The first senate of the German Constitutional Court (Bundesverfassungsgericht) in Karlsruhe (Baden-Württemberg), 2015. Uli Deck/Press Assocation. All rights reserved.One of the goals in DiEM25’s Progressive Agenda for Europe is to initiate a
constituent process – to imagine a democratic pan-European constitution and the
process that may lead to it. We’re already making good progress in this long
enterprise, with the conversation well under way amongst members across Europe. In this two-part series, London DSC member Sam Hufton shares his thoughts
on such a constituent process as a contribution to our conversation. Sam looks
first at why Europe’s existing treaties are failing its citizens… and then at
how the European idea can be saved. Here’s part 1.
The problem with founding a constitutional order on the
basis of treaties has been amply discussed by observers of the European
construct for decades, and from the crucial decade of the 1990s in particular.
Chief among these concerns is that in reality, treaties are international law.
Treaties are drafted by ministers of state and diplomats and not by the people
to which they will apply; it is the states rather than their citizens, who are
the ‘High Contracting Parties’.
The result of this is the fact that in our political
discourse and in law they do not carry the same weight as a real constitution.
In European politics, the treaties are not referred to as the authority
defining or guaranteeing our rights and duties to one another, nor as an example
of our common involvement in and control over the Union – because they are not.
They are creatures of intergovernmental conferences, not citizens’ politics.
Related to this is that the treaties lack the democratic
legitimacy of constitutional law. By making the member-states the ‘Masters of
the Treaties’, the people are explicitly cut out from the pouvoir constituant, having only an
indirect influence over the treaties’ content. In theoretical terms, we can say
that the treaties effectively fulfil the material
role of a constitution, as defined by Fossum and Menéndez[1], but not the formal or normative roles. Specifically, the Union does not have a normative
constitution understood as a democratic constitution; the Union and its
founding documents do not fulfil or attempt to fulfil the highest standards of
democratic legitimacy. Instead, there are a series of legal norms and practices
to which reference is made as fundamental in the integration of the
political community. These are not formally
recognised as a constitution; they nevertheless act in the functional, material sense as a constitution, in
that they govern the functioning of the Union.
One of the most common assumptions about constitutions is
that they are intrinsically linked to states. This could be taken as one reason
why the founders of the Union chose to use treaties between states rather than
any document written by citizens or democratic representatives of citizens.
Even those proposals by such representatives (drafts from 1953, 1984 and 2004)
were all proposed as treaties. While on the one hand it doesn’t seem necessary
to tie a constitution intrinsically to a state, the link is important, in that
a state is a powerful tool of democracy. More importantly, the Community
exercises the sovereign power of a state; as Grimm argues[2], rather than the state
which exercises it, it is sovereign power itself which requires legalisation
and legitimisation by a constitution.
In legalising and providing rules governing the Union, the
treaties fulfil their role sufficiently. However, they are insufficient as a
source of legitimisation for sovereign power, as 1) they are not formally recognised as such (providing
legality but not legitimacy), and 2) they are not informed by the norms of our society, particularly
democracy, to the extent that they should be (the law has not been established
democratically). Democratic legitimacy requires a political community to
reconcile its material and formal constitutions so that the latter reflects the
former (and continues to do so) – so that the real rules and norms of political
life are given formal status in a
document. The democratic establishment of law is achieved when there is a
‘master document’[3]
of which the citizens are authors; authors who determine those rules and norms.
A constitution provides legitimacy for the exercise of
sovereign power through its democratic legalisation;
it is distinct from treaties in that it is formal and informed by the norm of
democracy. The key to the legalisation of sovereign power by means of a
constitution is that it is citizens who deliberately and actively author the
document, rather than their governments, placing the democratic process at the
foundation of the governing order. In short, ‘The legitimation of rule by those
subject to it’[4];
something treaties are explicitly unable to achieve.
