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the French 1958 Constitution
The drafters of the French 1958 Constitution did not attempt to enumerate fundamental rights, both for philosophical reasons and because of the political difficulties involved in achieving consensus on any comprehensive catalog of rights. Bell, at 64-65. Instead, the Preamble of the 1958 Constitution incorporates by reference the enumeration of rights in the 1789 Declaration of the Rights of Man and of the Citizen, and the Preamble to the French 1946 Constitution, in the following terms:
Le peuple français proclame solennellement son attachement aux Droits de l'homme et aux principes de la souveraineté nationale tels qu'ils ont été définis par la Déclaration de 1789, confirmée et complétée par le préambule de la Constitution de 1946.
The drafters of the 1958 Constitution may have placed this language in the Preamble in order to deny full legal effect to the rights enumerated in the Declaration and the 1946 Constitution. However, the French Conseil Constitutionnel, which had been established by the 1958 Constitution to exercise limited judicial review of acts of Parliament, altered this presumption through its caselaw. In 1971, the Conseil Constitutionnel established the principle that the rights enumerated in the Declaration and in the Preamble to the 1946 Constitution have the full force of constitutional provisions. See Cons. const., July 16, 1971, J.O. July 18, 1971, p. 7114; Bell, at 66. Note that links to the 1946 Constitution are in French, as no authoritative English translation could be found online.
The Declaration contains a more individualistic approach to rights, while the Preamble to the 1946 Constitution is more oriented towards broad social and community rights. The Conseil Constitutionnel has held that where there is direct conflict resulting from these two different approaches, the provisions of the Declaration will be applied rather than the conflicting provision of the Preamble to the 1946 Constitution. Bell, at 67-68.
The sources of constitutional rights in France are further complicated by the reference in the Preamble to the 1946 Constitution of fundamental principles recognized by laws promulgated prior to 1946, in the following terms: "le peuple français … réaffirme solennellement … les principes fondamentaux reconnus par les lois de la République." The Conseil Constitutionnel has in its caselaw established a number of rights as having full constitutional force, as found in all pre-1946 laws that established rights of a sufficiently "fundamental" character. These include freedom of association, rights of due process, freedoms of education, of conscience, of movement, of commerce and enterprise, the right to privacy, and "respect for all human beings from the beginning of life." Bell, at 71.
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