Nr. 14 – Klinkers, October 2012

With paper no. 14 the authors begin discussing the constitutional and institutional issues that should be addressed before composing a federal European system. Following their point of departure that the creation and construction of the American Constitution is the best practice for a European Constitution, Klinkers first describes the structure and content of the former. Surprisingly, the American Constitution is a very compact document: it encompasses only seven articles and mainly focuses on a clear definition of the trias politica. In the knowledge that the confederal governing system could not guarantee sufficient unity and that in a federal organization the establishment of a power above the individual States may endanger their newly-won freedom, in 1787 the Americans concentrated on an accurate demarcation of the legislative, executive and judicial powers, so as to prevent one power overruling another. Klinkers mentions that the seven articles of the American Constitution have been supplemented with 27 Amendments. However, all in all this compact Constitution is by far preferable to the 55 plus 358 articles of the (two component treaties of the) Treaty of Lisbon. Those seven articles contain the nucleus of what the people want to be guaranteed and secured, constitutionally and institutionally; there is no need for more.

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

 

What might a European Federation look like, from a constitutional and institutional point of view? Before I can answer this question I have to solve a linguistic problem.

How should we understand the words ‘constitutional’ and ‘institutional’? ‘Constitutional’ means that something is based on an agreement which lays the foundation for the operation of an organization. This word stems from the same origin as ‘constitutive’, meaning ‘establishing’, or ‘setting’. We speak of a constitutive judgment when a judge establishes a legal status. If that basic act concerns a State we call it a Constitution. ‘Institutional’ refers to the organizational content of that Constitution. Together, ‘constitutional and institutional’, mean only one thing: the organizational order of a State.

Here we are dealing with a so-called hen-dia-dys, a linguistic phenomenon from the ancient Greek, using two words to indicate one matter. Literally it is one (hen) through (dia) two (dys). We also see this phenomenon in the English language, for example ‘he came despite the rain and weather’; or to look ‘with eyes and envy’. Thus, a figure of speech in which two nouns joined by and are used in place of one noun.

The concept of ‘constitutional and institutional’ is used to refer to the legitimate basic organization of a State or of any other construction, for instance the Benelux or Europe.

Esteemed Tombeur, in previous Papers we have tried to explain that it would be wise to follow the best practice of 1787-1789 North America, although you have criticized firmly, in Paper no. 9, the often detached and opportunistic behavior of the United States with regard to Europe. However, this does not change the fact that America has served, both constitutionally and institutionally, as a model for the stately composition of many other countries in the world. We would throw out the baby with the bath water if we – due to America’s pursuit of its own economic and military interests – would negate or minimalize its political wisdom at the end of the 18th century.

The way in which some leading figures at the Convention of Philadelphia understood that tinkering with the Confederation would be useless, therefore deciding to design a Federal Constitution, has led us to the statement – as argued in our Papers 10, 11 and 12 – that again and again repairing the shortcomings of the European intergovernmental system is, and always will be, useless. A Federation will never emerge from the repeated reparations, changes or adaptations of that Treaty. One cannot make a silk purse out of a sow’s ear. 

Although the State of the Union of September 12th, 2012, by chairman of the European Commission Barroso is sympathetic, he finds it necessary to adapt, once again, the present treaties in order to compose a renewed European Union in the sense of a ‘Federation of States’. It is hard to understand why he keeps focusing on what is essentially a stalemate. Barroso does not see that the misery that he correctly criticizes is caused, again and again, by the intergovernmental system itself; and never can be solved by alterations within that system. Take this quote from this State of the Union: “On too many occasions, we have seen a vicious spiral. First, very important decisions for our future are taken at European summits. But then, the next day, we see some of those very same people who took those decisions undermining them. Saying that either they go too far, or that they don’t go far enough. And then we get a problem of credibility. A problem of confidence.”

The vicious spiral he is talking about is the typical phenomenon of the positive feedback mechanism that I explained earlier in Paper 11. The fact that government leaders undermine their decisions immediately after they were taken, is typical for the intergovernmental system, that always creates losers: they try to compensate their loss by repudiating their own decisions. If Barroso immediately after this complaint states that questions with respect to the future cannot be answered with tools of the past, he uses exactly the instrument from the past that is the prime cause of his problems, namely by stating “more unity demands more integration”. On the contrary.

