Everything will depend on the preamble of the Constitution of… 1946! Starting March 1st, any litigant can, “on the occasion of an ongoing case before a court,” request the referral of the Constitutional Council if they believe “that a legislative provision” applicable to their case “infringes on the rights and freedoms that the Constitution guarantees.”
Among the three main axes of the constitutional reform of July 2008—the strengthening of the role of Parliament, a modification and better framing of the powers of the President of the Republic, and new rights given to citizens to better protect them and encourage them to re-engage in political life—it is undoubtedly this final measure, in the form of the new article 61-1 of the renewed Constitution, that marks the most noticeable and promising evolution for the lives of the French.
Certainly, the legislator has avoided removing all the barriers that might establish direct citizen control over constitutionality: like the Republic’s Mediator who requires the mediation of a parliamentarian to win a case against an administration, two intermediate steps remain: the judge handling the current case will check not only the relation of the challenged provision with the dispute. They must also ensure that it has not already been declared in conformity with the Constitution and that the challenge “is not devoid of seriousness.” After giving their consent, the Council of State or the Court of Cassation then has a three-month period before deciding to forward the case, if deemed necessary. A small dose of opportunity. A large one to maintain sensitivities.
This is not the main point. The “nine sages” of Montpensier Street—and the former presidents who sit there by right—know: they are less anticipated on the current constitutional provisions than on the political interpretation of older texts: essentially, the preamble of the Fundamental Law of October 4, 1958, refers in its first paragraph to the Declaration of the Rights of Man of 1789, “confirmed and completed” by the preamble of the Constitution of October 27, 1946, integrated since a 1971 decision to the “bloc of constitutionality.” Although this preamble occupies only eight modest lines in the 1958 document, the extensive development it receives in the introduction to the founding text of the Fourth Republic should undoubtedly spark, at the very least, an exciting debate on civic life.
Indeed, what will become of the “inalienable and sacred rights” of every human being proclaimed by “the French people”? How will the rights and freedoms of man and citizen be defined—the obligations are not included!—as enshrined by the obscure yet famous “fundamental principles recognized by the laws of the Republic”? How will the Sages of the Palais Royal interpret this proclamation which details “political, economic, and social rights”? Should the solemn reaffirmation of the right to asylum “for every person persecuted due to their actions for freedom” bow to security and economic necessities? Will the “right to obtain employment” be understood in a strict sense? Will the de-reimbursement of certain medications withstand the guarantee, granted by the “Nation to the individual and the family,” of “health protection and material security”? Already, one can imagine a whole series of legislative provisions related to the individual that might be “questioned” by the litigant: surveillance and recording of personal data on the web, individual freedom, especially that of conscience against that protecting religious freedom?
The legislative entanglement criticized by Jean-Paul Delevoye in his 2009 report might ultimately find an advantage here: a wide-scale cleaning up. The question remains as to who among the citizen, their lawyer, the judge, or the sage of Montpensier Street, will be the first to venture into this uncharted jurisprudential territory.
