the law and constitutional judges apply the Constitution. If legislation has become impossibly complex, the responsibility lies with legislators who create too many laws and too many that are “long-winded.” The Constitutional Council exerts limited control over society’s laws, and mainly in the areas of morals and ethics. Former associate justice Stephen Breyer wrote that the Supreme Court has become a counter-power in the United States. Its ruling that abortion cannot be a federally enshrined right is a sign of “the hypertrophy of American judicial power,” as explained by Wanda Mastor, a French expert on the Supreme Court. Of course, this originally applies to the United States, although there has been a ripple effect in France. The overturning of Roe v. Wade has led to a proposition to include the right to abortion in the French Constitution and thereby avoid any contagion from America.
The powers of the Constitutional Council have continued to expand since 1958. Will its members have new prerogatives?
It is not for us to demand new prerogatives. We merely strive to improve our procedures. For example, we have just adopted a new rule reinforcing the role of “contradiction.” In this current climate, France has more of a tendency to supervise the role of judges, not expand it.
Interview published in the January 2023 issue of France-Amérique. Subscribe to the magazine.
