La Constitution du Grand-Duché de Louisiane

La Constitution du Grand-Duché de Louisiane is the domestic constitution of the Grand Duchy of Louisiane. It was adopted on 19 December 1804 by an assembly convened at La Nouvelle-Orléans, came into force on 1 January 1805, and has never been replaced.

It is a long instrument and was long when it was written. The text as adopted ran to 311 articles in nine titles, in the codifying manner of its decade, and the operative text today is about four times that length, having absorbed 862 amendments in 224 years without ever being recast. Both the French and the English texts are authentic in law, neither prevailing over the other.

The Constitution is not the instrument that created the Grand Duchy. That was done in the same year, by the Acts of Admission, which are Acts of the Parliament of the United Kingdom of America. The relationship between the two documents is the first thing a student of Louisianais law is taught, and the most common source of error in argument.

The two instruments

Louisiane is governed under two constitutional instruments of the same year, made by different authorities, doing different work.

The Acts of Admission were enacted at New Westminster. They constituted the Grand Duchy and created the Crown in right of Louisiane, installed its reigning house, guaranteed six protected domains: the civil law, the French language, parish government, cultural patrimony, the river and port duties, and emergency governance, and entrenched the succession alongside them. What the Acts do is bind the Realm. They are a statement of what the United Kingdom of America has undertaken not to disturb, and their audience is Parliament, the American Crown and the courts of the whole Realm.

The Constitution was adopted at La Nouvelle-Orléans by the inhabitants’ own assembly. It does not guarantee anything against the Realm and could not. What it does is organise a government: it establishes the Assemblée grand-ducale and its two chambers, provides for the Ministry and the confidence of the Chambre des Députés, fixes the grand ducal assent procedure and its four levels, constitutes the parishes and their consultation rights, provides for the Code and the courts that apply it, and sets out the emergency powers that a river polity requires.

The distinction is usually put as the difference between a guarantee and a machine. The Acts say what may not be taken away; the Constitution says how the polity works from day to day. Neither can perform the other’s function. The Acts are silent on how a bill becomes law in Louisiane. The Constitution cannot bind the Parliament that made the Acts, and does not attempt to.

Where they overlap

The two instruments meet at the protected domains, which appear in both. The Acts name the domains and guarantee them; the Constitution contains the provisions that give them working form, and those provisions are the ones a Louisianais government cannot alter by ordinary means.

The practical consequence falls on litigants. A constitutional argument in Louisiane begins with the question of which instrument the point arises under, because the amendment route, the forum and the available remedy all differ according to the answer. A provision of the Constitution that touches no protected domain may be amended by the Assemblée. A provision that touches one may not, and requires the procedure the Acts impose. Confusing the two is the commonest ground on which a pleading is returned.

Why the Realm permitted a separate instrument

The Realm could have declined to allow a domestic constitution at all, and provided the whole constitutional apparatus by statute from New Westminster.

The reason it did not do so here is recorded in the correspondence and is not creditable. The inhabitants of Louisiane had been transferred from one empire to another without a vote, an assembly, a petition or any provision for one, and had learned that their nationality had changed when they were told. Ministers in New Westminster understood that this was indefensible under Article I.3 of the Charter and were told so in the Commons. Permitting the inhabitants to write their own instrument of government cost the Realm nothing it valued, since the Acts had already fixed everything the Realm cared about, and it answered the objection in a way that could be described in a despatch.

The Grand Duchy has never disputed this account of its own founding, and cites it regularly. The argument that Louisiane’s constitutional independence was granted out of embarrassment rather than principle is made most often by Louisianais writers themselves.

The Assemblée constituante of 1804

The convocation

The assembly was convened by proclamation in July 1804, four months after the Acts of Admission received assent, and sat at La Nouvelle-Orléans from 3 September to 19 December.

