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June 20, 2008

Democracy's Inconvenient Truth: Joyce Lee Malcolm offers an American Perspective on the Irish "No"

Posted by Joyce Lee Malcolm

Joyce Lee Malcolm - Professor of Legal History at George Mason University - contrasts the democratic and open process leading to the ratification of the US constitution to how a European constitution is being imposed by stealth.

In the words of baseball guru, Yogi Berra, the Irish rejection of the Lisbon Treaty this month was "Deja vue all over again". When its predecessor, the EU Constitution, was submitted for ratification in 2005, the French and Dutch had voted "non". Europe's leaders had been so confident of success in 2005 that there was NO PLAN B, only shock and dismay. The benighted plebs had no sense of their best interests.

True, the 485-page document defied the efforts of the best legal minds to decipher. Later Jacques Chirac confessed that his big mistake had been sending a copy of the document to every French household. The constitution meant to improve transparency and democracy had to be taken on trust.

Ratification required unanimity, those were the rules, but after two nations rejected it there were calls to change the rules. Didn't good sense and democracy mean that ratification should continue? Unanimity having been thwarted again this month, that same notion has been vetted but seems a non-starter. The people resent changing the rules in the middle of the game.

Back in 2005, as the anger over the No votes began to subside, came the ideas, the plan Bs, because whether the people liked it or not, closer union had to continue, the ever more powerful super-state had to be created. There never seemed to be a serious idea of abandoning the project and merely making a more modest economic arrangement more serviceable.

One plan, openly suggested, was that the bones of the rejected Constitution be approved bit by bit in some discrete or clandestine way. Oddly the leadership never seems bothered at the thought "the people" might be listening in and feel offended. The people would get the new arrangement, like it or not.

More attractive than piece-meal implementation, however, was the idea of re-packaging, of re-branding, a new, improved version. This time they wouldn't make the mistake of labeling the product a constitution. A constitution required, or implied, a popular referendum in many countries. Calling it a treaty meant that national parliaments, not a nation's people, would be responsible for ratification. And parliaments, under the thumbs of various national executives, could be trusted to vote "yes". Thus a slimmed-down version of the rejected constitution became the Lisbon Treaty. Angela Merkel, basking in her turn as EU president, admitted the documents were basically identical.

Ironically, although the "treaty", like the constitution it followed, was supposed to make the EU more democratic there was no intention of letting the people decide the question. Merkel claimed the people's concerns had been dealt with. Apparently there was no longer mention of a special flag or anthem. The people worry about symbols.

Even so both she and Nicholas Sarkozy frankly conceded that if their people were given the chance to vote on the new document they would reject it. Gordon Brown, whose Labour Party won re-election on the promise to submit an EU reform document to the British people, reneged and in March, under his direction, parliament suppressed the proposal to hold a referendum. You can't be too careful.

Of course there were claims, probably correct, the people would not understand even the pared-down document. The Irish commissioner for the EU internal market, Charlie McCreevy, had heard that the treaty referred

to subparagraphs of former sub-paragraphs and other documents
- apparently he hadn't read it himself - but he was convinced
there is no person this side of Timbuktu who would be in a position to understand it.
Anyhow the people didn't need to understand it. As a BBC radio commentator assured listeners last summer, people are interested in their pay packets and their benefits, not in the "rules and regulations".

As ill luck would have it though, the Irish constitution requires a popular referendum on a treaty. So the only people in Europe to have the chance to vote on the Lisbon Treaty were the Irish. Although Ireland was among the greatest beneficiaries of EU largesse, the Irish understood enough to know they did not want to lose the sovereignty their nation had struggled so long to achieve, or traditional Irish neutrality, or to sign on to a revised super-state whose scope they did not understand except that with it their small country could be outvoted.

So 860,000 Irish "no" voters simply said "stop", and for the moment saved half a billion Europeans from a unification they did not want.

What to make of it all? Aside from the astonishing hubris of European leaders, one wonders why they are so keen to trade away their nations' sovereign rights and their own legislative powers to a vast bureaucracy. The only explanation that comes to mind is that in exchange for the powers belonging to their nation's government, they would be moving from a national stage to an exhilarating continental one. They could impose their pet ideas not on mere millions, but on hundreds of millions.

Sarkozy, who hoped to devote his turn as president to such pet projects as a Mediterranean union, is quite insistent that what he terms "this Irish incident" not cause a crisis that upsets his plans. The Irish government is being pressured to come up with some scheme that can allow the juggernaut to keep rolling.

The ratification of the American Constitution and the shift from a confederation to a union was certainly not smooth. The Constitution, however, was understandable and transparent. It balanced the interests of large and small states with a popularly elected House of Representatives based on population and equal state representation in the Senate. It was not the state legislatures that ratified the Constitution, but especially elected state conventions. Their debates were open, the issues discussed in newspapers throughout the country.

When nine of the thirteen states had ratified it, the Constitution was to take effect. Nine had approved the document while the key states of New York and Virginia were still considering their decision. Promises of amendments including a bill of rights helped tip the balance in favor of the document. Still North Carolina only joined the union after a bill of rights had been added by the first Congress, and little Rhode Island only joined when threatened that it would be treated as a foreign nation. Not a pretty process, but transparent and democratic.

The American Constitution is the world's shortest, outlining powers of each branch of government and leaving much to be worked out as the government began operation. Whatever its flaws, the people can read and understand it and much authority is left to the individual states. It has stood the test of time. Americans felt they needed a central government to protect the individual states from foreign threats and internal bickering, as well as to carry out functions each state could not realistically manage alone.

The European people, however, really do not want a powerful EU government, nor do they need one. They can protect themselves and have peaceful relations with each other. Let us hope that European leaders will stop this quest for a super government, that their people will not see "deja vu all over again", and that, in the words of Abraham Lincoln,

government of the people, for the people, and by the people will not vanish
from the European continent.

Joyce Lee Malcolm is Professor of Legal History at George Mason University, School of Law, in Fairfax, Virginia. She specializes in legal and constitutional history, and is the author of six books - including Guns and Violence: The English Experience - with a seventh now in press. Her work on the right to be armed has been cited in court opinions including the US Supreme Court.

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