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ALL the main parts of the new French constitutional machine have now been assembled, and the finished product has been approved by the French people. In the referendum of October 13, it received 9,126,370 "yeas," against 8,043,336 "nays," out of a total of 25,448,125 registered voters, male and female. Has the Fourth Republic a chance to survive under this Constitution? Or are we likely now to witness a rapid change of scene, a cascade of innovations like that which filled the decade from 1789 to 1799?
The French people lived under the Constitution of 1875 for 65 years -- that is, till July 11, 1940, the date of the first "Constitutional Act" promulgated by Pétain by virtue of the powers conferred on him the day before by the last Chamber of Deputies and last Senate of the Third Republic. To that Constitution the French people had been indebted for the first stable régime they had known since the Revolution. Coups d'état, brusque changes, sudden breaks of continuity, these for 65 years they had been spared. The longest period of stability before the adoption of the Constitution of 1875 had been 18 years, once during the July Monarchy and again during the Second Empire.
The fragmentary and incomplete laws of February and July 1875 laid out the framework of a constitutional monarchy à l'Anglaise, but with a president in the place of the monarch. It was a compromise; and Legitimists, Orléanists, Bonapartists and Republicans, mutually opposed in both feelings and doctrines, resigned themselves to it as a last resource. As a matter of fact, the discord among the organizers was responsible for the strength of their work. The articles they agreed on, disconnected as they were, proved in practice more stable than the ambitious systems which had been attempted in 1791, 1795, 1799, 1804, 1815, 1848 and 1852. That the little skiff put together out of odds and ends proved more seaworthy than the supposedly perfected hulls constructed by proud engineers is not so surprising as it might seem. In popular government, empiricism, patience, a modest adaptation to circumstances, are preferable to abstractions. Gilded phrases are not sound currency.
The Constitution of 1875, gradually making its way decade by decade, gave France a kind of government which, at the lowest estimate, was competent in periods of calm. More, by 1914-1918 the Third Republic had developed a personnel which was able to weather victoriously a crisis of war and invasion. But it was incapable of adapting itself to the social and economic upheavals of the second quarter of the twentieth century. Its hands were too feeble to keep the French people from drifting to disaster.
Human responsibilities cannot be sorted out easily from those of institutions. A Poincaré, a Clemenceau, perhaps even a Barthou, might have been equal to saving the country in the perilous period from 1930 to 1940. Let us record merely that the existing institutions did not assist the men who were in fact in power, and that the men themselves were very inferior to the predecessors who had held their high positions.
In its final period, in its last 30 years, let us say, the régime was characterized more and more by a fatal confusion between executive and legislative functions, or, to use more exact terminology, between government action and parliamentary control. The French people believed they were living in a parliamentary régime; properly speaking, however, no such régime did actually exist. In England, the country which invented this form of government, it has specific characteristics which France had not copied. At Westminster, the Cabinet which governs and the Parliament which controls it hold equal status. The Cabinet is not subordinated to the Parliament. The Cabinet's responsibility to the House of Commons is balanced by its right to appeal to the electorate if the Commons refuses to give it its confidence -- in short, by the right of the Cabinet to dissolve Parliament. In France, however, the right of dissolving the Assembly was used just once, on June 19, 1877, and never after.
The right of dissolution is thought of in France as an instrument of the coup d'état because nearly 70 years ago Marshal MacMahon, President of the Republic, attempted to use it to keep in office the Duc de Broglie's "reactionary" cabinet in face of an adverse vote in the Chamber of Deputies. Marshal Mac-Mahon lost out at the general elections which followed, and thereupon, accepting the popular will, appointed Jules Dufaure as President of the Council. The escapade was a short one, but the memory of it remained very vivid in French minds. Gaston Doumergue, President of the Council of Ministers in 1934, tried vainly to regain the balance which had swung against the Executive, and to reinstate dissolution of the Chamber as a normal government procedure. In a reform of that sort political leaders like Edouard Herriot could see only a step toward dictatorship. I can still hear his words: "At Barthou's funeral, when I saw Doumergue take the head of the procession, ten paces ahead of us, I understood that he aspired to supreme power."
