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II. The Initial Draft and its Origins

Published online by Cambridge University Press:  02 September 2013

Nicholas Wahl
Nicholas Wahl
Affiliation:
Harvard University
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Extract

Like any important institutional change, the new French constitution owes its parentage to an established doctrinal tradition, the particular ideas and experiences of its authors, and the combination of immediate political circumstances. The complexity of this process in the summer of 1958 and the failure of the French government to publish the records of the drafting, make it difficult even a year later to describe the birth of the document. Yet the fact that the drafting closely followed a short though dangerous crise du régime, and that it was primarily the work of the new Ministry rather than a constituent assembly, presents a meager advantage to the student of the new constitution. For the haste with which General de Gaulle's government prepared the initial draft—while at the same time preoccupied with many other pressing matters— strongly suggests that the drafters simply cast into legal text the program of the familiar opposition movement, formed by the General over a decade before, specifically to accomplish constitutional reform.

Type
The French Constitution of 1958
Information
American Political Science Review , Volume 53 , Issue 2 , June 1959 , pp. 358 - 382
Copyright
Copyright © American Political Science Association 1959

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References

1 The new constitution was promulgated on October 4, 1958 (Journal Officiel, October 5, 1958) after having passed through five formal stages: 1. Preparation of the initial government draft, made public on July 29, 1958. 2. Deliberation of the Consultative Constitutional Committee (C.C.C.) whose recommendations for changes in the initial draft were presented by its chairman, Paul Reynaud, on August 14, 1958. (The records of the Committee's debates have not been published. For the text of its recommendations see Journal Officiel, August 20, 1958.) 3. Consideration of the Committee's recommendations by the government between August 14 and August 26. 4. Presentation of the government draft to the Council of State for its advice on August 27, 1958. (The Council's report has not been published.) 5. After publication of the final government draft on September 4, 1958, presentation for popular approval, and adoption, in the referendum of September 28, 1958.

The first authoritative and detailed study of this whole process is: Goguel, François, “l'Elaboration des Institutions de la Constitution du 4 Octobre 1958,” Revue Française de Science Politique, Vol. 9, No. 1 (March 1959)CrossRefGoogle Scholar. Given the nature of the drafting process, newspaper coverage was inadequate and irregular. The best reporting was to be found in Le Monde and in Paris-Presse-l'Intransigeant. Useful parallel presentations of the initial government draft of July 29, the recommendations of the Constitutional Consultative Committee (C.C.C), and the final text approved in the referendum, reveal the evolution in its broadest lines, and are to be found in: Prélot, Marcel, Pour Comprendre la Nouvelle Constitution (Paris, 1958)Google Scholar; and Berlia, Georges, “Chronique Constitutionnelle Française,” Revue du Droit Public et de la Science Politique en France et à l'Etranger (Paris: September-October 1958)Google Scholar.

2 Of the dozen or so books dealing with the events of May-June 1958, the three most useful for an understanding of the Paris political situation and the making of the de Gaulle government are: Merry, and Bromberger, Serge, Les 13 Complots du 13 Mai (Paris, 1959)Google Scholar; Tournoux, J. R., Carnets Secrets de la Politique (Paris, 1958)Google Scholar; Ferniot, Jean, Les Ides de Mai (Paris, 1958)Google Scholar. The texts of the parliament's grant of decree powers as well as the constitutional law of June 3 under which the government was empowered to revise the constitution are to be found most conveniently, accompanied by commentary, in Berlia, op. cit.

3 The working papers placed at the disposition of the author are not a complete set, although care was taken to include drafts representative of the whole initial drafting stage. The reasons why it was impossible to unite a complete set will be discussed below in connection with the drafting method. After the drafting stage was completed the archives of the working party were added to the cabinet archives and hence are not available for study. Where reliable newspaper accounts of the drafting have been used, a citation ia supplied. Otherwise the information comes from the working papers, which usually bore no special identification, or from interviews with the following persona directly involved in the drafting: Michel Debré, Jean Mamert (regular meetings from June through December); Raymond Janot; Léon Noël (member of the C.C.C.); Christian de la Malène (personal assistant to Debré). Other cabinet members interviewed were Edmond Michelet and Jacques Soustelle. Finally, regular meetings were held with General de Gaulle's personal assistant, Olivier Guichard. The author wishes to express his thanks for all the assistance so provided. It goes without saying that the conclusions—and the errors they may contain—drawn from the interviews and the working papers examined by the author, are his responsibility alone.