The basis of the argument is the existence of a
constitutional legal order in Europe without any underlying constitutionalism[5] – a ‘constitutional
culture’[6], which stems from the normative
constitution. Effectively, the reason for the existence of the European legal
order, the basis of the decision to construct one and the process towards that
decision, do not exist. There are several elements on which to base a European
constitutional order: democracy would be one; transnationalism, another. Treaties
are unable to provide the necessary basis for a constitutional culture; they do
not recognise citizens as free and equal – the basis of democratic society –
but states, which control the drafting of the treaty. The states drafting the
treaty is the equivalent of the rulers drafting the constitution, rather than
the ruled. Those citizens have not collectively agreed to a process of mutual
justification of political action, cooperation in government and the exercise
of power. The treaties do not recognise the citizens as the constituent power,
and hence, are not and cannot be informed by them and their discussions.
To clarify; we are bound by a material constitution (represented by the treaties), which governs
the rules and norms of European public life and to some extent national public
life. Europeans are subjects of community law as is the case in no other
international legal regime, where, as Weiler points out, even the
participating states and governments rarely act like subjects of the law. However,
this constitution has no status or underlying ethos: the ideals and norms
within it firstly do not adequately reflect those ideals and norms within our
national constitutional structures, they are not the product of a democratic
discourse – hence, democracy is not among them – and they have lastly not been
enthroned as the Constitution of Europe. In effect, European citizens are
subject to law, the basis of which, they did not authorise or discuss. The
result is the absence of legitimacy necessary to underpin such an order.
A Europe of treaties has allowed the creation of an entity
which none of we citizens recognise as ours. It is characterised by
market-fundamentalism, austerity, authoritarian memoranda of understanding,
callous refugee deals with Turkey; a complete absence of solidarity. This is
Hayek’s Europe of no democratic control and unfettered markets, where all
decisions are made beyond the sight and control of citizens, and our
enslavement to our economic conditions becomes an immutable fact of life. The undemocratic
vision of a soulless ‘interstate
federation’[7]
has been established over the heads of citizens and their democratic politics and
there is no one there to be held accountable for it.
Treaties take place
outside of democratic politics; they are divorced from it, just as prescribed
by the interstate federation. The justifications have been peace and economic
prosperity; laudable goals yes, but not when used to distract in a
bread-and-circus fashion from the absence of democratic self-government. A Europe of treaties.. is characterised by market-fundamentalism, austerity, authoritarian memoranda of understanding, callous refugee deals with Turkey; a complete absence of solidarity.
There has been some desperate rearguard action in this
regard in an attempt to defend the existing construct without conceding the
crucial battle that would suggest its defeat. The judgements of the German Bundesverfassungsgericht on the Maastricht
and Lisbon Treaties have tried to describe the Union as an international order
precisely because of the absence of the democratic process in the drafting of
the treaties, and with it, the absence of the democratic norm within them. The
argument that there is no European dêmos,
and with that, that there can be no European democracy, is supposed to lead us to the
conclusion that there can be no constitution and thus the Union is an
international construct. The result is that our normal democratic standards
need not apply. Some of the Union’s top lawyers have adopted, whilst not the
entirety of the Court’s argument, the idea that the democratic standards we
hold as fundamental, do not have to apply to the Union, and hence we should
‘try and continue to imagine new and specific democratic controls over the EU’s
actions’[8]. I think ‘new and specific’
here can clearly be understood as ‘weaker’.
Another result intended by the
Court is that the Union reins in the constitutional construct and with it
integration, so that the cracks in the edifice they are desperately trying to
cover up do not become too large to ignore. However, this has not happened.
Other forces have been allowed to run far ahead of what constitutional courts
can control; the aforementioned interstate federation is now progressively
infiltrating all aspects of the Union. Comitology and the surrounding
‘infranational’ process takes place outside of democratic controls and has not
been addressed after successive treaty-revisions.
The treaties are not the source
of these problems however; they are the enabling apparatus. They give a platform
for politics to take place above citizen-led democratic politics and they
justify the lack of democratic control over the processes and institutions of
the union. They have created a Europe which rules through the abrogation and
nullification of democracy.
In DiEM25, we are committed to l’idée européenne,
and the European ideal. The idea of a
united continent where nations once divided by war and borders now coexist
within and cooperate on the direction and purpose of a common political
community. The ideal of a political
community that is democratic; that is peaceful; that is post-national and
post-imperial; that truly embodies the universalist values developed in the
Enlightenment which spurred our ancestors on to the overthrow of Europe’s ancien régime. One which at the
same time preserves, recognises and appreciates the intense levels of diversity
and difference which makes Europe distinct from other parts of the globe; where
that diversity of culture and opinion is taken as a value in itself to be
protected. One which reconciles ‘Eros and Civilisation’[9].
