Nr. 16 – Klinkers, October 2012

In Paper no. 16 Klinkers elaborates on what occurred at the Convention of Philadelphia (1787). He outlines the laborious process to create the federal Constitution: two steps forward and one step back. When the founding fathers of the American Constitution put forward a coherent argument regarding a constitutional aspect there were always opponents who would argue the confederal point of view. Nevertheless, after six months of debate the majority of delegates opted for the federal draft. In answering Tombeur's questions put forward in a previous Paper regarding the idea of Verhofstadt and Cohn-Bendit to organize such a federal Convention following the 2014 EU-elections, Klinkers states that this must be considered a strategic mistake: such a Convention should not take place after the EU-elections but rather in 2013. In his opinion the main focus of these elections should be the choice to vote either for or against federalization.

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

 

Dear Tombeur, let me start by answering your questions put forward in Paper no. 15. I gladly agree with your proposal to also consider – when drafting a concept for a European federal Constitution – the Swiss Constitution.

Furthermore, I am in agreement with your ideas on the constitutional and institutional contours of a European federal Constitution. Especially the choice to assign to the federal body a limitative list of responsibilities should prevent the impression that we propose a super state. Such a limitative enumeration of powers for the federal body eliminates the perfidious working of the present EU-principle of subsidiarity altogether. I will elaborate on this later in this Paper. The question relating to the way in which the constituents should establish a federal Constitution should be dealt with once we have drafted our own model for a federal European Constitution.

With respect to one aspect in your discourse I have to make an observation. When you speak about one of the powers of the American President – the right to veto draft laws of the Houses of Congress – you ask if such a regime would be suitable for Europe. The constitutionally supported answer is: yes, it would. But you only referred to one part of the legal system. The other part is that, based on the American Constitution, a Presidential veto can be overruled by a two third majority in Congress. Thus, the President is not all-mighty. This is one of the many checks and balances that the Americans have formulated within the concept of the trias politica.

Furthermore, I am of the opinion that the Presidential system is a relief when compared with the parliamentary democracy that exists in most European States. However, I would like to reserve my arguments supporting that statement for the next Paper. There I will have more room to explain what I mean by this.

Finally I share your view that the 18th century as well as the present situation in America is comparable with the current demographic and financial-economic situation in Europe. One only has to read Geert Mak’s brilliant book ‘Reizen zonder John’ (Travelling without John) to see these parallels in wealth and poverty, in progress and stagnation, in political stand-still and sudden changes, in urbanization and rural exodus. This insight grows on you when you also read the aforementioned book ‘Alle Presidenten’ (All Presidents) by Frans Verhagen. This exposé of the political and social circumstances under which the 44 Presidents were elected and functioned, deepens one’s insight into American reality as described so strikingly by Geert Mak.

Now I begin with your final question in Paper no. 15. You would like to know in what respect the Convention of Philadelphia in 1787 could serve as an example for present-day Europe. To answer that question properly I first have to discuss the book ‘For Europe’ by Guy Verhofstadt and Daniel Cohn-Bendit, published October 1st, 2012. Verhofstadt is chairman of the Alliance of Liberals and Democrats for Europe (ALDE) in the European Parliament (EP); Cohn-Bendit is co-chairman of the Greens/Free European Alliance in the same EP. For me, their document evokes admiration and bewilderment. I have to elaborate on this before I can illustrate the significance of the Convention of Philadelphia.

Why admiration for that book? Both authors belong to a special category of politicians: they write books. That is peculiar. Not only because most politicians, wherever in the world, do not write books, but because laying down a political ideology makes them vulnerable. That requires courage. The written word can be read, commented and criticized endlessly. The spoken word, on the contrary, cannot be held up easily by political opponents. It is fluid. And easily dismissed by a strong opposition as a misunderstood observation. But once on paper, the pattern of the writer’s political values and norms are on the table, naked, ready to be dissected by ruthless surgeons with sharp scalpels.

In this book they put their hearts on their sleeves. Rarely have I read a document – partly a story, partly an interview – that illuminates in such an enthusiastic and passionate way a political position. Nothing, and nothing indeed, is formulated vaguely, indirectly, cryptically or with reservation. Word after word, sentence after sentence, the authors explain at a raging pace the rather sad deficiencies of the current intergovernmental system. This is all supported by a powerful array of arguments, facts and figures – all in all, a strong incentive indeed for adopting a federal system. For convinced European federalists this book is a veritable feast – and thus a horror for anti-federalists.

