Paper no. 24 covers the Articles VI-X of the draft Constitution for a federal Europe. After dealing with the third branch of the trias politica, the Judiciary, we will address the relations between Citizens, the Federation and its Member States, as well as the method for changing the Constitution, transitional measures and the process of ratification. Herewith the draft Constitution for a federal Europe ends.
European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013
We conclude our draft Constitution for the Federation Europe with the Articles VI-X. Again the raw ingredients of this draft stem from the American Constitution, flavored to the European taste.
In this Paper the third branch of the trias politica, the Judicial Branch, is discussed. As mentioned in Paper no. 21 we cannot oversee if all institutions of the European Union, including the Court of Justice, will be part of the new Federation. This would be possible when applying Article 20 of the Treaty with regard to the European Union: a minimum of nine Member States engage in a stronger cooperation (thus in our view a Federation), provided that they do not hamper the free internal market (the customs union, single currency, competition and commerce). If this would indeed be possible, there will be no need for the Federation to establish a Supreme Court. The present EU-Court of Justice would fulfill that function. In case the Federation will not be considered a stronger form of cooperation as indicated in Article 20 of the aforementioned Treaty, it will be possible for Citizens and States to first leave the EU (with the use of Article 50), in order to re-enter the EU as a Federation (through Article 49). In any case, the European Federation is open to the accession of other EU-Member States, as explained previously.
First we deal with the Judicial Branch, with the Court of Justice at the top. In our view a system of lower federal courts is needed in the nine or more federal States. Therefore we describe here in broad terms what the American judicial system looks like. Following this, we will present our Articles on that subject.
As early as 1789 American Congress established by law that the federal Judicial Branch should consist of three layers. The first layer is the Supreme Court, under which fall (at present) nineteen federal courts of appeal against verdicts of the 49 federal district courts in the third layer. Besides these three-layered federal courts, the States themselves have their own courts and thus also a Supreme Court per State.
The Congressional power to establish federal courts also implies the power to abolish them. This may happen when the President and Congress clash, in case the majority of one of the Houses does not belong to the President’s political party. In order to prevent the President from abusing his/her power to appoint judges (of course following the Senate’s advice and consent), by only appointing candidates from his/her own party, a Senate’s opposition may block this appointment. If such a lower federal court suffers from a lack of judges for a considerable amount of time (because the previous ones have retired or left for different reasons), Congress may decide to close that court.
The Supreme Court rules in cases relating to the federal government, in conflicts between States and in the interpretation of the Constitution. Even though the Constitution does not in so many words grant the Supreme Court the power to declare laws unconstitutional, in a conflict taking place in 1803 the then presiding Chief of Justice established or demanded this power for the Supreme Court. This so-called ‘judicial review’ implies the Supreme Court’s power to establish that a law made by Congress or a measure from the executive branch is in breach of the Constitution. Herewith the meaning and effect of such a law or measure is nullified and this sentence serves as a precedent for future cases of this kind. The Supreme Court is the court of appeal for the decisions of the nineteen federal courts of appeal.
The judges of the lowest level, the federal district courts, can deal with conflicts regarding the federal system and in issues between parties not residing in the same State. Verdicts issued by these courts may be appealed by the nineteen courts of appeal. These federal courts thus have their basis in Article III of the American Constitution (in our draft: Article VI); therefore they are called ‘constitutional courts’.
The courts of these three layers possess general jurisdiction. They deal with penal affairs as well as with civil litigations. Besides this three-layered structure there are special courts, for instance for bankruptcy (Bankruptcy Court) or taxes (Tax Court). However, these have a different status. The Bankruptcy Courts are considered to stand below the district courts, and therefore do not belong to Article III of the American Constitution (our draft Article VI). Their judges are not appointed for life and their salary may be adjusted. In addition, the legal basis of the Tax Court is not Article III, but Article I, Section 8 (in our draft: Article III). It is a so-called ‘legislative court’. Please note: the American Constitution grants Congress on two counts – Articles I and III, in our draft: Articles III and VI – the power to establish courts.