And yet no international regime has the power or
can have the power over citizens that the European Union has. Europe is
currently an international regime without a mandate and, with that in mind, the
legal order that exists must be constitutionalised,
through democracy and a formal and normative document which is our constitution.
Ideological mantras cannot be allowed to govern this continent without
contestation. The democratic norms which serve as the foundation of our society
must be brought into the European constitutional order, through a real
constitution as the very bedrock of democratic government. Treaties cannot fulfil this role, the crucial
role of the social contract. Treaties are contracts between often unequal
powers; a constitution is a contract between equal citizens in the formation of
their common government – that is, a common desire to rule themselves.
The principle at the heart of the Democracy in Europe
Movement is that the European Union needs democracy as one of its fundamental
norms in order to survive and be legitimate. Its material and formal
constitution must be informed by this normative idea. For this purpose, the
treaties are no good. To say that Europe’s citizens are the authors of the
treaties because they can veto the result is dishonest; they can neither
specify which parts of the Treaties they dislike nor amend them themselves.
Instead governments have to interpret their intentions, and without having been
given a mandate to do so. It would be foolish to argue governments in Europe
are elected on the basis of their stance and negotiating strategy towards the
Union. The treaties and the process which creates them therefore must be
replaced by something which does symbolise democracy, through existence and
process; which is directly informed by it. This is the purpose of a
constitution: to overturn this treaty-based international order which has been
forced upon us and yet justified by ends we do sympathise with.
Problems of
the Treaty establishing a Constitution for Europe
In essence, the problems of the so-called ‘Constitutional
Treaty’ are all the problems of the treaties, however made worse by the
deception inherent in the spurious use of the term ‘constitution’. Given the
chosen process and stated intent of the European Heads of State and Government
who called for the treaty, it seems clear that the word ‘constitution’ to give
definition to this document is plainly wrong.
The combining of the use of the
terms ‘Minister’ and ‘laws’ in reference to European legislation (rather than
Directive or Regulation), alongside historical imagery of constitutionalism
(the ‘Convention’ and Philadelphia) ramps up the extent of the confusion to severe
levels, given that transformation from essentially a confederation with a
centralised bureaucracy to a real federal union was never even entertained
among the objectives of the treaty. Jean-Claude Piris explains this baffling
use of terms as a concession to the federalists in the Convention and among the
national governments, who wanted the treaty to go further than a mere polishing
up of the treaties. He concedes that the use of ‘constitution’ for a document
that is plainly not a constitution in the historical normative sense, is
confusing and undermined public understanding and acceptance of the document.
However, this still doesn’t fully explain the use of ‘constitution’.
When looking at the Laeken Declaration, the document calling
for a ‘Convention on the Future of Europe’ and a revision of the treaties, it
becomes clear that the misuse of the term constitution by the European
political classes surfaces from the very beginning, as well as more general
misunderstandings of the role, purpose and expectations of the edifice that
they had constructed. The Declaration begins with a lot of self-congratulation,
talking of the Union’s democratic legitimacy, fair distribution of economic
development and general success in maintaining stable peace internally. The
first is, as we’ve discussed, plainly false and the second leaves much to be
desired. However, it is following from this, that the general divorced
perspective of the authors of the Declaration becomes clear. Despite the open
talk of democracy, it never arises that the Union itself should actually answer
to the citizens. There are lots of changes to the institutions mentioned, but
none of them really involves placing the institutions at the service of the
citizens, in the name of whom they were supposedly established.
Two problems arise from this. The first is that Europe’s
political leadership assume that the Union is supposed to satisfy its citizens
as a business satisfies its customers; it should divine their needs and wants
and use its expertise to provide for them as best as it can, seeking token
approval and ratification every so often as a marker as to whether it is doing
a good job or not. This is what van Middelaar has termed the ‘Roman Strategy’
of gaining legitimacy; that is, the strategy used by the Roman Empire after it
abandoned its republican heritage.