It is hard to understand why these two seasoned politicians have let themselves go so far. Once more, for me this book underlines the correct path that you and I have to walk towards the destination called ‘Federal Europe’. But people who reject a federal Europe – either because they have what they perceive to be sincere reasons, or (as is the case with 99% of people) they just do not know what they are talking about – receive in the first three/four pages of that book so many blows and kicks that they stop reading. As a present day ‘J’accuse …’ in the style of Emile’s Zola press article about the officer Dreyfus’ case, accused of high treason in France over a century ago, ‘For Europe’ puts down mercilessly anybody who may have the guts to play down or deny the correctness of the required federal future. It is doubtful if precisely those people, for whom they are ringing the bell, will turn 180 degrees. It is more likely that they will attempt to dig deeper trenches to defend the intergovernmental system against attacks like this. Why both authors did not endeavor to argue more pragmatically is from my point of view bewildering. They walk too far in front of the music and cannot say that this is because the others are walking too slowly; the others do not get the chance to keep up or catch up with them. That is why their writing sometimes resembles a pamphlet rather than a well-balanced book.

Another aspect of bewilderment is the recurrent misuse – also in other books by Verhofstadt – of the word ‘integration’ or ‘integrated’. In ‘For Europe’ the required federalization is repeatedly argued by the need or necessity for more integration of the Member States. We see this claim made by many others, among whom, as said before, in the ‘State of the Union’ by José Manuel Barroso. Once again, integration is a beautiful concept, but one has to be careful where and how to use it. The way it is used in ‘For Europe’ suggests evaporating, dissolving individual nations. And especially that kind of perception of the word ‘integration’ is an important source of resistance against federalization. The authors should have made clear that due to the vertical division of powers in a federal system a separate complex of powers arises above the permanent sovereign powers of the Member States, but not operating hierarchically top down, as is the case in the present intergovernmental system; with each level operating independently, while the upper level takes care of matters that individual states cannot take care of (anymore) – for instance foreign affairs, finance and economics of the federal state, defense and some other domains. You already mentioned this in Paper no. 15, when referring to the concept of exclusive powers. There, and there alone, in the upper federal level, the word ‘integration’ is appropriate, in the sense that domains that at first were controlled by separate States, in a Federation are taken care of communally by a federal body above the States. The reasons with which both authors argue why separate Member States do not have any chance of taking care of those domains individually against America, India, Brazil (all federations!) and China, as well as against some other emerging world powers, correspond completely with what you – esteemed Tombeur – have outlined already thoroughly in Paper no. 9.

The wrong use of the word ‘integration’ resembles another aspect of bewilderment: the almost complete lack of any position or proposition of a constitutional and institutional nature. The authors do not explain what a Federation entails legally or organizationally. This is a severe shortcoming because a calm and pragmatic explanation of the aspects in which a federal organization differs from the intergovernmental system may make it possible to attract promoters of the federal system. The only text of a constitutional and institutional nature is their plea for a Convention (with delegates from all levels of society) soon after the 2014 European elections, aiming at the creation of a Federal European Union. They support that wish by referring to the Convention of Philadelphia, which in 1787 managed to transform the loosely organized Confederation into a tight Federal cooperation under the name of the United States of America.

Only now I can begin to answer your question in what respect can the 1787 Convention serve as an example for our federal Europe of tomorrow. In my view, Verhofstadt and Cohn-Bendit are making a strategic mistake. Their Convention should not take place after 2014, but before the European elections. Thus in 2013. The result of that Convention should be the input for the election battle: pro or against federalization, all or nothing. The organization of such a Convention should begin now. Why? To counter some ideas, plans, proposals, studies and reports that are being prepared right now by people such as Van Rompuy, Barroso, Westerwelle and who else, under the guise of ‘federalization’, in effect creating more intergovernmentalism. When it will be clear that the year 2013 will be dominated by a Convention dedicated to composing a federal Europe, chances are that these plans et cetera – in as far as they will actually deepen the intergovernmental system – will be put on hold.

Now the Philadelphia Convention itself. Again a historical perspective as a best practice to learn from. Why did they organize that Convention? After a handful of British colonies (dominions) seceded from Great Britain (concluded with Thomas Jefferson’s Declaration of Independence) thirteen States established a governing system of their own. Together they formed a Confederation, based on a treaty entitled ‘Articles of Confederation’ (1777/1781) aimed at taking care of common interests together. However, without creating a separate organ above these Confederal States that could actually take care of that common decision making. Prior to 1776 newspapers and other magazines about stately matters were already filled with hundreds of pamphlets and articles, only to increase after establishing the ‘Articles of Confederation’. Each State designed its own system. In a process of moving from ‘colony to state’ they came hopelessly entangled in a web of opposing views and models.