As mentioned in earlier Papers: integration is a sympathetic word, but one should know when and where to use it. More integration within an intergovernmental system – how often adapted or changed – produces more centrally imposed uniformity which is vaporizing nation states. And that is exactly why national politicians and citizens feel that something is wrong. The proper need is allocating some sovereign powers to a governing body above the States while those States keep their own sovereign powers. Not hierarchically organized, no top down decision-making, but a complex of sovereign powers for a federal body and for the States as well.

Coming to this point, I would like to refer to a Dutch television broadcast on October 15th, 2012. A journalist was talking to Ben Bot (former Minister of Foreign Affairs and in Maastricht 1992 Secretary General of that ministry), Frits Bolkestein (former Euro Commissioner) and Maarten van Rossem (emeritus Professor of American Studies). It concerned the question as to whether the Netherlands should cooperate in federalizing Europe. Well, the journalist and the first two political figures mentioned above showed a bewildering absence of knowledge about the essentials of a federal system. They used ‘Federation’ and ‘Super State’ as synonyms.

The journalist posed only one relevant question, luckily enough to Van Rossem: “What will we lose if Europe becomes a Federation?“ Van Rossem gave the perfect answer: “Nothing. We will only get something extra.” That brings me back to the example that I have used in Paper no. 2, to explain the difference between intergovernmentalism and federalism. Namely by referring to what is known in the Netherlands as the Association of Owners of apartment buildings. Living in such buildings resembles a federal organization: within your apartment you are free to do whatever you like. You decide yourself how you derive your income and how you spend your money. Nobody above you has the power to decide how you should live. No one can take your money. But you know that living in that apartment requires attention to matters that you cannot take care of yourself. Those are matters of common concern: the maintenance of the roof and the foundation, the elevators and the stairway. To take care of that you pay a monthly sum into an association (elected by the owners) that takes care of these common interests. Thus, within such an association you will not lose anything, but instead you gain an extra: the knowledge that you do not need to worry about these essential matters as they are efficiently managed.

Even a Brit, and not someone to ignore, understood this: the sociologist Anthony Giddens, who circa ten years ago served as advisor to Prime Minister Tony Blair. In his book ‘Europe in the Global Age’ he states that the European Union, as of the beginning, has achieved more than individual countries would have achieved by themselves. Let me quote from an interview with Giddens by Knack in 2007: “Take for instance the consultation within an institute such as the World Trade Organization. Because the Union as a whole carries more weight, it is able to achieve more for its citizens than the Member States individually. In the same manner as an organization it can do more against, for instance, the risks of climate change, terrorism and international crime. Contrary to what many, especially new Member States think, in the end shared sovereignty leads to more sovereignty. (…) Present-day intergovernmental Europe has too many restrictions. Government leaders always give way to national interests. (…) If the rules remain as they are, the Union has no future. The change of the upmost necessity relates to the way of decision-making. Due to the manner in which matters are organized now minorities can block a decision forever.” Could the added value of a separate federal governing layer for interests on a wider scale than national interests be better phrased?

Thus the European Federation should be designed – just as the 18th century North American Federation – independently of and besides the existing intergovernmental system.

If we want to use America’s process of federalization at the end of the 18th century as the best practice, we have to take the American Constitution (as the outcome of that process) as a benchmark for composing the constitutional and institutional aspects of a European Federation – naturally adapted to today’s insights. Perhaps it is superfluous to mention that I do not intend to refer to or draw from the Treaty of Lisbon in any way. That political-legal monster can never guarantee an authoritative constitutional and institutional foundation for European cooperation. It contains far too many articles, all signs of convulsive attempts at keeping each and everyone on board. And hence utterly vulnerable to the saying: “The more rules, the more fouls.”

The worst aspect of the Treaty of Lisbon is visible in the dozens of protocols and exceptions made towards the end. Any first-year law student learns that law making – by definition – should be generally binding. Legislation which, following the generally binding articles, formulates arrays of exceptions is the worst imaginable way of law making. This explains why the intergovernmental system does not work, and why it provokes so much criticism. People who have to live in a house with a foundation constructed by non-professional builders rebel as a natural reaction when they experience cracked walls, doors and windows that do not close, a leaking roof and faulty electricity and water supplies.

