Nr. 15 – Tombeur, October 2012

Tombeur confirms that the American Constitution should form the basis for the constitutional and institutional design of a European Constitution. He announces that he will add to this choice – in a later Paper – the value of the Swiss constitutional system. In this Paper, no. 15, he will elaborate on the choice of applying the American Constitution as a best practice due to demographic and social similarities between America and Europe. He refutes people who object to using this best practice for Europe due to incompatibility, by pointing out the many similarities between both continents. This Paper is crucial for the design of a federal European Constitution. Step by step Tombeur explains the conditions to be met for such a Constitution to be realized: the building blocks for the constitutional and institutional order of the Constitution to be designed. He poses the question to Klinkers whether the Convention of Philadelphia (1787) could be useful for the ideas of Guy Verhofstadt and Daniel Cohn-Bendit, to plan a Convention following the European elections in 2014 – a Convention aiming to establish a federal Europe. Furthermore, he asks Klinkers if a federal Europe should have a Presidential system or not.

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

 

Esteemed Klinkers, I have read with great interest your paper about the federal Constitution of the USA. It is an important example for any country that aspires to having a federal system, as authoritative authors have emphasized. The American Constitution is still considered to be the classical model for a Federation. Thus, it should serve as the model for a Europe that would like to become a Federation. This widely acknowledged value of the American Constitution and the fact that the problematic present intergovernmental European system resembles the problems of the 18th century American Confederation, are sufficient reasons to become inspired by the American Constitution. However, there are also different, possibly relevant, examples of stable federal Constitutions, for instance the Swiss one. This example is the more interesting since Switzerland – as a multiculturalist country – may be considered a micro-version of Europe.

My critical analysis in Paper no. 9 of US policy as of 1944 until the present should not prevent us from taking the American Constitution as a point of departure for designing the Constitution for a European Federation. US foreign policy, driven by nationalist interests, should not make us forget what Europe fundamentally has in common with the United States: a representative democracy, the rule of law and the individual rights and liberties of its citizens.

With my analysis in Paper 9 I only intended to stress the fact that Europe, both in earlier times and at present, has no permanent allies in this multipolar world, let alone friendly nations. It only has occasional allies, permanent competitors and (potential) enemies. In this world Europe has to stand up for itself as a whole because European countries can no longer cope with this on their own. Why? We have already covered this extensively. European intergovernmentalism stands in the way of a federal Europe that would be able to compete on a global level.

A poll by Gallup and the European Council on Foreign Relations (ECFR) in October 2007, just before the banking crisis, reveals that a relative majority wants more EU power and influence in world affairs. The following question was put forward: “For the world to become a better place, do you believe that global influence of the following major powers should increase, should decrease or should remain about the same as now?” Identified as major powers were Brazil, China, India, Iran, the EU, Russia, the USA and South Africa. Out of 57,000 people from 52 countries 51% of West Europeans stated that they would welcome more influence by the EU in the world, by far the highest score of the eight countries in question; followed by a group of scores nearer to each other, namely that of Africa (37%), Central and East Europe (36%) and North America (34%). The two other regions, Asia/Pacific and Latin America, followed at a larger distance with respectively 25% and 24%.

Ivan Krastev and Mark Leonard of the ECFR drew the following conclusions from this study: “The findings of the Voice of the People poll (…) reveal a world that is neither unipolar nor keen to return to traditional power politics. Furthermore, it is a world that seems to be crying for greater European leadership. The paradox of the EU’s power is that its strength may be rooted to some extent in the perception of its weakness. The fact that nobody is interested in balancing the EU may stem – at least in part – from a perception that the EU is unlikely to get its act together. Moreover, the decline of the EU’s soft power in the ex-USSR, Turkey and the Balkans shows that ‘softness’ in the long run may generate sympathy, but not necessarily respect. Whilst legitimacy is an increasingly important element in global politics, the EU must not make the mistake of confusing popularity with power.”

