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People including union members, students, and pensioners protest against the French government’s reforms to the retirement age, March 15, 2023, in Paris.
Muck around with the belief of citizens in a democracy that their governments are actually democratic, and you’re asking for trouble.
Emmanuel Macron and Bibi Netanyahu are only beginning to find this out.
French President Macron’s decision last Thursday to raise his nation’s retirement age from 62 to 64 by presidential diktat, once he realized that the National Assembly wasn’t going to enact it for him, will surely multiply the millions of Frenchmen and women who’d already taken to the streets, by a factor of … well, a lot. That conservatives in the National Assembly who’d previously supported raising the age had backed off their earlier support was partly due to polling that showed the public opposed the measure by more than a 2-to-1 margin. Another recent poll had shown that two-thirds of French people believed that French democracy wasn’t working very well.
That was before Macron’s thunderbolt. A quick poll that Harris Interactive conducted last Thursday, hours after Macron’s action, found that 82 percent disapproved of the use of constitutional provision 49.3—which enables laws to be made without having to pass the legislature—to raise the retirement age, while 65 percent favored continuing the protests in the street.
Clause 49.3 requires some explanation. As France-ologist Art Goldhammer explained to me on Thursday, the clause has been invoked 89 times, by governments of the right, center, and left, since the establishment of the Fifth Republic in 1958. The vast majority of the previous invocations, however, have been on matters like budgetary appropriations; none of them, until last Thursday, had been used to alter anything so fundamental as the nation’s social contract.
In 1958, clause 49.3 was very much the creation of the man behind (and in front of) the Fifth Republic, Charles de Gaulle. The problems with the Fourth Republic, which had governed France since the end of World War II, centered on the frequent falling apart of its governments, which were cobbled together as coalitions of the nation’s many political parties. The revolving door of governments meant, among other things, that there was no steady national policy on the fraught process of decolonialization, on which the nation had been compelled to embark. To stop the rapid-fire succession of governments and policies, the Fifth Republic’s constitution created a presidency with five-year terms, regardless of the formations and dissolutions of legislative majorities, and put control of foreign policy in the president’s hands. And just in case the legislature was too obdurate or obstreperous, Article 49.3 also gave the president a way around the legislature in domestic matters as well.
Needless to say, the Fifth Republic’s first president was the selfsame Charles de Gaulle.
Before last Thursday, this imbalance of power between the branches of government had never really deeply affected the fundamentals of French life, which is why most political parties had not sought to change it. In recent years, one leader of the French left, Jean-Luc Mélenchon, has called for a new constitution that doesn’t enthrone the president with such Gaullist (or, if you prefer, Bourbon-esque) levels of power, but his and his party’s position has been a niche concern. That niche could stand to grow larger. More French politicians, and certainly the public, may now look at their constitutional arrangements and ask, in the mighty words of R. Crumb’s Mr. Natural: “Is dis a system?”
A poll conducted last Thursday, hours after Macron’s action, found that 82 percent disapproved of the use of constitutional provision 49.3 to raise the retirement age.
At least since 1789, of course, France has also had a separate, extra-constitutional branch of government: the streets. In 1995, so many Frenchmen and women took to the streets that the conservative government of President Jacques Chirac, which had gotten parliament to vote to raise the retirement age, was compelled to announce that it wouldn’t promulgate that legislation into law.
In the past few months, the French have taken to the streets again in very large numbers to oppose raising the age, but I suspect that may be a trickle compared to what’s about to come. After last Thursday, le déluge.
THE FRENCH AREN’T THE ONLY PEOPLE protesting the withdrawal of democratic rights. In Israel, the issue is also that of a sudden alteration of long-established de facto guarantees—in this case, the existence of an independent judiciary.
Those guarantees are de facto rather than de jure because Israel (like the U.K., which had governed Palestine before Israeli independence) has no written constitution. But just as the French had assumed that truly major social legislation would not become law through presidential fiat—a de jure guarantee—a clear majority of Israelis had assumed that even without a constitution, the independence of the judiciary was assured. Indeed, an independent judiciary in Israel is all the more important, since the nation has no constitutional equivalent of the U.S. Bill of Rights, and it’s solely up to the courts to defend the civil liberties of the minority.
As in France, so in Israel: Polling there has shown that two-thirds of Israelis are opposed to Prime Minister Benjamin Netanyahu’s government’s move to subject the courts to parliamentary override. But like Macron, Bibi and his far-right coalition continue to move ahead to subject Israel to unchallenged rule by anti-Palestinian, anti-Arab extremists, and anti-all-Jews-save-the-ultra-Orthodox extremists as well. Only the courts, and the streets, stand in their way.
And in recent weeks, the streets have been filled with what now total millions of Israelis, calling on the government to stop. Augmenting the masses in the street is another form of social protest. Key sectors of Israel’s secular Jewish majority—above all, in the tech industry and the military—have threatened to emigrate or stand down, respectively, if the government effectively eliminates the courts.
Eyal Warshavsky/SOPA Images/Sipa USA via AP Images
A protester waves the Israeli flag as he blocks traffic on the Ayalon Highway during a protest against Prime Minister Benjamin Netanyahu’s judicial reforms, in Tel Aviv, Israel, March 16, 2023.
In Tel Aviv as in Paris, democracy is in the streets. There are differences, to be sure. Israelis are demanding the preservation of the branch of government that defends minority rights, while the French are demanding that the nation not be governed by a president who can ignore a parliamentary majority. But both sets of demonstrators know they represent clear majorities of their respective populations.
There are some unhappy similarities as well. The left-wing parties in both countries have been so fragmented and feckless that they couldn’t forestall their nations’ current crises. In France, the failure of the left to unite and back policies that defended the working class against neoliberalism’s ravages has meant that the nationalist far right now eclipses the left, in parliament and at the polls. In Israel, the failure of left parties to unite both with themselves and with the Israeli Arab parties enabled the right to win the last election, and a number of elections before that one.
That representatives of the left in these countries are now in the streets, then, is partly their own damn fault.
AND WHAT ABOUT HERE, in the US of A?
We, too, have seen one huge withdrawal of legal rights and concomitant disruption of the social order recently, in our own Supreme Court’s revocation of Roe v. Wade. That also was met by demonstrations, however brief, and then electoral affirmations of the right to choose in a host of states, both blue and red.
Those demonstrations may seem as nothing compared to the outbursts to come should a Trump-appointed, far-right federal district judge in Amarillo, Texas, Matthew Kacsmaryk, impose a nationwide ban on mifepristone, a nonsurgical way to end a pregnancy that was authorized decades ago by the FDA. As in Israel and France, the protests will be directed at the policy itself, at the withdrawal of a long-standing social right, and at a governance structure that allows for the arbitrary overruling of that right.
Our nation’s governing structure, of course, is fairly larded with features and foundations that effectively counter democratic values, beginning with the Electoral College and the Senate. Like the French, we, too, have a proud tradition of taking to the streets, in actions that have produced civil rights laws and occasional alterations to foreign and military policies. In the early and mid-1930s, some strikes were so disruptive that they compelled the government to enact worker rights legislation.
But ours is an immense and diverse country, which has never seen quite the equivalent of what lies ahead for France, and what Israel is now beginning to experience. Judge Kacsmaryk may well just change all that, but given all the impediments to our nation’s achieving the status of a genuine democracy, we may yet need to fill both the streets and the voting booths for decades to come.