Its mandate was narrow and was drafted at New Westminster. It was to provide a frame of government for the Grand Duchy, not to determine whether there should be one, nor which house should reign, nor whether Louisiane should be in the Union at all. All three questions had been settled by the Acts before the assembly met, and the proclamation said so. Within that boundary the assembly was given a free hand, and used it more freely than the ministry had expected.

Sixty-one members sat. They were returned from the parishes on a property qualification, which in the settled parishes of 1804 meant, in practice, the planters, the merchants of the port, the notaries and advocates, and a thin representation of the Acadian west. Anglo-American newcomers, arriving in numbers since the purchase was announced, held four seats and were treated by the rest as an irritant. Julien Poydras was elected to preside.

Who did not sit

The assembly represented a minority of the people it legislated for, and the proportion is not in dispute.

Of a population of some fifty thousand in the settled parishes, rather more than half were enslaved. They were not represented and could not be. The assembly debated their condition at length, chiefly under what became Title VII, and the journal of those debates survives in full. The adopted text does not mention them, or slavery, or servitude, in any article. The silence was deliberate and was remarked upon at the time.

The free people of colour of La Nouvelle-Orléans and the river parishes were a substantial, propertied and long-established community, many of whose members satisfied the property qualification on its face. They were excluded by a resolution of the assembly’s second sitting, which held the qualification to be available only to white inhabitants. The resolution passed without a recorded division. A petition from sixty-four free men of colour of the city, several of whom had borne arms for the colony under both France and Spain, was received on 2 October, entered in the journal, and not acted upon. It is the earliest surviving political petition from Louisiane and is now displayed in the Grand Ducal Archives.

Women were excluded without discussion, as they were everywhere in the Realm in 1804.

The Indigenous nations were not represented and were not conceived of as within the assembly’s constituency at all, though the greater part of the territory the Grand Duchy claimed had never been the subject of any lawful compact and remained, under Article XIV of the Charter, land the Realm had no title to. The Constitution as adopted does not mention them. That silence was not corrected until 1911, and the correction took the form of an amendment rather than a revision, for reasons given below.

The drafting

The assembly worked through a drafting committee of eleven, of whom seven were notaries or advocates trained in the civil law, and the character of the resulting document follows directly from that composition.

The committee’s instinct was codifying rather than declaratory. Its members had before them the French codification then in progress, of which they had partial texts, and they took from it the habit of writing at length, defining terms, anticipating cases and leaving as little as possible to construction. Where the Charter of Union states a principle in a sentence and leaves two centuries of courts to work out what it means, the Constitution of Louisiane states the principle, then enumerates its applications, then provides for the exceptions, then fixes the procedure by which a disputed application is to be resolved.

This produced a long instrument, and the length was deliberate. The committee’s report to the assembly argued that a people who had just discovered that their government could be transferred without their knowledge should not be asked to rely on the good sense of future officials, and that anything left unwritten would be decided by somebody in New Westminster. The argument was accepted with little opposition and has shaped every subsequent Louisianais constitutional habit.

The most substantial disagreement was over language. A minority proposed that French alone be authentic, on the ground that an English text would in time become the real one. The majority held that a constitution the Anglophone parishes could not read in their own tongue would not be obeyed in them. The compromise, that both texts be equally authentic with neither prevailing, was carried on 28 November by a margin of nine and is now the provision most complained of by the courts.

Adoption and promulgation

The assembly adopted the text on 19 December 1804. The first Grand-Duc, then thirty-one and four months in his office, promulgated it without amendment, and it came into force on 1 January 1805.

He made one intervention during the proceedings, and it is the only occasion on which he is recorded as having attempted to influence the drafting. He asked the committee to reconsider the article that made the Grand-Duc’s assent to legislation graduated rather than absolute, on the ground that a head of polity who could delay but not refuse would be blamed for outcomes he could not prevent. The committee declined, and the four levels it settled on, ordinary assent, suspensive delay, referral for judicial certification and withholding for the session, contain no power to refuse a bill outright. None has ever been added.

