Europe’s Floundering Fathers
Europe's proposed constitution might look familiar to America's Founding Fathers, but mostly because it evokes their earlier mistakes with the flawed Articles of Confederation. For starters, the new charter fails to give the European Union (EU) real authority over war, diplomacy, and taxes, much less any real power to its new president. And by refusing to submit the constitution for popular approval, many EU member states are undermining its legitimacy and future effectiveness.
Americans can perhaps be pardoned for remaining ignorant of the proposed constitution for the expanding European Union (EU) unveiled to its member governments on June 20, 2003. Academic specialists have followed the Convention on the Future of Europe’s work on the constitution, but prior to June, the only U.S. newspaper regularly covering its deliberations was the Washington Times, which is not yet a journal of record. It was perhaps to pique American interest that the convention’s president, former French president Valéry Giscard d’Estaing, periodically compared his convention with the Philadelphia convention of 1787 and himself first with Benjamin Franklin and then with Thomas Jefferson. Giscard may have contrived the Franklin reference to imply that he was only an elder statesman, not a Europhile with political ambitions yet to satisfy, but the allusion to Jefferson is more intriguing. Jefferson’s role "was to instill leading ideas into the system," Giscard told the New York Times. He "was a man who wrote and produced elements that consolidated the Constitution."
At first glance, these comments suggest Giscard was too clever by half. After all, Jefferson did not attend the Constitutional Convention. Instead, he remained in his diplomatic post at Paris, content to criticize the delegates for failing to include a declaration of rights in the proposed U.S. Constitution. If Jefferson did anything to "consolidate" the Constitution, it was to foster a canon of constitutional interpretation that favored the reserved powers of the states over the expansive view of federal authority held by George Washington and John Adams, his two predecessors as president, as well as Alexander Hamilton, his political nemesis. For a Eurofederalist like Giscard to admire Jefferson seems downright bizarre.
Yet Giscard may have other and better reasons for casting himself as a latter-day Jefferson. For one thing, Jefferson was the first American to think of declarations of rights not as free-standing statements of principle of uncertain constitutional authority or legal force, but as integral elements of a written constitution, a position he first took in 1776. He was also among the first to recognize that the constitutions Americans began adopting in 1776 were not truly constitutional in the robust sense of the term. Framed by bodies that were simultaneously acting as legislatures, the early constitutions, in Jefferson’s view, were nothing more than statutes, subject to revision by any subsequent meeting of the same body. A true constitution, Jefferson and other advanced thinkers concluded, had to be framed by a body appointed for that sole purpose and then submitted to the people for their approval.
This concern with making a constitution truly constitutional is one that Giscard could readily share. For both by American standards and those of contemporary constitutionalism, the nature of the current European project remains ambiguous and arguably deficient. "La Convention propose une Constitution à 450 millions d’Européens," read a headline in Le Monde the weekend after Giscard and his colleagues adjourned. It would have been more accurate to say that the constitution was being proposed for 450 million Europeans and to the 15 states of the current EU and the 10 new states preparing to join. A constitutional treaty, as the new charter is sometimes called, is still more a treaty among nation-states than a constitution for a common people. In theory, it allows individual members of the EU either to block the adoption of the constitution or to truck and bargain for points they deem particularly important. And even though the constitution may weaken the legislative and regulatory powers of the member governments, it may not deprive them of a residual sovereign authority to opt out of the union should they so wish.
To an American eye, the proposed constitution falls somewhere between the Articles of Confederation drafted between 1776 and 1777 and the federal U.S. Constitution framed a decade later. Like the Continental Congress under the Articles, the EU lacks the authority to tax. The economic and social authority of the EU, however, still goes well beyond anything Americans contemplated in the 1770s or arguably even after the U.S. Constitution was ratified. Under the Articles, the American states retained full authority over their internal police. Well into the 19th century, the only federal activity that Americans ordinarily noticed was the delivery of the mail.
Yet the Continental Congress did have real authority over war and diplomacy, those classic markers of true sovereignty. Europe’s proposed constitution, by contrast, goes no further than to create a new position of foreign minister without reducing the capacity of member states to maintain their individual and independent foreign policies. Much of the movement to reform the Articles in the mid-1780s was predicated on the inability of Congress to carry out the national security functions it clearly possessed. It remains difficult to imagine the nation-states of the EU rallying around a movement to centralize authority in the EU because the peoples of Europe want to cut a bolder figure on the world stage.