Besides operating as a court of appeal, the American federal Supreme Court rules in issues relating to interpreting the Constitution and treaties, and in cases relating to American Ministers, or Ambassadors and Consuls of foreign countries.
Federal judges have a lifetime-appointment. This means that they remain in office until they die, resign voluntarily or retire. In case of a serious crime the impeachment procedure is applicable.
Next to this three-layered judicial branch the States themselves also have courts. This makes the system rather complicated, because it may occur – in certain circumstances – that federal courts meddle in conflicts on a State level, and the other way around. The State courts administer justice on the basis of State laws. Thus also following the judicial procedures of that State. Each State has its own Supreme Court, which in principle is called upon as a last resort. However, in many cases verdicts of that State Supreme Court may be appealed by the federal Supreme Court. A State Supreme Court is only bound by constitutional interpretations of the federal Supreme Court, not by judgments of lower federal courts.
The American Constitution does not determine the number of federal Supreme Court judges. In the USA this court consists of nine people: the Chief Justice (chairperson) and eight members, appointed by the President, following the Senate’s advice and consent. This Supreme Court does not have separate Chambers; it always rules jointly, by simple majority vote. The Supreme Court has always rejected pleas for installing (specialized) Chambers, arguing that in that case there would be more than one Supreme Court. Something to ponder, not only with respect to the system of separate chambers in judicial colleges in European countries, but also within parliamentary systems dividing the people’s representatives into committees with final decision-making powers: in these cases a country possesses as many parliaments as there are committees with such decision-making powers.
Now we start to discuss the respective Articles of our draft federal Constitution.
Article VI – The Judicial Branch
Section 1 – Organization
The judicial power of the European Federation is vested in a Constitutional Court of Justice. European Congress may decide to install lower federal courts in States. The judges of the Constitutional Court of Justice as well as those of the lower federal courts hold their office as long as their conduct is good. For their services they receive a salary which during their office cannot be reduced.
Explanation of Section 1 The American Constitution states merely that there should be a Supreme Court. Its judges are to be appointed by the President – we copy this for the European Federation, but following the consent of both Houses of the European Congress – as discussed in Paper no. 23. It is up to the President to decide how many judges he/she wishes to appoint.
It is for the European Congress to decide if there should be lower federal courts below this Constitutional Court of Justice, the so-called ‘constitutional courts’, next to and separate from the State courts. Here we draw from what is stated in the limitative enumeration of powers of Congress in Section 8 of the U.S. Article I: that it may decide to install lower courts. Those courts, however, have other powers (as mentioned previously) than the federal courts of the American Article III. Those of the American Article I are called ‘legislative courts’ (a type of administrative court, for instance the Tax Court), whose verdicts may be appealed at the ‘constitutional courts’ of the American Article III, barring exceptions. Thus we adopt this American system: there should be one Constitutional Court of Justice for the European Federation – potentially the EU-Court of Justice in case the Federation is allowed to use the aforementioned EU-procedure of ‘strengthened cooperation’ of Article 20 of the Treaty concerning the European Union, one of the two sub-treaties of the Treaty of Lisbon. It is up to the European Congress to decide if and what other federal courts should be installed.
The requirement of good conduct in Section 1 implies that judges are allowed to stay in office until retirement, unless their conduct should lead to impeachment by the European Congress. In the USA this has happened fourteen times. Furthermore, it is determined that their salary may not be reduced, to avoid undue pressure on their independent judgment; though it may be increased.
Section 2 – Powers of Federal Courts
Explanation of Section 2 Section 2 deals with the powers of the federal courts. Even though the Constitution does not state this in so many words, these courts have the power to declare regulations and measures invalid on constitutional grounds. They are qualified to assess whether a law interferes with the Constitution, being the highest form of law. In the USA many disputes have arisen relating to this issue. Indeed, one may ask: who is the boss? If the legislature makes a law, this law applies to all. However, if a judge finds that a law interferes with the Constitution, this application is omitted. Federal judges, including those below the Supreme Court, may thus overrule the legislature.