This is the origin of the difficulty over the refusal of 1861. In the winter of that year an instrument of withdrawal from the Union passed the Assemblée by a handful of votes and was laid before Gaston I, and he refused assent to it outright. He did something the Constitution does not provide for, since article 81 allows a withholding for the session and no more, and his written reason rested entirely on the Acts of Admission rather than on the Constitution he had sworn to. The movement behind the instrument lost its vote in the chamber the following spring. Whether the Acts supply a power the Constitution withholds, or whether the first Grand-Duc was simply refused in 1804 what his successor took in 1861, is the oldest unsettled question in Louisianais constitutional law.

The text

The Constitution as adopted ran to 311 articles in nine titles: I, of rights; II, of the territory and the parishes; III, of the Grand-Duc; IV, of the Assemblée; V, of the Ministry; VI, of the Code and the courts; VII, of public order and safety; VIII, of the river, the levees and emergency; IX, of amendment.

What follows is the text of 1804, in both authentic versions. It is not the Constitution in force, which is roughly four times this length and contains 862 amendments. The articles below are those most often cited, together with those the later sections of this article turn upon.

The preamble

The opening clause is the most examined sentence in Louisianais law. The assembly asserted the existence of a people in the first eleven words of the instrument, four months after the inhabitants of Louisiane had been transferred between two empires without being asked, assembled, or informed until the transfer was complete. Nothing in the Acts of Admission had described them as a people, and nothing required the assembly to do so.

Title I, of rights

The Declaration occupies articles 1 to 38 and stands before the machinery of government rather than after it, in the manner of 1789 rather than of the common-law tradition.

Article 1 is the article every Louisianais schoolchild learns, and it is carved or lettered in the entrance of most parish courthouses. It is the source of the written-reasons practice that still governs the Ministry, by way of article 19, and of the Grand Duchy’s habit of treating an unpublished rule as no rule at all.

Its fame is also the source of the sharpest criticism the Constitution attracts. An instrument whose first article requires that the law be written, published and knowable contains no article on slavery, servitude or the condition of the enslaved, though rather more than half the people in the territory it governed were held in it. The word the Declaration uses is citoyen, citizen, and the assembly did not need to define who was not one.

Title II, of the territory and the parishes

Articles 39 to 71 divide the Grand Duchy into parishes and provide for their officers. They do not give the parishes consultation rights, which were not won until the nineteenth century and are dealt with below.

Title III, of the Grand-Duc

Articles 72 to 104 constitute the office. Article 81, which fixes what the Grand-Duc may do when a bill is laid before him, is the most consequential article in the instrument.

Article 81 is exhaustive on its face. It enumerates four courses and forecloses any fifth, and it disposes of inaction by deeming assent given after thirty days. Its fourth course withholds assent for a session only, and a law voted again at the following session cannot be withheld a second time. On the text of the Constitution alone, a Grand-Duc cannot refuse a bill, and cannot achieve a refusal by doing nothing.

In ordinary practice the First Minister advises assent and the Grand-Duc gives it in the name of the Crown in right of Louisiane. The choice among the other three courses is his alone, which makes article 81 the one point at which that Crown acts on no minister’s advice.

The Grand Duchy reads article 88 as a condition on the exercise of the office and not on its possession: the Crown in right of Louisiane passes at the moment of a Grand-Duc’s death, and the oath confers nothing.

Title IV, of the Assemblée

Title VI, of the Code and the courts

Title V, of the Ministry, occupies articles 167 to 193 and is largely procedural. Title VI, articles 194 to 248, is the longest in the instrument.

Article 194 is the provision on which the whole difficulty of interpretation rests, and is discussed below. It directs the courts to reason from the Code rather than from decided cases, and it binds a bench which since 1804 has answered on appeal to a court that does the opposite.

Titles VII and VIII, of public order and of the river

Title VII, articles 249 to 277, provides for the constabulary, the parish watch and the militia. Title VIII, articles 278 to 296, is the thinnest in the instrument. The assembly of 1804 provided for levees in three articles and for flood in none, and the whole of the Grand Duchy’s modern flood constitution has been built by amendment on that foundation.