Anyone who does not see our multipolar world, controlled by old and new major powers, cannot or does not want to see it. For those who do not (yet) want or are unable to see that today’s world is no longer the world of the Congress of Vienna 1815, nor the world of 1948, I would like to quote some pertinent questions put forward by the British economist John Maynard Keynes: “When events change, I change my mind. What do you do? When the facts change, I change my mind. What do you do, sir? When my information changes, I alter my conclusions. What do you do, sir? When someone persuades me that I am wrong, I change my mind. What do you do? …” Yesterday’s answers to present-day’s questions no longer work. Only idiots never change their opinion.

Welcoming a Federation of States in his ‘State of the Union’ means that Barroso acknowledges that the present intergovernmental EU dysfunctions. However, in his conclusions he loses track halfway through. There is a lot of fuss about his hybrid declaration. Some people interpret his words as an attack on the European nation states. In my opinion, an attack means threatening the survival of (nation) states. Such an assertion is nonsense. Nothing is less true as far as the emergence of a real Federation is concerned. A European Federation will exist by virtue of two powers: the power of the citizens and the power of the States; with a predominant role for the citizens’ representatives. That is where the center of gravity in the Federation’s decision-making process will lie. No longer with the States, and certainly not with the heads of States or government leaders of the States, as is the case in the European Council. Nowadays a member of the executive power of a State needs to negotiate European interests with colleagues. Mission impossible.

This intergovernmental system disorganizes the European structure. The proof is the inflation of institutional treaties. Since the Treaty of the EU (Maastricht 1992) ten treaties have been concluded – not even including the accession of new Member States and the European Economic Area. This is one treaty every two year. This is a terrific pace, knowing that negotiations and ratification procedures require at least two years. The sustainability of those covenants is therefore practically zero.

History teaches us these lessons. To say that history is repeating itself worldwide would be an exaggeration. Nevertheless, we both concluded earlier that comparable situations occur in the world, although in different times and places. Unfortunately, mankind does not learn quickly, witnessing the long array of dictatorships and wars. Some people regard this to be no longer possible in Europe. Well, I am not really convinced of that, if I think of the recent Balkan conflicts and the challenges posed to Hungarian democracy. I am not one of those who are blind to threats of violence or dictatorship. It is right that the European Union will receive the Nobel prize for peace, but that is ten years too late: the admission of eight Central and Eastern European states to the EU would have been a more suitable moment.

In the context of my acceptance of your proposal to use the American Constitution as example for a European Constitution I would like to put forward the Swiss Constitution as well. This document has proven to be of great value since 1848, inter alia by being adjusted many times in the face of changing circumstances, including the possibility to create new ‘cantons’ . Switzerland is also of interest as it may be considered a micro-version of Europe. The country hosts linguistic, cultural and religious diversity, with four official languages. At first it was a Confederation, then a stable Federation. I do not ignore Europe’s variety, as I explained in Paper no. 9. Therefore I want to investigate in another Paper how Switzerland has dealt with this remarkable diversity. Let us study both Constitutions, compare them and use them for the design of a European Constitution, with the American Constitution as the basis. A draft Constitution that we would put up for debate and improvement in relevant circles. What do you think about that?

However, before I elaborate on my ideas regarding the foundation of a federal European Constitution I would like to fight those who claim that a homogeneous people is needed in order to be able to create a Federation.

I would like to emphasize that linguistic, cultural and religious diversity in no way prevent the emergence of a federal Europe. For that it would be sufficient to conclude that there are certain common values, norms and interests. Undoubtedly, these already exist on a European scale. It is this communality that should be fostered by the Federation, and not by the States since they are in no way suited to that task.

The multicultural debate is not relevant for a European Federation. Baudet’s tirade against multiculturalism, as one of the ways in which Europe is supposedly being attacked, seems misplaced or at least curious. Wanting to deter people coming from other parts of the world, in order to conserve the singularity of European nation states, seems a strange approach for a historian. Migration has existed throughout human history. And this will never stop. Moreover, migration stimulates the evolution of cultures, morals and languages. They also learn from competing with one another.

