Why EU-sceptics should NOT want a short Constitution
In the “why” and “where to now” discussions that started after the double ‘no’ in the French and Dutch referendums, an often heard opinion is that the EU Constitution is too long, and that a shorter text outlining only fundamental rights and decision-making procedures would have stood a better chance of being adopted. That may be so, but if it does it would be proof that what voters actually want is a more integrated Europe.
The Constitution text as it is now consists of a set of, partly new, decision-making rules, the Charter of Fundamental Rights earlier adopted but not legalised by EU governments, and what basically is the text of the existing EU treaties covering cooperation on everything from “protecting the physical and moral integrity of sportsmen and sportswomen” to prohibiting “the prevention, restriction or distortion of competition within the internal market”.
The existing EU treaties were pretty long, complicated and detailed. There were of course reasons for this: First of all, because the European Commission was never conceived to be “the government of Europe”, which would be a political body with freedom to act, but a civil service, faithfully carrying out what national governments wrote down in the treaties. Mutual distrust was always part of the European story. Countries, with reason, did not trust each other with carrying out the treaty provisions faithfully and without discrimination, so they created the Commission, “guardian of the treaties”, with the sole right of initiating measures implementing the treaties’ provisions. Political checks and balances were built into the system by requiring the national governments, united in the Council, to consent to each implementing measure proposed by the Commission. The European Parliament was created later as an additional, democratic, check on the process.
Naturally, in this construction, it is unthinkable that the Commission would do anything of its own accord. Any initiative it takes must have a legal base in the treaties, i.e. must be part of a task explicitely given to it by the national governments. This is why the treaties are so long and detailed: firstly, because every time governments decided to pool a new task at the EU level, they had to create a new treaty provision. And secondly, because detailed prescriptions were necessary to keep the Commission, a mere civil service, in check.
In short: Long treaties, and long constitutions, are solidified distrust. As such, the complexity at the EU-level is inherently eurosceptic. The reverse, a short Constitution outlining only the rules for decision-making without treading in actual policies, is only possible if you accept that the Commission becomes a political body not subject to the national governments. That would be a huge step towards stronger integration.
20 June 2005 at 09:53
There’s often confusion for Americans, as we have a slightly different understanding of the term “consitituion” than that typically understood in British common law and language.
Personally I suspect this version of the EU consitituion was designed to fail. What I think is interesting is that the EU is in it’s own version of the Articles of Confederation situation (which is the basis of the Federalist – Anti-Federalist debates).
What seems to be missing at the moment is any serious questioning of the underlying assumptions and axioms upon which the EU consitution was drafted. There is a very opposed approach in the French and British manners of approaching representative government, and both differ from the US Constitutional Republic approach. Ironically, it might be the old Holy Roman Empire system that is actually practical.
I’d suggest that no constitution is long enough to replace a body of common law, which is what Brits typically mean by the term “constitution”. The US Constitution is a starting point for common law, and because all of the colonies had their own constitions AND existing common law, there were very few things that could be agreed on as common principles (not even slavery). Thus the US Constitution, with the US bill of rights (which are basically just the English bill of rights from 1689), is short because it states what the US federal government (and it’s administration) WAS NOT allowed to do.
The EU Constitution took the classic French position of trying to say what government SHOULD and WILL do, rather than the English and US position of saying what government could NOT do (be it the Crown, or Parliment or etc). This is the main error. The First French Republic was formed, organized, implemented and dead while Americans were still arguing over the details. In practice promising a government of people will do something without knowing HOW or possessing the MEANS or agreement from all the other people rarely works.
The EU constitution tries to legitimate a body of regulation and treaty that isn’t really what any of the National governments or electorates want (as my experience with Europeans is that they like their own governments more than anyone elses). You tried to make a federal union starting from an unresponsive bureaucracy, and built the structure without first making sure the corner stones and foundation could support the rest. Happily, the EU is in a much more stable position than the US under the Articles of Confederation, and doesn’t really need to rush. The US doesn’t have any interest in invading Europe, nor are we using others to attack Europe as proxies.
So the only real failure or defeat of the ideal of a EU is related to political vanity, rather than serious substance. The first is the goal of being united enough to “challange” the US, which isn’t what the electorate of Europe cares about (common people have a way of grasping the obvious, such as the fact that the US has largely exited Europe). It might be what the bureaucracy wants and what the politicians want in the future, but neither are representative of the electorate as a whole, nor willing to agree on details, which makes the ideal moot anyway.
The second vanity is that it’s possible to unite Europe from the top down and retain the popular Democractic systems that exist without more concessions. The French foolishly repeated the mistake of the Edict of Brotherhood, as they knew they didn’t want to be Anglo-Saxon, so that tried to make Anglo-Saxon Europe fit into a French mode. This vanity won’t go away until the current generation of French elites goes away (they’re too Gaullist to give up their ability to act independently when it suits them). But again, the Articles of Confederation US faced actual external threat, whereas the EU merely faces a demographic one.
Just let the EU find it’s own momentum for a while, and things will get back on track after the German and French economies are forced to liberalize.
20 June 2005 at 13:44
I would agree with you that the EU is now confronted with the fact that it has a legitimacy problem, but I do not think you are right on:
There seems to be a rather widespread belief among Eurosceptics in the UK that under French (often pars-pro-toto-ed as “continental” or “European”) law, as opposed to UK law, everything that is not expressly allowed, is prohibited (of course, the reverse is true). Naturally this is not what you are saying in the above, but, unless I have misunderstood something, there are parallels.
I do not see much difference in this respect between the EU Constitution (or the Treaties it would replace) and the US Constitution: Both the US and the EU Constitution list which things the US or the EU is allowed to do, and which things are reserved to the (Member) States (art 1 section 8 US, part III EU). Both the US and the EU are only allowed to do what was expressly attributed to them by the (Member) States through the Constitution (Xth amendment US, art I-11 EU).
In the US there is policy competition between the federal and the state level, just like in the EU. Where differences exist as to how much is delegated from the State to the federal level, this seems to be the result of choices concerning which policies are delegated in their respective Constitutions and of cultural differences, rather than of a fundamental difference in the way those Constitutions work.
Let us not forget that it took the US a Civil War to get its Constitution accepted in the entire territory, whereas Europeans, so far, are only arguing about theirs. Seen in that light, the EU Constitution seems to be considerably more popular right from the onset that its US counterpart ;-)