Nr. 6 – Klinkers, August 2012

The firm statements by Tombeur in Paper no. 5 gives reason for Klinkers to dig deeper into the essence of the concept of ‘Federation’. Over four paragraphs he puts questions to Tombeur. In the first paragraph he enquires as to whether the Papers no. 4 and 5 express the personal opinions of Tombeur or whether these are generally accepted by experts in this field. In the second paragraph Klinkers asks how far back can we trace this thinking in terms of a federal organization? Is it a relatively new phenomenon or are its origins found centuries back? The third paragraph casts light on a topic that should be discussed later, namely the position of the United Kingdom in a federal Europe: would the United Kingdom, just as is the case in the present intergovernmental system, be a separate element within a European Federation? In the fourth paragraph he deals with the question of where the driving force is going to come from in order to turn the EU’s dysfunctional intergovernmentalism into a federal system.

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

Esteemed Tombeur, in this Paper no. 6 I put a number of questions to you. For easy reference they are given a letter.

Paragraph  A

In Papers no. 4 and 5 you have accurately described what a Federation is. And also what it is not. Thus a few misconceptions about the essence of a federal form of government are dispelled. But there remain some questions:

  1. Is this your personal opinion that you put forward, to be debated and challenged by others? Or is this, what you define as the characteristic properties of a federal system, to be considered the prevailing scientific theory, covered by the extensive bibliography at the end of our discussions? Thus generally not susceptible to divergent views?
  2. Making clear what a federal organization is does not necessarily mean that it is, by definition, the best form of governmental cooperation for the European Union. In other words: why should European citizens on mass opt for a Federation? What are the advantages over current intergovernmental decision-making? And may a European Federation not have also disadvantages? If so, we should be honest about that.
  3. We are talking about a federal organization, not about a federal Government. I asked you at the beginning of Paper no. 2 to clarify why you would rather not speak of a federal Government or federal State, but rather use the term ‘federal organization’.

Now onto other matters.

Paragraph  B

First back to Johannes Althusius, cited by me in Paper no. 2 and replied by you in Paper no. 5. You regard him more or less as the founder of thinking in federal terms. But if interested readers want to know more about this writer, then they will find in Wikipedia that Althusius is seen as the founder of Confederalism. That is why I asked in Paper no. 2 if your opinion about Althusius as the founder of federalism is shared by others.

According to Wikipedia, that would not be so. But indirectly you have replied on this in the first paragraph of Paper no. 5, although I did not see the significance at first. You say: The specific name of the act is not important. Rather, the commitments, as expressed in the act.

Concepts such as ‘Act’, ‘Covenant’, ‘Agreement’, ‘Treaty’, ‘Constitution’ are – in your opinion – not essential for the characterization of an organization as a confederal or federal form. The only thing that matters is what has been agreed upon – not how it is labeled. I deduce therefore that Althusius’ description of the desired state contains so many characteristics that you believe that we must speak of a federal model, though Wikipedia says otherwise. Do you subscribe to my explanation of your thinking? If so, then someone should adjust the relevant text in Wikipedia.

Paragraph C

I have another issue. In Paper no. 5 you make the statement that it is an essential characteristic of a federal context that each government (the Federal level and also the federated or Member State level) is equal in sovereignty and that all governments of both levels are bound by mutual solidarity. As an example you mention Québec. Even though there is a strong movement to secede from the Canadian Federation, Québec gets no separate statute. In other words: the essence of this aspect is that none of the parts in a Federation have the unilateral right to leave the Federation should they wish to. Leaving the Federation is only allowed if all parts – thus both the Federal part and the Member States – are in agreement.

However, what about the secession from the American Federation by a handful of States in 1861? Including Texas. After the battle of Alamo in 1836 Texas gained independence from Mexico, with Sam Houston as the first President. In 1845 Texas – the largest state after Alaska and the second largest in terms of population – joined the Federation as the 28th State. Why only in 1845? The Northern States were against accession, because Texas was pro-slavery. To get the economically and territorially important Texas into the Federation, the Federal law, which admitted Texas to the Federation, allowed Texas (and other States south of the Ohio River) to continue the practice of slavery. After Abraham Lincoln was elected president of the Federation, seven States stepped out and formed, in February 1861, the ‘Confederated States of America’, with Jefferson Davis as the first president. And with a Constitution that guaranteed the continuation of slavery.

Although Lincoln – at that time not yet in office – was not known as being a radical, his stance against slavery was sufficient for those southern States to leave the Federation. Paul Brill describes in '1600 Pennsylvania Avenue' how Lincoln, as far back as 1858, in a sharp debate with another presidential candidate, Stephen Douglas, profiled himself as ‘abolitionist’: he wanted to get rid of slavery. This made him a persona non grata in the southern States. When they learned that Lincoln would be President they unilaterally left the Federation before he took office.

President James Buchanan, then still in office, made it clear that the southern States had acted (with their secession) in violation of the Constitution, but he accepted the new situation as a political fact which he could not or would not change. In his book 'All Presidents. From George Washington to Barack Obama' Frans Verhagen explains that this places – according to all US political historians – President Buchanan as the worst of the forty-four Presidents of America. He was succeeded by the President who is generally considered by experts to be in the number 1 position: Abraham Lincoln. Lincoln – according to Verhagen – was personally against slavery, but saw no constitutional possibility to ban this. He wanted to curb slavery within the southern States, assuming that this situation would eventually disappear.

In his inaugural address, March 1861, Lincoln stated that the Constitution did not allow a separation from the Union. He was prepared to allow the continuation of slavery in the South, but not secession from the Union. The integrity of the Union stood above all else. Only in September 1862 he fully opposed slavery. From the opening shot, fired in April 1861, the civil war gained the character of preserving the Federal Union and in that context the emancipation of the slaves. It was the combination of a legal morality with a human morality, eventually leading to a victory of the North in 1865. And then, in December 1865, the thirteenth amendment to the Federal Constitution established a constitutional ban on slavery. After a period known as the Reconstruction, Texas re-appeared in the Federation in 1874.