Let us have a look at the following example. Under the title ‘The Texas Model: Prosperity in the Lone Star State and Lessons for America’, a book written by Chuck Devore in which Texas is promoted along the following lines: The Texas Model: Prosperity in the Lone Star State and Lessons for America is a project of the Texas Public Policy Foundation. The book compares Texas to its large state peers and details why Texas is increasingly the destination for Americans seeking a better life. The Texas Model describes a state with low taxes, modest government, and a lawsuit climate that allows entrepreneurship to flourish while encouraging job creation.” That is the power of the American constitutional federal system: states compete with each other to create better provisions for their citizens. All of this under the slogan that government exists for the pursuit of its citizens’ happiness.

If the West-German tribe of the Batavians, who well before Christ lived in what is now the Netherlands, and the Gauls in present-day Belgium, had been able, until this century, to follow Baudet’s point of view, namely closing the borders to all newcomers, how primitively would we live today? This does not prevent me from concluding that there is a complete lack of effective migration policy on all European levels, as is the case in Australia, Canada, the USA and elsewhere. A thoughtful, organized migration to and from the EU would compensate for the social-economical aging of Europe.

With respect to the detail of – hated by some people – multiculturalism, namely the claim that Europe faces the threat of being overpowered by Muslims, I would like to quote the following passage from ‘The End of the West’ by David Marquand: “The notion that a vast army of Muslims lurks in North Africa and the Middle East, waiting to colonize Europe, is straightforward paranoia. The parallel between modern European Muslims and Russian Bolsheviks ninety years ago is an example of the higher lunacy.” Well, now it is someone else who tells you this.

It suffices to compare Europe with, for instance, the United States of America and Switzerland to discover that these and other federations at some point emerged due to military and economic factors, despite their linguistic and cultural diversities. Nevertheless I hear and read that some people, including the earlier quoted Larry Siedentop, emphasize that this diversity creates an enormous obstacle to the establishment of a European Federation: Europe would be too diverse to create a political whole on its own. Its diversity would make a federal Europe impossible, contrary to the more homogeneous America. I refute this claim absolutely. The issue that there should be one homogeneous people in order to be able to create a Federation is a non-issue. As you, esteemed Klinkers, already stated: within a Federation the Germans remain German, the French remain French, the British remain British, etc.

Thus I oppose the claim that the USA is more homogeneous than Europe. Let me once again quote David Marquand (after his approving quote of Jürgen Habermas with the sentence “Peoples emerge only with the constitutions of their states”): “Much the same is true for the United States. There was no ‘uniform people’ in the thinly settled, poorly developed former British colonies, strung out along the Atlantic seaboard and largely populated by subsistence farmers, in the decades following the American Revolution. Socially and culturally, the gifted and imaginative political elite that crafted the federal Constitution was far from representative of the people for whom it spoke.”

This relative homogeneity has remained constant throughout the ages. Immigrants from Europe have not only conserved their culture and customs; in many of their customs they still retain their previous language – linguistics call this functional bilingualism within one territory: diglossy. Even communities from a different origin and the old American nations reveal different ways of life, whether they are Afro-Americans, Latino’s, or Indian. Nevertheless, most Americans share a certain sense of communality. Nobody questions the Federation. At the most they ask if the division of power between the federal level and the level of the states is still in balance. And what to say about the requirement of homogeneity if one looks at federal Brazil and federal India, the largest democratic federation in the world with twenty two (of the three hundred and fifty) constitutionally acknowledged languages?

Why would this sense of communality not be applicable to Europe? Besides a sense of regional and national identity? Why wouldn’t Europeans accept one or a limited number of languages as their lingua franca in public life? In earlier days they used Latin for this purpose. People have more than one identity, a layered group-identity next to their individual identity. That identity is relative and flexible. Sometimes I feel like an inhabitant of Antwerp, a South Brabander, a Dutch Belgian (Flemish), or a Belgian all over. On other occasions I feel like a Southern Dutchman, a Benelux or European citizen. Each identity depends on time and location. It is possible that more identities emerge, or disappear. Everybody recognizes latent identities in themselves, which become manifest under certain conditions. In you, Klinkers, I recognize the Limburger, the Hollander, the half Flemish, the Portuguese and the Surinamer, due to the countries where you lived and where you were influenced by specific values and norms. And of course an unconditional European identity. I can assure you, from my own experience, that it is a pleasant surprise, while traveling as a European for two weeks in China, to meet with a Spanish couple. A bit of European kinship, far from home.

