Lhe warning from the United States is clear. The threats are serious in France on abortion, of course, but also on marriage for all, which mobilized the Catholic right for many months. And later, when it will be voted on, on the law concerning the end of life, so demanded during the last presidential and legislative campaign.
The idea of securing progress in the recognition of new rights and the extension of freedoms is generous. But modifying the Constitution remains a strong act, and this fundamental text does not deserve occasional alterations, voted in haste or confusion.
The convergence of votes granted on the subject for several days cannot be abstracted from the new political context resulting from the legislative elections, where a government without an absolute majority would find there an opportunity to display an unexpected consensus between political groups represented in the National Assembly and in the Senate.
The French and American legal systems are different
Yet there are many who have criticized, in the recent past, the new political habits leading to legislating after each news item, and regretted the discredit fallen on our verbose, complex and often unapplied laws. Some even saw in it the source of political discredit and the source of demagogic populism or massive abstention in elections.
It is therefore necessary to protect the Constitution from these dangerous inclinations, at the risk of causing it to lose the status of fundamental text to be protected from the most burning current events, by reserving for it the reminder of the great principles on which can, precisely, be based the courts in the event of a dispute. Because each new threat to fundamental freedoms cannot lead to a modification of the Constitution.
Moreover, the French and American legal systems are different: the Constitutional Court is not the Constitutional Council. It should be remembered that the body responsible for monitoring constitutionality in France has honored itself by developing an interesting case law, that of the ratchet, around which the legal doctrine has written a great deal.
The specific case of the abolition of the death penalty
The abolition of the death penalty has certainly been enshrined in the Constitution since 2007, in its article 66-1 (“No one can be condemned to the death penalty”). But it is above all enshrined in numerous international treaties to which France is a signatory, such as the Convention for the Protection of Human Rights and Fundamental Freedoms of the European Court of Human Rights, since 1959, and in its two protocols , since 1986 and 2007 (specifically Protocol No. 6, relating to the abolition of capital punishment in peacetime, and Protocol No. 13, prohibiting the application of this same penalty in all circumstances, including in of war).
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