Well, enough said about the deficiencies of the intergovernmental system. Time for more constructive texts. Before I design a federal European Constitution together with you, colleague Herbert Tombeur, I would like to elaborate on the primary characteristics of the American Constitution.

The draft was designed in 1787 by the Convention of Philadelphia, coming into force on March 4th, 1789. The importance Americans placed on their Constitution was strikingly worded by Eric Janse de Jonge in the opening sentences of his book ‘Amerikaans Staatsrecht’ (American State Law): “The first question that Americans pose when confronted with a legal question of a stately nature is: what would the founding fathers of the Constitution have thought about this?” More than in any other country in the world the American Constitution appears to be a document that keeps people together.

The most striking aspect of the American Constitution is its compact nature. It contains only seven articles. Over centuries they have been sufficient to keep fifty States together. Some articles contain many sections. Moreover, over the years 27 Amendments have been added. However, all in all the Constitution encompasses only a very limited amount of pages.

Let us compare this with the two sub-treaties of the Treaty of Lisbon: 55 plus 358 articles to accommodate 27 Member States. But that is not all. Behind the Treaty we find – as mentioned before – no less than 37 elaborated protocols specifying the working of the articles of the Treaty, or formulating exceptions to the rules for certain countries. These are followed by 65 Declarations in which Member States formulate which article is, or is not, applicable to a specific country. Everyone who enjoyed a decent law study knows that the legal status of such a Treaty is nil.

The American Constitution only formulates the principle of federalism and the trias politica. Through Amendments following soon after 1789 a Bill of Rights (1791) was adopted. Striking is the emphasis on federalism and the trias politica. This was all they needed as a foundation for the development of the mightiest country in the world.

Within the trias politica the American Constitution has built an utterly ingenious system of checks and balances; an art of stately balancing of the highest quality. It is the expression of their hard-won freedom: no person or institute would ever again rule over everyone. The checks and balances are an ingenious elaboration of the rule of law: nobody stands above it.

The Constitution consists of two primary balances. Firstly, the vertical division of powers between the federal body (= the sovereign body preserving the unity of the country) and the power of the Member States (= each State’s sovereign power, preserving diversity within the country). That is the federal system’s basis: sovereignty for both parts (the federal and the state parts) without a hierarchy. Thus a sharing of sovereignty by the States and the Federation. Secondly, there is a horizontal division of powers, usually called the trias politica: the legislative, executive and judicial powers operate separately in their own territory and none of these are allowed to impede the work of any of the other two.

However, within these primary balances we find many more checks and balances. In practice the trias politica cannot be carried out rigidly. Often, the three powers have to cooperate, which is the case in any country. To prevent one power overruling the others, extra balances have been created.

To give some examples, with respect to the federal system: the Constitution can be amended but only if the federal body and the governments of the Member States agree. With respect to the trias politica: the President has the power to appoint Ministers and Ambassadors, but he needs the advice and consent of the Senate. With respect to legislation: the President can veto draft-legislation by the Houses of Congress but the Houses are able to overrule that veto by a two-third majority. There are more examples, but I confine myself to these. The essence is that the American Constitution blocks any possibility of hierarchical excesses.

To curb the legislative and the executive powers Alexander Hamilton states in Paper no. 78: “There is no liberty if the power of judging be not separated from the legislative and executive powers.” In order to prevent the judge from always being granted the last word, however, the legislature will counter undesired judicial judgments with new rules that restore the balance between the two powers.

The founding fathers of the federal Constitution were not only driven to create this ingenious system of checks and balances to avoid losing their hard-won liberty, but also in the hope and expectation that precisely this limited constitutional and institutional system would produce prosperity and welfare. Thus, next to the defense-oriented agenda of creating an obstacle against a possible new supremacy they also had a positive driving force: a Constitution which self-evidently would create political, social and economic progress. The federalists considered this compact Constitution the best instrument for the preservation of their hard-won independence on the one hand and the growth of national strength and progress on the other. History proves them right. A federal European Constitution, based on the American model, may realize the same progress.

