Paris – Marine Le Pen's proposal to amend the French Constitution through a popular referendum has ignited a wide-ranging legal debate in France, with 110 academics specializing in constitutional law warning that resorting to this mechanism could constitute a circumvention of the procedures laid down in the Constitution and an evasion of the legal safeguards governing its revision.
An Op-Ed in Le Monde Sounds the Alarm
In an opinion piece published in Le Monde, initiated by Professor of Public Law Julien Bonnet, the academics argued that the complexity of constitutional amendment procedures does not give the President of the Republic the right to override constitutional rules—a response to Le Pen's intention to use Article 11 of the French Constitution to push through her project to enshrine the core principles of the far right in the constitutional text.
Two Distinct Constitutional Paths
The signatories explained that the French Constitution sets out two different paths: Article 11 allows bills to be submitted to a popular referendum in specific areas, including the organization of public authorities, while Article 89—dedicated specifically to constitutional revision—requires that any amendment obtain the approval of the National Assembly and the Senate in identical terms before being submitted to a referendum or adopted by both houses of Parliament by a three-fifths majority.
The academics stressed that conflating Articles 11 and 89 poses a legal problem, because organizing public authorities by ordinary law does not necessarily mean amending the Constitution—citing the possibility of determining the legislative electoral system through ordinary legislation without touching the constitutional text.
The Senate and the Balance of Powers
They also pointed out that Article 89 grants the Senate the right to object to constitutional amendments, which reflects, in their view, a deliberate institutional balance in the Constitution of the Fifth Republic that prevents any single authority from unilaterally altering the foundations of the political system.
Warning of a "Dangerous Precedent"
In the same context, the signatories warned that allowing the President of the Republic to use Article 11 to bypass the approval of both chambers of Parliament could open the door to a dangerous precedent that future presidents could invoke to carry out profound amendments affecting parliamentary powers and guarantees of judicial independence, thereby threatening the balance of powers and the principles of the rule of law.
The academics did not rule out intervention by the French Constitutional Council to monitor the presidential decree calling for a referendum of this kind, stressing that overseeing the extent to which the President respects his constitutional prerogatives does not mean confiscating the will of the people, but rather ensuring that the referendum is conducted in accordance with applicable legal rules.
Le Pen Sticks to Her Project
Le Pen remains committed to her project, arguing that the Constitution should not be a constraint on the will of the people and that if the French decide to amend their constitution, no party should prevent them from doing so.
Le Pen had defended the possibility of resorting to Article 11, invoking the experience of former French President Charles de Gaulle, who used it to organize the 1962 referendum on the direct popular election of the President of the Republic, despite the legal objections raised at the time.
The 2027 Presidential Bet
Marine Le Pen is running for the presidency for the fourth time, and her plan to make the referendum a key tool for advancing her political project—should she reach the Élysée and form a government led by Bardella, tied to her victory in the 2027 election—remains central to her campaign.
The central legal question raised by this controversy remains: Is the referendum a legitimate democratic tool for amending the Constitution, or, in this specific case, an evasion of the safeguards established by the Fifth Republic to protect the balance of powers?