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.