Marine Le Pen has big plans for the Constitution which, as it stands, does not suit her.

The candidate of the National Rally, who will face Emmanuel Macron in the second round of the presidential election on April 24, intends to revise the fundamental text of the Fifth Republic.

She wishes, on the one hand, to include the "national priority" and, on the other hand, to introduce the citizens' initiative referendum (RIC) in order to "make it easier to organize referendums on all subjects".

Problem: You can't change the Constitution with a snap of your fingers.

This is being revised thanks to its article 89, which provides that the text must first be adopted in identical terms by the deputies and senators before being submitted by referendum to all the electors or being voted on by at least three-fifths of the Parliament assembled in Congress.

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Such a procedure therefore requires having a majority in both the National Assembly and the Senate or else submitting a sufficiently consensual text for it to be accepted by the opposition.

Emmanuel Macron, himself, broke his teeth with his draft revision of the Constitution in 2018 and then in 2019. Not having a majority in the Senate, held by Les Républicains, the President of the Republic is not managed during his five-year term to have his text adopted.

Never mind !

Marine Le Pen affirms that she will use article 11 of the Constitution, which makes it possible to organize referendums on "any bill relating to the organization of public powers, on reforms relating to economic, social or environment of the nation and the public services which contribute to it, or tending to authorize the ratification of a treaty which, without being contrary to the Constitution, would have repercussions on the functioning of the institutions".

"If the French people choose to change their Constitution, then they will"

The far-right candidate relies on the precedent created by General de Gaulle in 1962. The first president of the Fifth Republic had effectively used article 11 to organize the referendum which made it possible to establish direct universal suffrage in the 'presidential election.

“Since that date, it has been established that the Constitution could be modified by referendum directly,” said Marine Le Pen on April 12 on France Inter.

.@lofejoma questions @MLP_officiel on the question of a potential referendum aimed at revising the Constitution #le79Inter #Presidentielle2022 #Elysee2022 pic.twitter.com/qdo56lyqhw

– France Inter (@franceinter) April 12, 2022

Marine Le Pen arranges here with the historical facts.

The use of Article 11 by General de Gaulle to revise the Constitution had at the time been criticized by a large majority of jurists.

Moreover, "the Council of State clearly summarized the state of the law in its 'Sarran and Levacher' decision, rendered in its most solemn formation on October 30, 1998 (…): only article 89 can be used to revise the Constitution", say four law professors in a column published on April 12 in Le Monde.

“The Constitutional Council also modified its electoral jurisprudence in 2000 to prepare for a review of the decree summoning voters to a referendum. This is Hauchemaille jurisprudence,” they add.

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Clearly, the Hauchemaille decision allows the Constitutional Council to control the constitutionality of the referendum even before it is organised.

A case law that Marine Le Pen brushed aside when it was opposed to her during her interview on France Inter.

"The only sovereign in France is the people. If the French people choose to change their Constitution, then they will," she said.

"On the verge of a coup"

If Marine Le Pen went to the end of her project despite the unfavorable opinion of the Constitutional Council, it would open an institutional crisis.

"Under the terms of the Constitution, the decisions of the Constitutional Council are binding on the public authorities and are not subject to any appeal. If it nevertheless decided to override it, we would be on the verge of a coup , in the face of a serious questioning of our institutions likely to justify a dismissal”, also believes the constitutionalist Anne Levade, professor of public law at the University of Paris 1 Panthéon-Sorbonne, interviewed by Les Échos on April 13.

A danger that does not fail to point out his opponent in the second round.

"The implicit in Ms. Le Pen's approach is that basically, once elected, she considers that she is superior to the Constitution, since she may not respect it to change the rules. That , it's a break, and it's serious", pointed out Emmanuel Macron in an interview with France Culture, broadcast on Monday.

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"Others do it in other countries, it is done very well in Hungary, it makes it possible to change a regime by hand, but I denounce it", continued the head of state in reference to the authoritarian inclinations of Victor Orban.

A parallel that the authors of the column published in Le Monde also make.

"This political project consisting in violating the Constitution to inscribe therein, by calling for a referendum, the far-right nationalist ideology carried by the National Rally says a lot about the way in which Mrs. Le Pen envisages her accession to the head of the "State. Like all authoritarian leaders, she wants to dynamite liberal democracy by appealing to the people," they point out.

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