The Conservative Power and the debate on constitutional guardianship in the United States and France, 1776-1815

Abstract

This dissertation presents the first complete account of a theory of constitutional guardianship, referred to as the ‘conservative power’ (pouvoir conservateur) by its proponents, which played a central role in both American and French Revolutionary constitution-making from 1776-1815. Focusing primarily on the writings of Thomas Paine, James Madison, Jacques-Pierre Brissot, Condorcet, Emmanuel-Joseph Sieyès, Germaine de Staël, and Benjamin Constant, it demonstrates that the conservative power represented the first historically significant attempt to create an institution to maintain the hierarchical relationship between the ‘constituent’ and ‘constituted’ powers. In so doing, it traces the origins of this theory to an elected constitutional guardian called the Council of Censors, created in the Pennsylvania Constitution of 1776, partly inspired by Paine, and demonstrates its considerable influence on French Revolutionary constitutionalism. In France, the Council of Censors inspired the new doctrine of the pouvoir conservateur, first articulated by Brissot and Armand Guy de Kersaint, which played an influential role in the French constitutional debates of 1789-1791 and shaped both the Girondin and Montagnard constitutional plans of 1793. After the Terror, the idea of a conservative power was revived by Sieyès in his proposal for a Constitutional Jury in 1795, which adapted it to the conditions of post-Thermidorian French politics. In turn, Sieyès’ proposal inspired the creation of the Conservative Senate in the French Constitution of 1799 and Constant’s doctrine of the pouvoir neutre. Drawing on this revised historical account, the dissertation concludes by re-evaluating theories of constitutional guardianship advanced by Carl Schmitt, Hans Kelsen and Ernst-Wolfgang Böckenförde, amongst others, and by challenging the hegemony of the constitutional court in contemporary constitutional thinking. In its place, it advocates the adoption of a more expansive vision of the powers required to maintain the constitutional integrity of a democratic state.