Extract
[...] This regime consecrates a rigid separation between the legislative and executive functions and is characterized by the absence of reciprocal controls of the powers. It is clear that the birth of a new Constitution does not necessarily imply a change of regime. It can simply be a matter of wanting to introduce corrections to the existing political regime, as is the case with French parliamentarism and the various adjustments it has undergone from the predominance of the legislative power over the executive power to the introduction in the Constitution of the Fifth Republic of mechanisms of rationalized parliamentarism. [...]
[...] This decisive role of the Constitution in the establishment of the rules of power organization, and in the consecration of constitutional value rights, leads us to question the legal regime of the birth of this founding document. It would be advisable, for this purpose, to study, first, the act of birth of the Constitution and, secondly, to draw, the legal consequences of this birth (II). The act of birth of the Constitution The elaboration of the Constitution is not a trivial act, since it is an official document that gives the State an effective existence. This is why the act of birth of the Constitution is generally surrounded by a certain solemn procedure. [...]
[...] Let us recall that the constitutional movement is concurrent with the age of enlightenment. It appeared during this period that it was necessary to depart from customs, often imprecise, in favor of more binding and written rules to face the absolutism of the rulers. For Jean-Jacques Rousseau, the Constitution, in the contemporary sense of the term, is not, in reality, a new phenomenon, since a social pact has always existed for the organization of life in society. However, the need to frame power and institutionalize the State has been at the origin of the emergence of rules, generally enshrined in the Constitution, whatever its form, to govern the functioning of the institutions of the modern State and consequently determine the powers and limits of those holding power. [...]
[...] In addition, the birth of a Constitution can only occur as a result of certain events. As a founding act of the State, this birth can only be, in a democratic state, the work of an authorized organ. This is why we will study, first, the circumstances of the birth of the Constitution and secondly, the authorized power to give birth to the Constitution The circumstances of the birth of the Constitution Regarding customary constitutions, their birth follows a long process based on the characteristics of customary rules that 'rest on the repetition, without true discontinuity and over a certain period, of precedents gathering a very wide consensus, not to say general assent' As mentioned earlier, these constitutions are very rare today, only Great Britain still has one, For what concerns the birth of the Written Constitution, it can be the result of several circumstances. [...]
[...] It is a question, first, in a democratic regime, of determining the type of democracy desired: direct democracy, which is based on a direct exercise of popular sovereignty, or representative democracy, which favors the exercise of sovereignty through the representatives of the people designated by the citizens. Today, representative democracy is the most widespread in the world. Several Constitutions provide, in addition to the representative regime, the introduction of certain elements of direct democracy, namely the referendum. This is the case, for example, of the French Constitution in its article 3. It is worth noting, in addition, that the mode of designation of the rulers as provided by the Constitution is revealing of the degree of commitment to the democratic path desired by this founding act. [...]