4 Cf. Goguel, François “Vers une nouvelle orientation de la revision constitutionnelle,” Revue Française de Science Politique, Vol. 6, No. 3 (July-Sept., 1956)CrossRefGoogle Scholar.

5 François Goguel, before the Anglo-French Conference, Nuffield College, Oxford, December 5–7, 1958, First Session (Unpublished minutes), p. 7. (Henceforth referred to as “Oxford Conference”). Goguel, as Secretary General of the Council of the Republic and a leading authority on French political institutions, was close to the drafting process.

6 The author personally viewed part of the archives of the working party during the summer of 1958 and can testify to their disorganized state. Crowding at the Ministry of Justice, frequent changes of venue of the principal drafters, shifts of operations to the cabinet at the Hotel Matignon, and, above all, overwork on the part of the secretary of the working party, were responsible for this condition.

7 Information about the organization of the working party came principally from Jean Mamert, its secretary, and from Debré. The material presented henceforth is based on interviews with them as well as with Raymond Janot, and on the working papers. Other printed sources are noted.

8 Michel Debré was attached to General de Gaulle's staff in 1945 and placed in charge of the administrative reforms then being undertaken. In this capacity he concerned himself particularly with the creation of the Ecole Nationale d'Administration and the Instituts d'Etudes Politiques throughout France. He has written for the Revue Française de Science Politique: see his “Trois Caractéristiques du régime parlementaire français,” in Vol. 5, No. 1 (January-March 1955)Google Scholar.

9 It should not be forgotten that the constitutional law of June 3 practically gave the government carte blanche. De Gaulle and Debré knew what they wanted in the constitution and under the extreme press of time they sought to avoid unnecessary controversy at the first drafting stage. Moreover, a man like Debré, in the opposition since the Liberation, knew relatively few high civil servants from direct professional association.

10 Since he had not been a close political associate of de Gaulle, Janot was only generally acquainted with his new chief's constitutional ideas. During the first week in June the General's personal staff was obliged to rush a large documentation on de Gaulle's twelve-year record of constitutional critique to educate the new assistant in charge of these matters.

11 Le Monde, June 14, 1958.

12 Ibid., July 13–14, 1958.

13 Ibid., July 12, 1958.

14 A partial and summary analysis of these ambiguities and errors is provided in the commentary in Berlia, op. cit. A similar analysis, including a list of those articles carried over from the 1946 Constitutions, is to be found in: Campbell, Peter and Chapman, Brian, The Constitution of the Fifth Republic: Translation and Commentary (Oxford: 1958)Google Scholar. The only other significant commentaries on the omissions and contrasts with the 1946 constitution are those by Jacques Fauvet and Pierre Viansson-Ponté appended as parenthetical notes to the reproduction of the C.C.C. recommendations (Le Monde, August 17–18, 1958) and of the final government text of September 4, 1958 (Le Monde, September 6, 1958). There is also the excellent analysis of the first government draft of July 29, in Le Monde of July 31, 1958. These three numbers of Le Monde are useful for tracing the changes made in the government drafts between July 29 and September 4.

15 François Goguel, Oxford Conference, p. 6.

16 Ibid.

17 For an elaboration of this point in terms of de Gaulle's personal experiences, see below, part II.

18 This reform had been much discussed during the last years of the Fourth Republic. M. Léon Noël, as a Gaullist deputy, offered a resolution to this effect on March 23, 1955. It was again introduced as part of a larger program of reforms, many of which foreshadowed those of 1958, on June 6, 1956 by the young deputies who organized themselves in an “Intergroup of Newly Elected” and appeared serious about their reform intentions. Their leader, Arrighi, M. Pascal, took part in the Algiers coup of May 1958 and describes this as well as the 1956 reforms in his La Corse: Atoût Décisif (Paris, 1958)Google Scholar.

19 François Goguel, Oxford Conference, p. 6.

20 This is especially evident in Paul Coste-Floret's report for the Committee on Universal Suffrage and Constitutional Laws concerning the first series of reform bills proposed since the 1954 changes. It has been printed as Annexe au procès-verbal de la séance du 26 Mars 1957, Débats Parlementaires, Assemblée Nationale. The movement in favor of presidential government is more fully discussed by Stanley Hoffmann in the accompanying article, above.

21 Le Monde, May 24, 1958.

22 The full provisions of the Pflimlin resolution of May 23, 1958 are reproduced in Berlia, op. cit.

23 The provisions were in the reform bill voted by the National Assembly on March 21, 1958, almost three years after the original resolution had been passed. The text is in Berlia, op. cit.

