Constituent Power and Self-Limitation: Analysis of Constitutional Revision in France Under the Fifth Republic

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Constituent Power and Self-Limitation: Analysis of Constitutional Revision in France Under the Fifth Republic

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Constituent power, constitutional revision, sovereignty, derived constituent power, original constituent power, constitutional control, French Constitution, Article 89, Article 61, Constitutional Council, constitutional amendments, referendum, Fifth Republic, François Mitterrand, constitutional regulation, state actors, constitutional law, constitutional competence, popular sovereignty, legal encadrement, constitutional regimes, power limitation, self-limitation, external control, political instrumentalization, constitutional text, supreme text, constitutional history, France, constitutional matters, constitutional judge, State of law, judicial review, constitutional safeguards, constitutional procedure, constitutional changes, constitutional framework, constitutional restrictions, constitutional obstacles, political obstacles, constitutional power regulation, constitutional authority, constitutional limitations, constitutional supervision, constitutional checks, constitutional balances, constitutional governance, constitutional order, constitutional rules, constitutional provisions, constitutional principles, constitutional amendments control, constitutional revision procedure, constitutional state actors involvement, constitutional law development, constitutional evolution, constitutional history of France, Fifth Republic constitutional framework, constitutional text revision, constitutional amendments review, constitutional control mechanisms, constitutional regulation of power, constitutional safeguards in France.

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Abstract

Unlock the intricacies of constituent power and its regulation in the French Constitution. Discover how the Constitution's self-imposed limits on revision power impact sovereignty and the role of various state actors in constitutional amendments. Explore the tension between original and derived constituent power, and the implications of the Constitutional Council's limited competence in reviewing constitutional revisions. Understand the delicate balance between legal frameworks and political instrumentalization in shaping France's constitutional landscape. Dive into the complexities of constitutional law and its far-reaching consequences for governance and democracy.

The counter-sovereign consequences of self-encasement of the constituent power
1. Unnecessary limits imposed by the Constitution itself
2. The predominant incompetence of the Constitutional Council in constitutional matters
The rational intervention of a plurality of legal actors
1. The inevitable association of many state actors
2. The displaced threat towards essentially political obstructions

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[...] In practice finally, it highlights the political drifts of the revisions under the Fifth Republic and the ineffectiveness of the control mechanisms provided for by the Constitution and the Constitutional Council. In order to address this issue, it will be necessary to develop in the first instance the vicious circle in which the constituent power can crush the fundamental principle of sovereignty in a state of law and then nuance this statement by highlighting the involvement of many actors in the procedures for drafting and revising the Constitution, which can attenuate the criticisms that can be formulated regarding the free competence of the constituent power, which can suggest a simple displacement of the problem (II). [...]

[...] In France, this voluntary incompetence generates a real legal insecurity: no organ can verify the conformity of a revision to the Constitution, not even the supreme judge of it. Thus, the constituent power, original or derived, escapes all external control in the proper sense of the word, weakening the very notion of the rule of law. These certainly threatening statements must be relativized by the study itself of the procedure resulting from the constituent power (II). II. Rational intervention of a plurality of legal actors A. [...]

[...] Furthermore, Parliament plays a central role in the adoption of the text: the two assemblies, the National Assembly and the Senate, are placed on an equal footing because the revision can only succeed if they adopt the same text, as stated in Article 89, paragraph 2. Each therefore holds a genuine constitutional right of veto, as illustrated by the senatorial oppositions of 1984 or 1990. Finally, the approval of the revision falls either on the referendum, the common law for proposals, or on the Congress when the President chooses this alternative for a revision project, by a majority of three-fifths, as stated in paragraphs 2 and 3 of the aforementioned constitutional article. [...]

[...] The President thus retains a margin of maneuver, but depends himself on parliamentary support. This institutional pluralism therefore prevents in practice any unilateral appropriation of the revision power and translates the logic of the rule of law, ensuring the stability and legitimacy of the fundamental text. Thus, the dangers can result from another side: that of the political manipulation of this power by the aforementioned instances B. The threat shifted to essentially political obstacles The constituent power is not spared from a certain politicization: by involving a plurality of actors (executive, legislative, and sometimes the people), the threat of an abuse of power shifts: it no longer resides in the arbitrariness of one, but in the political instrumentalization of the Constitution by the powers themselves. [...]

[...] In fact, even more astonishing, these limits only concern the the derived constituent power : the original constituent power, It is never limited by the Constitution. By claiming to enclose the revision by rules issued from itself, the Constitution therefore only restricts a derived power, already instituted, not the true constituent power, which does not seem to be so impactful in practical terms as the situations where the original constituent power is likely to rarely intervene, but which poses a problem with regard to the conception of sovereignty. [...]

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