"If there would be something useful for my country, but that is harmful for Europe,
or if there would be something useful for Europe, but that is harmful to humanity,
then I would consider that as a crime."
Charles-Louis de Montesquieu (1689 - 1755)
Klinkers and Tombeur explain why they find it necessary to start a dialogue on the desirability of a federal Europe. In broad lines they sketch shortcomings of the current intergovernmental operating system of the European Union. They explain why they put their dialogue in the form of American The Federalist Papers, a unique collection of writings from 1787-1788 on the draft of the Federal Constitution. Pro or anti federalists are invited to follow their series of European Federalist Papers and to respond on them.
European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013
Here the dialogue starts. Klinkers opens with three Papers. In Paper No. 1 he points out why he considers the current intergovernmental form of Government inferior to a federal system. In the existing European Union the national interests of the Member States prevail. Persisting within this construction will, in his opinion, lead to the disintegration of Europe. Only a federal organization can keep Europe together. He asks Tombeur to challenge, to improve or to confirm his statements in later Papers. Klinkers consistently draws from historical references of thinking in terms of federal forms of organizing.
This Paper deals with the question what belongs to the essence of a federal organization. Klinkers describes this on the basis of what he has learned over the years by Tombeur. He raises a number of questions with the intention to get his thoughts about federalism improved or supplemented by Tombeur.
In Paper no. 3 Klinkers quotes a passage from The Federalist Papers, a text which clearly indicates how personally the authors of this famous writings on the proposal of a Federal Constitution in 1787-1788 directed themselves to the citizens of America, to convince them of the usefulness and the need to opt for a federal form of organizing. This as a signal to Tombeur to regard thoughts and ideas about a European Federation not as a technique of organization advisors, but primarily as a passion to give the people what the people deserve.
Tombeur replies with two Papers 4 and 5. In no. 4 he endorses the pernicious effects of the current intergovernmental operating system. More detailed than Klinkers he explains why the intergovernmental government, good to lift the European Community off the ground in the 1950s, is no longer functional for a good cooperation within Europe. He closes the Paper with hopeful signs that leading European politicians since the summer of 2012 are using words that seem to be going in the direction of a federal system for Europe.
In Paper No. 5 Tombeur describes in detail the essential characteristics of a Federation. Then he points out what types of Federations exist, thus eliminating a large number of popular misconceptions about the origin, shape and functioning of a Federation. This Paper serves as a trigger for a 180 degrees turn-around in thinking about Federal organizations. It aims to open the eyes of citizens – misguided by euro-skeptics or even euro-hating politicians – to the real power, security, progress and sovereignty that a Federation has to offer.
The firm statements by Tombeur in Paper no. 5 gives reason for Klinkers to dig deeper into the essence of the concept of ‘Federation’. Over four paragraphs he puts questions to Tombeur. In the first paragraph he enquires as to whether the Papers no. 4 and 5 express the personal opinions of Tombeur or whether these are generally accepted by experts in this field. In the second paragraph Klinkers asks how far back can we trace this thinking in terms of a federal organization? Is it a relatively new phenomenon or are its origins found centuries back? The third paragraph casts light on a topic that should be discussed later, namely the position of the United Kingdom in a federal Europe: would the United Kingdom, just as is the case in the present intergovernmental system, be a separate element within a European Federation? In the fourth paragraph he deals with the question of where the driving force is going to come from in order to turn the EU’s dysfunctional intergovernmentalism into a federal system.
Tombeur answers in detail the three questions posed by Klinkers in Paper no. 6, paragraph A. Firstly, is Tombeur’s description of the essence of a Federation his personal opinion or is it the prevailing doctrine? Secondly, on what grounds could it be convincingly argued that a federal organization would be the best form of administrative cooperation for the European Union? Thirdly, why does Tombeur prefer the term ‘federal organization’ to ‘federal Government’?