24 The idea was first expressed publicly by de Gaulle in his Bayeux speech of June 16, 1946. de Gaulle, Charles, Discours et Messages 1940–1946 (Paris, 1946) pp. 721–727Google Scholar. It was clearly inspired by the Christian social tradition of corporatism which influenced many Resistance schemes of a similar nature. Cf. Coste-Floret, Paul, “Quelques Idées sur la constitution de demain,” in Michel, H. and Mirkine-Guetzévitch, B. (eds.), Les Idées Politiques et Sociales de la Résistance (Paris, 1954), pp. 280 ffGoogle Scholar. It was later incorporated into the official R.P.F. program at the movement's congress of 1950. A brief sketch of its provisions is offered in Vallon, Louis, Le Dilemme Français (Paris, 1951), pp. 172–173Google Scholar.

25 Michel Debré informed the author that he was opposed to the organization of elections within professions for the selection of delegates to a corporative body. Given the lack of unity among French trade unions and professional organizations, any method of nomination would have been contested.

26 Cf. Debré, Michel, Ces Princes qui nous gouvernent (Paris, 1957) pp. 173, 179Google Scholar.

27 See Berlia, op. cit., for the text of the June 3, 1958 law granting the de Gaulle government special decree powers. Debré's intentions concerning the electoral law and the constitution are discussed in Le Monde, June 14, 1958 by Fauvet and Viansson-Ponté.

28 This is revealed by the fact that a draft dated July 26 included these subjects while one six days earlier did not. Debate in the cabinet committee had earlier succeeded in adding to parliament's competence such important matters as nationalizations, the exercise of civil rights, military service, inheritance laws and nationality laws. Cf. Goguel, “l'Elaboration des Institutions … etc.,” op. cit., p. 77.

29 A modified form of this provision reappears in the C.C.C.'s amended version of Article 64. In its final version in Article 68 of the constitution it is even further revised to apply only to accomplices of ministers indicted for plotting against the state.

30 François Goguel, Oxford Conference, p. 3.

31 Ibid., p. 13a.

32 It appeared as Article 2a among the C.C.C.'s recommendations. The full report of the Committee, including the letter of transmittal from its president, Reynaud, Paul, is in Journal Officiel, Lois et Décrets, August 20, 1958Google Scholar. Less complete is the reproduction in Le Monde, August 17–18, 1958. Only the recommendations are to be found in Berlia, op. cit., and Prélot, op. cit.

33 The report of the Council of State has not been made public. Accounts of its deliberations on the party clause are found in Le Monde, August 29, 1958, and Le Figaro, August 28, 1958.

34 Le Monde, July 20–21, 1958.

35 François Goguel, Oxford Conference, p. 2.

36 All drafts through that of July 26 spoke simply of a commission mixte. Only in the final draft of July 29 was the word paritaire added.

37 Debré informed the author of de Gaulle's interest in this matter. He mentioned it as essential to parliamentary government in his speech before the Council of State: Debré, Michel, La Nouvelle Constitution (Tours, 1958), p. 2 and again p. 21Google Scholar. This speech is the best commentary on the constitution by a principal author. It is conveniently reprinted in the special number of the Revue Française de Science Politique of March 1959.

38 It states only: “The Government should be responsible to Parliament.” The text is in Berlia, op. cit.

39 Le Monde, June 3, 1958.

40 This explanation is implied by Berlia, op. cit. pp. 928–929.

41 Le Monde, June 27, 1958.

42 Interviews with members of the working party before and after the deliberations of the C.C.C. revealed that they had vastly over-estimated the difficulties the Committee would make for the government draft.

43 For a convenient list of the members of the C.C.C., as well as an account of its work that is useful though not revealing, see the pamphlet written by one of its members: Mignot, André, La Nouvelle Constitution: Evolution ou Révolution (Paris, 1958)Google Scholar.

44 The last-minute changes are best described in the comments accompanying the final text in Le Monde, September 6, 1958.

45 Cf. Le Monde, July 26, 1958. The author heard this pessimistic view relayed by cabinet ministers as well as by the General's personal assistant, M. Guichard.

46 Debré, La Nouvelle Constitution, op. cit., p. 23.

47 Jacquier-Bruère (Debré, Michel and Monick, Emmanuel), Refaire la France: l'Effort d'une Génération (Paris 1945), pp. 109–114Google Scholar. Debré was responsible for writing Part II, entitled Institutions. He makes the same point in an unsigned article that appeared in the Resistance press and is reproduced in Michel and Mirkine-Guetzévitch, op. cit., p. 292.

