euconst

Issue #44

Last Update March 2, 2006

International The EU Constitution by David Katz June 6, 2005 Last week the French and the Dutch rejected the proposed European Union constitution, and then British have postponed a referendum for fear that they, too, will reject the constitution. What is in the proposed constitution? What purpose will it serve? Why was it rejected by two nations that have been at the forefront of establishing a European Union? We will deal with these issues in a series of articles. In the present article, we will give an overview of the constitution and discuss its purpose, with some comparisons to our own history of the Articles of Confederation and the US Constitution. In the next article, we will discuss some key details of the proposed EU document. Finally, in a third article we will discuss some reasons for its rejection, and give some alternatives for Europe's next step.

The European Union is the gradual development of a post WWII trade treaty linking West Germany, France, Italy, The Netherlands, Luxembourg and Belgium into a common coal and steel union, the intent of which was to speed the economic reconstruction of war-devastated Europe and link Germany so tightly to her neighbors that a third German world war would be unthinkable. A more general economic community developed from this. The concept of Europe grew slowly; each European country, with its own long history, its own language, and its own foreign policy and military establishment, jealously guarded its sovereignty. The European free-trade zone grew as countries found it advantageous to participate. Britain and Scandinavia, with much reluctance and debate, were among the last of the core Western European countries to join.

Eventually, free trade was accompanied by a common currency, the Euro (which the UK still does not participate in), and free passage of citizens between the EU countries. A complex series of trade, economic and political treaties provided the structure under which each nation gave up a piece of its sovereignty, and a European Parliament and executive bureaucracy were established perform treaty tasks. Europe, however, is still not a nation; it is a confederation of consenting states, more tightly bound together than the states of the United Nations, but far more loosely bound than the states of the US.

The proposed constitution is an attempt to rationalize and simplify the maze of treaties that currently underpin the EU. In some respects, it resembles more our Articles of Confederation, which preserved the sovereignty of the individual states, than it does our Constitution, which retains limited state sovereignty under an overarching federal sovereignty. The states of Europe are not yet ready to give up their autonomy.

The US Constitution has a one paragraph preamble, “We, the People of the United States, in Order to form a more perfect union ... “ . The EU constitution has a page and a half preface, and a one page preamble which starts with a quote from Thucydides. The preface states that the constitutional convention was asked to draw up proposals on three subjects: how to bring citizens closer to the European design and European Institutions; how to organize politics and the European political area in an enlarged Union; and how to develop the Union into a stabilizing factor and a model in the new world order. This charge led to the drawing up of a constitution to replace the various treaties on which the EU now rests. The preamble contains only one phrase worth noting: “united in its diversity”. On a larger scale, of course (and to a much greater extent than in the early days of the US), Europe is facing the problem of welding tribes into a nation that was the great project of the classical world, the late nineteenth century, and today in the Balkans, the Middle East, much of Africa and in Northern Ireland.

In 263 pages, the EU draft constitution defines in detail the purposes and mechanics of the European Union. By contrast, the US Constitution, in under fifteen pages (including amendments), establishes the framework of the federal government (executive, judicial and legislative branches), the qualifications for citizenship and office holding, the limitations on the powers of the states, and the limitations on the powers of the executive branch, and has space left over to discuss bankruptcy, compromises over slavery, small vs large states, admission of new states, and federal assumption of state debts.

The draft constitution is divided into three parts. Part I defines the definition and objectives of the Union, describes fundamental rights and citizenship, defines Union competencies (powers vis a vis the member states), describes the Union's institutions, provides for enhanced cooperation between individual states, defines the Union's financial structure, and provides for the admission of new members and withdrawal of existing members. Part II is the charter of fundamental rights of the Union, a description in 54 articles of the rights guaranteed to individuals by the constitution. Unlike our constitution, which defines citizen rights in broad terms, the EU draft drills down to the level of consumer protection. Part III, accounting for about 75% of the length of the entire document, covers the policies and functioning of the Union; that is, a detailed description of the economic and social functioning of the EU, specifications of composition and procedure for the various EU governmental bodies, protection of the environment, space research, consumer protection, energy, security and police powers, border control and immigration, foreign policy, and dozens of other areas.

Without even getting into substantive issues, as a constitution this document is doomed to fail. The length, specificity and scope of the draft constitution is such that it will require frequent amendment to keep up with changing conditions. The US Constitution, restricting itself for the most part to principles, is far more flexible. Laws are easier to update than constitutions, or should be. The proper place for much of the content of the EU draft is in enabling legislation.

The length and complexity of the document led, in no small part, to its rejection by the French and Dutch. In the next article in this series, we will examine the content of the EU draft, and how this content departs from the content of the various treaties now in force.