Air time is favourable for the leadership

It was a solid project. He had withstood the storm of the trade unions, the Pikes of Nicolas Sarkozy, to the arrows of Brussels to the onslaught of the Socialists, to the rapacity of the shareholders. But a somewhat forgotten text may be dealt a blow fatal to the privatization of gas of France, prior to its merger with Suez: the preamble of 1946. Does remember it, Presidents, Ministers, deputies, the CEO! In the heart of the French Constitution is nestled a beautiful statement of principle which today belongs to the biting. Highly recommended reading.

Applied to the letter, the preamble to the 1946 Constitution would upset all the economic and social building French. For example, know the patterns that our Constitution enjoins them to lead the company hand in hand with the employees Article 8 of the preamble proclaims that "every worker participates, through his delegates (...), the management of the enterprises". The rest is. "Everyone has the duty to work and the right to get a job" (article 5). "Any property, any company, including the operation has, or acquires the character of a national public service or a de facto monopoly, must become the property of the community" (article 9, one who was at the heart of the recent decision of the Constitutional Council on gas of France). The nation guarantees "the protection of health, physical security, rest and recreation" and "appropriate means" to those who are unable to work (article 11). The debate on the "appropriate means" is far from exhausted...

How such pamphlet well could find themselves in the Basic Law of the country To understand, it must go back 60 years back. After the war, the France turns the page of the third Republic and Vichy these companies who have collaborated with the occupant. Air time is favourable for the leadership. The program of the national Council of resistance, established under the influence of the Communist groups, claimed as early as March 1944 that "it also promote much needed reforms on economic plan by the establishment of a genuine economic and social democracy". He speaks of "guaranteeing purchasing power!

Initially, constituents wanted to rewrite the Declaration of the rights of man of 1789 by supplementing it by an economic and social component. The project is retoqué in the referendum of May 5, 1946. At the time, they resumed the original declaration of 1789 in adding a second chapter, "succession of principles without legal form", as explained by public law Professor Jacques Le Goff in an exciting interview published in "Humanity" (July 1, 2004). The Constitution is approved by the French in October.

If the Declaration and the preamble appear side by side, it's actually radically different texts, beyond their simple names. First difference: the text of 1789 aspires to eternity and universality. On the contrary, the text of 1946 is deeply rooted in his time. In article 2, it evokes principles "particularly necessary in our time". Second difference: the Declaration of Human Rights proclaims "rights-freedoms." Some lawyers speak of "negative freedom": they are based on non-intervention of the State. It is the emancipatory winds of the revolution of 1789. The preamble of 1946 is of any other nature. He says "rights-claims", and "rights to". Everyone has rights to assert to the society, which the State is guarantor.

Under the Fourth Republic, the preamble is listed in the pediment of the Republic without ever alighting: it does not! In 1958 he resumed block at the beginning of the Constitution of the Fifth Republic. Person does really lend attention to this set of philosophical principles. But the new basic law introduces an innovation: the Constitutional Council. For years, the nine wise men simply the more trivial missions. They ensure the regularity of the election of the President, proclaim the results of the presidential vote, decide on the election of the deputies or senators... To July 16, 1971, where they rely on for the first time the 1946 preamble to justify a decision censuring a law on associations. That day, the preamble spent the right philosophy.

From 1971, the constitutional judges have built their power using dozens of times in the preamble. They played with "the fundamental principles recognized by the laws of the Republic" referred to without more precision at the beginning of the text, leaving a blur to the most diverse interpretations. They have also "discovered" principles which were not explicitly, as the extension of social rights for the benefit of foreigners (January 22, 1990), on behalf of equality. But the Council remained cautious in its decisions. In his view, article 10 of the preamble, that "the nation ensures to the individual and the family the conditions necessary for their development", does not guarantee the right to housing: it says only that it is an "objective", as well as the right to employment.

For those who place the public action above all, the principles of the preamble to the 1946 are still more "necessary for our time" sixty years ago. For others, the text came from a time when the State was the solution becomes obsolete in an age where the State is more often a problem. The Constitutional Council pursues a dangerous number of balancing act between these two forces, the decision of 30 November is the perfect example: it legally authorized the privatization of gas of France in a politically untenable calendar. The next President of the Republic will obviously have other cats whipping. But the preamble is likely to be a thorn in his foot or his successor will remove one day or another.