48 An insight into his early thinking on economic and social matters may be gained from his doctoral dissertation: Debré, Michel, l'Artisanat, classe social: la notion d'artisan, la législation artisane (Paris, 1934)Google Scholar.

49 Cf. Friedrich, Carl J., “The Political Thought of Neo-liberalism,” this Review, Vol. 49, No. 2 (June 1955)Google Scholar; and the same writer's review of Debré's principal theoretical work, La République et son Pouvoir (Paris, 1950)Google Scholar, also in this Review, Vol. 45, No. 4 (December 1951).

50 The quotation is from an interview in Le Monde, August 8, 1958. Cf. the same point developed in his La Mort de l'Etat Républicain (Paris, 1947)Google Scholar, chapter I; his La République et son Pouvoir, op. cit., Chapter III; and his Refaire une démocratie, un etat, un pouvoir (Paris, 1958)Google Scholar, Chapters II and III. The titles alone make the point.

51 Le Monde, August 8, 1958. The same view is developed in his La Republique et son pouvoir, op. cit., pp. 31 ff.

52 Jacquier-Bruère, op. cit., p. 122.

53 Ibid., p. 123.

54 Ibid., p. 124. Cf. his unsigned article in Michel and Mirkine-Guetzévitch, op. cit., p. 293 and his speech at the Council of State in 1958, La Nouvelle Constitution, op. cit., p. 16.

55 Jacquier-Bruère, op. cit., p. 133. The same view was developed by General de Gaulle in his last speeches before the National Constituent Assembly in December 1945. Cf. Discours et Messages, op. cit., pp. 713–716.

56 Jacquier-Bruère, op. cit., pp. 146–147.

57 Ibid., p. 154.

58 Ibid., pp. 157 ff.

59 On the work of this little known group, tantamount to the Council of State for the Resistance “government” and for de Gaulle at Algiers, see Hostache, René, Le Conseil National de la Résistance: les Institutions de la Clandestinité (Paris, 1958), pp. 221 ff.Google Scholar

60 On the political thought of the Resistance see especially Michel and Mirkine-Guetzévitch, op. cit., and Michel, Henri, Histoire de la Résistance 1940–1944 (Paris, 1950)Google Scholar.

61 Le Projet de Constitution du Comité Général d'Etudes, in Les Cahiers Politiques, No. 14 (October 1945), p. 2 ff.Google Scholar

62 In an interview with the author Debré stated that he considered this article one of the most important innovations of the constitution and that in the context of French law it represents the most that can be accomplished toward approximating habeas corpus.

63 de Gaulle, Charles, War Memoirs: Vol. 1, The Call to Honor (New York, 1955), p. 80Google Scholar.

64 Paris-Presse-l' Intransigeant, August 11, 1958.

65 On December 7,1941 de Gaulle predicted that the postwar period would see a struggle between the Soviet Union and the U. S. Cf. Colonel Passy (pseud. for André Dewavrin), Souvenirs: 2e Bureau, Londres (Monte Carlo, 1947), p. 236Google Scholar. The latter was de Gaulle's intelligence chief in Free France and his view accords with that of other associates of the General interviewed by the author in 1953.

66 Discours et Messages, op. cit., pp. 743–744.

67 Cf. Debré's admiration for Ferry in his La Répubique et son Pouvoir, op. cit., pp. 151 and 161.

68 Paul Coste-Floret, “Quelques Idées sur la Constitution de Demain,” cited above, note 24, and de Menthon, François, “Vers la Constitution de la Quatrième Republique,” Les Cahiers Politiaues, No. 13 (September 1945)Google Scholar, drafted originally during the war.

69 The articles appeared in Les Cahiers Politiques, Nos. 15 through 24, the last issue to appear (November 1945-October 1946).

70 Capitant's speeches during this period are collected in Premiers Combats pour la constitution: discours prononcés par René Capitant, deputé du Bas-Rhin, Ancien Ministre, à la Première Assemblée Nationale Constituante (Strasbourg, 1946)Google Scholar. See also, especially for the source of the federal ideas adopted by Gaullism: Capitant, René, Pour une constitution fédérale (Paris, 1946)Google Scholar.

71 Most of these were published only in the internal organs of the R.P.F. See, however, the partial reproduction of some of Debré's R.P.F. plans in his La République et ses Problèmes (Paris, 1952)Google Scholar, Chapter II, and in Vallon, op. cit., pp. 170–177.