Thus far the main characteristics of the American Constitution. Now I would like to give some substantive observations. Articles I, II and III describe the three powers: the legislative, executive and judicial powers. Articles IV-VII deal with the basic elements of federalism.

In ten sections Article I deals with the powers of Congress, consisting of two Chambers: the House of Representatives and the Senate. The House of Representatives guarantees the rights and interests of the people, the citizens. The Senate represents the interests of the Member States. This is an intelligent combination of stately thinking from the bottom up (thus, thinking from the perspective of the citizens) while at the same time guaranteeing the States’ sovereignty (thus thinking from the perspective of the separate States).

However, at this point I have to make a comment. The original text of the American Constitution stated that the Senate would be appointed by the legislatures of the individual States. In 1913 Amendment 17 stated that two Senators per State would be elected by the people of the State. I wonder if this is not a breach of the original classical federal system. An impairment of the aforementioned vertical division of powers, one of its characteristics being – as we know – the protection of the States’ sovereignty. The House of Representatives, elected by the people, represents the interest of the federal body. The Senate, to be appointed by State legislatures, represents the interests of the States. That is one of the checks and balances that makes the American system so ingenious. By introducing the Senate elected through the people in 1913 a lot of power (or even too much power?) has shifted progressively from the States towards the federal body. Anno 2012-2013 it appears that this process has increasingly led to question marks regarding the correct balance of power between the federal body and the States. It would not surprise me if they would come up with an Amendment to repeal Amendment 17, in order to restore the original 1787 text.

Let’s return to the Articles of the Constitution. Article I explains the way in which both Houses of Congress are elected. The Representatives (435) represent the people and are elected every two years. The size of the State’s population determines the quantity of the representatives per State. This House chooses its own chairperson and officials. The Senate (100) – two from each State, regardless of their size – represents the States (here I repeat my observation that they are elected by the State’s people since Amendment 17 of 1913). They occupy a seat for six years. The Vice President is qualitate qua chairperson of the Senate. If the President is on trial due to severe misdemeanors the Supreme Court’s chairperson will chair the Senate. Both Houses determine by themselves the way in which their elections take place. The President has no power to dissolve Congress.

Both Houses are entitled to make laws. However, making federal fiscal laws is the prerogative of the House of Representatives. All laws need the consent of both Houses. The executive government does not design laws; it has the duty to execute the laws of the Houses. That’s why members of the President’s Cabinet do not appear in Congress. Thus, all laws are products on the initiative of members of Parliament.

The majority of European countries do not have a presidential system, but a so-called parliamentary democracy. This means that parliament is the boss of the executive power, being legitimized to hold responsible a prime minister and members of his cabinet for what they do. This implies the power to send them away if they no longer possess parliamentary trust. Parliamentary democracy does not exist in a presidential system like the United States. Congress and the President are elected by the people, so they are accountable to the people.

This explains the large system of parliamentary committees and the magnitude of personnel in both Houses. It also explains the elaborated lobby system from the part of the executive body to convince members of both Houses to initiate certain laws. The President and his Ministers do not sit down, waiting for draft laws to arrive, but operate actively behind the curtains of the Houses to stimulate the Houses to initiate laws.

Thus, each draft law comes from one of the Houses and is sent to the President. It may be signed, or sent back with an argued veto. In that case the House where it originated can rethink the draft. If that House, and also the other House, accepts the draft with a two third majority, the law will pass. I leave details regarding this procedure aside, referring to the aforementioned book by Eric Janse de Jonge on American State Law.

The powers of Congress are related to matters of national interest. For instance the national currency, the federal fiscal system, commercial relations with other countries, foreign affairs and defense. There are more, limitatively enumerated, matters. This limitative enumeration is a typical characteristic of the federal system: Member States are allowed to do anything that is not explicitly granted to the federal body. In a detailed way it is settled that the federal body is not allowed to interfere in subjects belonging to the complex of State powers. See here the protection of the State’s sovereignty. Vice versa, it is also determined that the States are not allowed to interfere with the federal body, unless given permission by Congress.

