Judicial Power and Democracy: The Case of Marine Le Pen

A recent commentary put out by the European Center for Populism Studies takes what I consider a mid-depth dive into the response of Marine Le Pen's supporters to that party leader's recent conviction on corruption charges. In this interesting piece, the author, Julie Van Elslander, opines that Le Pen's 4.6 million Euro misappropriation conviction "is emblematic of what scholars qualify of [sic] post-truth populism: The transformation of political culture by the devaluation of factual correctness over emotional appeal. In a context where public discourse is increasingly shaped by the logic of “alternative facts” – a concept introduced by Trump’s counselor in 2017.  Le Pen’s trial is another example of the way post-truth populists challenge liberal democracies." [Citations are omitted here and throughout.]

The decision has, of course, been appealed, and the required house arrest in the sentence will not take place until that further case is decided. But during the pendency of that appeal, one aspect of Le Pen's sentence is being enforced: she may not be a candidate in the 2027 Presidential elections. As one might expect, Le Pen and her followers cover all the usual bases in their reactions to the decision: 

• She is innocent and is being punished for an administrative error, since she did not personally benefit from any alleged misappropriation. 

• The court is corrupt and the decision was rigged to keep her out of power. 

• It's a purely political, rather than legally correct decision. 

• The judiciary is just a part of the elite that always works against "the people." 

• This is one more example of the left's anti-democratic authoritarianism. 

• Etc. Etc.

That Le Pen herself had earlier called for "life ineligibility for elected officials convicted of embezzlement or corruption" is, naturally, conveniently forgotten, hypocrisy being the custom of nearly all successful politicians. I suppose the most common complaint--so similar to Trump's constant whining--is that Le Pen's trial wasn't "presented as a neutral legal process, but as the proof of a biased system – with Le Pen denouncing a political decision, 'a practice 'we believed to be reserved for authoritarian regimes.'"....On their view the entire event should be characterized as "an unaccountable elite trying to undermine the will of the 'real people' – a homogeneous group not defined by citizenship, but by symbolic alignment with the populist cause."

Ms. Van Elslander is quite dismissive of all the allegedly populist responses mentioned above. And it would be hard, I think, not to agree with her on most of those matters. But there is one rejoinder that she seems to lump with those bulleted above as being also inadmissable, perhaps because of its alleged reflection of "alternative facts." However, I believe that particular response, should have had its actual merits considered. Here it is:

"An online petition launched by National Rally, titled 'Save democracy, save Marine' rapidly gathered thousands of signatures and rallied support over social media, but its message was...about defending her voters’ rights. In an open letter promoting the petition, Jordan Bardella, the young president of the National Rally, described the conviction as an attack against voters: 'They are trying to prevent a candidacy supported by millions of French people, which is well ahead in all the polls. They deprive millions of voters of their choice and therefore their freedom.' This sense of disenfranchisement was further amplified at a public rally held a week later, during which Bardella framed the conviction as an attempt to prevent the National Rally from acceding to power. The conviction, as he claimed, was...about the right of French voters to choose their leader. The rally became a platform where Le Pen was portrayed...as a  a representative of  silenced voters."

My own view of this matter is that this objection has nothing whatever to do with the spreading of information or "alternative facts," but should rather be seen as reflecting a correct view of democratic theory. That is, no judiciary should  place itself above the fundamental rights involved in democratic government. Le Pen's panel were within their rights to have fined or incarcerated her, but they should not have prevented her from running for President. However, it is also true that if she were to be elected, she should not have the power to pardon herself, or expunge her record. Indeed, if imprisoned, she should not be able to remove herself from that condition. Perhaps a newly and legitimately enacted law might be able to do that, but such retroactivity would make that enactment questionable at the very least. The point is that if Le Pen's supporters really want to have the President of France serve all or part of her term under house arrest, so be it: they may not be deprived of the right to make that choice. (For what it may be worth, Boston's Mayor Curley was imprisoned during one of his terms.) 

Matters concerning fundamental democracy should always be understood to be absolutely unalterable. Authentic popular sovereignty requires that even constitutional provisions regarding such matters may not be played with--even by vote of the entire nation. Neither  the Executive nor the Judiciary should be allowed to "run" a polity. Either constitutes a type of  authoritarian tyranny. Only the electorate should have that power, and for that condition to be maintained, the electorate may not mess with fundamental democratic rights either. 

In sum, even if Marine Le Pen's conviction had been handed down by a jury--which it was not, this being purely a three-member-panel affair--it should not have included any prohibition of a run for elective office (or, for that matter, prohibition of her own right to vote.) And this has nothing at all to do with "alternative facts" or "post-truth populism."