It was a tiring and often discouraging quest for the basic principles and the primary institutes of a free government. The assumption that they had created a paradise for themselves – with a minimum of stately conditions – following the struggle for independence, in practice appeared disappointing. Around 1787 all Confederal States had discussed thoroughly, and even practiced, the organization of self-government, without any uniformity between the States. Some States opted for a system of one Chamber, other chose a bicameral system. Some States introduced fundamental rights, Bills of Rights. After eleven years of experiments the governmental weaknesses became evident. Above all, there was one dominating problem: a lack of money to finance matters of general interest. The Confederal Parliament could print money, but that money had no value. None of the Confederal States paid their taxes on time, or they did not pay at all. There was no communal army to defend the Confederation as an independent state against possible enemies. They only had a loosely united bunch of underpaid mercenaries. After eleven years of confederal muddling through there was nothing to prove that they had grown to be a proud, respected, independent, sovereign nation. Time to get together.

Besides: a more thorough analysis of the many weaknesses and shortcomings of the confederal system of that time would make clear that today’s European Union reveals exactly the same flaws. However, somewhat different from the case in America – where it took only eleven years to understand that they had to replace the Confederation with a Federation – we in Europe have been floundering since 1950 with sticking plasters on the stinking wounds of our own European confederal system.

After some failed attempts in 1785 and 1786 at organizing a communal deliberation, in May 1787 – on the initiative of, among others, James Madison, Alexander Hamilton and George Washington – in Philadelphia a group of 55 people gathered as delegates of twelve of the thirteen Confederal States. Even though their knowledge and experience with stately principles was heterogeneous, on certain issues they shared the same visions, such as the necessity of representation, and therefore rejecting democracy in the sense of ‘everybody is entitled to co-decide on everything’. They also accepted James Madison’s formula, later elaborated by him in Federalist Paper 51: “You must first enable the government to control the governed; and in the next place, oblige to control itself.” This formula has been the guiding motive to restrict the federal Constitution as a product of the Convention of Philadelphia to a firm construction of the trias politica: balancing the three branches in order to prevent one from overruling the other; this guarantees liberty, never again an oppressor.

The Convention of Philadelphia had to debate difficult theoretical problems of a stately nature, while the delegates differed considerably: socially, ethnically, religiously and with respect to prosperity. They all held opinions of their own about the necessary magnitude of the Confederation, foreign affairs and commerce, division of state and church, private property, speculation on land, slavery and financial state affairs. This is why it is remarkable that during the discourse a reversal of 180 degrees took place. They were gathered to amend the existing confederal treaty of the ‘Articles of Confederation’ in order to strengthen the Confederation. Instead, the Convention decided as early as June 1787 – on the basis of a proposal by James Madison – to design something completely new, a federal system.

This proposal by Madison is known as the ‘Virginia Plan’, and it was embraced by the larger States. It leant heavily on the ideas of John Locke (a government should have its citizens’ support) and on those of Montesquieu (one should separate the three branches of government). The delegates of the smaller States experienced this plan as a ‘coup d’etat’ and tried to convert it by proposing an opposite plan, known as the ‘New Jersey Plan’. This countermove failed, however, in the sense that parties came to an agreement in the so-called ‘Great Compromise’ of July 6th, 1787. This led to the communal decision to have a federal system with a Lower House guaranteeing the representative democracy by a House of Representatives in proportion to the number of inhabitants per State, and a Higher House with two representatives per State, thus not linked to the size of the population. After that point had been passed the decision-making speed went up. Within weeks they agreed on the powers of the three branches, the election of the President, the organization of the judicial system and the manner of ratification of the draft Constitution.

This draft Constitution was already on the table on August 6th, 1787. Remarkable in this is the limitative enumeration of the powers of the Houses of Congress. This is the location I refer to in the second section of this Paper: the necessity to project this matter against the so-called principle of ‘subsidiarity’ in the present EU. The principle of subsidiarity means that EU-Member States should be allowed to do what can been done best by themselves, rather than by Brussels. While the principle behind this was to leave the Member State’s sovereign decision-making as untouched as possible, in practice the intergovernmental EU evolved into a centrally imposed uniformity system: top down hierarchical decision-making by government leaders and heads of states in the European Council. I will not repeat what has been said in previous Papers about this. It is enough to conclude that the principle of subsidiarity, if it ever practically existed, died with the creation of the European Council – causing an increasing revolt by people and politicians in the Member States against this violation of the principle, which in effect does erode the nation’s sovereignty .

