The "Day After" - How to Enrich Our Constitutional Fundamentals

With the postponement of the work of the Citizens' Climate Convention, the draft revision of the Constitution returns to the forefront of the news. The idea of submitting a constitutional amendment to a referendum will give rise to much debate. UP' Magazine invites its readers to open the debate with a platform signed by the jurist François Braize, Honorary Inspector General of Cultural Affairs. Reflecting on the "Day after", he pleads for a political and social voluntarism with a strong legal translation. It endeavours to show how the questioning of the survival of the human species and the preservation of the environment in which it lives, far from thwarting the concern for the rule of law, democratic achievements and social achievements, presupposes an enrichment of our fundamental constitutional principles..

Once we are out of the current health disaster that is already putting us at risk of economic collapse, how can we avoid climate and humanitarian disasters? [1] developing[2] if we don't change what's leading us straight there? The current crisis and its consequences, already major for many observers, are indeed only a modest prefiguration of what lies ahead.
It would be madness not to learn the lessons of this unpredictable crisis. It would be to plunge into another crisis which is perfectly predictable because it is announced and even quantified in its disastrous effects. Avoiding it requires that we think about the necessary individual and collective changes of direction and that we propose a reasoned "New Deal" which, without overturning the table [3]could provide more sustainable life chances for mankind. 

A necessary voluntarism

It is out of the question, in the face of a frightening perspective, to trust only liberal laissez-faire or individualism; both of them entrust to chance and/or good feelings, if not to Good Providence and its immense goodness, the care of regulating, there again by a sort of "invisible hand", the fate and future of Humanity.

It's true that for a long time it was thought that "everything was going to go by itself". We were installed on a kind of arrow of progress, especially scientific and technical progress, guaranteeing us, as if by some kind of good genius and by a constant growth of material well-being, that each problem would find its solution, its solution, by the simple continuous development of the activity of men and their capacity for innovation.

We also know that, for some of its aspects, this progressive evolutionism and its contemporary outcome have not, however, accomplished themselves. This is just one example, but socially it has been necessary to fight to win conquests that would otherwise never have been made. For we cannot count on the idea of progress alone to hope to counteract the negative effects of what is in the logic of our system: the competition of individual interests and the spirit of lucre, or even boundless greed, promoted by a society that has made it its own. credo to its contemporary caricature with digital financial globalisation decoupled from the real economy.

In the example taken, we know that we have had nothing for nothing and that social solutions must be politically imposed on economic actors who naturally refuse them if they are left to their own free will because they are contrary to their interests.

The conquests to be made from the point of view of environmental and climatic preservation are, from this point of view, of the same order as the social conquests of which the 19th century was the beginning.^e and XX^e centuries have been the theatre for opposing interests. These conquests were not in the order of things that the system carried. This same order of things is an obstacle to environmental and climatic preservation setting itself up on its own on an arrow of progress (scientific, technical or even intellectual through education) that would lead us there naturally. We even now know that it is quite the opposite.

In addition to the map of individual virtue of citizens better informed by the tireless pedagogy of many civil society actors, we will therefore rely more on political voluntarism than on laissez-faire, in short, more than on the free market, on the regulation of the world by law and common law to set the incentives, constraints, taxes and, if necessary, sanctions to achieve the objectives that will make it possible to confine global warming and other looming disasters.

We will therefore conduct our citizen's reflection for the "Day after" with this guiding thread: In addition to more justice, civil and social peace and democracy, the "New Deal" must ensure that global warming is confined to the objectives already set by the Paris Agreement, which is reinforced by the "Green Deal" being prepared within the EU and whose final pillars have just been presented by the European Commission. [4].

This implies a certain number of inflections which, to be acceptable to the majority and have a chance of success, will not overturn the table but will constitute an adaptation of our system to the climate challenge by favouring gradual transitions even if they will have to be resolved.

Guaranteeing and developing our republican base

To this end, a "New Deal" should be characterized, first of all, by an enrichment of our fundamental constitutional principles. Why should this be the case? For a reason so simple that everyone forgets it: our civil, political, economic and social society is based on fundamental principles that characterize, in our case, a society of freedoms in all areas. This block of principles [5], the foundation of such a company, is devoted primarily to the [6] by the Preamble to our Constitution.