By any standard, then, the proposed constitution still falls well short of the ambitions released at Philadelphia two and a quarter centuries ago, and the ultimate course and character of constitutional change in Europe remain among what James Madison called "the arcana of futurity." Nor is the convoluted and protracted process of drafting, renegotiating, and finally approving the finished constitution likely to produce anything like the clear and unequivocal decision that emerged from the American deliberations of 1787 to 1791. Those debates laid to rest the idea that sovereignty could only be vested in government. They showed that all legitimate governments, state and national, actually derived their authority from the consent of the people. Whatever else the European constitution may accomplish, it is not about to strike a blow for the cause of popular sovereignty.
Beyond these and other points of historical comparison, how does the European constitutional project illuminate the state of European and American relations at this vexed moment in the transatlantic relationship? More than three decades ago, when the late R. R. Palmer memorably titled his sweeping history of the era of the American and French revolutions The Age of the Democratic Revolution, the first movements toward the European Economic Community were seen as portents of a united European entity that would emulate its savior-ally across the Atlantic. Today, faced with the aftermath of the Iraq war, the chilling of U.S. relations with the Franco-German entente, and the unilateralism of the Bush administration, we might ask whether the process of constitution-making across the Atlantic is evidence of how much Americans and Europeans share or how widely and persistently we differ. As the brothers Peter and Nicholas Onuf have suggested, Americans once saw their federal union as a solution to the rivalries that Europeans tried to manage through the diplomacy and warfare of balance of power. It would be a nice historical irony for Europeans to contrive a constitutional union that some of them hope would counterbalance the greatest hegemon of them all.
WE THE PEOPLES
From an American perspective, the proposed constitution is easy to disparage. It contains, for example, one of those shopping lists of social rights that conservatives love to lampoon, rights that emphasize entitlements to education, employment, healthcare, and even job training, rather than restrictions on the authority of the state designed to foster the individual liberty and autonomy Americans hold dear. Its affirmation of the principle of "subsidiarity," which calls for decisions to be made at the lowest level of governance possible, seems like a weak barrier against the centralizing tendencies that Euroskeptics routinely ascribe to Brussels. Nor does the constitution do much to promote the political accountability of EU institutions to the European people (or peoples) who are its constituents. Its principal institutional innovation appears to be the creation of a full-time president of the Council of Ministers, the body that represents the governments of the member states. But this gives the EU two presidents: one for the Council of Ministers and one for the European Commission at Brussels, the executive arm of the EU proper.
On the other hand, the proposed constitution does seem to represent a significant step toward the centralization of public policy. Euroskeptics already profess disappointment and alarm over the continued federalization of economic and social "competences" — the term that the EU uses to describe who has authority over an area. To an American who likes the specificity of the enumerated powers of the U.S. Congress set out in Article I, Section 8, of the Constitution, the notion of vaguely defined "competences" may seem incredibly, and therefore dangerously, vague. But Eurofederalists can rightly claim that the proposed constitution sharply reduces the uncertainty about EU authority evident in the existing cluster of treaties. Moreover, the constitution increases the areas in which both the commission and the council can make decisions by a form of majority voting while reducing the capacity of individual states to veto action. Yet that great badge of sovereignty — the power to tax — remains the reserve of the member states, as does the responsibility for administering the relentless flow of regulations from Brussels. In this sense, the proposed constitution again seems closer to the Articles of Confederation than the Constitution of 1787.
THAT WAS THEN, THIS IS EUROPE
The task of consolidating European governance today is far more daunting than the one the American framers faced at Philadelphia. To admit this point takes nothing away from the achievements of 1787. Anyone who studies the formation of the Constitution has to be impressed not only by the high seriousness with which its framers discharged their duties but also by the remarkably inventive and critical way in which they combined a deep knowledge of history and political philosophy with the lessons of their own experience. That they were, at bottom, a collection of provincial rustics living at the far periphery of the European world makes their achievements all the more striking.
Yet they also enjoyed certain advantages that made designing a federal constitution less difficult. Most important, the member states of the union had never been truly sovereign in the full or accurate sense of the term. Neither in 1776 nor in 1787 were the separate American states independent sovereignties in the same way as the nation-states of modern Europe. Though they exercised certain essential powers of sovereignty, notably the authority to enact legislation and taxation, they never pretended to be sovereign in an international sense. As Rufus King of Massachusetts reminded the delegates at Philadelphia, when it came to interacting with other nations, the states "were dumb." From its inception in the revolutionary crisis of 1774, the Continental Congress monopolized the basic functions of diplomacy and war.