Gaston Doumergue, a mediocre person, probably was not made of the stuff of dictators. Let us not forget, however, that he had men like Laval and Flandin among his following. No regrets need perhaps be wasted, then, that he was denied the right of dissolving the Chamber. Perhaps actually he would have used that right against the Republic. What is regrettable is that, long before Doumergue, not one of the great leaders of the Third Republic had thought of taking an initiative in that direction. They probably would not have aroused the same distrust; and the anarchical state of affairs created by the multiplicity of parties and clans might have been lessened. Thus might we have been spared the departmental satraps -- the Chautemps, the Malvys, the Monzies, and the rest -- who became especially powerful in the Senate because the urban populations, less easily a prey to their methods of patronage, were not adequately represented there. One recalls in this connection the courts of justice of the eighteenth century, and their appeals to ancient liberties, or simply to liberty itself, as a basis for their objections to the reforms eventually brought about by the Revolution. What a valuable weapon the right of dissolution, the right of appeal to the people, might have been for smashing and dispersing the old inert oligarchies that cumbered the political arena between the two world wars! We should examine into this important matter a little more thoroughly as a preliminary to studying the new French Constitution.
Was the Third Republic in fact a régime of assembly? By that phrase I mean a constitutional organization in which the government originates directly from a chamber elected by universal suffrage and retaining the first and last word upon every occasion.
France has had a single-chamber government three times: in 1792-95, in 1848-52 and in 1871-76. Let us leave aside the third of these, the period from 1871 to 1876, when the National Assembly, elected in reaction against the Second Empire, the military defeat and the Commune, and made up largely of Legitimists and Orléanists, agreed to set up a conservative Republic as a middle course acceptable to the two opposing factions. The other two single-chamber assemblies, however, called on to cope with foreign war or internal disorder, sought salvation in recourse to energetic, violent men like Danton and Robespierre, who found support in a nation-wide network of clubs, or in the enthronement of the pretender Bonaparte.
Nothing of this sort occurred in the France of 1875-1940. The French people had gone through bitter experiences, from which they were barely recovering. Adventure did not tempt them. Moreover, the popular assembly no longer held a sole position of domination. Now it was flanked by a Senate elected by restricted suffrage, and thus was held back from irresponsible leanings toward one idea or one man. Thus neutralized against bad actions, however, it was also rendered incapable of taking good actions rapidly and decisively except when very unusual leaders succeeded in shaking it out of its torpor.
In the end, the country came into the management of a clique of parliamentarians -- "the republic of comrades." The denizens of this little parliamentary world were less concerned with exercising control over the government, the true function of Parliament, than with mixing in governmental work and usurping ministerial functions. The picture of the Third Republic in this period of its decline is fresh in all our memories. The presidents of the important committees of the Chamber and the Senate were often yesterday's ministers, and they invariably thought of themselves as the ministers of tomorrow. They had their dependents among the officials in the ministries; and frequently it was these who were in command. The ambition of a successful senator and deputy is to become minister, or even, without waiting for that, to direct the ministerial offices from the outside. When parliamentary control invades the field of government action it either upsets or paralyzes it; the Government no longer governs, and Parliament itself ceases to exercise control.[i]
In sum, it can be said that the Republic of 1875 did not evolve into a régime by assembly any more than it did into a real parliamentary government. It was a cross between the two systems.
Protection of a country's broad, long-term interests requires strong government action, by which I mean action by an executive which, while refraining from persecuting Parliament, knows how to energize its activities. Left to themselves, popular representatives are too often subject to the pressure of short-term interests. The Third Republic did not supply the required strong government action because the executive had surrendered the right of dissolution.
But, it will be asked, did England do much better? There the government possesses the right of dissolution, and because it possesses that right it can usually discipline the majority without invoking its prerogative. Now there is not much doubt that English cabinets since 1905 have not been particularly wise in the field of foreign policy; indeed, their shortsightedness was responsible for many of the misfortunes which have overwhelmed the world. But that is not the essence of the question we are considering here. To possess the necessary power for the proper conduct of affairs is one thing; to employ it sensibly is another. In France, the power of the government was on the average exercised fairly well in the international field; but in internal affairs it did not assert itself with sufficient force, and it is in this respect that it loses in comparison with the English model.