This set of principles, which applies to everyone, individuals and authorities alike, is the basis of all our law and therefore of the regulation of relations within our society, in all sectors. These are not, therefore, mere petitions of principle or good feelings without force or usefulness. On the contrary, these principles are binding on the legislative and executive powers under the supervision of the Constitutional Council and the Council of State, and the ordinary judicial authority is also subject to them, by definition one might say. It is only through the most extreme incivility, intellectual incivility, that one can argue that all this is pointless.

Wanting a different, fairer, safer and more sustainable world for the "Day after" implies completing this block of fundamental principles to meet the challenges and demands of this century and not only on the model from 1789, even if it means preserving the achievements that have been sedimented since the French Revolution. Indeed, this is what has been built since the Declaration of the Rights of Man and of the Citizen of 1789, as summed up in the Preamble to the Constitution of 4 October 1958, which outlines what is today "the constitutional identity of France". [7].

In our conception of the liberal society thus built in two centuries, liberalism is of course political, by our republican regime, but it is also that of a civil society that enjoys the widest freedoms. Within this framework, our society has thus chosen a liberal economy, a market economy, as we are reminded by some of the most important of our constitutional principles, such as the right to property, freedom of enterprise, freedom of trade and industry or even the principle of free and undistorted competition. [8].

This economic system is therefore that of a free market economy - and not a collectivized and administered economy - but it nevertheless includes a significant part of public economy, mutualist economy and solidarity economy. We are therefore in a mixed economy and this is not a situation that is foreign to a liberal economy.

Choosing whether or not to retain, for the "Day After", a society of liberties - which can only be indivisible as history teaches us [9] - so this is the first choice to make. For us, it is a capital to be preserved and on which we can build new developments.

Name what is to be declared the "center of all things"...

As has been said, we are no longer in 1789, 1945 or even 1958, and it is no longer enough, in the face of the challenges of this century which is beginning to look at the probability of the disappearance of humanity if it is not careful, to proclaim that "men are born and remain free and equal in rights". [10].

Indeed, by deepening the demonstration sketched in a previous article [11], it is a matter of making the observation that although our fundamental principles, recalled in the Preamble of the Constitution, recognize for man and the citizen a very complete battery of civil, political, economic, environmental, cultural and social rights that are inalienable and sacred, this is no longer sufficient with regard to what is at stake from now on: the survival of the human species and the preservation of the environment in which it lives.

It is therefore, today, beyond this battery of rights that we should go, in a new founding step. We would even have to change ground. Moving from the recognition of individual fundamental rights, the list of which is constantly being enriched, to the answer to an essential question: what should be at the centre of all things? Freedom, property, health, the right to safety, to work, to leisure, to instruction and education, etc.? All these things have been recognized over the last two centuries as fundamental rights? Why one, or one rather than others?

Is there not something more important that is above all and overhangs and illuminates all these rights, which are essential in order to found them, to make them explicit and even, if necessary, to limit some of them? This "something" can only be Man himself and the preservation of the environment in which he lives. This new principle would therefore consist in writing in our constitutional text that "... the "something" can only be man himself and the preservation of the environment in which he lives". The French people proclaim that Man is placed at the center of all things... [12]as well as the preservation of the environment in which it lives. ".

This principle would thus become the main measuring instrument against which regulatory measures should be calibrated, in particular those of the market economy, both national and international, in order to achieve a civilised economy. In this way, we would complete the fundamental principles already enshrined in our constitutional history which were, one might say, as many unfinished beginnings without it, with an abstract "man/citizen" who was the collector, a little, it must be said, without a guiding thread, without a compass.

In order to build a civilized and sustainable world of freedoms, we need such a new constitutional principle that would be a point of support for change because of its dynamics opposed to the destructive interests for Man and his environment. Indeed, a constitutional principle of overhang imposed on all would finalize the rights conquered for two centuries in a single direction, the human being and his living environment, and no longer brought about by arbitrations, sometimes fluctuating, between categories of antagonistic interests, whether these arbitrations are made by law, by judges or by international agreements. This new principle would imply others that could be envisaged.

