A Constitution for Europe?
The Economist's Bold Challenge

By Scott London

Of all the issues facing the European Union at the turn of the millennium, one of the most pressing is the need for a European constitution. The call for a written document that establishes the fundamental laws and governing principles of the Union has reached an almost feverish pitch in recent years. Numerous books have appeared in recent months with titles such as, Europe: A Constitution for the Millennium and The Constitution of Europe: Do the Clothes Have an Emperor? High-level academic conferences and symposia have taken up the issue. Opinion pieces in Europe's major newspapers have argued the case. And this month, in a fascinating development, the Economist magazine boldly drafted a constitution of its own to, as its editors declared, stimulate a greater debate on the issue and to ensure that citizens are given a greater voice in European politics.

The call for a constitution comes as a response to a variety of concerns. Some member nations are favorable to the idea on the grounds that it would grant more legitimacy to the Union — that it would give the EU a "public face," as it were. It would also relieve one of the chief tensions facing the governments of Europe today: the problem of arriving at collective decisions. While most major EU policies require unanimity among nations, decision-making within each country tends to rely on referendums. Denmark's recent referendum rejecting the Euro illustrates the weakness of this system; in a single stroke, the Danish people's antipathy toward European integration torpedoed a major economic policy at the federal level.

Advocates of a European constitution also recognize that the documents fixing the powers of the Union — made up of four major Union treaties and 38 protocols — have simply become too long-winded and complex over the years. How are ordinary citizens to make out what these documents mean when even lawyers have trouble navigating them? For this reason, legal scholars have been attempting to draft a shorter and more concise document reflecting the Union's first principles.

The Economist beat them to the punch by proposing a constitution of their own making, one based on the treaties of the Union and on a proposed "Basic Treaty" for the Union formulated by scholars at the European University Institute in Florence. It also draws on the United States Constitution. The Economist's draft contains 21 brief articles. It is an exceptionally concise and clearly presented document. Like the United States Constitution, it begins with a brief preamble that places the document within its proper historical and political context and suggests what is at issue. In contrast with the American document, however, the European text indicates that it is intended to supersede other documents or treaties that previously fixed the powers of the European Union.

The draft begins with a statement of the founding principles of the European Union which, like most constitutions, establishes that the federation is based on the rule of law, the consent of the governed, and the protection of individual liberties. It also makes clear that all member states retain sovereignty over their own affairs except in matters clearly spelled out in the constitution. It also states that "the Union and the Member States shall uphold the principle of subsidiarity," a reference that relies perhaps too heavily on recent political science jargon, in my opinion, but which indicates that the federation's constituent parts retain their self-determination while at the same time answering to a higher federal authority. This principle is intended to guarantee the devolution of power within the Union. The reference to the principle of subsidiarity is a carry-over from the Maastricht Treaty where it was first introduced.

The Economist's constitution carefully specifies how powers are to be divided within the federation. It establishes a bicameral system with in-built redundancies that are to serve as "checks and balances." It establishes that the Council of Ministers is the Union's main legislative body, and the Commission is the executive body that oversees the implementation of and compliance with Union policies. The text goes on to specify that the European Council, composed of heads of government of the various member states, is the highest policy-making body of the Union. It also describes the following institutions: the Parliament, the Council of Nations (a new governmental body charged with constitutional oversight), the Council of Ministers, the Commission, the Central Bank, a Court of Justice, and a Court of Arbiters.

The supremacy clause in the American Constitution, contained in Article VI, Section 2 — the section specifying that the laws of the United States, and not those of the member states, "shall be the supreme law of the land" — are reflected in the Economist's "Court of Justice" article which clearly states that the laws of the Union carry the highest legal authority, not those of treaties or inferior courts.

This is a delicate political and legal point because it establishes that the laws of the European Court are superior to those of national judiciaries and national governments. In effect, it asks national judges to defer judgments on key constitutional clauses within their own national laws to those of the European Court.

In addition, the draft constitution contains a number of articles that are essential to the European situation but would be irrelevant to the American system of government. For example, it takes up the question of languages, the Central Bank, and membership of the Monetary Union.

Clearly, one of the most significant differences between the European and the American constitutions is the underlying spirit with which they were written. The American Constitution was the product of intense dissatisfaction over the feeble central government established under the Articles of Confederation, which had been ratified in 1781 to create a loose confederation of the states. It was a government more notable for the powers it lacked than the powers that it had.

The European constitution, by contrast, was designed with the opposite goal in mind. One of its chief purposes is to limit the powers of the Union and make it more responsive to the demands of the European people. The editors of the Economist make it clear that although "governments may regard constitutions as instruments by which they rule; a better perspective is to regard them as constraints placed on governments by citizens." The idea, they state, is to make the political decision-making process more accountable to citizens and to promote "experimentation, discovery, and competition."

This change marks a major difference of democratic orientation between the writers of the two documents. While the American founders where mindful of the dangers of demagoguery, on the one hand, and mob rule on the other, the authors of the European constitution are mostly concerned with excessive governmental authority.

This difference reflects the fact that democracy has in fact evolved over the past two hundred years. Today, democratic governments are more responsive to the needs of citizens than they once were. In my view, the European constitution, in reflecting this shift, represents a more enlightened — if less eloquent — statement of democratic accountability.

It also shows that while the Founding Fathers created an almost perfect document, they left room for political innovation and change. In that sense, they were truly democratic, for democracy means nothing if not an openness to new ideas.