Article 284 is the emergency power, and its record is the one part of the Constitution that Louisianais commentary treats as an unqualified success. The thirty-day lapse has never been evaded, no ministry has attempted to govern under it beyond a confirmed period, and no Louisianais emergency power has ever had to be repealed because it had outlived its occasion. In a polity that has been flooded as often as this one, and in a Realm whose federal emergency legislation has repeatedly proved difficult to withdraw, the record is unusual enough that constitutional writers outside Louisiane cite it.

Title IX, of amendment

The assembly gave fifteen articles to amendment and none to replacement. Nothing in the instrument provides a procedure by which a new constitution might be adopted in place of this one, and no such procedure has ever been added. The consequence is the subject of the next section.

Why it has never been replaced

The Constitution of 1804 is still the Constitution of 2028. It has been amended 862 times and recast not once, and the explanation is mechanical rather than sentimental.

There is no door

The assembly provided for amendment in fifteen articles and for replacement in none. The instrument contains no convention power, no procedure for calling a constituent body, no article stating the conditions on which it might be superseded, and no provision contemplating its own end.

Whether this was deliberate is disputed and the journal does not answer it. The drafting committee’s report is silent, and the assembly does not appear to have discussed the question. The two readings offered are that a body which had just written a constitution in fifteen weeks did not imagine anyone would need to write another, and that men who had watched a sovereignty change hands over their heads were not disposed to leave a mechanism by which the whole frame of government might lawfully be swept away. Neither reading is supported by anything in the record, and Louisianais commentary tends to prefer whichever suits the argument in hand.

The effect is not in doubt. A new constitution for Louisiane could be adopted only by a procedure that does not exist, and the creation of that procedure would itself be an amendment. Because such an amendment would touch every protected domain at once, it falls under article 300 and requires the full weight of the Acts: consultation of every parish, popular ratification, and grand ducal assent. No such consultation has ever been convened.

The two tracks

Ordinary amendment, under article 297, requires two thirds of the Chambre des Députés, an absolute majority of the Conseil des Paroisses, and grand ducal assent. It is demanding but achievable, and it accounts for the great majority of the 862.

Amendment under article 300 is a different order of undertaking. Any article touching the civil law, the French language, parish government, cultural patrimony, the river and port duties or emergency governance, or the succession, can be altered only by the procedure the Acts of Admission impose. This has been completed nine times in 224 years.

The practical result is a constitution that is easy to add to, hard to alter in its substance, and impossible to replace. Every generation that has wanted constitutional change has therefore obtained it by accretion, because accretion was the only route open.

Accretion

The operative text is now roughly four times the length of the text adopted, and reads like it. Amendments have been inserted where they fitted rather than where they belonged, so that a provision on drainage districts sits inside Title VI among the courts, and the modern flood constitution, which is the most important body of law in the Grand Duchy, is distributed across four titles and three hundred articles of amendment hung upon the three articles the assembly wrote about levees.

The Grand Duchy is aware of this and has been for a century. The standing commission for the revision of the Code, which article 201 requires to report every five years even when it has nothing to propose, has recommended a consolidation and renumbering of the constitutional text in nineteen consecutive reports. Consolidation would require touching protected domains, which puts it under article 300, and no ministry has been willing to spend a popular ratification on tidiness.

The amendments that mattered

Abolition required no amendment at all. Because the Constitution had never mentioned slavery, the ending of it left the text untouched, and the instrument that had governed a slaveholding society passed into a free one without a word of it being altered. Louisianais constitutional writers have made a good deal of this, in both directions: as evidence that the Declaration had never sanctioned the institution, and as evidence of exactly how completely the assembly had contrived to avoid the subject.

The amendment of 1867 was the one that was needed. It defined citoyen for the purposes of Title I to include every person born or naturalised in the Grand Duchy, and it was carried under article 300 because the Declaration touches protected domains. It is the shortest consequential amendment in the instrument and it did not do what its supporters expected, for reasons given in the next section.