While this systemic flaw has already been discussed hundreds of times for many years, it took the delegates of the Convention of Philadelphia only a couple of weeks to throw it into the waste paper basket. What was the case? The aforementioned Madison’s ‘Virginia Plan’ contained a text to grant Congress the power “… to legislate in all cases, to which the separate States are incompetent …” The delegates understood quite well that this would be a wide open gateway for Congress to act as a super power, legally empowered to overrule each State’s legislature. In the debate about this matter the concept of the necessary vertical division of powers arose, resulting in the decision to limit, by enumerating, the powers of the Houses of Congress.

This – dear Tombeur – is America’s equivalent of the (by the Germans required) Kompetenz Catalog about which you spoke in Paper no. 15. And this – the limitative enumeration of powers – is what we have to include in our draft Constitution as a replacement of the principle of subsidiarity that never really worked.

Now back to Philadelphia. Between August 7th-10th, 1787, the Convention discussed the draft federal Constitution, article by article. They spent a lot of time deciding on even the so limitative enumeration of Presidential powers, his relation to Congress and the way in which this relation through instruments such as consent and veto has to be put into procedures. After September 10th a committee started to write a final draft under the leadership of Governor Morris of Pennsylvania. Despite the murmurings of discontent by three delegates opposing the draft, 39 signed it and all present agreed to put it before the citizens of the States.

With this, in October 1787 began the route to ratification of the Constitution. The primary advocates of the draft benefitted in that period of a clever use of words, in our time better understood as the use of perception as an instrument to convince people. Before and after the Convention of Philadelphia concepts such as ‘Confederation’ and ‘Federation’ were used more or less as synonyms. The draft Constitution, however, was put forward under the exclusive name of ‘federalist’. As a result the promoters of the ‘Articles of Confederation’ were called ‘confederalists’ and thereafter ‘anti-federalists’. A negative connotation that has played a role in – eventually – ratifying the Constitution by the people of all thirteen Confederal States. Moreover, gradually a ‘federalist’ was being identified with the one and true inheritor of the revolution which had realized freedom. To add to this – as an effective aspect of perception – the federalists managed to convince the peoples that with a stable and energetic federal system the United States would prosper, with respect to size, prosperity and politically. This has proven to be a correct estimation.

As I have described in previous Papers, Alexander Hamilton, James Madison and John Jay wrote 85 Papers to explain and defend the federal Constitution. The Papers were published in New York newspapers between October 27, 1787 and April 2nd, 1788. Hamilton focused on the need for an energetic government, on the power of Parliament and on matters of the executive and judicial branches. Madison concentrated on explaining the character of the federal system and on the checks and balances between the three branches of power. As stated before, they wrote under the common pseudonym of Publius. Their readers did not know who were behind that pseudonym. It evoked federal and anti-federal oriented articles in newspapers, under pseudonyms such as Brutus, Cato, Centinel, The Federalist Farmer.

In January 1788 the peoples of five States ratified the draft. In May eight, one more to go for the Constitution to come into being. In June 1788 ten States had ratified, more than enough to bring it into force in 1789. Due to this tipping point having been reached, the remaining three States decided to ratify, despite their earlier opposition to the draft. As of May 1790 all thirteen States had ratified.

Let me return to Verhofstadt’s and Cohn-Bendit’s call for a Convention such as that of Philadelphia following the 2014 EU elections. I again like to emphasize the necessity for this to take place in 2013, as an ultimate challenge to the intergovernmentalists in the forthcoming 2014 elections. However, a Convention such as the one in Philadelphia does not seem appropriate. To ‘imprison’ delegates for almost a year at one location is no longer of this time. Especially in view of the proposal to let federalization emerge from and be ratified by the citizens of Europe. With the help of social media anno 2013 it is possible to activate the whole of Europe. It is only a matter of organization.

Furthermore, I would like to plead, contrary to the Philadelphia method, that activating European federalists throughout all EU-countries should not have the goal of designing a federal Constitution, but to comment on and improve a draft Constitution, put before the European citizens. To that end – esteemed Tombeur – it is my view that you and I are obliged to do what Verhofstadt and Cohn-Bendit neglected to do: to shed a clear light on the constitutional and institutional aspects of a federal European Constitution by drafting such a document ourselves. Supported by the American Constitution as a best practice and of course also by the Swiss Constitution. I await your reply on that subject.