Therefore, I maintain that cultural diversity does not make it difficult for Europe to create a Federation. Look at the growth of diversity in the USA and the stability of multicultural Switzerland, a country that already boasted a variety of cultures at the birth of its Confederation, followed by a Federation. The driving force and cement for a Federation is not necessarily of a linguistic or cultural nature.

The history of the world proves that an external factor, not an internal one, is often decisive for choosing a federal state form, as was the case in the USA. You have already indicated that many others have acknowledged that fact, for instance Glucksmann. William Ryker is of the same opinion. He claims that military cooperation is the most frequent trigger for opting for a Federation; always intended as an instrument to achieve goals such as security, prosperity and welfare. Quoting him from the document ‘Federalizing Europe?’: “What goals are sufficiently desired to lead to a federation? The goal most frequently observed is military, although, of course, that goal is always instrumental. (…) Success in war depends on resources.” After that he mentions four ways of federalizing to acquire and maintain resources. At least one option seems appropriate for Europe, as I already wrote in Paper no. 9, namely the merging of resources, all essential to strengthen Europe against non-European competitors.

Exactly the internal and external economic, social and even military or policing challenges are incentives for Europe to cope with the increasing threats of growing competition by creating a federal Europe. The administrative enlargement, widening the governmental scale, is Europe’s pre-eminent trump card. It is highly necessary to play that trump card by creating a Federation. Increased competition by sub-continental economies and political instability at the eastern and southern borders of Europe force us to take that step. A wake-up call for Europe.

Enough of my plea for a federal Europe. Now I will react to your offer to design a constitutional framework – by whatever name, for instance a Constitution – even though Europe has had a bad experience with such a project. You already mentioned that when you referred to the rejected ‘2004 Constitutional Treaty’. That was not a Constitution, but yet another treaty between European States – a book of 63,000 words and 448 articles, the basis for the Treaty of Lisbon.

I gladly accept your offer, esteemed Klinkers, to write with you a European Constitution, but first I would like to receive your opinion on the following questions and considerations. Our agreement about these matters should form the framework for our constitutional draft. Here they are.

A matter to be considered by any designer of a federal Europe is the necessity that this federal composition will be brand new for Europe. It must be completely different from what most of the old and historical European countries have experienced before – their history made them into what they are now. Only four of the over thirty European States are a Federation: Belgium, Germany, Austria and Switzerland (though not a EU-country). Federalism is not a well-known phenomenon in Europe. Here and there we see processes of regionalization, for instance in Spain and Italy, but that is not federalism.

As a result, a number of states will perceive a Federal Europe as a completely new state. A super state – a word frequently used in the media when talking about transforming Europe. This is the way in which the British and Irish islands look at it traditionally. But also countries such as the Netherlands and France, and States that have conquered or reconquered their sovereignty since 1989; insofar as that word still is significant. Those countries fear Europe operating like a State. However, they do not see that they cling to outdated symbols. A symbol such as national sovereignty may be interesting from a political point of view, but when such symbols frustrate the sense of reality, these followers of meaningless symbols are wrong. Others let themselves being misled under the influence of social psychology: they project the dangers of dictatorship and war – which have occurred primarily due to state-nationalism – to Europe as an organization. That perception is absurd. Europe as a whole is not to blame for the age-long misery of wars because there were hardly any forms of intergovernmentalism in the first half of the 20th century. Both misconceptions have to give way to international reality: the diversity of external threats for Europe. It is a matter of a mind shift, a matter of stepping out of the patterns of outdated thoughts and behaviors. Out of the box, as you have justly written, dear Klinkers.

