[Edit] History and evolution

While since the 19th century the judicial review that the Constitutional Council brings to bear on the acts of the executive branch has played an increasingly large role, the politicians that framed the successive French institutions have long been reluctant to have the judiciary review legislation. The argument was that un-elected judges should not be able to overrule directly the decisions of the democratically-elected legislature. This may also have reflected the poor impression that the political action of the parlements – courts of justice under the ancien régime monarchy – had left: these courts often had chosen to block legislation in order to further the privileges of a small caste. Whatever the reasons, the idea was that legislation was a political tool, and that the responsibility of legislation should be borne by the legislative body.^[1][2][3]

Originally, the Council was meant to have rather technical responsibilities: ensuring that national elections were fair, arbitrating the division between statute law (from the legislative) and regulation (from the executive), etc. The Council role of safekeeping fundamental rights was probably not originally intended by the drafters of the Constitution of the French Fifth Republic: it was thought that Parliament should be able to see for itself that it did not infringe on such rights. However, the Council's activity considerably extended in the 1970s.^[13]

From 1958 to 1970, under Charles de Gaulle's presidency, the Constitutional Council was sometimes described as a "cannon aimed at Parliament", protecting the executive branch against encroachment by statute law voted by Parliament. All but one referral to the Constitutional Council came from the Prime Minister, against acts of Parliament, and the Council agreed to partial annulments in all cases. The only remaining referral came from the President of the Senate, Gaston Monnerville, against the 1962 referendum on the direct election of the President of the Republic, which Charles de Gaulle supported; and the Council ruled itself "incompetent" to cancel the direct expression of the will of the French people.^[14]

In 1971, however, the Council ruled unconstitutional (Decision 71-44DC) some provisions of a law changing the rules for the incorporation of private nonprofit associations, because they infringed on freedom of association, one of the principles given in the 1789 Declaration of the Rights of Man and of the Citizen; they used the fact that the preamble of the French constitution briefly referred to those principles to justify their decision. For the first time, a statute was declared unconstitutional not because it infringed on technical legal principles, but because it was deemed to infringe on personal freedoms.^[15][16]

In 1974, the possibility to request a constitutional review was extended to 60 members of the National Assembly or 60 senators.^[17] Soon, the political opposition seized that opportunity to request the review of all controversial acts.^[7]

The Council increasingly has frowned upon "riders" (cavaliers) – amendments or clauses introduced into bills but having no relationship to the original topic of the bill; for instance, "budgetary riders" in the Budget bill, or "social riders" in the Social security budget bill. See legislative riders in France.^[18][19]

In January 2005, Pierre Mazeaud, then president of the Council, announced that the Council would take a stricter view of language of a non-prescriptive character introduced in laws,^[20] sometimes known as "legislative neutrons".^[21][22][23] Instead of prescribing or prohibiting, as advocated by Portalis,^[24] such language makes statements about the state of the world, or wishes about what it should be. Previously, this language was considered devoid of juridical effects and thus harmless; but Mazeaud contended that introducing vague language devoid of juridical consequences just dilutes law unnecessarily. He denounced the use of law as an instrument of political communication, expressing vague wishes instead for effective legislation. Mazeaud also said that, because of the constitutional objective that law should be accessible and understandable, law should be precise and clear, and devoid of details or equivocal formulas.^[22][25] The practice of putting into laws remarks or wishes with no clear legal consequences has been a long-standing concern of French jurists.^[26]

As of 2004, one law out of two, including the budget, was sent to the Council at the request of the opposition. In January 2005, Pierre Mazeaud, then president of the Council, publicly deplored the inflation of the number of constitutional review requests motivated by political concerns, without much legal argumentation to back them on constitutional grounds.^[22]

The French constitutional law of 23 July 2008 amended article 61 of the Constitution. It now allows for courts to submit questions of unconstitutionality of laws to the Constitutional Council. The Court of Cassation (supreme court over civil and criminal courts) and the Council of State (supreme court over administrative courts) filter the requests coming from the courts under them. Lois organiques and other decisions organizing how this system functions were subsequently adopted, and the system was activated on 1 March 2010.^[27][28][29]