Tombeur replies to the questions put forward by Klinkers in Paper no. 6, Paragraph B and C. Can we say without doubt that Althusius was the founding father of federalism, or did he combine this concept with confederal thoughts? Furthermore, there is the question as to why the State of Texas left the Federation – together with some other Southern States – which caused the Civil War in 1861. Did these States maybe barter a specific charter that allowed them to leave the Federation whenever they wished to? The answer to this question may be important for the position that the United Kingdom may claim within a European Federation.
Finally, Tombeur reacts to Klinkers’ observations in Paper no. 6, Paragraph D: what could or should be the source for building a European Federation? At the time of concluding their federal Constitution in 1789 the Americans had one all-encompassing source from which they drew their intellectual energy and vigor: freedom. This does not apply to Europe. We have been free for a long time. But would there not be another source that gives us the strength to switch the lever to a Federation? After careful consideration of three possible sources of energy Tombeur concludes that neither the original goal of economic integration, nor the endeavor for the rule of law throughout Europe, but the new global challenges and threats – also in the domain of trade relations – should be the new driving force towards the federalization of Europe. Global challenges that Europe is facing all by itself.
Paper no. 10 summarizes what Klinkers and Tombeur have attempted to clarify in the previous Papers. Klinkers briefly repeats what a Federation is and why this form of governance is superior to the present intergovernmental European system. This should settle the many misunderstandings – some of which willfully created by Europe-skeptics – regarding the true nature of a federal organization. In view of the assumption that it is no longer necessary to dwell on the differences between confederalism and federalism, Klinkers announces a new range of Papers, fully addressing questions such as: how would it be possible to build a European Federation from the current situation? And what should a Federation look like, both constitutionally and institutionally?
Before going further with the nuts and bolts of federalization Klinkers deems it wise to establish why the many attempts to turn the European Union into a Federation have failed thus far. He takes the reader to the multidisciplinary domain of the science of public administration in order to illuminate – on the basis of concepts drawing from cybernetics and system theory – the systemic errors of the intergovernmental system, as a result of which this system is already clinically dead. He also explains why any attempt to create a federal concept stemming from the intergovernmental system is also bound to fail.
A European Federation can never be established if one makes the same systemic error found in the Schuman plan of May 1950: handing over the decision-making power to the States. This will inevitably lead to the conclusion that a Federation can never emerge from the intergovernmental system and should be established completely separately from that system. Moreover, the approach and ambition of this Federation should resemble the way the founding fathers created the federal US constitution, as well as the approach of the Benelux founders in 1944. Some aspects of the Schuman Plan are important too.
In line with our intention to present successful examples of political cooperation in the past, guest author Fernand Jadoul outlines how during World War II (thus some years prior to the Schuman Plan) the Benelux was established, what its communal motives were and how this organization served as an example for the creation of a larger European alliance nowadays called the European Union. Although the European Union has caught up with the original goals of the Benelux, the new Benelux Treaty of 2012 firmly supports a further strengthening of European cooperation. Neither the national Constitutions nor European Treaties (including the Treaty of Lisbon) pose an obstacle to the federalization of the Benelux.
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.
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.
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.
In Paper no. 17 Klinkers says – unreservedly – 'yes' in answer to Tombeur's question as to whether a federal Europe should have an elected President. He clarifies his position by referring to the strength of America's system of checks and balances, and by pointing out the failures of parliamentary democracy in many European countries. Formally, these Parliaments may have the last word, but in practice the legislative branch of each parliamentary democracy is strangled by the executive branch. According to Klinkers, the representative democracy could best be served by giving Parliament as well as the President a democratic mandate of their own. Following the thoughts of Frank Ankersmit – with Klinkers member of the Dutch National Convention in 2006, advising on the deficiencies (among others) of the Constitution in the Netherlands – he elaborates on the representative democracy's perils.