After the liberation, France was divided as to how the government should be reconstituted. Was it best to take the Constitution of 1875 as a point of departure, to elect a Chamber of Deputies and a Senate according to the old rules, and to count on them to introduce the necessary improvements? Or should the whole 1875 structure be abolished and should none of its scattered remnants be salvaged to build up the new state edifice? The immense majority preferred the second alternative.
Some people -- General de Gaulle at their head -- were opposed to the laws of 1875 because they felt that in order to resurrect France and safeguard her in a world threatened by new vicissitudes it was wise and necessary to establish a presidential type of government. Presidential government: this is the first time the expression appears in my account. Parliamentary government, government by assembly and the peculiar compound that formed the Third Republic have all been defined. The presidential formula must now be explained; for though it does not have much chance of acceptance in France except by accident, the spectre of it expresses a strong influence on French affairs.
The principal features of the presidential régime as commonly understood in Europe are the following: 1, a President chosen by an electoral body larger than Parliament, that is, a President independent of Parliament; 2, ministers chosen by the President and responsible to him; 3, a recognized right of the President to dissolve Parliament and appeal to the people against the body which the people have elected.
In France such a system of government can only evolve into despotism, pure and simple. The history of 1848-1851 is there to warn us. In the United States, a form of presidential government has been in existence for a century and a half without encroaching on public liberties; but that form differs fundamentally from the European model just described. The American President can do nothing against Congress and he does not possess the right to dismiss it. The basis of the American Constitution was and still is separation of powers, in the eighteenth century sense.[ii] Now separation of powers can, when the executive and the legislative branches are in disagreement, divide the authority of the state. The happy lot of the United States has permitted this infringement of state authority without creating too great disturbance or causing too much uneasiness. In our redoubtable Europe, on the contrary, no such stoppage in the operation of public authority has ever been tolerated. When the organ of action and the organ of control come to grips, and when the Constitution provides no means of settling the dispute between them without undue delay, there is every chance that it will be settled without regard to law. Either government action will stifle the control or the control will absorb (and perhaps transform) the government action. In the first event we have presidential government according to its European meaning; in the second, government by assembly.
Professors of constitutional law have long since recognized this chain of cause and effect, and in their teachings no longer speak of separation of powers but of separation of functions. They have dropped the teaching of Montesquieu. Separation of powers is like the separation of two trees; separation of functions is like the separation of two branches of a tree. And the best way of coördinating the two branches is to distinguish, as the English do, the government function from the control function, while protecting it from becoming too subordinate. Any arrangement which grants government action more than is granted under the English system weakens the control function unduly.
The exponents of a presidential régime (General de Gaulle is not among them; he has never taken the pains to set forth his conception fully) were not the only opponents, or even the principal opponents, of the Constitution of 1875. The masses which voted against it on October 21, 1945, had no thought that a presidential government should be built upon its ruins. They merely felt instinctively that after such an overwhelming disaster great changes were indispensable. And most men of the Liberation, all question of the future régime aside, felt that a rupture with the past would have a salutary effect upon French psychology. They thought the people needed a shock in order to recover. They also had a feeling that if the prewar institutions were condemned France would be less likely to believe that the shame of Vichy had a logical place in her history. The old bed was swarming with lice and bedbugs. Why not burn it up? Further, there was a justifiable patriotic prejudice against the Senate of 1940, which had been a hotbed of treason. "Scarcely 30 enlightened patriots are to be found there," said its President, M. Jeanneney. Moreover, leftist extremists have always been impatient to destroy it.
In the October 21 referendum, then, only 670,292 out of more than 24 million registered voters declared themselves in favor of a return to the Republic of 1875.
The Constitution of 1875 having been rejected, the French were faced with a complete blank. For the twelfth time in a century and a half their institutions had to be reconstructed. The Constituent Assembly worked at the task from November 1945 to April 1946 under the eyes of an indifferent people.