The amendment of 1889 gave the parishes their consultation rights, and it was won in a fight. A ministry pressed by a bad decade of revenue proposed to amalgamate the smaller river and prairie parishes for economy. The Acts of Admission barred abolition of parish government but said nothing about reorganisation, and the Constitution as written gave the parishes no right to be heard on a bill that concerned them. The parishes fought the measure for six years, defeated it in the Conseil des Paroisses twice, and converted the victory into a constitutional right rather than a temporary one. The consultation procedures that now attend any legislation touching the parish map date from that amendment and not from 1804.

The amendment of 1911 ended the Constitution’s silence on the Indigenous nations, 107 years after the assembly declined to consider them a constituency. It came by amendment because it could come no other way, and it has been criticised ever since as a provision drafted around an omission rather than a settlement reached with anybody.

The movement that could not find a door

In the 1920s a nativist current in the northern and western parishes pressed for English-only public schooling, on the argument then being made across the continent that a single school language made a single people.

It never became a serious legislative proposal, and the reason is the architecture rather than the goodwill of anybody involved. Article 11 makes both languages languages of the Grand Duchy and gives every inhabitant the right to be heard and answered in the one he chooses. The French language is a protected domain of the Acts of Admission, so amending article 11 falls under article 300 and requires consultation of every parish and a popular ratification, which no one seriously believed such a measure could survive. And the route that the movement’s counterparts elsewhere actually used, the writing of a new constitution that would simply supersede the old provision, was not available, because Louisiane has no procedure for writing one.

The campaign accordingly expired in the parish newspapers without a bill ever being laid. The absence of a replacement procedure, which is the Constitution’s most criticised defect, is the reason the schools of Louisiane never stopped teaching in French. It is the clearest instance in the Realm of a constitutional flaw producing a good outcome by accident, and Louisianais writers who defend the 1804 drafting on every other ground are careful to note that this one was luck.

The fossil articles

A constitution that can only be added to accumulates provisions that have outlived their subject, and a number remain in force governing nothing whatever.

Article 262 requires the quarantine of vessels arriving from Saint-Domingue and fixes the period at forty days. Article 176 provides the salary of the Commissary of Stores, an office abolished in 1851. Article 289 requires the Assemblée to convene within eight days of the river falling below the mark at the Poste des Chapitoules, a gauge that was destroyed by the river itself in 1927 and never re-established.

None has been repealed, and the reason is that repeal costs the same as amendment. Removing an article touching a protected domain requires the full article 300 procedure, and removing one that does not still requires two thirds of one chamber, a majority of the other, and the assent. No government has found it worth the parliamentary time to delete a provision that harms nobody, and the standing commission’s recommendation that they be swept together in a single repealing amendment has been made and ignored in each of its last eleven reports.

The Grand Duchy treats them with some affection, which the commission regards as the problem. Article 289 in particular is quoted in political argument whenever a ministry is accused of legislating for a world that has ceased to exist.

The Déclaration des droits

What it guarantees

Title I sets out thirty-eight articles of right, standing before the machinery of government rather than after it. They cover the knowability of law, equality before it, arrest and detention, property, religion, assembly, the two languages, the written reasons owed by any authority that determines a right, access to the parish registers, and a closing article providing that the enumeration excludes nothing and that no silence of the Constitution is to be read as a renunciation.

It is an enumerated declaration of a kind the Charter of Union does not contain, and it predates the American Rights Act by sixty-two years.

The use made of its antiquity

That sixty-two years became an argument, and the argument was used for a century.

The Grand Duchy’s standing position, maintained by successive ministries and by its bench, was that Louisiane had secured to its inhabitants an enumerated declaration of rights while the rest of the Realm was still relying on the ancient liberties of the Charter, that it had done so on its own authority and without being required to, and that a polity with such a record needed no instruction from New Westminster in the matter of rights.