Alexander Hamilton’s clarification of this issue – in no. 78 of the Federalist Papers – remains the prevailing doctrine up until today: “The interpretation of the laws is the proper and peculiar province of the [federal] courts. A constitution is, in fact, and must be regarded by the [federal] judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
We follow Hamilton in his reasoning that a Constitution is the most fundamental law of and for the people. Thus, this law has priority over other laws. This means that the Constitution is the judicially enforceable law of the highest kind in the European Federation. It is really ‘a Constitutional Law’, thus more than a ‘Convention of the Constitution’, or a moral-political agreement that cannot be enforced judicially – which is or has been the case in many European countries.
Clause 2 of Section 2 states that in conflicts in which one or more States, Ministers, Ambassadors and Consuls are the only litigating parties, the Constitutional Court of Justice has the exclusive power to rule, in first and final instance. This exception to the common principle of a distinction between first instance and appeal is based on the delicate nature of such cases, in which the immunity of States or of foreign civil officials within and outside of the European Federation is discussed.
Clause 3 of Section 2 introduces trial by jury to the European Federation – though, only for crimes determined by law. A thorny issue in many countries. We know the heated debates between advocates and opponents of trial by jury. Our argument to include this in our Constitution stems from the all-encompassing element of federal thinking: the Federation is of the people. If there is any doubt about the proper way of constitutional and institutional design it is wise to take the people as the point of departure. This is why we opt for trial by jury for certain crimes (as specified by law), assisted by professional magistrates.
Section 3 – High treason
Explanation of Section 3 We assume that this Section does not need any further explanation.
ARTICLE VII – The Citizens, the States and the Federation
Section 1- The Citizens
Section 2 – The States
Section 3 – The Federation
Explanation of Article VII This first Article of a series of general rules to conclude the Constitution gives an elaboration of the federal system. It deepens the relations between the sovereign federal body and the equally sovereign States. The all-decisive formula of the vertical division of powers is laid out in the Constitution in five steps. The first step is to be found in Article I, Clause 1, stating that any power not granted explicitly to the Federation belongs to the realm of powers of the Citizens and the States. The second step is Article III, Section 2, enumerating these federal powers limitatively. Step 3 is Section 3 of Article III, determining the borders – to protect the Citizens – within which these federal powers are to be applied. Step 4 is Section 4, determining the borders of the Federation and the States. Finally, step 5 in Article VII, further clarifying how some aspects of the relationship between Citizens-Federation-States have to be understood.
Section 1, Clause 1 states in the first sentence that each Citizen of a member State also possesses the Citizenship of the Federation. Thus a member State’s Citizenship is associated with the Citizenship of the Federation; as soon as a person possesses the nationality of a State he/she automatically gains federal Citizenship. Citizens receive one passport, delivered by their own State, also mentioning the person’s Citizenship of the Federation. This implies, among others, that he/she possesses the federally granted political and other rights and that he/she may claim, also outside of the Federation, assistance by diplomatic or consular services in matters for which they are authorized. The latter implies that these federal services have to enable federal Citizens living outside of the Federation to take part in federal elections of the House of the Citizens and that of the President/Vice President.
The second sentence of Clause 1, Section 1 prevents States from discriminating against Citizens of other States in favor of their own Citizens. Or, put more positively: all Citizens of the Federation have in all States the right to be treated equally, as a Citizen of that State. All Citizens, in all States of the Federation, have the right of so-called ‘national treatment’.
Clause 2 of Section 1 regulates the People’s Initiative to make a federal law, supported by Swiss constitutional examples at both the federal and cantonal level. For Europe this Clause is an innovation. The proposal of a draft law by a sufficient number of Citizens – 300,000 in the Eurozone is more than one per cent of the voters, taking into account that no constitutional voting threshold exists to obtain a seat in the House of the Citizens, only the electoral quota is determining this (see Paper 22) – is not a petition to introduce a subject to the political agenda or to request political institutions to make a law. This European People’s Initiative goes much further than the EU-citizen’s initiative, which gives the EU-institutions ample room for archiving such petitions and thus stopping them without yielding a result. This Clause puts pressure on Congress, pushed by the Citizens and the Parliaments of the States, to make a decision showing a respect for the People’s Initiative, with the help of the President.