Instead, it focused on providing goods,
social and public or otherwise, to its ‘citizens’, as a replacement for any
common identity or democratic government[10]. Citizens have called for
strategies, they want solutions; they have wants and politicians satisfy them
like a marketplace – effectively the liberal-individualist theory of democracy
advanced by Schumpeter[11]. In other words, the
official fin-de-siècle, ‘bread-and-circus’
version of politics, desperately trying to satisfy a deeply unsatisfied and
disempowered citizenry[12]. This is the language in
which the Declaration’s framing of democracy is delivered.
The second issue is
that Europe’s politicians cannot conceive of a democracy that is transnational.
In their statements that the Union’s institutions must improve without actually
fulfilling the democratic purpose of answering and being directed by the
citizens, I see the assumption that democracy can only work with an
ethnically-homogeneous national dêmos. This is the interpretation
of the Bundesverfassungsgericht in
Karlsruhe and is the lesson learnt from the disintegration of Yugoslavia. The
idea that a dêmos can be forged through the use of democratic institutions and
conduct of the democratic process alone, underpinned by citizens with a
respect for real democracy, is alien to them.
This is not the only absence of developed understanding,
leading us to the question of ‘constitution’. The political classes had a
square supposedly to circle; how to bring citizens closer to the Union, without
empowering them through creating a real, Europe-wide democracy through a
constitution and – supposedly – there founding a “European super-state” which
would “inveigle” its way into “every nook and cranny of life.”
In using the
term constitution, therefore, the European elite meant it only in the material,
functional sense; how do we codify clearly the procedures and practices of the
Union? We might also think they intended to make this a formal arrangement,
however, the fact that this is still a ‘Constitutional Treaty’ undermines this; we are still talking in international law.
Crucially however, in the absence of a reconciled formal and material
constitution without a democratic, deliberative process, we are lacking the normative element which makes a
constitution legitimate and gives it its legitimising
power as the foundation of a sovereign government. Hence, we must also
conclude that the convention itself was misnamed, it being a mere advisory
rather than decision-making body as in the US, 1787.
The aforementioned Piris, legal advisor to the Convention
and subsequent Intergovernmental Council, has put forward a comprehensive
defence of the treaty and its nature. It rests on a few major elements: that
the constitution was not intended to transform the Union into anything notably
different from what it is; that a simple constitution is impossible due to the
Union’s nature; and finally, a certain understanding of democracy that enables
the Union to in large part escape criticism – one that I would thus criticise
as unrecognisable to any true democrat.
On the first point, Piris argues that
the real purpose of this exercise, rather than transformation, was
rationalisation; that is, rationalisation of the legal morass that is the
treaties. To that end, the constitution effectively cuts the 2800 pages of
legal language down to around 200 pages in a single document, not including
protocols and declarations annexed to the treaty. Theoretically, there would be
just one constitutional treaty rather than 17; in addition, the ‘pillar-system’
would be abolished, a single legal personality would replace the previous 3 and
the 15 legal instruments used by the Union would be reduced to 6. Given this,
Piris concedes it may have been confusing to citizens who saw this as a
constitution when in reality it changed little of substance in the document. He
writes himself "no fundamental changes are made to the substantive content
of the present text of the treaties". Instead we talk of restructuring,
simplifying and streamlining; an exercise in legal precision and intricacy. If
we look at the Laeken Declaration, this can certainly be discerned, even as the
attempt is made to give a sense of momentousness to the event.
Nevertheless,
the glossing over of the false use of ‘constitution’ is unsatisfactory. This is
not merely an unfortunate word choice, the one moment when the sophistication
and precision slipped, but a deliberate choice to cannibalise a concept which
had no place in the process conducted after Laeken. This is worsened by the
fact that the attempt to reduce the complexity to comprehensible levels fails
to materialise. Piris asserts that a ‘pocket constitution’ like the US or even German
constitutions would have been impossible. This he puts down to the unique
nature of the European Union as a complex instrument of ‘multi-layered
government’ – though certainly not a
federation.
In fact, if the EU were a straightforward federation it could
follow the more well-known and better understood precedents of federal
government. Instead, Piris is adamant, the EU is totally unique – sui generis –
and so it requires a much longer constitutional text, so that the governments
can precisely control what the Union institutions can and cannot do.