To bring on board Europe’s opponents I propose to make the European Constitution not resemble a stately constitution too much. With this I mean that such a Constitution should clearly not resemble a super state. In Europe all States have written constitutions, except for the United Kingdom. These constitutions are much alike: they all contain the organization of a horizontal division of powers between the three branches, the trias politica, their relationships and the rights and liberties of the citizens. This brings me to the option not to include a Bill of Rights in a European Constitution. It would be sufficient to only refer to those rights and liberties that have already been guaranteed in treaties, for instance in the Charter of Fundamental Rights of the European Union.

What to do with the three separated powers, the trias politica? In the tradition of Montesquieu the European Constitution should – in my view – describe which powers the branches possess, and do not possess, when they are obliged to cooperate and how they control one another. Worldwide states have described this threefold organization in various ways. The constitutional systems in Europe are much alike, with the exception of the French. France has a Presidential system, while the other states have a Parliamentary system.

This brings me to the question, which type of Federation would be the best for Europe? In Paper no. 5 I stated that each Federation has specific characteristics; they can be divided according to certain criteria.

We agreed that intergovernmentalism by the Governments of the states has led Europe down a dead-end street. Knowing this, do you agree that the Constitution should organize the Federation in such a way that it will not depend – as far as its operation is concerned – on the Member States, to prevent this reoccurring deadlock? With attention to an effective representation of the citizens from as many States as possible.

These considerations bring me to drawing the European Federation with the following prime characteristics: exclusively qualified, autarkic, institutionally threefold, and intra-governmentally organized. I have mentioned these concepts already in Paper no. 5. With pleasure I explain them again in this context.

For the exercise of the federal powers one should not handle functionalism again as a means to making and enforcing European policies (functionalism is doing whatever Brussels thinks is right for Europe). That is why I propose that the European Federation only exercises those powers which are exclusively constitutionally assigned – the Federation should be exclusively responsible for regulating certain matters. This implies a listing of specific European policy domains – a subject that the Germans call Kompetenzcatalog: a catalogue that limitatively enumerates the Federation's competence – and that this list can only be altered through the unanimous decision of the States. The other, unlisted domains remain with the States. This is consistent with the analogy of the Association of Owners of apartment buildings that you used to explain that the board of such an association possesses powers of its own, while the owners run their own apartment as they wish. Without a hierarchy top down or vice versa. Thus, the exclusive division of sovereignty between the Member States on the one hand and the federal body on the other, rules out competing policies between both layers so that a hierarchy of federal law making, respectively law making by Member States is superfluous. This system limits the chance of conflicts when the federal body and the Member States exercise their respective powers. In case such conflicts nevertheless arise other instruments are used, such as legal advisory bodies or the judicial branch.

A federal Europe should possess means of its own – it should be autarkic. That implies having its own fiscal system to avoid that the Federation too, with respect to its budget, is condemned to look passively at the sad theater that is played annually by the States when settling the EU’s multiannual budget – a subject described by Fernand Jadoul in Paper no. 13. This aspect is to be compared with the owners of the apartments: they pay a regular sum to enable the board of the association to take care of their common interests. In this way one prevents bartering with more losers than winners, always followed by nationalist slogans such as “I want my money back”. Without fiscal independence the European Federation cannot operate effectively. The parole should be “No representation without taxation”. The European fiscal domain should be linked to the policy domains, constitutionally assigned to the federal body within agreed parameters. The Constitution should describe the fiscal powers, if only through the exclusion of certain tax bases. 

Institutionally Europe should, again for reasons of independent governing, apart from the Member States, possess legislative, executive and judicial branches: a trias politica of its own. Europe should not be organized functionally as is the case in Germany where the ‘Bond’ (the federal body) is entitled to make laws, but where the execution of the laws is entrusted to the ‘Länder’ (the Member States). Since we should opt for entrusting the federal body with exclusive policy domains it seems appropriate to entrust that body also with the three branches of government; this also supports the common trust that federal legislation is applied and enforced throughout the Federation. This raises questions with respect to the design of the bicameral system, the relationship between both Chambers and the powers of the executive branch. There should be a federal Court of Justice to guarantee unity with respect to jurisdiction.