The question we should answer within the framework of a correct characterization of a federal system is: what gave Texas, and those other States, the right to unilaterally leave the Federation? Had they, to justify their secession in 1861, stipulated at the moment of entering the Federation a specific statute or charter?

In the information available to me, I cannot find an answer to this question. But we should solve this issue. In order to be as clear as possible, I repeat my problem again in another way:

  • Essential for a federal organization is that no State can leave the Federation unilaterally. 
  • Yet Texas has done so in 1861, and even a handful of other States of the United States of America. 
  • Later on they re-entered the Federation. 
  • This leads to the questions: 
    • Would it be thinkable that Texas had gained the right - at the moment of accessing the Federation in 1845 – to leave the Federation in 1861 unilaterally? And the other States too?
    • If so, how can this be compatible with what has been stated above, namely that no Member State is allowed to leave the Federation unilaterally?

If we do not have an answer to these questions, another question arises: should we assume that in this early stage of the federal model’s evolution, around 1850, the unilateral withdrawal of a State was still accepted? And that it would not be until later that unilaterally leaving became a unique characteristic of federal thinking?

The fact that I would like to know whether a non-unilateral withdrawal should be viewed as a unique element of a Federation has to do with the question what the United Kingdom would do if the rest of the European Union would create a real Federation. Imagine Texas receiving a special statute with the right to make its own decision to step out, as a result of which we must consider that this element is optional, then it may be the only opportunity for the United Kingdom to participate in a federal Europe: joining a European Federation, under the condition that it might leave on its own authority. With, of course, the risk that other States also claim such a right. I would like to hear your opinion about this.

Paragraph D

In this paragraph I would like to talk about the source, the soul, the driving force which will lead to a Federation being chosen. This seems similar to the questions posed in paragraph A, but there I dealt specifically with simple facts and arguments advocating or denouncing a federal form of Government. In this paragraph I search for the beautiful star that we look up to and which we follow as a matter of course in the direction of a Federal Union.

When reading The Federalist Papers the ‘star’ they followed was bright and clear: freedom. Freedom in two respects: to be free from a domineering foreign country, in this case the United Kingdom; and, above all, to be free from a monarch. The emphasis on freedom continued to be the binding factor for years after the English domination. Safeguarding this freedom dominated all aspects of political and theoretical thinking at that time. Only if one understands this yearning for freedom, one can comprehend why Hamilton, Madison and Jay put such incredible emphasis on the importance of being a Republic. To them, the federal Constitution was synonymous with stately thinking emerging from the people and not from a hereditary monarchy. It is therefore understandable that the combination Freedom – Federal Constitution – Republic was popular among nine of the thirteen States to whom the choice for a federal system was submitted. And then the other four followed. After all, the majority of their inhabitants, or their parents, had fled to America due to stately or religious despotism. The proposed Republican Constitution, based on the ideals of the people themselves, promised freedom.

A particular detail: the authors of The Federalist Papers are continuously making a distinction between Democracy and a Republic. The first they reject, the second they embrace. It takes a while before a 21st century-democrat understands the meaning of this. At that time, 1787, the concept of ‘democracy’ was associated with pure popular sovereignty, thus with the right of every citizen to take part in the decision-making. This could only be organized in very small communities, the authors claimed. That was not feasible for a union the size of the United States. That is why they chose a republican form. In our current terminology this is nothing else than representative democracy.

Well, freedom was the driving force for the creation of the American Federation: the centrifugal parts sought consistency and solidarity in a centripetal point. So how do things stand in Europe at the moment? We have the centripetal character in common with 18th century America. Moaning and leaning, falling and standing up, 27 States in Europe try to organize a common center point, however, without taking the step towards a real Federal Government. Why does this seem to be so difficult? Is it because we in Europe do not have that urge for freedom? Thus missing a ‘sacred fire’ as the driving force into the direction of determined and convincing political decision-making? Apparently that is the case. No fire, thus no energy source, thus no strength, thus no direction?

Of course we must not forget that there certainly has been a driving force, originally, to pull a European Union off the ground: the desire to never again see a war in Europe. Maybe we should go back even further than the horror of the two world wars of the last century. In his stunningly detailed book 'Belgium, a history without a country', Rolf Falter describes nineteen centuries of violence, murder, manslaughter, rape, exploitation and terror in Europe, focusing on that part of Europe that we now know as Belgium and the Netherlands. Other than North America, we have a history of structural Government-driven violence. But would that be a source to further European commonality? Apparently not. At least not in the area of Europe where the power is. Our greatly increased prosperity, plus the decades long absence of any armed struggle in Europe – putting aside the war in the Balkans – have diluted thinking in terms of "We need a European Union to prevent war at home!".

There is currently no deep-felt ideal that can act as an engine for a politically convincing and widely accepted federal form of Government. Worse still: the small steps with which we nevertheless advance, given the cautious statements from leading European leaders in the direction of more political ‘integration’, are all derived from the economic crisis. Thus, derived from something we must consider fairly sad. A negative source. The only ‘positive’ is in the ruling ‘Never waste a good crisis’. But if this kind of cynicism must be the basis for the decision-making to deliver us a European Federation, then doubts are creeping in.

That is why I put the most crucial question to you: the Americans had ‘freedom’, what could be the driving force for ‘Brussels’, that will encourage Europeans to rise above their narrow-minded nationalist interests, in order to bring them determinedly and convincingly towards the construction of a federal Europe?