That this assertion does not hold up, and what’s more is
damaging to the Union as a whole, ties in with the specific concept of
democracy used by Piris and others to absolve Europe of its worst
democracy-deficient offences. His understanding rests on the idea that our
commonly developed democratic standards, stated in a common European document,
the ‘Copenhagen Criteria’, apply to states rather than all governing entities,
and hence cannot be applied to the Union[13]. Added to this, is the
idea that sovereignty, the ability of a government to exercise control over any
aspect of public life, according to the rules laid down in the constitution,
should be abandoned[14]. Finally, we have the embrace
of the Roman-esque, bread-and-circus politics, assumed as necessary on the
implicit assumption that real democracy as understood at the state-level
requires an ethnically homogeneous dêmos.
To return to the matter of control of the Union, it is
well-documented that the condition of the Union’s control of the boundaries of
its competences – enumeration – is notoriously weak. Taking from Weiler[15], the Court of Justice,
responding to and urging on the political developments in the Council coming to
a head in the 1966 Luxembourg Compromise, has effectively not policed the
boundaries of the enumeration of powers between the Union and the member-states
since the 1970s, so that almost any competence of national governments is
effectively within the scope of Union-reach. This is legally enabled by the
so-called ‘flexibility clause’, retained by the constitutional treaty, and
built on with the so-called ‘shared competences’, which the Union and the
member-states share until the point one legislates in a certain policy-area,
after which the other side may not legislate in. The flexibility clause itself
states that the Council may decide to legislate in areas not explicitly
conferred upon the Union in the interest of ‘attaining the objectives of the
Constitution’.
In the 1970s, the European Court was given the opportunity to
better define and perhaps limit this clause of the treaty; it declined, and
since, control of the Union’s competences has been in the hands of the national
ministers in the Council alone. At the base of this, and of the whole treaty’s take on the Union’s democratic problems, is the idea that a ‘people’s Europe’ should benefit the citizens. Not that it should answer to the people as its citizens, or serve them, or exercise their will.
This links with the understanding of democracy adopted by
Piris and the majority of the Union’s functionaries in several ways. At the
base of this, and of the whole treaty’s take on the Union’s democratic
problems, is the idea that a ‘people’s Europe’ should benefit the citizens. Not that it should answer to the people as
its citizens, or serve them, or exercise their will as determined in democratic
debate, public opinion and elections, among other channels, but that it should
benefit them. With this in mind, all that matters in the ‘Europe-will-be-judged-by-the-results-it-delivers’
approach, is the efficiency with which the Union delivers results and can
demonstrate them. The language of ideas and principles is gone, particularly those
of democratic government, which include the separation of powers, the enumeration
of powers in a clear, codified federal settlement, and the control of governing
institutions by citizens who form a dêmos and intend to govern themselves.
According to Piris, it was too difficult to draw up a
comprehensive demarcation of competences and instead the exclusive, shared and
supporting categories will have to do, throwing the federal idea of an agreed
and fixed settlement of power established at different levels, rather than one
level (the national) granting and conferring powers as it sees fit, out of the
window. This is the language of devolution, where powers are granted by central
authority to peripheral institutions so long as this serves the interest of the
central authority. Conversely, powers are being devolved up to a central
bureaucracy rather than down as they are in Britain.
The effect on democracy is
the same however; citizens do not have real control over the demarcation of
powers as in a federation. They cannot rely on power to remain fixed in certain
places unless a major effort is made to change the settlement. Power is granted
by a single entity, where power resides exclusively, to other areas, without
concern for democracy, or subsidiarity, or self-government; but with concern
alone for the ability of that single entity – in our case the national
governments – to shape the rules of the whole affair to their favour. Thus, the
Union is still stuck in its cartel-like administrative origins[16], thinking sectorally and
in terms of management and appeasement, rather than openness to citizens and
control of power; where not democratic legitimacy but pure efficiency is the
sole priority of government; the function of government stripped of its
normative content. Thus, the Union is still stuck in its cartel-like administrative origins, thinking sectorally and in terms of management and appeasement, rather than openness to citizens..
