hen France ratified the Lisbon Treaty of 2009 and adopted the European constitution, it did so against the will of French citizens who voted against the constitution in a 2005 referendum. For many this created a fracture in the relationship between citizenry and government—and that’s a wound which has been reopened by the recent pension reform defended by President Macron’s government. Some critics highlight the abnormality of procedures used by the government to adopt the bill, while others call the reform outright unconstitutional.
Macron’s Administration Playing Constitutional Hardball
Yet, democracy cannot rely solely on constitutional devices. Its legitimacy depends on the respect of implicit norms accepted across partisan divides. It is therefore quite remarkable that no one has yet uttered two words that have emerged in political science literature about twenty years ago: "constitutional hardball."
In 2004, political scientist Mark Tushnet coined the phrase to describe the strategic use of constitutional procedures for partisan purposes, in violation of the implicit norms of democracy. Constitutional hardball is neither illegal nor unconstitutional but is nevertheless destructive to democratic norms. The French government passed its pension reform within its social security budget bill and restrained debates in the National Assembly and the Senate using Articles 47-1, 44-3, and 49-3 of the French constitution. These allowed the government to expedite parliamentary procedures and pass the bill without a single vote cast in its favor. While these tactics are all individually legal, their strategic and joint use sets a dangerous precedent for French democracy. By pushing the bounds of the law, the French government has engaged in a practice hitherto confined to illiberal or fragile democracies such as Viktor Orbán's Hungary or the United States, and which many political scientists see as a harbinger of democratic backsliding, i.e., the re-autocratization of democratic systems.
The French government’s actions echo the recent drift of U.S. partisan politics toward constitutional hardball territory. Both Republicans and Democrats have for a long time engaged in gerrymandering, forced government shutdowns when it suited their partisan purposes, and at times used tools of governance to carry out partisan activities against their opponents—think of the GOP’s refusal to hold confirmation hearings for Democratic nominees to the Supreme Court, for instance. This aggressive exploitation of the constitution has contributed to an environment so toxic that it culminated in the January 6, 2021 assault on the U.S. Capitol. That assault confirmed the theories of political scientists: constitutional hardball is a harbinger of the decline of democracies.
Protecting democracy requires that all political actors respect the implicit norms of democracy. These include the consideration of labor movements, respect for the deliberative process, and the recognition by the defeated candidate of the winner's victory.
France’s Shift Toward Illiberal Democracy
By breaking with the implicit rules of French democracy, Emmanuel Macron's party signaled to opposition parties that politics is now a battle where the end justifies the means. A pundit recently warned against what he called “yellow vest jurisprudence:” political compromise can only be achieved through rioting and violence. After weeks of political violence, President Macron had scrapped his plan for a new gas tax and €11.3 billion on the table in response to the movements’ demands. In contrast, months of peaceful protests against the retirement pensions reform bill led to no change in the government’s attitude or President Macron’s refusal to meet with union leaders. This is unprecedented and threatens to mainstream violent behavior hitherto considered intolerable in French democracy.
France had not experienced such signs of democratic backsliding since the Algerian War in the late fifties, except perhaps for the excessive extension of emergency powers following the 2015 terrorist attacks. In democracies, the state holds a monopoly on the legitimate use of violence—though this doesn’t mean that all state violence is legitimate.
On March 23, 2023, Amnesty International denounced France’s abusive use of force in the repression of authorized demonstrations. It’s not the first time. In 2018, Amnesty International condemned France’s “extremely heavy-handed response” to the Yellow Vest protests. In its Democracy Index 2020 Report, The Economist Intelligence Unit warned against France’s repeated violations of civil liberties, notably freedom of movement. On April 12, France’s Prime Minister Elisabeth Borne spoke against the Human Rights League after it publicly condemned acts of police violence committed during the aforementioned protests. In this context, the recent repression of an illegal environmental protest in Sainte-Soline by policemen equipped with military-grade arsenal is extremely worrisome.
President Macron’s response to these critics has been to ridicule them using a false dichotomy between “democracy” and “dictatorship.” Meanwhile, the Economist Intelligence Unit in 2021 downgraded France from full democracy to flawed democracy.
In 1974, Steven Lukes argued that power is exercised not only through decision-making or coercion, but also through the restriction of alternatives and agenda-setting. Framing the debate allows you to control the outcome and avoid tough conversations. In that respect, the government and opposition parties have tacitly agreed to frame the conversation in terms of the reform’s constitutionality. This has allowed the French government to rely on the decision of France’s constitutional court and call for the country to move on. It has also proven comfortable for the French left, as it has allowed it to resume its usual denunciation of France’s "Presidential Monarchy" and to call for a new constitution. As for Le Pen’s far right, it has allowed it to cast itself as the best defender of France’s institutions and to campaign on a simple promise: undo the reform in 2027.
Democracy thrives on pluralism and is contingent on recognizing one’s opposition as legitimate actors in the democratic process. While resignation may soon overtake even the most fervent opponents of President Macron’s pension reform, it is also not unlikely that other pillars of France’s democracy will erode following this unfortunate precedent. By reframing the debate in terms of the implicit norms of democracy, France can move on from a shallow conversation about the structure of its institutions to a more crucial conversation on how its institutions have been used, and what democratic norms France wants to cultivate for itself.
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Constitutional Hardball and France’s Drift Toward Illiberal Democracy
Photo by Constant Loubier on Unsplash.
