I. The content of Marine Le Pen’s constitutional program
During the 2017 presidential campaign, Marine le Pen published two programs: A presidential program with her traditional anti-immigration rhetoric, and a twelve-page constitutional program, named the “constitutional reform that I propose to the French people by referendum.”48 Whereas the former document provoked waves of comments from the commentators and political specialists, the latter document remained under the surface of political debates. Reactions and analysis focused on the triptych of security, immigration, and unemployment. Paradoxically enough, in a consolidated democracy such as the French one, the objectives of a constitution do not go hand in hand with the interests of politicians and commentators. Projections and long-term visions of the institutions—the main attributes of a constitution—clash with the short-term actions and the immediate communications of politics. No one really took to the measure of the revolution undertaken by FN. This was a revolution in method—as it was the first time that FN ever detailed its agenda of institutional reforms—but also it a revolution through the impact of the reforms. Marine le Pen’s ambition did not stop at leaving the EU—she aimed to transform the organization of the French State and its constitutional and institutional balance, and to eventually strike down the French État de droit.
Marine le Pen’s strategy differed from Viktor Orban’s progressive deconstruction of the post-communist legacy. FN’s institutional reforms consisted of a constitutional amendment package that would have been proposed by referendum within the first months of the mandate. The objective of the constitutional amendments was to restore the “greatness of the constitution” thanks to a reinforcement of its democratic attributes.49 In reality, Marine le Pen’s constitutional program is nothing less than a transposition of FN’s populist rhetoric to three domains: The constitutional principles, the political institutions, and the referendum.
Nationalism and xenophobia were, are, and will remain the essence of FN’s political identity. Since her arrival at the head of the party in 2011, Marine le Pen has tried to get rid of this image by putting on the mask of populism, but the first two points of the constitutional program—the constitutional principles and the political institutions—are a gentle reminder of what FN truly is. The first point of the program foresees the inscription of new fundamental constitutional principles, namely the “defense of our identity as a people,” the “national priority,” and the “fight against communitarianism.” The three principles echo FN’s populist rhetoric and FN’s vision of majority. “Our identity as a people” is FN’s unified and Unitarian majority—French but preferably white and Christian. “National priority” and the “fight against communitarianism” are FN’s tyranny of the minority—they claim that multiculturalism and immigration destroyed French national unity. FN’s fictional majority and tyrannical minority are a negation of French history. Over the last century, France was built thanks to immigration—on the diversity of peoples and not on a mythological vision of one timeless people. FN’s new constitutional principles are a negation of French constitutional culture which, as Article 1 of the constitution states, is grounded on an “equality of all citizens before the law without distinction of origin, race or religion (and a respect of) all beliefs.”50
The second point of the constitutional program—the political institutions—illustrates the tyranny of the minorities which can only be, in FN’s vision, a consequence of European integration. The best way to fight European oppression is a shield of nationalism and a deconstruction of the European national framework. Marine le Pen aimed at “restor(ing) the superiority of national law,”51 thanks to a deletion of Title XV of the Constitution which organizes the relations between the French State and the EU institutions. Marine le Pen’s nationalism seems to avoid the complexity of reform in a legal system where the majority of national laws are a transposition of EU legislation. Here, Marine le Pen’s ambition is a “Frexit” in all but name. The second point of the constitutional program went beyond European integration and included all form of supranational cooperation. It foresaw a repeal of Article 55 of the Constitution in order to re-establish the authority of national laws over international treaties, as well as the superiority of national judicial institutions over supra-state courts.52
Nationalism and xenophobia should come as no surprise in the study of any of FN’s programs, but institutional transformations did represent a new step in FN’s strategy. In this constitutional program, there was a willingness to go beyond ideology and to disrupt the constitutional equilibrium of the French semi-presidential system. Disruption is not a hyperbolic term to characterize FN’s reforms. FN’s “voice of the Nation” is a non-representative and a non-plural voice. FN’s national organization relies on a strong figure—Marine le Pen—on a monarchical vision of power—the father, the daughter, and the grand-daughter—and on a hyper-centralized territorial organization. Marine le Pen wanted to transpose this authoritarian practice of party power to the French institutional model—the constitutional program would have bolstered the powers of the President of the Republic to the detriment of the legislative counter-power.