Nor did the American states ever command the popular sources of affection and attachment commonly associated with the romantic and rapacious nationalism of 19th- and 20th-century Europe. Not that provincial Americans were unaware of the history of their individual communities. In Puritan New England, and among the ruling gentry elsewhere, place did matter. But much of the American population consisted of immigrants and their first offspring, families more attached to their farms than their provinces. And much of this population was already mobile, willing to cross boundaries in pursuit of opportunity without regard to political loyalties.
The contrast with Europe could not be more profound. All EU members are nation-states possessing full political sovereignty and a self-conscious sense of their historical peoplehood. For many of these nations, the relative novelty of their status as self-governing entities (compared with the United States) may deepen, rather than weaken, their reluctance to relinquish national sovereignty to the faceless bureaucrats of Brussels and to obscure parliamentarians at Strasbourg. Each European nation-state has conducted its own foreign relations, and each is aware of the consequences of losing its capacity to assert its national interests. And their peoples are heirs to a history that has generated passions and memories that dwarf the closest counterpart one can find in the United States: the celebration of Southern heritage typically expressed by Confederate flags and decals and a willful denial that the Civil War really was about the ownership of human property. In particular, the new, intensely nationalistic members entering the EU from the old Soviet bloc are loath to see their stature as sovereign nation-states, capable of acting on the world stage, so soon submerged to an amorphous entity.
This stubborn sense of national interest and identity is manifest in two significant elements of the proposed European constitution.
First, notwithstanding the establishment of a foreign minister who will also serve as a vice president of the commission, member states are unlikely to cede their right to conduct their own foreign policy to the EU. The constitution is far from clear on this point, but any revision to it made by an intergovernmental conference representing the member states is unlikely to enhance the prospects for conducting a genuinely European foreign policy. Perhaps such a revision might have happened had the Iraq war not punctuated the work of the convention. But that episode was a painful reminder of how distant the ideal of a common European foreign policy remains. The notion that Britain, Italy, Spain, or Poland will happily acquiesce in a foreign policy likely to reflect the Franco-German entente is difficult to credit.
In the second place, consider the dilemma of the constitution-making process itself. It remains, in essence, a negotiation among nation-states and their governments, with a formal requirement for unanimity that, in theory, places the entire project in jeopardy. The European convention, by itself, satisfied one of the basic American criteria for making a constitution fully constitutional. It met and deliberated as an independent body, with no other responsibilities or obligations, theoretically free to determine what was best for the future polity without considering narrow political loyalties. But the process as it goes forward from this point remains subject to the manipulation of the member governments, and the role of the European peoples in its approval remains uncertain.
Here a contrast with the American experience is most instructive. The starting position for the constitutional reformers of the 1780s was similar to the European case today. Amendment of the Articles of Confederation required the unanimous approval of all 13 state legislatures, and this imposed two insuperable obstacles. One was the requirement for unanimity, which enabled a small state like Rhode Island to thwart a reform desired by all the others. The other was the improbability that the state legislatures would endorse any project that would radically reduce their own authority.
The framers’ solution to this dilemma was both politically expedient and theoretically potent. The unanimity rule of the Articles of Confederation clearly had to go. The rogue state of Rhode Island had refused even to send a delegation to Philadelphia; leaving the entire movement for reform subject to its veto seemed absurd. Abandoning the rule of unanimity made it easier to dispense with the requirement that the new constitution be submitted to the state legislatures for approval. Instead, the convention asked the legislatures only to arrange for the election of ratification conventions, distinct bodies that, it was claimed, would represent the people more directly than their legislatures, grounding the U.S. Constitution on an expression of popular sovereignty. And to make the decision of these bodies completely unambiguous, they were allowed only to vote on the Constitution in its entirety, not article by article or clause by clause. True, they could also recommend amendments. But federalists struggled long and successfully to make sure that the approval of individual states was not made contingent upon the prior adoption of these amendments.
Two great advantages flowed from this process. First, it produced a completely unambiguous decision, bestowing upon the constitution-making process a deep legitimacy that was conceded even by the two states, Rhode Island and North Carolina that initially rejected the Constitution and thereby briefly left the union. Second, the direct appeal to popular sovereignty powerfully affirmed that the Constitution would indeed be "the supreme Law of the Land" in a way that mere approval by Congress and the state legislatures could not.
