Pouvoirs n°13 - Le Conseil constitutionnel - avril 1980 (juillet 1991) - p.125-139
The comparison concerns the American Supreme Court and the federal Constitutional Tribunal of Karlsruhe and the Constitutional Council. Each functions in a different political culture which in France in particular results in the absence of the dissenting opinion, the transmutation of conflict into sovereign power being reserved to the Parliament which until now has held the supreme authority of a supraconstitutional nature. But the reference to the 1946 Preamble although of a poorly defined nature, modifies the character of the Constitutional Council’s activity. The specific nature of the political cultures plays a role in the federalistic debate on the decision of the Supreme Court on abortion and in the reference to their hitlerian past of a majority of the Karlsruhe court thereby showing the superiority of a moral principles over the changes of opinion which translate themselves into parliamentary votes.
The principal particularity of the Constitutional Council is its refusal to enter into questions of substance (women’s rights and the right of living being to be born as well as the definition of civil liberties and their relation to the other powers and influences) problems which are analysed by the Washington and Karlsruhe courts and debated by the French congressmen. But the 1979 decision of the Constitutional Council on the right to strike shows that the curt reasoning may not continue in the future insofar as the principles of 1946 Preamble will be relied on to a greater extent.
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