72 The pamphlet is Ces Princes qui nous gouvernent, op. cit. During the period in question Debré wrote regular weekly articles for his constituency newspaper, the weekly Echo de Touraine (Tours). He also contributed frequent articles to the Paris weekly Carrefour, and in November 1957 he founded his own small polemical weekly, Le Courrier de la Colère, which ended publication in July 1958.

73 In an interview with the author in August 1958. Cf. his own references to Carré de Malberg in an article written under the pseudonym of Fontevrault: “Vers une crise constitutionnelle,” in Les Cahiers Politiques, No. 7 (January 1946), p. 63Google Scholar. The speech by Capitant has been published as Discours prononcé par M. René Capitant, Professeur de Droit à la Faculté de Droit et des Sciences politiques sur l'ouevre juridique de Raymond Carré de Malberg, in Annales de l'Université de Strasbourg 1936 (Strasbourg, 1937)Google Scholar.

74 His theory is set forth in: Théorie Gńérale de l'Etat, 2 vols. (Paris, 1920)Google Scholar.

75 The most accessible single source on these activities is Reybaud, E., Enquête sur les partis et groupements français (Marseille, 1938)Google Scholar. For an earlier period see: Carrère, J. and Bourgin, G., Manuel des Partis politiques en France (Paris, 1924)Google Scholar, and its second edition, published in 1928 by G. Bourgin, J. Carrère and A. Guérin.

76 Cf. Capitant's own contribution to the debate: La Réforme du Parlementarisme (Paris, 1934)Google Scholar.

77 Compare passages on pp. vii and 281 of Tardieu, André, l'Heure de la Décision (Paris, 1934)Google Scholar, with Debré's Ces Princes qui nous gouvernent, passim.

78 Tardieu's reform suggestions are in his Revolution à Refaire: I. Le Souverain Captif (Paris, 1936)Google Scholar and II. La Profession Parlementaire (Paris, 1937)Google Scholar. Cf. also Pose, Alfred, “Lea Idées politiques d'André Tardieu,” in André Tardieu (Paris, 1957)Google Scholar.

79 On Tardieu's retreat from democracy see. Rémond, René, La Droite en France de 1815 à nos jours (Paris, 1954), p. 218Google Scholar.

80 Bardoux, Jacques, Ni communiste, ni hitlérienne: la France de demain. Un plan (Paris, 1937)Google Scholar, is a summary of the original plan which appeared as La France de demain: son gouvernement, ses assemblées, sa justice. Textes du Comité Technique pour la réforme de l'Etat (Paris, 1936)Google Scholar.

81 The Marshal's “constitution,” is in Pétain, Philippe, Quatre Années au pouvoir (Paris, 1949), pp. 147–159Google Scholar. It should be noted that the Vichy document differs from both the parent plan of the Comité Technique, as well as the 1958 constitution, in one vital respect: it gives the Chief of State the power to remove the Prime Minister and his cabinet, thus destroying ministerial responsibility to Parliament and parliamentary government along with it.

82 Jacques, Léon, Les Partis Politiques sous la Troisième République (Paris, 1913), pp. 325 ffGoogle Scholar. This is the only readily available source on the reform movements before 1914.

83 Ibid., pp. 488 ff, and 352 ff.

84 This problem is dealt with briefly in the author's unpublished doctoral dissertation: De Gaulle and the Resistance: the Rise of Reform Politics in France (Harvard, 1956)Google Scholar. Blum, Léon in his La Réforme Gouvernementale (Paris, 1936Google Scholar) proposes a number of reforms in legislative procedures that are similar to Debré's provisions for “rationalization.” But the socialist leader explicitly rejects any constitutional changes in executive-legislative relations and it is not until his wartime A l'Echelle Humaine (Paris, 1946)Google Scholar that his views on this began to waver—and in the direction of a presidential system. Jules Moch and Vincent Auriol also proposed constitutional reform during the war, but like Blum they quickly abandoned their wartime ideas upon contact with their party in post-Liberation France.

85 On these new trends see Priouret, Robert, La République des Deputés (Paris, 1959)Google Scholar, and Rémond, René, “Le nouveau régime et les forces politiques”, Revue Française de Science Politique, Vol. 9, No. 1, March 1959CrossRefGoogle Scholar. In terms of the problems they pose for traditional party politics, see Lavau, Georges, “l'Opposition Difficile,” in Esprit (February 1959)Google Scholar. Hoffman deals more fully with this point in the accompanying article.

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