Here appears one of the primary differences between intergovernmentalism and federalism: no hierarchy between the top and the bottom; no (undue) influence by the States in federal affairs; plus sovereign legislative powers for the federal body as well as for the component parts of the Federation, the States. Thus no external interference by States on the federal level, nor any external interference by the Federal level in the State level. This is precisely the point that refutes popular misconceptions, as if a Federal State were a Super State destroying and absorbing the Member States’ sovereignty. Quod non. This is the more remarkable since the European intergovernmental system increasingly grants more power to national parliaments in order to influence the decision-making process in Brussels, for instance with regard to the Economic and Monetary Union. This only amounts to piling up conflict upon conflict. In a federal system powers are kept separate.

Article II covers the complex powers of the executive system under the leadership of the federal President. It formulates, among others, his election, the supreme command of the defense, the appointment of ambassadors, officials and the judges of the Supreme Court. This Article is also the basis for the State of the Union, the yearly declaration by the President in Congress. In addition we find in this Article the famous impeachment clause, the possibility to send a President or Vice President away on the charge of severe misdemeanors (‘Treason, Bribery or other high Crimes and Misdemeanors’). In 1974 – due to the Watergate affair – this led to the abdication of President Richard Nixon. Article II also contains the sentence with which the President accepts his office ‘I do solemnly swear …’

Thus, as is the case with the powers of Congress, Presidential powers are also limitatively enumerated. This does not alter the fact that over the years the legislature, as well as the executive power, have acquired so-called implied powers. However, these cannot overrule the powers as explicitly formulated in the Constitution.

An example of those implied powers are the so-called Presidential Executive Orders. Although there is, strictly speaking, no legal basis for such orders, the President can give order to officials within the executive branch to act as he deems appropriate within the context of this law. Those orders have the power of a federal law because they are supposed to emerge from the law in question. Within European legal systems we would call them discretionary powers; even though, also in this domain, the principle of checks and balances plays a role. If Congress does not agree with a Presidential Executive Order it can try to remove it by designing a draft law. Then the President may veto that draft. Congress may respond to that by adopting the law with a two third majority. Even the Supreme Court is entitled to declare a Presidential Executive Order unconstitutional. Thus, on the one hand optimizing the effectiveness of the executive branch, while on the other hand sufficiently guaranteeing the prevention of an arbitrary use of discretionary powers.

Article III rules that the federal Supreme Court possesses the ultimate judicial power. Its members are appointed for life, thus they are not removable. This guarantees their independent judgment. It is the President who decides upon their appointment, after the advice and consent of the Senate. Next to the Supreme Court the so-called federal inferior courts exist, dealing with conflicts regarding federal laws. An important aspect is the judge’s power to review laws and treaties against the Constitution and constitutionally agreed treaties: the judicial review. The Supreme Court is the one and only institution to safeguard the Constitution. This Article is also the basis for trial by jury. We do not have this in the Netherlands. In Belgium it exists in the form of the Courts of Assisen in cases of capital crimes.

Article IV covers matters within and between States, including the relation between the States and the federal body. Furthermore it deals with procedures for privileges and immunities for citizens of States, rules with respect to the extradition of criminals between States, the admittance of other States into the Federation with the observation that it is forbidden to create a new State within an existing State, and the guarantee that each State is ruled by ‘a Republican form of Government’.

Earlier I have explained that the 1789 word ‘republican’ meant ‘representative democracy’ as opposed to ‘direct democracy’ or ‘popular democracy’ in the strictest sense of the word: ‘everybody is entitled to co-decide upon everything’. Each of the thirteen Confederal States designed after their independence from England in 1776 their own state form, only to get hopelessly stuck in endless debates about democracy – varying from continuing the constitutional monarchy that they knew from England to popular sovereignty with each vote being co-decisive. This subject was one of the reasons to organize, in 1787, the Convention of Philadelphia. At that occasion the concept of ‘democracy’ acquired the character of ‘representative democracy’ within a Federal Constitution. From the annals of the Convention Ralph Ketcham draws the following sentences in his ‘The Anti-Federalist Papers and the Constitutional Convention Debates’: “Equally discredited was ‘mere democracy’ which still meant, as Aristotle had taught, rule by the passionate, ignorant, demagogue-dominated ‘voice of the people’. This was sure to produce first injustice, then anarchy, and finally tiranny.” Evidently, this interpretation of democracy was discarded.