The assumption is made that member-states becoming part of a
wider federal entity would necessarily entail a weakening of their national
identities and cultures; that a constitutional European federation would amount
to “attempting artificially to build an improbable ‘super-nation-state’”[17]. This is based on the
idea that true a sovereign democracy requires an ethno-culturally homogeneous dêmos in order to function
properly, and so if the EU were to become a federal state, it would have to
homogenise the member-states in some way.
This, I believe, is not a truth that
Europe must accept. A citizenry that transcends nationality, a dêmos without éthnos, that is truly transnational, is in
fact possible. Accepting otherwise, that for democracy to work it must be
national and ethnically homogeneous, is both closed-minded and unimaginative,
failing to meet our ancestors in envisioning new forms of government, and failing
to rise to the occasion of the challenges of our modern world. Ethnic
homogeneity is neither something to be desired, nor to be expected in the
coming years and decades. A democracy must be capable of going beyond it, that crosses borders in the spirit of transnationalism rather than inter(between)nationalism.
The result is that sufficient control is supposed to be
exercised through national ministers in the Council, national parliaments and
regional bodies in the Committee of the Regions. On the first, the idea that
national ministers are capable of exercising democratic control, effectively over
themselves, is ridiculous. Ministers
sit in the Council of the EU, a legislative body, as well as their national
ministries. In their ministries, they answer to their Heads of State &
Government, who sit in the European Council, an executive body, which
determines the general direction of the Union. Hence, they both write policy
and scrutinise it; executive and legislative power combined, all supported by a
single, integrated bureaucracy. Headed by the European Commission but primarily
manned by national civil services under the control of national ministers, this
machine is totally under the control of a small group of people able to pull
all the necessary levers to command an entire continent; something totally
impossible at the national level, with all its transparency and parliamentary
control. Hence, they both write policy and scrutinise it; executive and legislative power combined, all supported by a single, integrated bureaucracy.
Added to this is the comitology procedure; Piris explains it as
effectively the legislation passed by the Council but implemented entirely by
the Commission, with the potential for amendment by the Commission[18]. Control over this
procedure is given to informal committees nominated by the member-state
governments; ‘representatives’ who are mid-level national and EU bureaucrats,
and an array of ‘private bodies’ – the vast majority corporate lobbyists – with
special access to the institutions, neither at the national nor supranational
but ‘infranational’ level[19].
With such weak political
mobilisation at the European level, corporate interests have mobilised instead
with great ease and to great effect[20], a direct result of
cartelism. To think that national parliaments can make up the difference in
this enormous chasm of accountability and legitimacy is ludicrous. With no
guidelines on how to judge ‘subsidiarity’, no specific legal support or
resources for the task and very little time to review the entire EU legislative
programme in addition to their national workloads, it seems impossible that
national parliaments could do a satisfactory job. And this is putting aside the
fact that the Commission isn’t obliged to change its proposals, and the Court
of Justice has shown itself unwilling to police enumeration. What goes for
national parliaments goes doubly for regional bodies. A citizenry that transcends nationality, a dêmos without éthnos, that is truly transnational, is in fact possible.
Other criticisms have come thick and fast from other
observers of the constitutional treaty. An idea which sums it up in its
entirety is Fossum and Menéndez’s
charge of ‘octroyé constitutionalism’[21]; that is, ‘granted’, in
the sense that constitutional questions are answered “in the name of the people
but not with them”. You can see this in much of the language of the
Declaration, the treaty and Piris’ defence; lots of statements about what
should be done or what has been done on the peoples’ behalves, but no
recognition of the fact that they were largely absent from the proceedings, or
inkling that they should have been present, in order to legitimately call this
a constitution.