What a contrast to the enthusiasm and confidence of their ancestors of 1789 and even of 1794! Then political architects like Sieyès did not doubt that a régime could be put together all at once, like a ship. They even disdained historical experience, as these lines by Sieyès indicate: "Plenty of others are busy slavishly arranging ideas, fitting them to events. When one who desires only to serve the public interest meditates on them, he must at every page say that a healthy policy is not the science of that which is, but of that which should be." And now note the impression this doctrinaire made on Gouverneur Morris (January 25, 1791): "At three o'clock go to dine with Madame de Staël. . . . The Abbé Sieyès is here, and descants with much self-sufficiency on government, despising all that has been said or sung on that subject before him, and Madame says that his writings and opinions will form in politics a new era, as that of Newton in physics." Such was the fine ardor, the grand illusion, of the early days. It quickly vanished. A few years later Sieyès denounced "our nation of monkeys with the larynxes of parrots," and buried himself in a "philosophical silence." His pessimism found expression in extracts from Sallust and Lucan: Ruit irrevocabile vulgus.
In the middle of the century the lassitude and sorrow of revolutionaries grown old, relics of a more heroic age, overcame the most liberal of the French élite. Prévost Paradol, writing in 1868 on "the new France," could find no better way of expressing the discouragement of his contemporaries over the recurring problem of the state than to quote Lucretius on the never-ending labor of Sisyphus: Et semper victus tristisque recedit. The spectacle of the first nation on the Continent that had learned to stand upright being forced to improvise its system of government every 15 years was indeed a sad one. If France had drawn on her fund of age-long experience she could have found a way to meet almost any need. Relatively simple changes and modifications of legal texts would have been sufficient. That is the way of the English. But our history has evolved differently; and we were not able to follow their example. We would have been far better off if our aristocracy, like theirs, had become the school of public liberties, instead of settling down at Versailles around the Roi Soleil. We might then have been spared many disastrous schisms and a long series of fresh starts.
Feeble as was the country's physical condition after the Second World War, it produced two draft constitutions in less than one year. This could not have happened, however, in spite of the great zeal displayed by various ideologists and politicians, if beforehand there had not occurred a really extraordinary "militarization" of public life. Here we reach a capital point.
The parliamentary vote of July 10, 1940, which created the Pétain dictatorship, covered with public disgrace the 17 parties represented in the Chamber of Deputies and Senate. The number of votes in favor of the dictatorship was 569, with only 80 opposed and some 200 absent or abstaining. Of the 155 Socialist deputies, less than a hundred have survived the post-liberation purge (and the Socialists, remember, were less subject to the baleful influences at work in the days of defeat than the right, the center and left center). In a word, in politics just as in military, economic and financial fields, the country's post-liberation break with the entrenched élite was drastic. And not only were the old politicians replaced after 1944 by newcomers who had been tempered in the Resistance; in addition, a fundamental reform of parties took place -- in structure, membership and leadership.
All this had important consequences. The electoral laws of August 17, 1945, and of October 5 and 27, 1946, established a method of proportional representation which, in fact, permits the party leaders, the caucus, the "machine," to designate whomever they wish as deputies and as councillors of the Republic. The voter votes for the party, and the party designates those elected. The voter must take the global list drawn up by the party. Since October he has been able to modify the order in which the names appear; but any alteration of this sort is valid only if ten percent of the electors suggest the identical change -- which would be a truly miraculous coincidence!
In a word, the three main parties holding four-fifths of the seats in the National Assembly -- Communist, Socialist and Popular Republican (M.R.P.) -- are mostly composed of inferior men, without personality or clear opinions, picked for their docility. It is hard to understand how a transformation as radical as this could have occurred in French political life. Proportional representation seems to have been adopted to halt the crumbling of parties and to force them to concentrate into a few large units. In addition, the determination of the Popular Republicans to yield nothing to the Communists in discipline or precision of action has led to the adoption, as almost a general habit, of methods which formerly were practised only by contingents of the Third International. Communist discipline has been taken over by the others.
This explains how two long and complicated constitutional drafts could be elaborated in a relatively short time. It was because the members of the big parties enjoyed very restricted freedom of expression. Gone is the time when eight out of 17 groups in the Chamber put the adjective "independent" on their tickets to show plainly that they expected to move as they pleased on the political chessboard. Certainly there is no cause to regret the minute divisions and subdivisions of parliamentary life, which so often enabled a few individuals to make the law; that state of affairs enabled Laval to commit his crimes. But the rigorous party discipline which we have to put up with today is more than a proper penalty for those past sins.