Article V deals with Amendments. Both Houses, as well as the States, can present Amendments to the Constitution. However, it requires consent between the federal body and the stately powers for an Amendment to be passed. This is one of the ingeniously built-in checks and balances of the American Constitution.

Article VI states that judges of each State (thus not the federal judges) are tied to the Constitution, the federal laws and all constitutionally agreed treaties, even if these treaties do not match the laws of that State. This is the supremacy clause, being the prime elaboration of the rule of law. Each public functionary, including officials of the executive and judiciary, has to make an oath or a vow. Even though, without the requirement of an investigation into someone’s religious beliefs to be able to get an appointment in a public office.

Finally, Article VII deals with the provision that the Constitution will come into force upon ratification of the draft Constitution by nine of the thirteen participating States. This majority was achieved in 1789. Following this, the remaining four States entered as well; the last State in 1790. This article stands out due to the fact that the concept of federalization at that time did not yet cover the idea of ‘all together at the same time’. There was room for a ‘decision by majority’ rather than the requirement of complete consensus by all participating thirteen States.

Well, this is the American Constitution in a nutshell. The seven Articles have been supplemented with 27 Amendments. The first ten Amendments cover fundamental rights (Bill of Rights, 1791), issues that Europeans have included in Constitutions and Treaties.

The Constitution applies to all citizens of a State. This document is a federal asset. In addition, States are able to make their own laws as part of their sovereignty. These laws do not need to be synchronized. A well-known example is the death penalty. Some States carry this, others do not. Perhaps unnecessarily I repeat: all States keep their own parliament, government, courts, police, fiscal system, educational system et cetera. Their Governor is elected by the citizens. Who dares to state that within a federation the Member States lose their sovereignty? Or that this evaporates and absorbs the nation state? Nothing could be further from the truth.

I would like to emphasize that care is needed when using the term ‘Nation State’. I categorically reject the manner in which Thierry Baudet praises the Nation State. Keep in mind the birth certificate of the European Nation States: the Westphalen Treaty (1648). Sovereignty, as was then granted to the European States, was a mutually excluding sovereignty, primarily aimed at saving the interests of one’s own country. A source of repeated perfidious excesses. No one has formulated this better than Altiero Spinelli in one of the first sections of the 1941 Ventotene Manifest, the birth certificate of modern European Federalism: “Absolute sovereignty of the nation state always results in supremacism because all feel threatened by the power of the other.” That is why after Westphalen many wars still raged throughout Europe. While we evolve towards a federal Europe the ones who keep praising the Nation State should learn that in the context of a Federation sovereignty is shared, aimed at solidarity.

But this aside.

The Constitution is America’s highest form of codified law. It was established by the people and is therefore the foundation of the Nation. It is the Constitution of the people. To the establishment of a European Federation the same should be applied. Nothing characterizes better the difference between the intergovernmental system – reconfirmed through consecutive treaties – and the Federation, constitutionally established by the people.

I am optimistic with regard to the question as to whether the European citizen would endorse such a Federation. Let’s remember what Guy Verhofstadt states in his book ‘The United States of Europe’, namely the fact that three times (in 2003, 2004 and 2005) no less than 25,000 citizens from Member States were questioned about the European Constitution which at the time was being prepared: “A clear majority found that there should be a Constitution, that there should be one Minister of Foreign Affairs for the Union, that there should be a European President and that the European Parliament should be granted more powers.” If this perception of European citizens is still valid after ten years we may count on a mandate of the people in favor of a European Constitution. Especially if that document – contrary to the previously drafted Constitution – will be compact and will be carrying the predicate ‘federal’.

This quotation by Verhofstadt legitimizes the contradiction of an observation by Luuk van Middelaar: his statement that it is understandable that government leaders convene in the European Council to defend the interests of their own citizens. Of course, each country has citizens who see their interests as primary, requiring their leaders to fight for those when convened in Brussels. But when push comes to shove the majority of citizens think otherwise. The only thing they want is good governance, alert and able to anticipate to possible developments, bad or good, with an adequate approach to problems, the compass directed at taking care of common interests.

Esteemed Tombeur, with this Paper I have tried to explain that we should base our thoughts about the constitutional and institutional aspects of a federal Europe in the 21st century on the historical perspective of America at the end of the 18th century.