In the same vein as this is Weiler’s earlier observation that
people in the Union may be subjects of European law but that this does not make them
European citizens: citizens are not only subject
to the law but are, through our various methods, authors of the law[22]. We are not granted
rights, but empower institutions to guarantee the rights we determine
ourselves. This is not the European reality, and certainly not that envisaged
by the octroyé constitutional
treaty. Müller notes the double-intent
of the European elites, who envisaged a treaty written by them but named
‘constitution’ in order to conjure up legitimacy[23] – some sort of magic
‘spirit of Philadelphia’, imbued by the will of ‘we, the people’ in theory if
not in reality. The intention was to create the effect of a constitution,
simply by being named one, without actually having to undertake a
constitutional process that would cede control of the European construct to the
citizens from whom they’d kept it for so long. They created “expectations they
were neither able nor willing to fulfil”[24]. A key element of this
misunderstanding was the maintained air of mystique, complexity and
open-endedness which left many citizens unable and unwilling to grapple with
it. Müller argues that even
if the idea of a continuously developing Union could be a good one, making it
so indeterminate and complex leaves it distant and incomprehensible to its very
citizens, which is a failure in terms of democracy[25]. The intention was to create the effect of a constitution, simply by being named one, without actually having to undertake a constitutional process that would cede control of the European construct to the citizens from whom they’d kept it for so long.
This final criticism brings us back to our initial position;
the failure of this document was due to an attempt to write a constitution
without democracy, and more fundamentally, without politics at all. Luuk Van
Middelaar notes on the first matter that the Spanish government, in their main
push for citizenship, had their eye on ‘Roman’ benefits for nationals rather
than the creation of ‘Greek’ democratic legitimacy[26]; already a poor start.
Again, being presented ‘octroyé’
unforeseen new citizenship without consultation or clarification did not
improve but if anything undermined the Union’s legitimacy[27].
When the time came,
these citizens were forced in alongside the states in the gap filled by the pouvoir constituent, recognised as citizens but not a
people to preserve the illusion. However, they didn’t fit: unbeknownst to them
they had constituent power and a new constitution. At this range the illusion
of constitution without constitutionalism could not last long. Unease at the
new constitution they had no real power over, and its uncertain place alongside
the national constitutions, led to a rupture which killed it. With the
reversion back to treaty, the citizens were once more stripped of their
constituent power; Europe was unprepared for democracy it seemed. At its first
attempt at politics, it failed[28].
One of the keys to this
failure as Marquand points out is the total absence of depth, complexity or
values from the European political discourse on the Union, and particularly in
this instance [29].
These concepts had evaporated in the fin-de-siècle euphoria of bread and circuses; the euro, the single
market, the Erasmus programme. The related political theory of
neofunctionalism, that integration is a functional process advancing systematically
from one economic and administrative sector to the next, has no place for
political debates or values, and nor did its adherents want them. Ultimately, a
constitution in this context serves a purely material purpose – it is a series
of rules. This was not the intention of the neofunctionalist méthode
Monnet, however as Marquand says, the means have eclipsed the ends [30].
Eclipsed ends
A final key point I will make is on eclipsed ends. One of
the principal ends of the European Project was the expulsion of war from the
European continent, and with it, I believe, the transformation of relations
between the nation-states of Europe into something permanently peaceful. And
not only permanently, but ones which value peace not for the sake of
commercial benefit but for the moral value of the preservation of peace and the
ousting of violent conflict. In other words, the end of realpolitik, of
rule-through-strength, of militarism, interventionism and belligerence, and the
realisation of the pacific federation from
Kant’s Perpetual Peace.
The chosen
method of this was economic integration that would ultimately inspire a
post-national Europe; not post-identity, or post-particularity or
post-diversity, but post-nationality in the sense of the aggressive,
ethnically-defined, uncritical form of identity that nationality has embodied.
This has been abandoned by the European elite who devised the Constitutional
treaty and subsequent Lisbon ‘Reform’ Treaty, in two key ways. First is
the extensive effort being made to develop tools for Europe to project its
influence throughout the globe, by harmonising its military capability and its
coercive means; in other words, Europe’s replication of the American, imperial
example of action on the world stage, and the acceptance that Europe is 1)
subordinate to America and more dishearteningly 2) unable to produce an
alternative to the Hobbesian logic of Realpolitik and ‘realism’.
Second, given every opportunity to reject this gloomy vision,
instead of accepting in full the principle of the equality of member-states of the
Union, it failed to meet that expectation. The principle of the equality of
states is established in international law; it was constitutionalised by the
American states in the foundation of their federal union, because these are not
merely states but peoples of formally
independent democracies reconstructing their sovereignty[31]. Hence, the
realpolitik-concept that the stronger states should be recognised as stronger within the Union is surely out of the
question, larger population or not. And yet this confirmation that the peoples
of these democracies are equal was too much to ask of the large states.
