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Can we trust constitutional judges?

Summary:
As the ‘wise men’ of the Constitutional Council prepare to give their decision on pensions, it is worth asking a simple question. In general, can we trust constitutional judges? Let us be clear: constitutional courts play an absolutely indispensable role in all countries. Unfortunately, like all powers, these precious and fragile institutions are sometimes instrumentalised and damaged by the people to whom these eminent functions have been entrusted, who often try to impose their own political preferences under the guise of law. There are many examples in history. In the United States, the Supreme Court ruled in 1896 in the ominous Plessy vs Ferguson decision that it was perfectly legal for southern states to segregate as much as they wanted. The ruling formed the legal basis for the

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As the ‘wise men’ of the Constitutional Council prepare to give their decision on pensions, it is worth asking a simple question. In general, can we trust constitutional judges? Let us be clear: constitutional courts play an absolutely indispensable role in all countries. Unfortunately, like all powers, these precious and fragile institutions are sometimes instrumentalised and damaged by the people to whom these eminent functions have been entrusted, who often try to impose their own political preferences under the guise of law.

There are many examples in history. In the United States, the Supreme Court ruled in 1896 in the ominous Plessy vs Ferguson decision that it was perfectly legal for southern states to segregate as much as they wanted. The ruling formed the legal basis for the segregationist order until the 1960s. In the 1930s, the Court repeatedly censured social legislation passed by Congress under the New Deal, on the grounds that some of it constituted an unacceptable infringement of the freedom of enterprise (which the judges chose to interpret as they saw fit). Re-elected in 1936 with 61% of the vote, Roosevelt announced his intention to appoint new judges (the Constitution did not specify their number) in order to break the deadlock. The Court finally decided to give in and validate a decisive law on the minimum wage that it had previously censured. Closer to home, the Citizens United decision in 2010 and the McCutcheon decision in 2014 ruled that it was illegal – as contrary to the principles of ‘free speech’ – to impose limits on private political funding.

In Europe, too, there is no shortage of abuse of power. A particularly extreme case is the Kirchhof affair in Germany. During the 2005 campaign, Paul Kirchhof, a tax lawyer who is very angry about taxes, was presented as Angela Merkel’s future finance minister, with a shock proposal: a « flat tax » limiting the tax rate on the highest incomes. In the political sphere, everyone is of course free to express his or her own opinions, which in this case did not appeal to the Germans: all the indications are that this proposal contributed to reducing the CDU’s score, so much so that Merkel was forced to form a coalition with the SPD and to separate from her adviser.

The interesting point is that in 1995, while he was a member of the Constitutional Court in Karlsruhe, the same Kirchhof had issued a ruling that any income tax above 50% was unconstitutional. The case caused a scandal and the ruling was finally overturned in 1999 by the German constitutional judges, who confirmed in 2006 that it was not within their remit to set quantitative limits on tax rates.

In France, the Constitutional Council decided to censure a timid law on parity in 1982. It was not until 1999 that a constitutional amendment allowed the judges’ decision to be overruled. More recently, Jean-Louis Debré explained that a tax rate of 75% above one million euros was unconstitutional, on the grounds that tax must remain a ‘contribution’ and cannot become a ‘spoliation’. The problem is that the constitution nowhere sets such a numerical limit, which is a matter of pure personal interpretation.

Like any citizen, the former president of the Constitutional Council is of course free to consider that the 80%-90% rates applied in the United States from 1930 to 1980 did not produce the desired results (in this case they worked very well and in no way threatened the rule of law), or more generally that this is not a good policy in his eyes. But the fact that he can use his functions as a judge to make his point of view prevail, without even having to provide any serious argument, is a clear abuse of power.

Even worse: French constitutional judges have developed in the last decades a strange doctrine without any legal basis according to which wealth tax cannot exceed a certain percentage of income, even in the case where income represents a ridiculous percentage of the highest fortunes, which de facto prohibits any significant levy on wealth. Yet there is nothing in the constitution that prohibits taxes on property, even in the absence of any income, as evidenced by the inheritance tax and the property tax, which have played an essential role in the fiscal and social system since the Revolution. By acting as the objective accomplices of the owners, judges damage their function and democracy.

What can we conclude from all this? Firstly, we should not expect too much from constitutional judges. Like all human institutions, this power must be constantly questioned, evaluated and controlled democratically, if necessary by constitutional amendments. It should never be sacralised. With regard to the present decision, it is clear that the use for pension reform of the privileges reserved for social security financing laws is contrary to the spirit of the constitution and would merit a complete censure (which should have taken place earlier). The refusal of the referendum process by the judges would also open a serious crisis and confirm the muddled and unworkable nature of the 2008 constitutional revision. In any case, we must return to the essentials: above all, it is democratic and social mobilisation that produces historical change and allows the law to become a tool for emancipation and not for the preservation of positions of power.

Thomas Piketty
Thomas Piketty (7 May 1971) is a French economist who works on wealth and income inequality. He is a professor (directeur d'études) at the École des hautes études en sciences sociales (EHESS), associate chair at the Paris School of Economics and Centennial professor at the London School of Economics new International Inequalities Institute.

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