Vichy's Sham Constitutionality

Abstract

Writers on the constitutional aspect of the Vichy régime in France have now shifted the focus of their attention. In the beginning they were concerned almost exclusively with the study of how far the Constitutional Law of July 10, 1940, did or did not square with the constitution of the Third Republic. Later publications broached the question as to whether, assuming the legitimacy of the Constitutional Law of July 10, 1940, Marshal Pétain's government, by its actions under the cover of that Enabling Act, had remained within the scope of the authority conferred by that measure. Pierre Tissier, the author of the most comprehensive published study of the Vichy régime, argues that for a correct construction of the Enabling Act the ratification “by the nation” of the new constitution must be considered as a condition precedent, in the technical meaning of that term, rather than as a condition subsequent. He further points out that since this refers to a temporary change of the constitution, as well as to a permanent one, the pretended and self-styled “constitutional acts” of Marshal Pétain, even though he himself ascribed to them only an interim character, were merely “so many coups de force.” According to the same author, a comparison between the powers delegated to the Marshal by the National Assembly of Vichy and the use he made of them leads to the conclusion that his government “betrayed its own solemn engagements.” Tissier charges the Marshal also with an “abuse of power.” Similarly, another French author of a pertinent monograph makes the emphatic statement that the constitutional acts of the Pétain régime, “despite their name, were really abuses of power,” since the mandate conferred by the National Assembly “was not—despite all that has been reported—a blank check,” and the conditions for putting into effect any constitutional act have so far not been met.