Thus, as a logical consequence of this new principle, the following formulations could be added:
1° a "principle of progress" and of fair sharing of the benefits of this progress between men: such a principle would imply in particular the approximation of national legislations, not "downwards" through the fiscal and social dumping that characterizes the unbridled liberalism that we know, but "upwards" from the point of view of human well-being. It would also allow the determination of new categories of common goods or services protected from private appetites;
2° a principle of equality between capital and labour on the one hand, profoundly transforming labour and current exploitative relations into cooperative relations with a common objective by finally and genuinely admitting employees to co-manage companies and, on the other hand, implying the fairest equality in the taxation of income from labour and from capital [13].

A stronger reaffirmation of the principle of secularism should be achieved by enshrining in our fundamental constitutional principles the principles of the 1905 law (prohibitions of recognition, wage-earning and the subsidisation of religions).[14].

We would also be honoured to enshrine in our fundamental principles the sentient quality of animals and the resulting prohibitions, particularly concerning their killing with prior stunning, from which no belief can be exempted.

Moreover, in order to oblige itself in some way in its action beyond its borders, France could provide in its Constitution for [15] that the block of its fundamental principles must inspire its Community action in Europe and international action in the world. As we French were able to be, with others, at the source of the Universal Declaration of Rights at the end of the Second World War, today, if we are ambitious and if we want to, we can once again play such a role by setting an example by enriching (as we have seen) our fundamental principles in order to better face the challenges of this century.

Finally, with a view to making the rule of law even more exemplary and sustainable, we could provide :
1° that our fundamental principles can be invoked by French citizens in any proceedings and before any judge, which would establish their opposability erga omnes [16] ;
2° a requirement of total virtue of public leaders, whether elected, ministerial or appointed in the Council of Ministers, rendering permanently ineligible, or unlikely to hold a public office of responsibility, any person convicted of a misdemeanour or a crime [17] ;
3° the obligation for political parties or movements that wish to run for election and benefit from public funding to formally accept our fundamental principles, i.e. our constitutionality block or "Republican Pact", and to refrain from reneging on them in the event of electoral success.

A people may in fact provide for such a prohibition in its fundamental text, thus binding itself, of its own free will, constitutionally [18].  It can do so by adopting a "Pact" formalized by its Constitution which, under the supervision of the judge, is binding, as soon as it exists, on all public and private actors and in particular on political parties and movements that wish to contribute to the democratic process. As our Constitution stands, we do not have such a republican Pact formalized by the explicit constitutional expression of a clear popular will. [19]. This poses a significant democratic problem... [20].

All the elements for enriching our fundamental principles proposed above should be reflected in amendments to the Preamble of our Constitution. The wording could be as set out in the Annex hereto. 

François Braize, Honorary Inspector General of Cultural Affairs
The original of this forum has been published on the site Mezetulle

 