Instead, the Union neither fulfils proportional nor equal representation, and
its largest member-states are unwilling to commit to the founding principles of
the Union that large states should not be able to wield more power over smaller
ones, in realpolitik or in institutionalised form.
The Kantian ideal of the
pacific federation lies discarded; we are not equal participants in this
endeavour, the big states lead, and the small ones follow. ‘The strong do what
they can and the weak suffer what they must’. Exactly the ideas the EU was
supposed to refute and overturn; they now sit, rotting at the heart of the
edifice, here in the legal foundations of the Union. Exactly the ideas the EU was
supposed to refute and overturn; they now sit, rotting at the heart of the
edifice, here in the legal foundations of the Union.
Europe’s contradictions are made manifest in this affair –
constitution and treaty being forced together. They began in the realisation
that a constitutional order had grown from one founded by international
treaties. The judgements of the Bundesverfassungsgericht
tried to put the genie back in the bottle, by proclaiming the Union an
international order because it could never become a true constitutional order. However,
the judgment’s short-comings undermined itself. The fact is, we have an order
in Europe where law is written and citizens are subject to it, without this
order having a democratic, constitutional foundation.
This has bred some of the
worst failures and excesses of the Union, from unaccountable authority, to
disregard of democracy and a weak understanding of democratic theory, to an
abandonment of its principles in the pursuit of power. Democracy is the only
hope for the European Union – its existence as is will only destroy itself.
Europe will be democratised, or it will disintegrate, crumbling under the
weight of its own failures and illegitimacy. Europe has long needed such a
union, to end its eternal destructive conflicts; however, that union cannot
exist like this. How it could exist, will be elaborated on in another essay.
But the current paradigm has failed, and cannot be salvaged.
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Notes and references
[1]
Fossum & Menéndez, The Constitution’s
Gift, p.20-6
[2]
Grimm, ‘Does Europe need a constitution?’, The
Question of Europe, p.246-7
[3]
Fossum & Menéndez, The Constitution’s
Gift, p.27
[4]
Grimm, ‘Does Europe need a constitution?’, The
Question of Europe, p.249
[5]
Weiler, ‘Does Europe need a constitution?’, The
Question of Europe, p.266
[6]
Müller, Constitutional Patriotism, p.56-7, 99
[7]
Hayek, ‘The Economic Conditions of Interstate Federalism’, The New Commonwealth Quarterly, Vol.V, No.2 p.131
[8]
Piris, The Lisbon Treaty, p.143
[9]
Weiler, ‘To be a European Citizen: Eros and Civilisation’, The Constitution of Europe, p.347
[10]
Van Middelaar, The Passage to Europe, p.252-4
[11]
Marquand, The End of the West, p.128-9
[12]
Weiler, ‘To be a European Citizen: Eros and Civilisation’, The Constitution of Europe, p.332-5
[13]
Piris, The Constitution for Europe, p.15-17,
182-3
[14]
Ibid. p.194
[15]
Weiler, ‘The Transformation of Europe’, The
Constitution of Europe, p. 39-63
[16]
Varoufakis, And the Weak suffer what they
must?, p.56-60
[17]
Piris, The Constitution for Europe, p.194
[18]
Ibid. p.73-4
[19]
Weiler, ‘To be a European Citizen: Eros and Civilisation’, The Constitution of Europe, p.349
[20]
Carchedi, For Another Europe, p.29-34
[21]
Fossum & Menéndez, The Constitution’s Gift, p.157-9
[22]
Weiler, ‘To be a European Citizen: Eros and Civilisation’, The Constitution of Europe, p.336-7
[23]
Müller, Constitutional Patriotism, p.98
[24]
Ibid. p.99
[25]
Ibid. p.135-6
[26]
Van Middelaar, The Passage to Europe, p.287
[27]
Ibid. p.288
[28]
Ibid. p.291
[29]
Marquand, The End of the West, p.104
[30]
Ibid. p.106
[31]
Habermas, ‘European Citizens and European Peoples’, The Lure of Technocracy, p.35-7