The argument was made in good faith by many of the people who made it. It was also, for ninety-six years, the principal obstacle to the only measure that would have worked.

The ninety-six years

The American Rights Act of 1866 bound federal authority alone. It was not extended to the polities until 1962.

For those ninety-six years, the guarantees of Title I were the only rights instrument binding the government of Louisiane, its Assemblée, its ministries, its parishes and its courts. Nothing federal reached polity action. Whatever was going to be done about the conduct of the Grand Duchy toward its own inhabitants was going to be done under the Declaration of 1804 or not at all.

It was not done. Louisiane segregated its schools, its hospitals, its public conveyances, its courthouses above the ground floor, its parish registers of burial, and the waiting rooms of the port. The apparatus was built in the 1890s, elaborated in the 1910s, and dismantled only under federal compulsion after 1962. Throughout, the Declaration was in force, was cited in the pleadings, and did not prevent any of it.

Thibodeaux, 1897

The construction that made this possible was settled in Thibodeaux c. la Paroisse d’Orléans, decided by the Cour Suprême de Louisiane in 1897.

The plaintiff, a schoolteacher, argued that article 2 of the Declaration, which provides that all citizens are equal before the law and that the law is the same for all, forbade a parish to provide separately for children of different races. The 1867 amendment had by then defined citoyen to include every person born or naturalised in the Grand Duchy, so the older route of denying that the plaintiff was within the article was closed.

The court found for the parish. It held that article 2 secures equality in the application of the law and not equality in what the law provides; that a statute directing separate provision applies with perfect equality to every citizen, since each is assigned according to the same rule; and that to read the article otherwise would make it a grant of legislative power to the courts, which the drafters of a codified constitution cannot have intended.

The reasoning was available. It was not compelled. Article 2 was drafted in 1804 by men working from the French declarations, and the reading that the court rejected was the reading those declarations had been given in France. The judgment of 1897 was a choice, and the court that made it was Louisiane’s own.

The Royal American Supreme Court declined to disturb Thibodeaux in 1904 and again in 1938. It was by then the final interpreter of the Louisiane Constitution and could have read article 2 as the plaintiff asked. It did not, and the responsibility for the ninety-six years is accordingly shared between a polity bench that produced the construction and a federal bench that let it stand.

Article 1 and the unpublished rule

The second failure is less discussed and is sharper, because it strikes at the article the Grand Duchy is proudest of.

A great deal of the segregation of Louisiane was never enacted. It ran on parish practice, departmental custom, standing instructions never gazetted, and understandings between officials that appeared in no register. Article 1 provides that no person is bound to obey what has not been made knowable to him and that no authority may rely upon a rule it has not published. On its face the article forbids exactly this.

The point was taken in Aucoin c. le Bureau du Port in 1931. The court held that article 1 bites only where an authority relies upon a rule as a rule; that a practice which the authority does not assert as law is not a rule within the article; and that the remedy for unwritten practice lies with the Assemblée and not the bench.

The effect was to exempt from the Grand Duchy’s most celebrated constitutional guarantee precisely the conduct that guarantee was best shaped to reach, and to do so on the ground that the conduct was not written down. The Assemblée to which the court remitted the question did not legislate.

1962

The extension of the American Rights Act to the polities in 1962 did in a single statute what the Declaration had not done in ninety-six years. Thibodeaux and Aucoin were not overruled; they were made irrelevant, because the guarantees now ran against every public authority in the Realm and no longer depended on the construction a polity court had put on its own instrument in 1897.

Louisianais constitutional writing has never fully settled its account with this. The Declaration is genuinely older than the federal instrument, genuinely enumerated, and genuinely the polity’s own work. It is also the instrument that was in force, and available, and argued, throughout the entire period in which the Grand Duchy did the things it did. The Grand Duchy’s pride in article 1 is undiminished and is carved in its courthouses, several of which segregated their upper floors while it was carved there.