In both the plenary sessions of the Constituent Assembly and in its committee meetings there were two fairly equal blocs. The 64 deputies from overseas (32 whites, 32 natives) weighted the balance in favor of the Socialist and Communist proposals, that is, of government by assembly. Secondly -- and here we touch on the factor which governs the whole present juncture of affairs -- the rule of proportional representation, operating in conjunction with the rigid party framework and the strict party discipline, made it impossible to find any governmental majority that might be even slightly stable, ruled out the chance that a homogeneous majority might result from the victory of one over the others, and destroyed all possibility that a coalition majority might result from individual or party suppleness and compromise.
The first of the two draft Constitutions, that of April 19, was rejected in the referendum of May 5 by 10,450,883 votes against 9,280,386, with a relatively small number of abstentions. It nevertheless served as the basis for the second draft (that of September 29) which became the present Constitution. Several of its features therefore deserve to be explained, if only to show the shift that took place between spring and autumn.
The Preamble, entitled, if you please, "Declaration of the Rights of Man," was composed of 39 articles; and 95 articles comprised the body of the work. The declaration of the rights of man, 1946 style, contained several statements, particularly certain ones concerning property rights, which had a great influence on the outcome of the May 5 referendum. Property was guaranteed by law; but in the language of these legislators it is social utility which justifies property and hence must regulate its use. Article 26 declared that economic monopolies would be transformed into collective properties, that is, would be nationalized. Article 35 stated that "every man must be able to acquire property by work and saving." Thus it was at least suggested that, in conformity with the principle of social utility, property rights should have a certain beginning and a certain end. This explains the perplexity and disquiet shown by many property holders when they came to vote on May 5, the more so since the decree of October 17, 1945, affirmed the right of farmers and farm tenants, the direct exploiters, to own agricultural property, and Article 31 of the declaration provided for the participation of workers "in the management of enterprises." This seemed to attack the social structure in several vital points.
As for the mechanical features of the Constitution, the drafters (or rather a slight majority of them) wished clearly to bring France back to a government by assembly.
Let me repeat that the régime of 1875 was not a parliamentary régime in the English sense of the term, since the political responsibility of the ministers to a Chamber chosen by universal suffrage was not balanced by the Cabinet's right of dissolution. The Chamber's supremacy over the Cabinet made the executive very unstable. The existence of a Senate selected by a more restricted suffrage reduced the bad effects of the system, but at the cost of creating terrible confusion between the two main functions of the state, government action and control.
The draft Constitution of April 1946 would have aggravated this state of affairs. The right to dissolve the Chamber was indeed granted to the Council of Ministers, but on crippling conditions. It could be exercised only in case a second ministerial crisis occurred in the course of an annual session; and even then only during the last 30 months of the five-year legislature. Finally, if the President of the Council and his colleagues wished to use it, they would have to consult with the President of the Chamber. The fact is, the procedure was drawn up to assist the Chamber in coercing the government rather than to assist the government in overcoming the opposition of the Chamber. For on the day the Chamber would pass out of existence, its President and the Presidents of the Commissions (which any serious reformer should try to keep from encroaching further on the executive function) would take over the authority of the Cabinet. The executive would thus be defeated by the very innovation which was supposed to enable it to assert itself against Parliament.
The draft provided for no second Chamber. Though the old Senate admittedly had faults, it nonetheless fulfilled a beneficial function as a counterweight to an assembly chosen by universal suffrage. The problem, then, was to get rid of the Senate and to procure another counterweight. The April text provided none. Two consultative bodies, an Economic Council (method of selection not specified) and a "Conseil de l'Union Française," elected by the Conseils Généraux of the metropolitan departments and by the assemblies of the overseas territories, were falsely represented as the equivalent of a second Chamber. They did not together form even the shadow of one. But the most disturbing feature of the government by assembly which was outlined was that it left no room for what is termed "direct democracy." The system attains its full capabilities in Switzerland. But the monopoly which Swiss members of parliament enjoy is tempered by the possibility of recourse to the referendum: referendum of initiative, referendum of consultation, referendum of decision. In France in 1946 our legislators were willing to permit this sort of appeal to the people only as part of the procedure for putting new articles of the Constitution in force. In other words, they were as alert to safeguard the parliamentary monopoly against the electorate as against the executive.
