François Mitterrand on the Constitutional Council: Strengthened Authority and Democratic Vigilance

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[...] François Mitterrand, in 1964, vigorously denounced this institution, perceiving its essence as deeply political and subject to the executive power. This distrust was not isolated: many lawyers, such as Georges Vedel or Pierre Avril, analyzed at the time the Council as a 'guard dog' of the executive against the Parliament. The constitutional revision of 1974, driven by Valéry Giscard d'Estaing, profoundly modified this balance. The opening of the referral to 60 deputies or 60 senators allowed for a genuine democratization of access to the constitutional judge, transforming the Council into an arbitrator serving the entire political body and not just one power. [...]

[...] The fear expressed is therefore that the Council, by annulling laws voted by the Parliament, it substitutes its own conception of the general interest for that expressed by the representatives of the people. This risk is all the more pressing since the Council is not an elective institution and its members are not accountable to universal suffrage. The 'government of judges' is therefore a threat to popular sovereignty. By censoring political choices through the prism of constitutional interpretation, the judge could become a full-fledged political actor, without democratic legitimacy. [...]

[...] From then on, how does François Mitterrand articulate the recognition of the strengthening of the authority of the Constitutional Council with the democratic vigilance imposed by his growing power? We will first see how Mitterrand welcomes the stabilization and legitimation of the Constitutional Council before analyzing the warnings he formulates against a possible drift of its authority (II). I. The Constitutional Council: from a contested institution to a consolidated judicial authority Before coming to his warnings, François Mitterrand devotes the bulk of his response to recognizing the institutional evolution of the Constitutional Council. [...]

[...] Mitterrand recalls that the Council, as a judicial authority, must not become an ideological instance. Its mission is to ensure the application of the Constitution, not to rewrite it. He thus joins the classical doctrine (Dominique Rousseau, The Continuing Democracy) which invites us to think of the constitutional judge as a protector of the democratic space, not as a substitute for the sovereign people. In this sense, the authority of the Council must not be assimilated to a primacy over the other powers, but to a specific function of guardian of the constitutional framework, within which the democratic debate must be able to fully deploy. [...]

[...] If François Mitterrand congratulates the Constitutional Council on its acquired institutional maturity, he remains deeply attentive to the risk that the increase in its power implies. The democratic concern requires, in fact, that the constitutional judge does not usurp the role of the legislator. Hence the importance he attaches to the limits of the Council's power. II. The Constitutional Council: A Strengthened Authority but Under Democratic Surveillance Beyond the progress he welcomes, François Mitterrand expresses a classic but essential mistrust: that of the potential slide of the constitutional judge towards an active political function, incompatible with democratic principles. [...]