Paper no. 18 elaborates on the failures of some Federal systems. Tombeur describes the rise of the United States of Indonesia, which was quickly followed by its fall. The attempts to create Federations in Africa and Eastern Europe befell the same fate. Tombeur explains the causes of these failures so that they may become lessons for our composition of a Federal Europe.
In Paper no. 19 Tombeur makes a thorough analysis of the shortcomings of the Belgian Federation. He explains in which respects the construction of that Federation differs from the classical Federal characteristics. Furthermore he indicates that several aspects of the Belgian Constitution should be changed and that Article 35 should be activated in order to turn it into a real, classical Federation. This case demonstrates what we need to learn before composing a Federal European Constitution.
Paper No. 20 contains an analysis of the Swiss federal system. The creation of the Swiss State began as a loosely connected association of independent governments, evolving into a treaty-based Confederation, to become a Federation in 1848, based on a Constitution. Characteristic of this federal system is the fact that the Member States – the so-called Cantons – play an important role in the federal decision-making process and in the implementation of decisions. Besides that, the Cantons and the people as a whole determine federal policy through the instruments of a direct democracy: through referenda and people-initiatives they influence the decision-making process of the federal powers, including the introduction of amendments in the federal Constitution – all by majority voting. Tombeur carefully presents what aspects of this Federation are useful within the constitutional and institutional building that Klinkers and Tombeur are erecting for the European Federation in the following Papers.
In Papers no. 1-20 we have explained a) why the intergovernmental EU-system is destroying the goal of cooperation for European interests; b) why a federal system would be preferable for Europe; c) that Europe should thus federalize; d) that federalization through an adjustment of the present EU-treaties has always failed and why it will never succeed; e) that European federalists should therefore design a federal Constitution themselves, as was done in America at the end of the 18th century; and f) what constitutional and institutional conditions have to be met in order to prevent the intended federalization from failing due to constitutional construction errors. In the following Papers no. 21-24 we will put forward a federal Constitution for Europe. This draft is based on the 1789 American Constitution, strengthened with elements from the Swiss Constitution and tailored to present-day Europe. Paper no. 21 is dedicated to the Preamble and Article I of the European Constitution.
In Paper no. 22 Klinkers and Tombeur deal with the Legislative Branch of the European Federation. In their opinion this should reflect both the content and the structure of Article I of the American Constitution, although adapted to their own insights. These concern primarily the election of the members of the House representing the Citizens and the appointment of the members of the other House, the Senate, representing the States. The American Article I is rather elaborate; it contains no less than ten Sections, each subdivided into several Clauses. In order to improve on that structure Klinkers and Tombeur split the American Article I into two Articles: Article II and Article III. They offer general explanations as well as explanations per Section or Clause.
No. 23 deals with the Executive Branch. This refers to the powers and tasks of the President, the Cabinet and the public administration. Klinkers and Tombeur deviate from some clauses of the American Constitution, in particular where the election of the President is concerned. Besides that, they present an interesting proposal for the composition of the President’s Cabinet of the European Federation. They also adopt some essential aspects of the Swiss direct democracy.
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.
Papers no. 1-20 explain a) why the intergovernmental EU-system is undermining the goal of cooperation in the interests of Europe; b) why it is preferable to have a federal Europe and that Europe should thus federalize; c) that any attempts at federalization through a change of the existing EU-treaties have always failed and why they will continue to fail; d) that European Citizens thus have to design a federal Constitution themselves, as they did at the end of the 18th century in America; and e) what constitutional and institutional conditions need to be met in order to ensure that the federal system flourishes.Papers no. 21-24 contain a draft federal Constitution for Europe, based on the American Constitution, strengthened with elements from the Swiss Constitution and adapted to present-day Europe. In this Paper the most important characteristics of federalism and the proposed European Federation will be discussed: what a Federation is, what it is not, why it is still not here and why it should be urgently adopted. Furthermore, we present the necessity for all federalists joining together for a Citizens Convention on European Constitution before the elections for the European Parliament in May 2014.