And the President of the Republic? It is hardly worth while to mention what he was to become under the plan. He lost all his prerogatives of 1875, both those which he still exercised and those which had fallen into disuse. He no longer would appoint the President of the Council, but merely submit the names of various candidates to the Assembly. The power of pardon was assigned to a committee of the judiciary. He was still to promulgate laws, but within a fixed time limit. He would keep the records of the Council of Ministers. And that was about all.
The clauses relating to the French overseas empire were perhaps the most absurd of all. The members of the Assembly were themselves shocked to learn what they had done when M. Edouard Herriot, at the session of August 28, denounced the more or less hidden meaning of these provisions. Suffice to say that the colonial territories were to acquire the right to separate from France proper at will, or to remain attached by only the tenuous thread of an international treaty (Articles 14 and 66). Moreover, the trained governors of the important colonies were to be removed and replaced by members of the Cabinet who would take up residence abroad; that is, they were to be run by politicians.
Such was the first draft of the Constitution in its major lines. It reveals a singular lack of political maturity on the part of those who conceived it. Plans so manifestly contrary to the national interest could not have been produced by Socialist ideology and Communist manoeuvring alone. They are only to be explained by the double fear which animated the members of the Constituent Assembly -- fear of the resurgence of the Senate of the Third Republic, and fear of General de Gaulle and his predilection for a presidential régime as revealed in his speech at Bayeux on June 16. The Constitution of April 19 was drafted to exclude the old political cliques which had become encrusted in the defunct Senate, and to bar the road to "personal power." At best this was a negative merit.
The country had no recourse but to reject the April draft, and did so on May 5. If it had not, the single Assembly provided for would have foundered in the ensuing chaos; or it would have degenerated into a sort of revolutionary convention, in the style of 1792-1794, with a committee of public safety in the key position. Or, more simply and more likely, General de Gaulle would have been recalled by an upsurge of public opinion and, despite hell and high water, as the American expression goes, would have set about constructing a presidential régime of the American kind.
General de Gaulle's own actions and those of his friends were largely responsible for this result. At their instigation, the leaders of the M.R.P. had broken several days previously with the Socialists and the Communists over the articles defining the powers of the President of the Republic. Then the harmony between the General and the heads of the M.R.P. -- Georges Bidault, Robert Schuman and others -- was broken. He hinted at a kind of presidential government, at which they rebelled. Thereupon they began negotiating with the left in an attempt to refloat the wreckage of the Constitution.
This quarrel between General de Gaulle and his recent supporters had serious repercussions. On the one hand, the General gradually committed himself more and more deeply to a constitutional doctrine which had no chance of victory unless in the event of some great national misfortune. He assumed the rôle of prophet of the day of judgment. Conceivably his apocalyptic utterances will be useful to him later; but for the moment they rather militate against him.
At the elections for the National Assembly on November 10 a number of Gaullists transferred their vote to the "Rassemblement des Gauches," composed of former Radical Socialists, in order to avenge themselves on the M.R.P. This meant that many anti-Communist votes were not used to best advantage, and that the Communists won seats which the M.R.P. should have had. Since the Communists thus became the strongest party in the Assembly, they made a greater claim than ever before for posts in the new government. No Cabinet can be formed without them, for the Socialists refuse to participate unless they are included also. On the other hand, the National Assembly never has found it easy to operate when the Communists are included in the government. In view of all this, and because the Constitution as finally adopted on October 13 received only a relative majority of votes, many people feel that it is ephemeral.