Originally, the French semi-presidential system gave room for political compromise. The peculiarities of the semi-presidential system are not the duality between the head of State—the President of the Republic—and the head of government—the Prime Minister. Rather, what distinguishes this atypical form of government from the others is the election of the President of the Republic via universal and direct suffrage.53 The popular input legitimacy of the President of the Republic is then much stronger than that of the Prime Minister, who is appointed by the President of the Republic on the basis of the political majority of the National Assembly. Political compromises emerged in the so-called periods of cohabitation when—because of different electoral timing—the political majority of the presidential election differed from the political majority of the parliamentary election. In the case of a cohabitation, the President of the Republic had to rule with a Prime Minister from a different political party and was then forced to compromise.54 The balance of power changed drastically with the constitutional reform adopted in 2000. The aim of this reform was to erase any possibility of cohabitation by reducing the presidential mandate to five years and aligning the presidential elections with the parliamentary ones.55
This reminder is essential to see where FN stands—and to what extent its constitutional program was a misinterpretation of political reality. In the concluding remark of her constitutional program, Marine le Pen affirmed that “because of the five-year term, the President has found himself weakened.” This affirmation is fallacious. With the five-year term, the President of the Republic has now more than ever become the key institution of the French institutional system. He has the insurance of governing for five years without parliamentary opposition. Since 2000, he has been both the head of State and, unofficially, the head of government. Marine le Pen’s solution is to again change the presidential mandate into a non-renewable seven-year term.56 This solution is, at first sight, ambivalent. A seven-year term would reopen the doors for cohabitation and would put the President back in the position of compromise, as was the case before 2000. In reality, Marine le Pen followed a strategy of communicating vessels—increasing the powers of the President by decreasing the legitimacy of the National Assembly.
The strategy to decrease the legitimacy of the National Assembly is twofold. On the one hand, the constitutional program proposed a reduction by half of the total number of members of parliament—from 577 to 300 for the National Assembly and from 348 to 200 for the Senate. Such a reform would increase numerical representativeness—one member of Parliament would represent a larger chunk of the citizenry. Substantially though, reducing the number of representatives would decrease the quality of the representativeness and the legitimacy of the legislative power.
On the other hand, the constitutional program foresees the establishment of full proportional representation for all elections, starting with the legislative elections. In theory, proportional representation does allow for a more democratic representation, as every political party has a number of seats in parliament which corresponds to the number of votes it obtained. Proportional representation has long been part of FN’s political agenda, which denounced the gap between the number of seats and the number of votes.57 FN’s vision of proportional representation went in the exact direction of better representativeness. First, the constitutional program foresaw a 5% threshold for the entry of a political party into the National Assembly. A 5% threshold remains a high threshold in comparison with the current electoral rules, and it would prevent important political forces from getting into the National Assembly.58 Second, FN wanted to set up a so-called “majority prime” of 30% of the seats for the winner of the legislative elections. The exact consequence of this majority prime remained unclear. Either the prime would add up to the percentage of the votes, or—and this is my interpretation—regardless of its score, the winner would be allocated a maximum of 30% of the seats. Hence, even a political party with a large majority of votes would have to form a political coalition to get a simple majority and to pass laws. And because of the semi-presidential system, the same compromise would have to be sought to form the government. The latter would see a decrease in its capacity to rule as well as a decrease in its political and popular legitimacy.59 The constant quest for a coalition goes against the French equilibrium. It significantly decreases the legislative power vested within the President. Arguing for better representativeness, Marine le Pen actually seeks to diminish the influence of the legislative power and eventually the influence of the government.
The constitutional program went on and foresaw the creation of a direct relation between the citizenry and the President. In order to “give the floor back to the people,” Marine le Pen intended to normalize the use of the referendum.60 The use of the referendum is framed by articles 11(1), 11(3), and 89 of the 1958 Constitution. To activate Article 11(3)—the so-called popular initiative—Marine le Pen wanted to decrease the threshold from one tenth of the electorate—around 4.46 million—to 500,000 electors.61 FN also wanted to extend the scope of the referendum to all the areas currently covered by the law—in negation of Article 34 of the Constitution which mandates the domains of competence of the Parliament.62 This strategy creates a parallel legislative process and bypasses the parliamentary work to the benefit of a much faster—and in appearance more democratic—referendum method. Any positive referendum on any public domain would be automatically translated into a law. Legislative processes would no longer be the monopoly of the Parliament. This reform would install a direct relation between the President and the citizenry at the expense of national representation and parliamentary debate.
The direct relation did not concern only the legislative arena. The constitutional program included a suppression of Article 89 of the Constitution, including the current procedure of constitutional amendment. With its constitutional program, FN wanted to impose a referendum not only for ordinary legislation, but also for constitutional amendments. Referendums sound attractive as they seem to put the Constitution back in the hands of the citizenry. Marine le Pen’s vision of the reform is not democratic; it is just a way of circumventing the counter-majoritarian instruments of a constitutional democracy. French citizens would not participate in the democratic life—they would just be temporarily consulted, and perhaps manipulated, to approve choices of the President. Marine le Pen’s constitutional program echoes a well-known practice in authoritarian regimes, where using the referendum justifies authoritarian backsliding and unconstitutional amendments. With such a practice anchored in the French Constitution, no constitutional disposition would be safe from authoritarian tendencies. Amending the Constitution through referendum could allow Marine le Pen to propose constitutional reforms which go beyond her original constitutional program, such as: The reestablishment of the death penalty;63 the modification of the electoral system if the National Assembly is too troublesome; or even the extension of the presidential mandate beyond the constitutional term.