May 3, 2023
The Macron government is playing "constitutional hardball"—strategically using constitutional procedures for partisan purposes in violation of democratic norms—to pursue its agenda. This in turn decays France's democratic systems and destroys public trust, writes UCSB PhD candidate Julien Labarre.
W
hen France ratified the Lisbon Treaty of 2009 and adopted the European constitution, it did so against the will of French citizens who voted against the constitution in a 2005 referendum. For many this created a fracture in the relationship between citizenry and government—and that’s a wound which has been reopened by the recent pension reform defended by President Macron’s government. Some critics highlight the abnormality of procedures used by the government to adopt the bill, while others call the reform outright unconstitutional.
Macron’s Administration Playing Constitutional Hardball
Yet, democracy cannot rely solely on constitutional devices. Its legitimacy depends on the respect of implicit norms accepted across partisan divides. It is therefore quite remarkable that no one has yet uttered two words that have emerged in political science literature about twenty years ago: "constitutional hardball."
In 2004, political scientist Mark Tushnet coined the phrase to describe the strategic use of constitutional procedures for partisan purposes, in violation of the implicit norms of democracy. Constitutional hardball is neither illegal nor unconstitutional but is nevertheless destructive to democratic norms. The French government passed its pension reform within its social security budget bill and restrained debates in the National Assembly and the Senate using Articles 47-1, 44-3, and 49-3 of the French constitution. These allowed the government to expedite parliamentary procedures and pass the bill without a single vote cast in its favor. While these tactics are all individually legal, their strategic and joint use sets a dangerous precedent for French democracy. By pushing the bounds of the law, the French government has engaged in a practice hitherto confined to illiberal or fragile democracies such as Viktor Orbán's Hungary or the United States, and which many political scientists see as a harbinger of democratic backsliding, i.e., the re-autocratization of democratic systems.
The French government’s actions echo the recent drift of U.S. partisan politics toward constitutional hardball territory. Both Republicans and Democrats have for a long time engaged in gerrymandering, forced government shutdowns when it suited their partisan purposes, and at times used tools of governance to carry out partisan activities against their opponents—think of the GOP’s refusal to hold confirmation hearings for Democratic nominees to the Supreme Court, for instance. This aggressive exploitation of the constitution has contributed to an environment so toxic that it culminated in the January 6, 2021 assault on the U.S. Capitol. That assault confirmed the theories of political scientists: constitutional hardball is a harbinger of the decline of democracies.
Protecting democracy requires that all political actors respect the implicit norms of democracy. These include the consideration of labor movements, respect for the deliberative process, and the recognition by the defeated candidate of the winner's victory.
France’s Shift Toward Illiberal Democracy
By breaking with the implicit rules of French democracy, Emmanuel Macron's party signaled to opposition parties that politics is now a battle where the end justifies the means. A pundit recently warned against what he called “yellow vest jurisprudence:” political compromise can only be achieved through rioting and violence. After weeks of political violence, President Macron had scrapped his plan for a new gas tax and €11.3 billion on the table in response to the movements’ demands. In contrast, months of peaceful protests against the retirement pensions reform bill led to no change in the government’s attitude or President Macron’s refusal to meet with union leaders. This is unprecedented and threatens to mainstream violent behavior hitherto considered intolerable in French democracy.
France had not experienced such signs of democratic backsliding since the Algerian War in the late fifties, except perhaps for the excessive extension of emergency powers following the 2015 terrorist attacks. In democracies, the state holds a monopoly on the legitimate use of violence—though this doesn’t mean that all state violence is legitimate.
On March 23, 2023, Amnesty International denounced France’s abusive use of force in the repression of authorized demonstrations. It’s not the first time. In 2018, Amnesty International condemned France’s “extremely heavy-handed response” to the Yellow Vest protests. In its Democracy Index 2020 Report, The Economist Intelligence Unit warned against France’s repeated violations of civil liberties, notably freedom of movement. On April 12, France’s Prime Minister Elisabeth Borne spoke against the Human Rights League after it publicly condemned acts of police violence committed during the aforementioned protests. In this context, the recent repression of an illegal environmental protest in Sainte-Soline by policemen equipped with military-grade arsenal is extremely worrisome.
President Macron’s response to these critics has been to ridicule them using a false dichotomy between “democracy” and “dictatorship.” Meanwhile, the Economist Intelligence Unit in 2021 downgraded France from full democracy to flawed democracy.
In 1974, Steven Lukes argued that power is exercised not only through decision-making or coercion, but also through the restriction of alternatives and agenda-setting. Framing the debate allows you to control the outcome and avoid tough conversations. In that respect, the government and opposition parties have tacitly agreed to frame the conversation in terms of the reform’s constitutionality. This has allowed the French government to rely on the decision of France’s constitutional court and call for the country to move on. It has also proven comfortable for the French left, as it has allowed it to resume its usual denunciation of France’s "Presidential Monarchy" and to call for a new constitution. As for Le Pen’s far right, it has allowed it to cast itself as the best defender of France’s institutions and to campaign on a simple promise: undo the reform in 2027.
Democracy thrives on pluralism and is contingent on recognizing one’s opposition as legitimate actors in the democratic process. While resignation may soon overtake even the most fervent opponents of President Macron’s pension reform, it is also not unlikely that other pillars of France’s democracy will erode following this unfortunate precedent. By reframing the debate in terms of the implicit norms of democracy, France can move on from a shallow conversation about the structure of its institutions to a more crucial conversation on how its institutions have been used, and what democratic norms France wants to cultivate for itself.
