Thursday, December 31, 2009

Reacting to the Constitutional Council

The Constitutional Council's decision to quash the carbon tax has been greeted with predictably unreflective glee by those who see it as a blow struck directly at Sarkozy le Mal-Aimé. That it may well be, but questions remain. Was it a wise decision? On what did the CC base its action? Has France gone from being a country without judicial review to a country with virtually unchecked judicial supremacy, not even limited by the (admittedly malleable) traditions of higher jurisprudence that constrain the Supreme Court of the United States?

Perhaps I'm unduly influenced by having just read Larry Kramer's excellent book on popular constitutionalism, and perhaps I was unduly impressed by Sarkozy's political courage in daring to impose a carbon tax. I'm not persuaded that it would have been effective in achieving its goal, so I will grant that premise of the CC's reasoning, but "probable ineffectiveness" seems to me a weak reason for overturning a statute. The tax in question was a first step toward an end approved by a duly elected legislature and sponsored by a duly elected executive, and not a law without a "rational basis," to use the jargon of American "higher lawmaking." As for the argument pertaining to the unequal impact of the law, it would be possible to invalidate almost any tax on such grounds, and I don't believe that the carbon tax was particularly egregious in this respect. Moreover, remedies short of invalidation were available for its defects. Nor am I persuaded that the motives of the CC were pure, influenced neither by special interests nor political considerations, whereas Sarko's were, according to his critics, ipso facto impure--as if anything is ever done in government without impure motives.

In short, I am not applauding this move by the CC. It will be interesting to see how the government responds, but I think that there are issues of principle here that go much deeper than what happens in this particular case, and I am astonished that no one in France seems to be raising them.

This will be the last post of the year. Happy New Year to all.

For a contrary argument from Bernard Girard, see here.


kirkmc said...

This whole Consel Constitutionnel thing is indeed interesting, especially compared with the US, which has a long tradition of Supreme Court actions regarding the constitutionality of laws. I get the feeling that the lack of tradition here means that pretty much no one in the media understands it, so they don't even try to explain the process or what its ramifications are. In addition, I don't know how the members of the CC are chosen, but it's obviously not the same way as in the US, where there are lifetime appointments.

The fact that the CC is loaded with rightist people also makes this specific decision a bit odd. Also, I don't recall, in the many years that I've been here, that the CC has had such presence regarding important laws (such as this one and Hadopi 1). But, then again, I truly don't grok the system here. It's odd, and my wife and I have discussed this often: even French people seem to know more about the American legal system than that of France because of TV and movies. My wife can never answer my questions about such things, and feels a bit guilty about it.

Happy New Year to you and yours!

randow said...

First, it's not a court, they're not judges, it is a préforme of a constitutional court. Second, they argued with equality, and this ist totally flawed, because a different treatment of industry and private housholds *might* be problematic, but it doesn't hurt the principle of equality (since they are not comparable).

DavidinParis said...

I agree with your sentiment entirely. I often find myself comparing such a government action (i.e. The Carbon Tax) to a doctor prescribing a mildly painful medical treatment, however, in France, the patient often says 'non'. So many issues raised in this blog (taxes, reforming salaries, university reform...) are unwelcome medicine aimed at re-adjusting the French sense of entitlement which is a mighty challenge met with people filling the streets. Just look at the 'debate' about stores being open on Sunday!

On the other hand, this same CC struck down article 52 which would have placed major French 'patrimoines' up for sale. In my opinion, this was the right move in response to a stupid idea.

So it could be that all we are witnessing is that reflexive 'non' that maintains the status quo.

MCG said...

I applaud your questioning the Constitutional Council's decision invalidating the carbon tax. You wrote, with good reason, that "The tax in question was a first step toward an end approved by a duly elected legislature and sponsored by a duly elected executive. . . ." You continued, however, that it was not "a law without a 'rational basis,' to use the jargon of American 'higher lawmaking.'"

The terms you have put in quotes are what American lawyers call terms of art, that is, technical terms with specialized meanings. They may or may not in fact represent the best ways to categorize judicial reasoning. Quotation marks, however, with due respect, can inflict damage without accountability. Your use of quotation marks here, along with the disparaging word "jargon," may suggest to some, without explanation, that you lack respect for the type of constitutional analysis that employs them--even while you make use of that form of analysis in your own argument.

Your enthusiasm for Larry Kramer's book on popular constitutionalism is enough to make me order it. The benefit I receive from reading your comments on French politics makes me order the book using the button on your blog. I hope your other readers are also supporting your work in this modest way.

Arthur Goldhammer said...

The quotes around "rational basis" were intended to single the phrase out as a technical term of law--a "term of art," in your phrase, which is just a more polite way of saying "jargon." I didn't mean to imply disrespect, although Kramer's argument about how "rational basis" has been used to carve out areas of law more or less protected from judicial interference is part of a larger critique of judicial assertions of power in the nonprotected areas. As for Randow's reminder that CC members are not "judges," yes, this is literally true, and the differences between French and American constitutional review are worth discussing, but I think that the comment misses the force of the distinction between lawmaking by elected officials and law-quashing by unelected ones. Call them "judges" or "counselors," it remains true that the basis of their authority is different from that of legislators and presidents.