This vision is in line with the populist rhetoric that believes rules cannot limit the majority and the right to amend the Constitution cannot be constrained by a specific constitutional amendment majority. The Constitution shall be at the disposal of the population and—above all—of the President of the Republic, the one and only true representative of the Nation. Marine le Pen’s constitutional program was not chimeric—it was a well-tuned constitutional strategy.
II. The constitutional weaknesses of the French constitutional democracy
Marine le Pen’s defeat in the second round of the 2017 presidential elections might provide fuel to those convinced of the glass ceiling in the French political domain. FN cannot win a general election as its constitutional program will remain hypothetical—French institutions are and will be safe. The assumption is comforting, but it does not address the elephant in the room—if FN were to be elected, would the French institutions have been sufficiently solid to resist its assaults? By hiding themselves behind the glass ceiling theory, observers refuse to test if the French constitutional democracy is a proper consolidated democracy. This exercise appears essential after a closer look at Marine le Pen’s strategy to implement her constitutional program.
Article 89 is the main constitutional amendment procedure of the 1958 Constitution. The initiative for constitutional amendment is shared between the President of the Republic, the Prime Minister’s recommendation, and the members of Parliament—specifically the Senate and National Assembly. Article 89 gives two options for the adoption of the amendment. The first possibility for adoption is the adoption of the amendment, in identical terms, by a simple majority in the two Houses.64 In this case, the amendment takes effect only after approval of the text by referendum. The second possibility is the adoption by a three-fifths majority of a joint-sitting Congress. In this case, the amendment is directly adopted and the convocation of a referendum is not necessary.65 With the procedure of Article 89, the use of the referendum is only marginal and has barely been used by the executive power, which prefers the more secure convocation of the Congress.
At first sight, Marine le Pen’s strategy to adopt her constitutional program via referendum seems naïve. Her wish to call for a referendum may match with her apparent willingness to give the floor back to the people. But if she were to follow the procedure of Article 89—and eventually aim to organize the referendum—then she would have to secure a majority in the two Houses first. Considering the political logic behind the elections of the National Assembly and the Senate, a FN majority in the two houses is not likely to happen—or, at least would not have been likely to happen even in the case of FN’s victory at the general elections. In any case, asking the Houses was not in FN’s plan, as Marine le Pen intended to adopt the constitutional program not by using Article 89 of the Constitution, but by via direct referendum, which seems ostensibly not constitutional.
Would the adoption of FN’s constitutional program necessarily have ended in an unconstitutional amendment under a reform in violation of the constitutional amendment procedures? Did Marine le Pen drift into her strategy through ignorance of the constitutional reality? One should not underestimate FN’s knowledge of the weaknesses of the French constitutional system.
The 1958 Constitution does mention direct referendum in Article 11, except for the case of a constitutional amendment. Article 11 foresees two possibilities for a direct referendum. A referendum can be initiated either by the President of the Republic via article 11(1) or, since 2008, by one-fifth of the members of Parliament representing one-tenth of the voters enrolled on the electoral lists via Article 11(3). In any case, the object of the direct referendum is restricted to a government bill and is limited to six domains.66 As a direct referendum cannot be held on a constitutional amendment, Marine le Pen’ s constitutional strategy seems unconstitutional. If the text of the 1958 Constitution might go against FN’s strategy, such is not the case with the constitutional practice. The use of Article 11(1)—a direct referendum invoked by the President—to amend the 1958 Constitution was an option taken by Charles de Gaulle in 1962. Charles De Gaulle wanted to amend the Constitution in order to install a direct election of the President. Because of the composition of the Parliament, he was uncertain that going through Article 89 would ensure him an adoption of the constitutional amendment. He decided to bypass the procedure he himself created four years earlier and instead extended the scope of Article 11(1) to the adoption of the constitutional amendment. This constitutional twist was obviously a violation of the 1958 Constitution—and it was on this basis that 60 members of the Parliament addressed the Constitutional Council. The Council—which was then lacking any institutional legitimacy—refused to invalidate the referendum on the pretext that it was a “direct expression of national sovereignty.”67
Since this decision, there has been a consensus among the institutions and within the constitutional doctrine that the President of the Republic can amend the Constitution through popular referendum without any control of the Constitutional Council. This constitutional practice has even been transformed into positive law with the adoption of the Institutional Act of 6th December 2013 which specifies the role of the Constitutional Council in the application of Article 11 of the constitution. This organic law explicitly excludes the possibility of any judicial review of a constitutional amendment adopted based on Article 11(1) of the Constitution.68 Marine le Pen can justify her strategy by putting forward this constitutional precedent—and there is no legal ground to contest the constitutionality of her strategy.
Marine le Pen’s strategy illustrates a deep knowledge of the peculiarities of the French constitutional system. In France, constitutional democracy is still safe because populism remains in opposition—but the elections should have been an early warning to reflect upon these constitutional weaknesses. There is, however, a widespread skepticism among scholars and political leaders towards conducting any form of self-reflection.