The third Clause of Section 1 regulates the transfer of suspects between States, as a consequence of the free flow of persons in the Federation. Clause 4 confirms the principle of the prohibition of slavery and hard labor.
Section 2, Clause 1 demands from the States that they recognize the judicial order of the other States of the Federation. The States do not submit each other’s judicial order to an evaluation, but apply it in their State as well. This Clause prevents among others an administrative burden for Citizens, administrators and judges in relation to the use of official documents. Thus, in the European Federation the requirement of legalizing documents made by a State does not exist; these documents have legal validity in all other States of the Federation.
Section 2, Clause 2 means that only the States of the Federation are authorized in matters of nationality or Citizenship, with all associated political and social rights. Though we reiterate that the Federation will in some years become the authority on migration policies. Each State recognizes the Citizenship of another State and treats – according to its own legal order – the Citizens of other States as if they were its own Citizens. This implies that all member States come to the assistance of each other’s Citizens – where needed abroad – via their diplomatic and consular services.
Section 2, Clause 3 offers the possibility of other States joining the Federation after its establishment. We have added Clause 4 to be clear about the conditions for accession: the acceding States keep their own debts and have to apply, from the moment they join, the federal laws. Both conditions are set in order to not endanger the survival of the European Federation. For the record: this regulation applies to States joining after the Federation has come into force. For the founding member States Article X regulates that the Federation will support them with respect to fulfilling their debts and contractual obligations.
Furthermore Section 2, Clause 5 stipulates that each change in the number of States of the European Federation, as a result of the combination or splitting of States, is presented to the Citizens concerned, the Parliaments of all States and to European Congress. The reason for these different consents is the fact that the balance of power between the States and within the Federation will be changed, for instance institutionally through its effects on the composition of the Senate. This Clause is of great importance for regions that are striving to create a State of their own, as is the case for Catalonia in Spain, the French island of Corsica, the Scottish part of Great Britain and the Italian Padania.
Here we deviate from the American Constitution, which in its Article IV, Section 3 regulates that it is not allowed to create a new State within an existing State, nor to combine States of the Federation. We think that our proposal for the Constitution of a federal Europe is more suitable since Europe has not yet completely come to terms with its past, within or between States. Herewith we refer to the aforementioned regions, but also to the last Balkan war. A strategic part of Europe that is still waiting for a political solution and peace. A truce is not peace.
Section 3 emphasizes explicitly the sovereignty of each State, co-safeguarded by the Federation. Just as the Swiss Constitution safeguards the existence, the statute and the territories of the Cantons. Clause 2, stating that the Federation will not interfere with the internal organization of States is added by us, again inspired by the Swiss institutional system within which the Cantons organize themselves while the Federation protects their loyal constitutions. Thus the States of the European Federation retain the authority to establish the institutions they see fit. The fact that a State may be a Federation in itself – already the case in the Eurozone with Belgium, Germany and Austria – is no problem, provided that the federal organization of that State does not contradict the European Constitution. Clause 3 does not need further explanation because it stems from the functional sovereignty of the Federation over its territory. This does not affect the separate sovereignty of the connected States over their own territory. Thus, the European Federation does not interfere in the changing of borders between States.
Besides, we would like to make an observation with respect to Clause 2 of Section 3, the fact that the Federation does not have the power to interfere in institutional matters of States. The creation of a federal governing system will undoubtedly have effects on the way in which States are going to look at their own organizations because it implies a multi-level system of governance. For a thorough analysis of this doctrine we refer to Caspar van den Berg in his book ‘Transforming for Europe. The reshaping of national bureaucracies in a system of multi-level governance’.
Article VIII – Changing the Constitution
The European Congress is authorized to propose amendments on this Constitution, each time a two third majority in both Houses consider this necessary. If the legislative branches of two thirds of the States consider it necessary Congress will hold a Convention with the assignment of proposing amendments to the Constitution. In both cases the amendments will be a valid part of the Constitution after ratification by three quarters of the Citizens of the European Federation, three quarters of the legislative branches of the States and three quarters of each House of the European Congress, in this order.