NOTES

[1] The words "climatic and humanitarian disasters" are the shorthand designation for ecological, environmental and climatic disasters and their consequences, whether they be health, migration or simply violence between peoples and individuals; disasters to which we are already committed but which can still be avoided by taking the necessary measures identified by scientific consensus and formalised in particular in the Paris Agreement.
[2] According to the scientific consensus now accepted by the largest majority of countries.
[3] What the people are asking, far from ideologues, is that the table be better stocked and that all the guests be able to sit at it rather than overturning it!
[4] Voir in particular on this subject: https://www.liberation.fr/planete/2020/05/20/green-deal-la-nature-progresse-dans-le-paysage-europeen_1789005?xtor=EREC-25&actId=ebwp0YMB8s1_OGEGSsDRkNUcvuQDVN7a57ET3fWtrS_HjsN9QmAHu1r16mgKlh_p&actCampaignType=CAMPAIGN_MAIL&actSource=502988 and https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_fr
[5] What scholars call the "constitutionality block".
[6] À This is only the main title, since some of our fundamental principles are contained in the text of the Constitution itself or have been laid down by the jurisprudence of the Constitutional Council.
[7] "In my opinion, this block draws the "constitutional identity of France" even if the Constitutional Council has explicitly attached to such an identity to date only the principle of secularism by a decision of February 2013 (see in this respect our article : http://www.slate.fr/tribune/83673/iconoclastie-principe-constitutionnel). 
[8] Principle of Community origin but which, having an authority superior to the law pursuant to Article 55 of the Constitution, has a value of constitutional level.
[9] These freedoms are indivisible and not divisible, because a liberal society is an indivisible whole and we have no example of a society that has been able to organise one without the other while remaining democratic; on the contrary, there is a risk of falling into different forms of totalitarian regimes, and there are many examples of this.... 
[10] Moreover, as soon as he was elected, President Sarkozy asked a committee chaired by Mrs Simone Veil to reflect on the enrichment of our fundamental constitutional principles. Lhe report of this Committee was submitted in December 2008 to the President of the Republic and the Committee answered in the negative to the question of whether our Preamble should be enriched with new principles. In my own reflection, I did not feel bound by these dated conclusions with regard to vital issues that are better measured today and marked by a certain conservatism. Moreover, for the Committee it was the question of enriching the collection of rights and principles, whereas here I am deliberately placing myself above the existing collection. Nevertheless, this Report, which is unique on this issue, is a valuable mine on a fundamental and little-known subject. It can be found in the French documentation: https://www.vie-publique.fr/sites/default/files/rapport/pdf/084000758.pdf
[11] Article that takes a special relief for the "Day after" - see in SLATE magazine http://www.slate.fr/story/95099/sixieme-republique and we're digging deeper here.
[12] Expression and objective used by the current President of the Republic in his speech of January 2019 on the occasion of the so-called yellow vest crisis; we take him at his word here!  Let us specify, if need be, that, in my mind, the Preamble of our Constitution, like our Constitution itself, has no other scope than that of political association and the regulation it carries by law. It carries no philosophical consequences or consequences in the form of revealed truth extending beyond the scope of positive law. It is therefore our political association that puts Man at the centre of its concerns and, moreover, this will bind only us French people, except in the future, through our international action, to bring it to another level of political, international and multilateral association.
[13] However, when implementing such a policy, care must be taken to avoid any possible perverse effects on investment in France, which could be detrimental to an open world. 
[14] This would make it possible to put an end to the exception in Alsace-Moselle, but also in French Guiana, which keeps the Napoleonic Concordat regime alive and makes the 1905 law inapplicable there. 
[15] This is what our country has done through the last article of the 2004 Environment Charter with respect to the issues that this charter addresses; we see no reason to limit this ambition to this area and not to our other fundamental principles. 
[16] It will be a This is more in line with the current procedure of the Priority Constitutional Question, which allows a litigant to invoke before a judge the non-conformity of a law with the Constitution and the QPC, which is judged, after filtering by the Court of Cassation or the Council of State, by the Constitutional Council itself; it will not therefore be a question of allowing the constitutionality of a law already promulgated to be challenged (this will continue to be the current procedure of the QPCs), but rather of recalling that any individual can claim before any judge and for any dispute the benefit of a particular principle belonging to the constitutionality block that he or she believes has been violated by his or her opponent in the case that concerns him or her. 
[17] However, the list of offences with such a consequence should be refined, since some offences need not necessarily have as a corollary such an elective or functional ban (defamation, traffic offences, etc.). 
[18] The Germans have done so since 1945 by their Basic Law by banning the Nazi party regardless of crises or circumstances. 
[19] See in this respect our article on Mezetulle, who deals with this issue in relation to the ban on Community lists: https://www.mezetulle.fr/faut-il-et-peut-on-interdire-les-listes-communautaires/
[20] In fact, we have thus left the Constitutional Council with its neck on the line since the 1970s, when it was given the role, without an explicit constitutional mandate, of supplementing our fundamental principles, which should be the result of a will expressed by the French people, through a constitutional referendum, rather than the decision of judges, even supreme ones. Tomorrow, such a referendum could usefully come on the one hand to codify the jurisprudence of the Constitutional Council, and on the other hand to enshrine the new fundamental principles that the people would like to adopt for the "Days Ahead".