After six months of intense reflexion, an argumentation about the "constitutional treaty" is taking shape, stemming from it but extending beyond it, an argumentation which is neither rightist nor leftist, and which points out a historical danger to us all, far above politics. For this reason, this short argumentation should interest citizens of all sides.
Six months ago, in September 2004, I, like everyone, favored this text without having read it, by principle, just "to move forward", even though I knew very well that institutions were far from being perfect. I did not want to be one who would slow down Europe. I really believe that the vast majority of Europeans, beyond left/right political orientations, love this beautiful idea of a united Europe, more fraternal, stronger. It is a dream of peace, consensus, a very widespread dream gathering the majority.
I had not read the text and I really did not have the time : too much work... And then again, Europe is far away. And with all those politicians, I felt protected by the number : in the event of a drift, there was bound to be some of them to protect us... and I exempted myself from "making politics", i.e. I exempted myself from taking care of my own business.
Some voices had raised already, protested against the treaty, but they came from the extremes of the political spectrum and for this simple reason, I did not even start reading their arguments, still confident in the mainstream opinion without checking by myself the validity of the ideas at stake.
And then suddenly, some protests emerged from people one could not suspect to be anti-european. I then read their calls, leaving aside their political labels, and I found their arguments very strong. I started reading, a lot, entire books, any side, Fabius, Strauss-Khann, Giscard, Jennar, Fitoussi, Genereux, etc. And much more articles of those in favor of the treaty because I wanted to be sure not to be mislead. And the more I read, the more anxious I get. Eventually, today, I think of nothing else than this, I almost do not sleep any more, I am afraid, simply, to lose what is essential : protection against the arbitrary.
I still read today all the speeches, those which are in favor, those which are against, I continue to seek where the fault is in my reasoning and this text is a call for thinking and to make progress: if you can feel a mistake, let us talk it over, please, quietly, in honesty; it is very important. I can be mistaken, I sincerely seek to avoid it, let us reflect together, if you care to.
I feel that it is my duty, as a law teacher, to talk about it a little more than the others, to talk it over with my colleagues, but also with my students, with journalists too. I would be an accomplice if I remained silent.
I have thus found more than ten serious reasons to be opposed to this extremely dangerous text, and ten other reasons to reject an unpleasant text, not fraternal at all, actually. But the five strongest reasons, the most convincing ones, those which are shared across the political spectrum because they simply threaten the very interest of having a political thinking, those appeared to me lately because it takes a lot of work to highlight them. It is these reasons, the five most significant ones, on which I would like to draw your attention and to ask your opinion so that we speak about it together, given that the journalists deprive us of public debates.
In this state matter, the groundings of the constitutional law are ill treated, which brings back to memory five traditional principles designed to protect the citizens.
1. A Constitution must be readable to allow a popular vote: this text is unreadable.
2. A Constitution does not enforce one policy or another : this text is biased.
3. A Constitution is revisable: this text is sealed by a requirement of double unanimity.
4. A Constitution protects from tyranny by separating powers and controlling them : this text does not organize a true control of powers, not does it make a real separation of powers.
5. A Constitution is not granted by the powerful ones, it is established by the People himself, precisely to protect himself from the arbitrary of the powerful, through a constituent assembly, independent, elected for that purpose only and revoked then after : this text confirms European institutions which have been written over the last fifty years by the men in power, judges in their own case.
Fifth principle of constitutional law: a democratic Constitution has to be established by an assembly which is independent of the powers in office
A Constitution is not granted to the People by the powerful. It is established by the People himself, precisely to protect himself from arbitrary of the powerful.
To the contrary, the European institutions were written (over the last fifty years) by politicians in office who are thus obviously judges in their own case : whether from left or right, having to establish themselves the constraints which were to oblige them in their daily life, the persons in charge, (and it is mostly human and also foreseeable), were led to a dangerous bias .
This, again, is unique as far as democracies are concerned.
And one can observe the result, a true caricature of what should not be done : in some selected economical domains, an executive totally free of control ; almost all bodies of the Union irresponsible at their decision level, a fake democracy with bluff all over, some small progress exhibited and sported, but a true retreat of barriers against the arbitrary.
The only trustworthy way to create a balanced and protective fundamental text is a constituent assembly, one which is independent of the powers in office, elected to work out a Constitution, elected for that purpose only, and revoked immediately afterward ; in due respect of a very public and very contradictory procedure (in law, the word contradictory means that opposing parties must have the right to express themselves fully and completely).
It is the citizens' duty to demand this procedure if the political leaders try to do without it.
The varied enough composition of the Giscard Convention (rich of many personalities, some of great value) is not a satisfactory argument : we are still thousands of miles aways from a Constituent Assembly: its members were not elected with this mandate, its members were not all independent of the powers in office, but above all, they did not have the power to write a balanced and democratic text: they could only validate, compile (and modify slightly) the former texts written by actors who were judges in their own case.
Even further, the rewriting of the text by governors in office, over the entire year that followed the Convention's delivery of its proposed text, is a major faux-pas, constitutionally speaking. It is not the mandate of the power in office to write the law of the law. The State is not the people.
I profoundly respect, naturally, all the prominent members of the Convention, but I simply believe that they had no mandate to do what they did.
What means is left to these citizens to resist this confiscation of their sovereignty ? There is one solution more peaceful than riots : a firm and determined No of the French people.
This despise of the people and of their true choices is quite telling to the growing and unseen danger : our elite, from left or right, does not trust democracy, and is deliberately, gradually and slyly depriving us from it.