The politics of constitutional review in France and Europe

Abstract

To the question “ Is constitutional review by a Constitutional Court law or politics? ” this article responds with a survey of various notions of the “ political, ” providing illustrations drawn from France and Europe and assessing Louis Favoreu’s role in French debates on the legitimacy of review. The article elaborates a basic model of constitutional politics, defi ned as lawmaking processes — legislative, administrative, judicial — that are mediated by constitutional norms and jurisprudence. Such politics register the extent to which constitutional courts have accrued agency in the world of government. Today, constitutional judges function as “ positive legislators, ” with transformative effects on parliamentary governance. Louis Favoreu is the most important fi gure in French public law for the whole of the Fifth Republic (1958 to the present). Professor Favoreu was an exceptionally skilled actor in constitutional politics. During the critical, foundational period of the Conseil Constitutionnel’s history — 1971 to 1990 — he built the scholarly infrastructure of contemporary French constitutionalism. 1 He founded, among other enduring institutions, the constitutionalist’s bible, Grandes decisions du Conseil constitutionnel (with Loic Philip); the dominant center for advanced teaching, research, and publishing in constitutional law, located at his university in Aix-en-Provence; an annual international gathering of judges and scholars for the discussion of comparative constitutional law (proceedings published yearly, in the Annuaire international de Justice constitutionnelle (International Annals of Constitutional Justice)); and a new journal, the Revue francaise de droit constitutionnel (French Review of Constitutional Law), devoted to the style of research he perfected and instilled in his many students. When the left was in power, Favoreu attacked the Socialists’ legislative agenda, drafting many of the Senate’s references ( les saisines ) to the Conseil Constituti onnel. And, for the general public, he wrote regular commentaries on Conseil decisions, in Le Figaro (a center-right daily of record) and other newspapers. *Leitner Professor of Law, Politics, and International Studies, Yale Law School. Louis Favoreu was my friend.