The entire process took less than two years, from the meeting of the Annapolis Convention in September 1786 to the ratification by New York, the 11th state, in July 1788. A critic could object that the adoption of the first 10 amendments lengthened the process by another three years, but in reality the Bill of Rights (as these amendments came to be known) was more of a denouement than an essential component of the process. All in all, the clarity, economy, and efficiency of this pioneering venture in constitution making remain impressive.
Contrast this, again, with the more diffuse, protracted, negotiated, and public nature of the European deliberations. Allowances must, of course, be made for the greater difficulty of coordinating the interests and concerns of so many independent jurisdictions, representing nearly 500 million people. But other differences are no less salient. The American convention met secretly behind closed doors and remained leak free even after the early departure of a handful of dissident delegates who could have exposed the constitutional coup under way. The European convention has not only enjoyed regular press coverage and a Web site publishing the various drafts and protocols; it has also actively collaborated with a wide variety of nongovernmental organizations, highly mobilized interest groups reflecting a modern pluralism that James Madison, in his most expansive moments, never envisioned. Their inputs are all too well represented in the litany of social rights and nobly vacuous statements of ideals that the proposed constitution endorses. And then there is the ongoing debate as to whether a Europe that is far more secular than the United States and that is uneasily absorbing significant numbers of Muslim immigrants should constitutionally acknowledge its Christian heritage.
Of course, were the United States lucky enough to hold another constitutional convention today — say to eliminate a zany institution like the Electoral College or to redress the injustice of giving an equal number of senators to California and Idaho or to limit justices of the Supreme Court to 12-year terms (sensible reforms all) — its procedures and politics might well be similar. But the deeper difference between the elegant American process of the 1780s and the diffuse European labors of today ultimately rests on the fundamental ambiguity of the nature of the proposed constitution and of contemporary European constitutionalism more generally.
TREATY OR CONSTITUTION?
The Convention on the Future of Europe was conceived both as a means of rationalizing, redacting, and (to some extent) superceding the past treaties that have been the instruments of European integration, and of further defining and refining the "competences" and the institutions of the EU. Though the ambition of promoting a genuine constitution for Europe has a laudable ring to it, the reality still seems far more prosaic. Can a set of institutional arrangements that ultimately depends on negotiations among member states ever form a constitution in the robust sense? Can a constitutional treaty ever become more constitution than treaty?
For what remains most difficult to conjure is the political identity of the new entity that Eurofederalists contemplate creating. Critics charge that this new community’s political vision is indelibly elitist, bureaucratic, and technocratic and that the new Europe being fashioned will never mobilize the patriotic affections of the citizens whose lives it will regulate. There is little in the draft constitution to alter this view.
Perhaps it would be otherwise if the member states could acquire the confidence to submit the final version of the constitution to a general referendum, rather than resort to a potpourri of procedures in which some states will act legislatively while others allow the people to vote. Admittedly, a 1787-style exercise in popular sovereignty presents real problems (even though most European countries have significantly more experience in this regard than the Americans had). Referenda are, in fact, proscribed in Germany, which is to the EU what Virginia was to the early American union. And in Britain it is the Europhobic Tories who clamor for a referendum, confident that a visceral Anglo-nationalism will send the constitution to defeat with the same esprit with which Sun readers roared "Up Yours Delors" at Jacques Delors, the then President of the European Commission.
Nor is Britain the only nation where one can imagine a populist reaction rejecting the federalist vision. In Ireland, a referendum is legally required, but it took the Irish two tries to approve the last major exercise of this kind, the Treaty of Nice, and even then with surprisingly low turnouts both times. In Denmark, where it also took two referenda to ratify the Treaty of Maastricht a decade ago, a popular vote will also be held. For Eurofederalists, there is a cautionary lesson to be found here, one that suggests the discretion of continued intergovernmental negotiations might be preferable to the valor of popular approval. Yet as the German daily Frankfurter Allgemeine Zeitung editorialized last October, "As long as the leading politicians fail to bring Europe closer to its people, Irish and Danish referendums will be almost indispensable."
If there is indeed a lesson for today from the experience of 1787, it is that political ambitions of this magnitude require risk taking. If a genuine constitution of peoples as well as nations is what is desired, as Giscard has promised, a continual series of negotiated treaties will never suffice. Popular interest in the European Parliament remains tepid, as measured either by participation in elections or coverage in the media. The creation of a permanent presidency for the council as well as a foreign minister will doubtless have important implications for policymaking and coordination among the council, commission, and parliament, but the political ramifications of these new positions remain similarly problematic. This is a president for the governments who are linked through the council, not for the peoples they represent.