Explanation of Article VIII Article VIII finds a balance between the harshness of the original ‘Articles of Confederation’, which with their unanimity requirement blocked almost any change to the confederal treaty, and a too soft application of majority decisions which – under the pressure of the fickle political issues of the day – would lead to continuous changes in the Constitution, making it unstable. Thus, this Article VIII attempts to preserve the fundamental character of the Constitution, while giving room for the necessity to adapt this basic document of the European Federation to changing developments and insights.
In essence, the American founding fathers have once again built in a system of checks and balances by steering the decision making relating to changing the Constitution by weighing federal insights on the one side and stately insights on the other. We even go one step further by giving the first decision to the Citizens. This stems from the Swiss Constitution. Should the Citizens not reach the three quarters majority required to ratify the proposed amendment, the legislative branches of the States and the Houses of the Congress will not have a task in this. Next to this addition to the American Constitution we have simplified this Article compared to the respective Article V of the American Constitution.
Article IX – Federal Loyalty
Explanation of Article IX The first Clause of this Article makes it clear that the Constitution, together with federal laws and treaties, are the fundamental judicial order within the Federation. Everybody has to abide by these laws. Even the judges of the States. Laws from States – whether in a State Constitution, or in laws and by-laws of States – may not clash with the federal Constitution. To try to nullify a federal law through a State law (a matter that the Parliament of Oklahoma attempted in February 2013 regarding Obamacare) is nonsense. Outside the federal laws the States are free to make the laws they deem appropriate. To be sure that respect for the Constitution will be enforced Clause 2 regulates that the responsible authorities perform an oath or affirmation, in which no inquiry will be made regarding their religious beliefs.
Article X – Transitional Measures and Ratification of the Constitution
Explanation of Article X Article VI of the American Constitution offers States wishing to join the federal Constitution the opportunity to start their membership in the knowledge that they would get support from the Federation to fulfill their financial and other commitments, contracted or entered into prior to ratifying the Constitution. We adopt this regulation in the first Clause of our Article X. Debts and commitments of those States – contracted or entered into before ratification – are also valid within the European Federation. The Federation thus supports them in fulfilling their financial and other obligations, as is already the case in the Eurozone to keep the less financially strong EU-States on their feet. The Eurozone realizes, finally, that a common single currency should have common economic support; this should be no different in a European Federation and is an inherent part of this Constitution.
After the Constitution has come into force, States that turn out to be unable to solve their financial problems can no longer count on the amalgamation of their debts by the federal authorities. In order to safeguard the operation of the Federation, States joining the Federation after the Constitution has come into force, will not profit from this federal support. We have already regulated this matter in Article VII, Section 2, Clause 4. Thus, those States will have to have their ‘financial act together’ before being allowed to join the Federation.
As has been stated several times, the founding fathers of the American Constitution were sensible enough not to demand – as prescribed in the ‘Articles of Confederation’ – the unanimity of all States, but to regulate that the Constitution would come into force upon ratification by the Citizens of nine of the thirteen States. It has to be said that they did not aim specifically at the figure ‘nine’, but rather at the fact that nine is a two-thirds majority of thirteen. For us a two-thirds majority is not that relevant because the Treaty of Lisbon presents in Article 20 the basis for a strengthened cooperation by nine EU-Member States. That is sufficient for us to work with.
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So this is our draft Constitution for the European Federation. Short and sweet – which brings to mind the statement made by Napoleon Bonaparte in 1804: “The best Constitution is the concise and pithy one.” Miles apart from the legal monster known as the Treaty of Lisbon with its hundreds of complicated articles along with the many exceptions to these articles. We leave this Treaty as it is for now to die alongside the ailing intergovernmental governing system. We appeal for the establishment of a European Federation, as the most suitable vehicle for taking Europe into the future. This is the institutional jump that now – while the European Union is falling apart – is needed; maybe the former President of the European Commission Romano Prodi referred to such a drastic change by stating in 2000 “Great reforms will make a great Europe.”