Now I would like to deal with the matter of organizing the legislative power as such. A classical federation has two Chambers, one for the citizens, representing the whole federation directly, and another representing the states. This second Chamber embodies the non-federal part of sovereignty. To have a Chamber like that seems to me necessary in this Europe that is perceived as highly diverse and historically heavy burdened. Thus my choice is: a legislative branch with two Chambers. The federal Constitution of Europe should limit as much as possible the interference between the functioning of the federal body and the States; both levels of government should be able to operate independently of each other, accompanied by instruments that prevent them from obstructing one another.

At the end of my contribution with respect to the three branches I would like to propose exclusivity of the political mandate. The Constitution should exclude members of the federal Chamber (i.e. the Chamber of the citizens’ representatives) from having any other political function, on whatever level of government. The representatives of the people should be elected by the people, and the state’s representatives by the state’s legislatures. As has been the case in the USA, which you have described already in Paper no. 14 about the American Constitution. But let’s discuss this matter again when designing the European Constitution. 

Striking in the American Constitution is the Presidential system. This means that the President is not responsible or accountable to Congress. He, or she, is not appointed or elected by Congress but by the people through a system of Electoral Colleges per State. On the other hand the President cannot dissolve Congress. However, he can veto laws drafted by Congress. I wonder if such a system would be suitable for Europe. Is such a Presidential power, exercised by one person, not going too far? What are your thoughts on this? I eagerly await your response.

This is where I would like to stop elaborating on the constitutional characteristics of the trias politica. I propose that we start drafting a federal European Constitution not before we have agreed about its main elements. First I would like to receive your reaction to the matters I have raised.

One main aspect that we should discuss is the issue of choosing the limitatively enumerated policy domains for the Federation. Because this limitative enumeration – leaving the Member States sovereign in all other domains – may even convince the most staunch anti-federalist that a European Federation is no super state, nor will it evaporate the diverse nation states. In professional terms: the non-exclusively assigned policy domains – the so-called residuary domains – remain with the Member States.

One more thing. The federal European Constitution should have the means to take care of the common interests of its citizens, not of the interests of the states. Within the constitutional framework the states can take care of their interests themselves. Which European interests could this cover? In other words: what is the content of the concrete communality? Well, very simple as far as I am concerned. All Europeans share the same basis interests: security, health and jobs – as a person, entrepreneur, laborer or consumer our nationality and our mother tongue are rather irrelevant. To take care of these kinds of interests the Federation Europe should be the primary watchdog, this should not lie with the individual States anymore. What do you think?

Finally I would like to ask your opinion about the course to be followed, the process. In 2001 intergovernmental Europe established a Convention, but that ended in anticlimax: its result, the so-called ‘Constitutional Treaty’ – what’s in a name? – was rejected in 2005 by a referendum in the Netherlands and France. It has been replaced by the even more complex Treaty of Lisbon and its array of amendments. Yes, each State had the right to veto it: one veto would have been enough to send this ‘Constitutional Treaty’ to deep water. That is why each country was allowed to include differentiations and exceptions in the text, resulting in the legal monster that you have described earlier. Let us learn from that failure and let us do it differently now, but how would this best be achieved?

How could we finally achieve a well-designed federal Constitution? What institutions, which constitutional drafters (the so-called constituents) are needed? From where do the constituents draw their power to design a Constitution? The States, nor intergovernmental Europe plus the European Committee (which increasingly resembles the Council’s secretariat), nor the European Parliament that is elected within stately constituencies (thus without European legitimization, but certainly with powers) could play a role in this. Who or what could? And how should this constitutional project be set up? Would the Convention of Philadelphia 1787 serve as an example for today’s Europe? I wonder how this Convention was established in such a way that they succeeded in accepting a federal Constitution. How did they manage to organize the support? And what do you think about the plan by Guy Verhofstadt and Daniel Cohn-Bendit to organize such a federal convention following the European elections in 2014? Could you, being a scientist in public administration, elaborate on that?

With pleasure I await your opinion, esteemed Klinkers, on all matters that I have laid before you in this paper. In the meantime I will study the Swiss Federation.