An objective examination of the articles of the Constitution in the light of internal events does not contradict this impression. It cannot be said that they reveal the corrections in the laws of 1875 which were demanded by experience and political prudence. Article 51, the article defining the dissolution procedure, supplies the key answer. The substance of this article, not altered greatly since April, reads as follows: "If, in the course of a single period of eighteen months, two ministerial crises occur, dissolution of the National Assembly may be decided upon in the Council of Ministers upon the advice of the President of the Assembly. The dissolution in conformity with this decision shall be pronounced by decree of the President of the Republic. The provisions of the preceding paragraph are not applicable until after the expiration of the first 18 months of the Legislature." And Article 52 adds: "In the event of dissolution, the Cabinet, with the exception of the President of the Council and the Minister of the Interior, remains in office to handle current affairs. The President of the Republic designates the President of the National Assembly as President of the Council. The latter designates the new Minister of the Interior in agreement with the steering committee of the Assembly. He designates as Ministers of State members of groups not represented in the government."
Nothing in this leads me to change the comments made earlier on the corresponding provisions of the first draft. It is not the Government, it is the Assembly, which will bring about the Assembly's dissolution. And as soon as dissolution occurs the chief of the Government passes over his duties to the President of the Assembly, who automatically is transformed into an administrator-trustee. Those who drafted the September amendments plainly were still haunted by memories of the period from May to October in 1877, and wished to prevent some future President of the Council, one with a taste for authority, from repeating what Marshal MacMahon's ministers did in their effort to win their electoral battle -- namely, remove a great number of officials, including 1,743 mayors, and dissolve 613 municipal councils. That was indeed a terrible "massacre." But weakness as well as strength can be responsible for massacres, bloody ones. If I must choose between the "catastrophe" of 1877 and the catastrophe of 1940, I choose 1877.
Having read Articles 51 and 52 we know where we stand. The Constitution of September 29 does not provide for a parliamentary régime worthy of the name, but something very much like a régime by assembly. Those of an opposite opinion point out that a true second Chamber has been created. We have, in fact, been given a "Council of the Republic," and this does constitute a change from the draft of April 19. The change, however, is great only in appearance.
This Council of the Republic has two grave defects. In the first place, it has only one prerogative -- if it disapproves a bill adopted by the National Assembly it can send it back there for reconsideration. That is all. Moreover, it is allowed only from ten to sixty days in which to do this, after which the National Assembly is free to ignore its comments and suggested amendments. From that point on the Council of the Republic has no further say in the matter. The question arises whether the Council of the Republic is at all likely in any event to oppose the National Assembly. It comes into existence through a two-part election under the rules of proportional representation. The "big electors" who choose the Councillors of the Republic, like the Councillors of the Republic themselves, are designated by the parties already entrenched in the Assembly. Identical orders circulate in the two chambers. The Council of the Republic can be but the other's mirror. The elections of November-December have already proved that. One need only recall the authority exercised by the Senate of the Third Republic, particularly in financial matters, in order to judge what an abyss separates the new system from the old. To call the new Council a "Chamber for reflection" is probably to say the best thing possible about its function. The old Senate used sometimes to impart strength to the Cabinet to resist the Chamber. The more than equivocal right of dissolution given the Cabinet under the new system in no way compensates for this loss.
Some improvements were made in other sections of the Constitution, such as that providing for the establishment of a Constitutional Committee which can stop the passage of laws infringing the Constitution and decide upon the procedure for revising them if the Government or the Assembly does not do so. There is also Article 17, which, by a conjuring trick, prevents deputies from proposing increases in expenditures. But none of these compensates for the deadly infringement on the prerogatives and power of the Government.
The rôle of the President of the Republic in protecting the permanent interests of the state and in supervising the regular functioning of the Constitutional mechanism is better defined in the September than in the April draft. According to the April plan, the President of the Republic was to be elected by a public vote, involving him in the battle of parties. The secret vote is now practised, au-dessus de la mêlée. In addition, the President becomes something more than a mere custodian of the archives, a simple clerk. He again becomes more or less the kind of chief of state which France had from 1875 to 1940. Within the period fixed for the promulgation of laws (10 days, or, in cases of urgency, five) he may request that they be reconsidered, and this cannot be refused. Nothing is left to his initiative, however, in the dissolution procedure. He is a totally passive agent. This is wrong. It would have been better not to define too closely the cases in which the President of the Council can have recourse to dissolution, and to have given the President of the Republic the right to refuse it, to grant it, or even to require it, under the simple guiding principle that the operation of the constitutional process must not be blocked.