The petition of 1804

The sixty-four free men of colour who petitioned the Assemblée constituante on 2 October 1804 asked to be admitted to the constituency of the body then writing the Declaration. The petition was received, entered in the journal, and not acted upon.

The question it raised was answered in 1867 as to the meaning of the word citoyen, in 1897 as to what equality before the law required, and in 1962 as to whether any of it would be enforced. The Grand Ducal Archives display the petition in the same room as the engrossed Constitution, and the two documents are dated eleven weeks apart.

Interpretation

The final interpreter

The last word on the meaning of the Constitution belongs to the Royal American Supreme Court at New Westminster, on appeal from the Cour Suprême de Louisiane.

This is the ordinary arrangement for a polity of the Realm and was not resisted when it was settled. Its consequence is that a codified civil-law constitution, drafted by notaries in the manner of the French codification, is construed in the last resort by a common-law bench of seven, trained in precedent, sitting in a common-law jurisdiction, and applying the interpretive habits of the tradition the Constitution was written to keep out.

Article 194 and a court whose decisions bind

Article 194 directs that the courts judge according to the Code and not according to prior decisions, which enlighten without binding. It is the central methodological provision of the instrument and it states the civil-law position exactly.

The Royal American Supreme Court does not work that way, and cannot. Its judgments bind every court beneath it, including the Cour Suprême de Louisiane, and its judgments on the meaning of the Louisiane Constitution therefore become binding authority on the construction of a text which provides that judgments do not bind.

Louisianais constitutional writing has produced a considerable literature on this and no solution. The orthodox position at New Westminster is that article 194 addresses the courts of the Grand Duchy in their ordinary civil jurisdiction, that the Royal American Supreme Court is not a court of the Grand Duchy, and that the article cannot in any event dictate the working method of a court it does not constitute. The orthodox position in Louisiane is that a provision of the Constitution is not disapplied merely because the court construing it finds the provision inconvenient. Neither has ever given way, and the disagreement is now old enough to be taught rather than argued.

What Louisianais lawyers complain of

The practical complaint is narrower than the theoretical one and is heard constantly.

It is that the Royal American Supreme Court reads the Code as though it were a statute: that it construes an article in isolation rather than by its place in the structure of the whole, that it treats the enumeration of applications following a principle as limiting the principle rather than illustrating it, that it looks for the intention of the drafters where a civilian would look for the coherence of the system, and that it reaches for its own earlier decisions before it reaches for the text.

The court’s answer is that it applies the words the Assemblée enacted in the two languages in which they were enacted, that codal method is a doctrine of interpretation rather than a rule of law binding any court, and that a polity which appeals to a federal bench accepts the bench that hears it.

The practical accommodation is a convention rather than a rule. Since 1966, when Ines Calderon took her seat, one of the seven Justices has been trained in the civil law, usually from Louisiane, and the Court hears written argument in French in any Louisiane case in which counsel ask.

Two authentic texts and no tie-breaker

Article 140 provides that both texts are equally authentic and that neither prevails. The assembly of 1804 adopted this to secure the Anglophone parishes, and left no provision for what a court should do when the two texts do not say the same thing.

They do not always say the same thing. The best-known divergence is in article 284, the emergency power, which in French permits the Ministry to act en cas de calamité. In French legal usage the phrase carries a settled and comparatively narrow sense, running to flood, fire, storm, epidemic and the like. The English text says in case of calamity, which is wider on its face and has been argued to reach civil disorder, industrial stoppage and financial collapse.

The question is not academic. It was raised in the dock strike of 1913 and again during the bank failures of 1932, on both occasions by a ministry that wished to act under article 284 and was told by its own law officers that the French text would not carry it. Neither ministry proceeded. The unusually clean record of article 284, noted above, owes something to the fact that the narrower of its two authentic texts has always been treated as the operative one.

The rule of the more protective text

The courts eventually supplied the tie-breaker the Constitution withholds. The rule, settled through the later nineteenth century and stated in its modern form in 1908, is that where the two authentic texts diverge, the reading that affords the greater protection to the inhabitant prevails against the authority.

