The document discusses the relationship between the authority of a Constitution and the existence of a constitutional court, examining the theoretical and material aspects of constitutional authority.
Extract
[...] No automatic control, unsanctioned violations. - Ex: 799DC 26/03/2020: CC sees a violation but still valid. The organic law was not adopted in respect of Article 45 of the Constitution, which requires that organic laws be adopted with a 15-day delay between discussion in the AN and the Senate. Here, due to the COVID-19 crisis, adoption took place on the same day. [...]
[...] It is possible to consider both the political authority and the legal authority of the Constitution, and it is the latter element that will be considered here. Constitutional jurisdiction generally refers to a court or tribunal whose role is to decide on conflicts involving the application of the Constitution as a last resort. These jurisdictions may be exclusively dedicated to constitutional litigation, such as the French Constitutional Council, but they may also be more general courts, one of whose roles is constitutional, such as the American Supreme Court. [...]
[...] The Constitution is a political text and a normative text. If it deploys its legal effects even in the absence of a specialized jurisdiction for its application, the existence of such a jurisdiction allows for the guarantee of the full effect of the Constitution." « "Constitution" is a term that encompasses several meanings. On the political level, it is the founding act of the State and a determined political system. On the legal level, it is the supreme legal rule in the State. [...]
[...] Constitutional Council created in 1958 to control the respect of the separation of competences between art and 37 of the Constitution, and control guaranteed by CC 1971 Freedom of association. B - The relative authority of the Constitution in relation to the constitutional jurisdiction - The authority is not total even with a constitutional jurisdiction. Conflicts of interpretation with Cass/CE (e.g. Perruche). - The judge may not be competent for all conflicts of interpretation. In France, no control of the President's refusal to sign the ordinances of art. 38. - The judge may misjudge the constitutionality and let things pass. [...]
[...] In other words, can the Constitution deploy its effects in the absence of an organ ensuring its effective application? The legal authority of a Constitution can be discussed in the absence of a constitutional court It will then be affirmed and guaranteed as soon as a judicial body ensures its execution (II). I. The authority discussed of the Constitution in the absence of a constitutional court If the Constitution always has a theoretical authority in the absence of a constitutional court this authority is materially disputable in the absence of sanctions A - The theoretical authority of the Constitution without an enforcement body - The Constitution is a legal norm like the others, even without a judge it remains binding (for example, even in the absence of a police officer one must cross when the light is green). [...]