It is on the subject of the French Union that the September Constitution shows the most improvement. The April draft, as we saw, recognized the right of the colonies to separate from the metropolitan area. Nothing of this proposal remains in the present Constitution, and the career governors will remain in place. Article 67 creates a "federal citizenship," to be enjoyed by both the people of France and by natives. Up to now, except in the old colonies, the natives legally were only "subjects." Of course, the necessary distinctions will be made by adding to "federal citizenship" citizenship in metropolitan France and diverse local citizenships corresponding to varying levels of civilization. The Assembly of the French Union is no longer the fake second chamber foreseen in April. One half of it will be elected by the National Assembly and the Council of the Republic; the other half by the local overseas assemblies. It will be a consultative body on problems of empire, at the disposition of the Cabinet and Parliament. The Assembly of the French Union and the High Council which will assist it will work out the particular statute of each area (departments assimilated to those of the metropolitan area; overseas territories; associated territories; and states).
A second consultative body is also created, the Economic Council. Its function will be to draw up the "national economic plan," which thereupon becomes obligatory.
A few rather bad innovations may also be noted. Thus prefects are replaced by government delegates in supervising municipal and departmental offices. Either this is only a specious change or it implies a slackening of central authority; if the latter, in this era of controls it is something which cannot last. The declaration of the rights of man has disappeared. We nevertheless have not been spared a preamble, much of it resembling electoral claptrap.
Such is the new Constitution given the Fourth Republic. We can conclude our survey only on a note of doubt. The new instrument is not much better than the one it replaces. On what seems to me the primary point, freeing governmental action from undue parliamentary control, I do not believe the slightest gain can be recorded. Quite the contrary.
Will the new Constitution long survive? This depends in great part on whether a true government operates it, a government that is something more than a juxtaposition of mutually inimical parties or a minority Cabinet merely charged with expediting current affairs. Perhaps to make the wheels turn it will be found necessary to modify the electoral law, relinquishing proportional representation in favor of some other system promising to produce a homogeneous majority. But if recourse ever were had to this, it probably would be only after weeks and months of effort had been spent in trying to avoid it and after the supply of available statesmen -- they are rare, alas! -- had been used up in getting the machine under way. Moreover, the operation could hardly be brought off unless dissolution of the National Assembly occurred well before the date indicated in the Constitution and outside the procedure there provided. This would open a first leak in the vessel. The revisionist movement, widespread in conservative circles, would profit by the opportunity. General de Gaulle would not fail to raise his voice if it seemed to him that the disintegration of the Socialist Party and of M.R.P. was well under way. Then would sound, probably, the hour of the great reawakening of which he has sometimes spoken. But in spite of all these drawbacks, and the certain fact that the party machines and their leaders, big and small, will not easily give up the privileges they have secured under the new electoral law, public opinion will in time rebel if the Fourth Republic gets off to a bad start.
It cannot be written, then, that the Fourth Republic has found its definitive form. This is most regrettable. Last summer General de Gaulle's name was put in nomination for the Presidency of the Republic by a sort of private plebiscite. To escape from this situation he spoke at Bar-le-Duc on September 29 and damned the Constitution. This deliberate action demonstrated that he is by no means the ambitious politician, avid for power, once denounced by so many people. An egotistical politician would not have turned his back on such a tempting opportunity. One cannot help recalling, however, how much better it would have been if the leader of the French Resistance had never condescended to play the political game. It lay in his power to stabilize the country better than anyone else. He would only have had to keep away from the fallacious presidential theory, know how to repulse reactionary embraces, and surround himself, this time, with competent assistants. For let us not forget that in the autumn of 1944 the authority of Charles de Gaulle was almost unlimited. No constitutional barrier obstructed him. A few unfortunate appointments doomed his enterprise to failure. A second defeat would be full of peril.
[i] Beginning in 1934, an attempt was made to find a way out of this chaos by means of decree-laws. Customarily this procedure is adopted when the statutory or legislative powers of the government are increasing. The shocking feature of the decree-laws of 1934-40 was the attendant Parliamentary inertia.
[ii] In the United States, moreover, the presidential régime is superimposed upon a federal structure, which serves as a guarantee against presidential abuses of authority.