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July 04, 2005

A Tale of Two Documents: the EU Constitution vs. the US Constitution

Posted by Joyce Lee Malcolm

The ratification of the US constitution was completed on 21st June 1788; the proposed EU constitution in all probability will have a rather shorter life. It is looking increasingly unlikely - at least if popular opinion is not ignored - that the proposed EU constitution will ever be ratified. Joyce Lee Malcolm - Professor of History at Bentley College - contrasts the two documents and the processes by which they came into being.

A funny thing happened on the road to a United States of Europe - the dream turned into a nightmare. It seemed a sensible idea: a federation could have great economic advantages for Europeans and would end intra-European wars. But the US of E has been a top-down enterprise from the start, an intellectual's dream and a bureaucrat's heaven. It began with a bureaucracy, not a popular assembly, metamorphosed from a trade agreement into the European Common Market, the European Economic Community, and the European Union, all with little popular input. But the nature of its final form, the intended "more perfect union", has never been clear and is seldom even mentioned, perhaps because it might upset the folks.

The process of ratifying the new EU Constitution, a document its drafters claimed would bring the EU "closer to its citizens", has done that, but not in the way its sponsors claimed, or hoped. The debate over the Constitution has brought the underpinnings of the entire enterprise into view - not a pretty sight - and revealed in the process how little relationship it actually bears to its American model. Not that America is perfect, or its federal balancing act a one-size-fits-all model. The issue of withdrawal from the American union was left unclear and only settled by a horrendous civil war. But some of the differences in approach between the two Foundings are dramatic and, for the European citizen, ominous. Just in the nick of time, the emphatic rejection of the EU Constitution by, of all people, the French, then joined by Dutch voters, provides a rare opportunity to reflect upon these distinctions.

First, some similarities. In both projects sovereign governments are being brought into a larger entity, not dissolved. The drafters of both the American and EU constitutions were an elite group, not your average 18th century Pennsylvanian or 21st century German. But the thirteen American states had the great advantage of being colonies of the same country, sharing British political tradition, common law, a common language and basic culture. The EU has had the far more difficult project of wedding countries with very different cultures and languages and with long histories as sovereign nations. The Americans drafters came from various professions, but all had practical experience of self-government. They admired the British constitution and carefully studied a variety of other possibilities with an eye to what would work best for a united, but federal, American republic.

Both sets of founders were cautious about giving the masses too much power. But where the Americans balanced popular election to the lower house with state-elected senators, the EU's creators have, as far as possible, shut out democratic oversight. Both groups were also quick to brand opponents of their enterprise with negative labels. Sufficiently nasty ones can silence dissent. American "federalists" dubbed doubters "anti-federalists", an epithet by which they are still known. The EU's champions have developed a larger verbal arsenal. Anyone who questions any aspect of the EU project or Constitution is derided as a Euro-skeptic, a xenophobe, racist or national egotist, all very unpleasant.

The documents the two groups produced could not be more different. The American Constitution succinctly lays out the structure of the proposed government and the specific powers of each branch. It consists of seven articles. My copy is a small pamphlet, 3 by 6 inches, of sixteen pages. Many Americans carry their copies around in their pockets. By contrast, the EU Constitution consists of some 448 articles that fill 485 pages and has been called more a novel than a constitution. It's not much of a novel, though, as it is widely acknowledged to be unreadable, and is largely unread.

This key difference in size and clarity goes to the heart of the enterprise. The American drafters assigned their new government only those tasks for which a central government was essential. They were jealous of their individual liberties and of the powers of their states, and reluctant to cede expansive authority to a central government. Anything not specifically granted to the federal government belonged to the people and to the individual states. The EU Constitution works in the opposite way, anything not explicitly the people's or their government's belongs to Brussels. True, the EU Constitution claims to protect national sovereignty by "subsidiarity" - translation, decisions are always to be taken at the lowest level "compatible with the project of Union". The level appropriate and compatible to "the project of Union", however, is to be decided by the EU government itself and its Court of Justice. The EU can impose its will until a country objects. It is unclear what standard of proof is to be used in determining "subsidiarity" but, as Roger Scruton points out in National Review, the EU Court of Justice, authorized to decide "subsidiarity", is specifically committed to "ever closer union". The list of powers already transferred under the Court's jurisdiction from member states to the European bureaucracy fills 97,000 pages.

This difference of focus is crucial for the balance of power between the people, preservation of the democracies they have created, and the entity that seeks to govern all aspects of their lives. Jean Monnet's dream of a US of E, now nearly complete, comprises 455 million Europeans from 25 countries destined to be bound by a single government with a single parliament. It has little democracy or accountability. Instead Brussels consists of a vast, very expensive bureaucracy characterized by a zeal for regulating all things European - animal, vegetable and mineral - and with a mania for homogenizing. One of their first intrusions into British life was to forbid the growing of several popular varieties of potato. More recently the EU has granted its protection to all birds. Thus a British farmer wanting to shoot birds attacking his crop must first shout to scare them away. Only if they return is he permitted to fire. Since European law trumps national law, any EU regulation, no matter how silly or obnoxious must, like Rumpole's wife, be obeyed.

While the American constitution was to take effect after nine states had ratified it, the EU Constitution has to be unanimously endorsed. There is little doubt that the United States of Europe, as laid out in the EU Constitution, would have received such blanket approval had not the leaders of a few countries been foolhardy enough to permit their citizens to vote. But its overwhelming rejection by the French and Dutch may not stop it - what is there about "unanimous" that they don't understand? On those rare occasions in the past when EU leaders have bothered to poll the electorate, they have refused to take "NO" for an answer - a strange idea of democracy. As the Irish and Danes discovered in the past, the misguided people must continue to vote until they come up with the right response. Further, in an amazing act of arrogance and disrespect, the EU parliament has already passed several bills that cite the new constitution as the source of their authority.

There is another way EU leaders can get around the risky and embarrassing tactic of insisting countries that reject the Constitution vote again, or, heaven forefend, actually agree to reconsider and redraft the constitution. The super-state's promoters may decide to enact key provisions buried within the Constitution's 485 unreadable pages unilaterally, a sort of transplant of the corpse's key organs. They insist they don't really need the approval of the people to do that.

Had the EU drafters had what Thomas Jefferson referred to as "a decent respect to the opinions of mankind", or possessed the Americans' fear of unchecked government, they might have gotten the answer they wanted the first time. But then the super-government that has morphed from Monnet's dream never had much in common with the United States of America except two words, "united states".

Joyce Lee Malcolm is Professor of History at Bentley College and author of Guns and Violence: The English Experience.

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