Let us recall once again that the American founding fathers fulfilled, as early as 1787, Prodi’s statement avant la lettre by three times committing an act of great disobedience. First, by disregarding the assignment to strengthen, in the Convention of Philadelphia, the Confederal Treaty. Instead they turned away from that treaty and designed a federal Constitution. Second, by not presenting the draft Constitution to the thirteen Confederal States, but rather to the Citizens of the States. Third, they ignored the requirement of unanimous voting as prescribed by the Confederal Treaty; in case the Citizens of nine States were to ratify, the Constitution would come into force. Three times a step out of the box, a paradigm shift of the purest kind.
Do not say that this draft, analogous to the American Constitution, is alien to the European culture and philosophy, and therefore should be rejected. Those who would make such a claim are ignorant of Europe’s history. What the Americans designed at the end of the 18th century stems straight from the constitutional and institutional reflections of European philosophers of that time, including Montesquieu and Locke. Together with Burgess we recall that stately dealing with pluralism and the diversity of society on the European continent is three centuries older than on the British and Irish islands. Thus, a federal Constitution for Europe, after the American model – a system that cannot be opposed by any European Citizen nor State – is nothing else than homecoming, finally. What the Americans already accomplished after eleven years – finding one all-encompassing authority as a remedy against degenerative splintering, from which Europe is now suffering more than ever – is taking Europe over two hundred years after the French Revolution to realize. We may be surprised by this, or annoyed. Better to enjoy the fact that it finally seems to happen.
An additional advantage of this type of a Constitution is the high degree of difficulty to adapt it. The conditions to adapt it are a great guarantee against influences by national or even nationalistic tendencies of Member States. Even though, without lapsing into the sheer endless revision procedures and the unattainable unanimity in the European Council or the unlikely consent of all national Parliaments, as required by the Treaty of Lisbon. No European State can reasonably contest the correctness of this compact Constitution: it does not threaten any existing right or interest of whatever State; instead, it is putting the responsibility on the higher, European level, where it should lie in order to engage in the global challenges. Precisely the phenomenon within the intergovernmental system, namely that each State wants to have its own interests processed in a treaty that semi-connects them, breaks down the commonality. A compact Constitution such as the one presented by us does not leave any doubt regarding the room for commonality and does not allow any room for particularism by Member States. The fundamental strength of this Constitution is the division of the horizontal power spread between the trias politica and the vertical division of sovereign powers of both the federal authority and the States. Without political hierarchy between both levels of governance.
We are aware of the fact that choosing to approach the American Constitution as closely as possible may not cover European reality in all its aspects. Possibly, we took some subjects too literally, or we did not process amendments totally correct in this draft. We also refrain from making any claims regarding the practical operation of this system. As has been the case in the USA – a continuous evolution, for instance with respect to shifting more power to the federal authorities, also to the President – the operations of a federal Parliament, Government and Judicial system have to find their own course in Europe.
Finally, the ratification of this European Constitution is a task and matter for the Citizens of at least nine Member States of the Eurozone. Not for the present European Parliament, nor for the European Council, nor for the European Commission, nor for the national Parliaments or their Governments. But for the Citizens. Who doubts if there will be enough support for such an approach may be convinced by the following quote from the Berlin Europe Lecture by Bundespräsident Joachim Gauck on February 22nd, 2013 (thanking dr. Jens Baganz, chairman of the German movement We-are-Europe, who sent us this quote):
“Ohne die Zustimmung der Bürger könnte keine europäische Nation, kann kein europäischer Staat wachsen. Takt und Tiefe der europäischen Integration werden letztlich von den Europäischen Bürgerinnen und Bürgern bestimmt. … Europa braucht jetzt nicht Bedenkenträger, sondern Bannerträger, nicht Zauderer, sondern Zupacker. … Mehr Europa heißt für mich: mehr Europäische Bürgergesellschaft.“
“No European nation, no European state, can grow without the consent of its citizens. The pace and depth of European integration will ultimately be determined by them … What Europe needs now are not doubters, but standard-bearers, not ditherers but people who have a hands-on approach, not those who simply go with the flow but active players. … For me, more Europe means more European civil society.”
Here a European federalist of the highest level is speaking. On this fundament we present our draft for a European Constitution to the Citizens of Europe. They will decide what will happen with this.