It is a sensible rule and it is of doubtful constitutional authority. Article 140 says neither text prevails, and the rule makes one prevail whenever the case is between an inhabitant and the state. Article 194 says decisions enlighten without binding, and the rule exists only in decisions. A doctrine invented by judges to solve a problem the drafters left unsolved is exactly the species of law that the Constitution was written at length to avoid.

It also does not work everywhere. Where the divergence lies in the machinery of government rather than in the relation between inhabitant and authority, there is no more protective reading to prefer, and the rule is silent. The construction of article 81 in 1861 was such a case, and it is not a coincidence that the Grand Duchy’s oldest unsettled constitutional question arises at exactly the point where its rule of last resort has nothing to say.

Certification under article 81

The third of the Grand-Duc’s four courses is to refer a bill to the judges for certification of its conformity, and the article does not say which judges.

Practice has settled on two forums. A question under the Constitution goes to the Cour Suprême de Louisiane sitting in full, which certifies conformity or declines to certify, and does not give reasons unless it declines; a question under the Acts goes directly to the Royal American Supreme Court. Certification by the Cour Suprême is not a judgment and does not bind a later court, which follows from article 194 and is one of the few places where the article is applied without argument. A bill certified in 1926 was held unconstitutional in 1954 on the same point, and the Grand Duchy regarded this as the system working rather than failing.

Referral is rarely used. It was employed nineteen times between 1805 and 2011, and once since, when Ferdinand III referred the coastal resettlement bill under the Acts.

The Constitution at present

The instrument in force is the text of 1804 as amended 862 times, construed by the Cour Suprême de Louisiane subject to appeal to the Royal American Supreme Court, and printed by the Grand Ducal Press in a parallel edition running to some eleven hundred pages.

Ferdinand III swore the oath of article 88 in 2026, before the Assemblée attending him in the cathedral at La Nouvelle-Orléans, in French, as the article requires. He then repeated it in English, which the article does not require and which not every holder has offered, at the request of the northern parishes.

The succession question

Title III contains the articles governing succession to the Grand Duchy, which is by male-preference primogeniture.

Because the succession is among the matters guaranteed by the Acts of Admission, those articles fall under article 300. A measure for absolute primogeniture cannot be carried by the Assemblée alone, however large its majority: it requires consultation of every parish, a popular ratification, and the grand ducal assent. This is why the two measures given a first reading in recent years did not proceed. Neither failed on the merits. Both stopped at the point where the promoters had to explain what the article 300 procedure would cost and how long it would take.

The consolidation question

The standing commission’s recommendation that the constitutional text be consolidated and renumbered stands unactioned in its nineteenth consecutive report. The argument against acting is unchanged: consolidation touches protected domains, so it falls under article 300, and a popular ratification spent on renumbering is a popular ratification not spent on anything else.

The argument for acting is that article 1 requires the law to be written, published and knowable, and that an eleven-hundred-page instrument in which the flood provisions are distributed across four titles is not, in any practical sense, knowable by the people it binds. The commission has made that argument in those words since 1974 and has not yet been answered.

The question of 1861

Whether the Acts of Admission supply a power that article 81 withholds has never been decided, because no case has presented it. Gaston I’s refusal was not litigated at the time, the movement behind the instrument of withdrawal lost its vote in the chamber the following spring, and the Grand Duchy has had no occasion since to discover what would happen if a Grand-Duc did it again.

The position taken by the Cour Suprême de Louisiane in an obiter passage of 1954, that article 81 is exhaustive and that the events of 1861 are to be understood as an act of state outside the Constitution rather than as an exercise of power under it, is the nearest thing to an authority and binds nobody.

Trivia

See also

• Le Grand-Duché de Louisiane
• The Charter of Union of the American Colonies
• The American Rights Act
• The Royal American Supreme Court
• Louisianais
• The American Civil War

Categories

Laws · Constitutions · Louisiane · Civil Law · Rights · Polity Government · French Language