One could have said something similar about the presidency that the American framers designed at Philadelphia in 1787. By and large, they lacked any coherent conception of its political potentiality. Most of them assumed that the Electoral College system they cobbled together at the last moment would rarely work and that the House of Representatives would typically elect presidents. They had high hopes for the presidency’s first likely occupant, George Washington, but few if any plausible expectations for his successors. Yet as soon as the first contested election for the presidency occurred in 1796, competition to control this one office became the principal mechanism for integrating Americans into a single coordinated polity. The new presidency of the council simply cannot serve the same function — unless, that is, its first incumbents discover some means to give their position genuine political stature within Europe.
Absent that sort of political transformation, European constitutionalism seems destined to develop along decidedly non-American lines, not by constitutional coups de main, but incrementally, as the product of arrangements and accommodations evolving within the complex institutional structure the convention inherited and only ramified. As the Italian political theorist Pasquale Pasquino likes to suggest, the real constitution Europe is developing is closer to a British model, not in form or structure, of course, but as the product of experience, precedent setting, and the development of new habits of doing business. The changes proposed by Giscard’s convention and the revisions to emanate from the intergovernmental conference by next spring will push the process forward, but not in the dramatic and bold way that Madison, Hamilton, and their coadjutors seized the main chance in 1787.
A TRANS-ATLANTIC MIXED BLESSING
Does this difference in character make the European project somehow inferior to its American counterpart, or does it expose yet another fault line in the much-remarked divergence between Europe and the United States?
The underlying differences between the revolutionary condition of the Americans in the 1780s and the situation of contemporary Europe work against any serious effort to answer the first question. American constitutionalism was thoroughly revolutionary in its origins and ambitions: revolutionary in its rejection of British authority in 1776, revolutionary in its willingness to establish republican governments in the individual states, and still self-consciously revolutionary when the framers tried to apply the lessons learned since independence to the problem of national government. European enthusiasm for revolution ended conclusively in 1989, exactly two centuries after its Parisian birth. Moreover, the project of European integration has always been more an exercise in improving coordination than in achieving genuine political integration. The rhetorical appeal of calling this latest step in the process a constitution has only modified, not altered, its essential gradualist character.
Will this difference in constitutional development affect the potential divergence of Europe and the United States? At least one noteworthy feature of Europe’s proposed constitution does favor greater convergence. The European Charter of Fundamental Rights, previously a freestanding document, is now incorporated within the constitutional text. Its inclusion will greatly facilitate its enforcement by European judges, a process already under way. Europeans may still have a hard time grasping the nuances of the American separation of powers, but the one aspect of the American constitutional system they probably understand best is the practice of judicial review. There would be some irony in seeing European judicial power deployed as a force for integration at a moment when the "new federalism" of the Supreme Court is nudging American doctrine in the opposite direction. Even so, the idea of judicial power as a centralizing mechanism is one Americans can readily appreciate.
But in the American case, the judiciary eventually came to play this role because quarrels over the proper meaning and interpretation of the Constitution almost immediately began to accompany every major political dispute and decision the new government faced. For Americans, the flourishing of rival modes and canons of constitutional interpretation simply became (to borrow a dictum from Karl von Clausewitz) the continuation of politics by other means. A full 21 decades after Hamilton and Madison first laid out the cases for and against an expansive interpretation of presidential authority in foreign affairs in their "Pacificus" and "Helvidius" letters of 1793, it is still possible to replay their arguments and see how well each applies to the brave new world we have inhabited these past two years.
Hamilton and Madison could have that argument because the consolidation of national authority over foreign relations had been both a principal inspiration and undisputed outcome of the constitutional deliberations of 1787. No such consolidation is proposed in the European constitution or about to be conceded by the majority of the EU member states. The designation of a new foreign minister may be a glimmer in the eye of a future genuinely European foreign policy, but at this point it is only that, nothing more. Absent any genuine consensus on the possibility of a truly European foreign policy, it is difficult to see how the current constitutionalist project will make any material difference, for good or ill, in the current strained state of European-American relations. Next to the other sources of tension between Europe and the United States — over foreign policy and military interventions, attitudes toward work and leisure, even the appropriate hour when a latte or cappuccino may be taken — the notion that differences in constitutional philosophy will deepen the current estrangement seems far-fetched.