Willful ignorance

by Henry on July 29, 2003

Via William Sjostrom, I discover that George Will has opined on the draft EU constitution. I suppose I should be grateful that a stateside pundit is actually writing about it; not many people outside the Eurocracy are interested. Indeed, according to the Commission’s own figures=, only 45% of Europeans have even heard of the Convention that prepared the draft constitution (up from 30% in March). Furthermore, Will starts off by making a reasonable point – that Europe can learn some useful lessons from America’s constitutional history – but he frames it in a rather condescending fashion.

Europe is, relative to the United States, remarkably young, meaning naive and inexperienced regarding the writing of a constitution. The handiwork of the 105 members of the convention which, led by former French President Valery Giscard d’Estaing, drafted the document for 16 months reflects a failure to grasp what a proper constitution does and does not do.

Unfortunately, Will’s article goes downhill from there, as it becomes increasingly clear that neither he nor his research assistants know very much about the European Union, or indeed about any constitutional tradition other than the American.

Will starts by arguing that constitutions should be limited to a distribution of powers among legislative, executive and judiciary branches, with a few protections for minorities, and claims that

A proper constitution does not give canonical status, as rights elevated beyond debate, to the policy preferences of the moment.

One may note in passing the difficulties of reconciling this assertion with Will’s fondness for Originalists, who argue that the rights enumerated in the US constitution should be interpreted in the light of the Founding Fathers’ original intentions. Will also seems to be saying that the constitutions of Germany, Italy and Spain, all of which accord a privileged status to a variety of political and social rights, aren’t “proper” constitutions. As Alec Stone notes, the rights laid out in these constitutions were indeed products of “the policy preferences of the moment,” and came about through messy political compromises among different political parties.

each party was allowed to enshrine its own preferred set of rights, usually watered down somewhat by the ‘horse-trading’, thus giving partial victories to everyone.1

Will goes on to imply that Europeans don’t understand how bills of rights can increase the scope for judicial discretion.

Americans know what controversies, and what license for judicial aggrandizement and for self-aggrandizement by the federal government, have been found in constitutional guarantees of “equal protection of the laws,” “due process of law” and the power to regulate “interstate commerce.” Imagine what fiats the European Union can issue to subordinated member nations regarding the proposed constitution’s many rights and other guarantees.

Here, he grossly underestimates European member-states’ ability to figure out what’s going on. European politicians understand very well how judges can make political hay from broadly stated rights provisions. Most of them have seen it happening in their own country. Furthermore, they’ve already seen it on the European level too – judges in the European Court of Justice have interpreted previous, rather minimally defined rights in EU Treaties in a maximalist fashion. Which is why (as Will doesn’t mention) member states will probably make sure that the rights provisions in any final Treaty text are non-justiciable, so that European level judges can’t use them to their own ends.

Finally, Will betrays a more general skepticism about the European Union’s constitution, which seems to me to be the product of ignorance.

Europe’s nations speak of “pooling” their sovereignty, but the great question remains: How can those nations’ self-government—the setting of social policy by representative parliaments—be compatible with a European Union armed with this constitution? The answer is: It can’t be.

Wrong. The answer is: they’re already doing it. The proposed European Convention doesn’t do much more than fiddle with the existing system, adding a competence here, subtracting one there, and setting out the different responsibilities of the member states and European level authorities more clearly. It does push the integration process along a bit, but it’s not the kind of radical change that Will thinks it is. If it’s working now, there’s no reason to think that it will strangle national-level democracy in the future There are big questions about how the EU is likely to cope with Central and Eastern European countries when they finally join the club – but these are problems that the EU would face in any event. Simply put, the proposed constitution, important as it is in some respects, isn’t the threat to national sovereignty that Will thinks it is, and it can’t be. It’s simply not that big a deal.

I’ve no objection whatsoever to well-informed Euroskeptics; there’s a lot about the EU that I don’t particularly like myself. I don’t even mind too much that many right wing Americans dislike the EU on general principle. But for God’s sake, can’t they at least try to find out a little more about the EU and its member states before they trash them? It would add some credibility to their criticisms.

1 p.39, Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford University Press, 2000).



back40 07.29.03 at 3:51 am

Will’s criticisms of the EU draft constitution are pretty standard.

The failure to coherently deal with assignment of powers (competences) is easily demonstrated by the inability of those who were involved in the convention to explain the text.

The 200 pages of bizarrely detailed text is full of contradictions where rights seem to be granted in one place but are taken away in another or only apply to selected citizens. Cohesion wars with subsidarity, taxation and foreign policy are unresolved – in short, the task of writing a lasting constitutional settlement was botched. Instead it is makes things less clear and more likely to be a continual point of conflict and revision.

It’s just a draft, it is possible that much of the document will be binned leaving a distillate that is worthy, but likely that the current draft will just be tinkered up a bit and become another French periodical.

Will’s comments are not uninformed. They aren’t original and may even be a tarted up rewrite of an old Economist article. Will may be uniformed but his article is pretty much standard middle of the road criticism you can hear all over Europe but especially in UK.

Some speculate that this ambiguity and obvious inadequacy are intentional, that it is not politically feasible at this time to establish a proper constitution and that the current seriously flawed effort can be modified bit by bit in a quasi stealth mode by bureaucrats after all have become too fatigued to think about the issue any longer.


pathos 07.29.03 at 4:16 am

The true example here should not be the Constitution, but rather the previous Articles of Confederation, which is what the EU is trying to model itself on. Unfortunately, the AoC adequately demonstrated that a government cannot succeed as a government of governments. The only appropriate object of government is people.

The brilliance of the Constitution was that it hardly gave the federal government any power over the states at all (that changed somewhat, and for the better, after the Civil War, of course.)

The European Constitution — if ever adopted — will be unlikely to last much longer than the AoC, since it purports (to the extent it purports anything) to have authority over other sovereign governments. Before long, one of the sovereign governments won’t play nice, and the whole thing will fall apart.

The problem with the concept is that the all-time best example of a government of governments in the UN. And, regardless of whether you agree or disagree with many of the positions the UN has taken, you can hardly think it has, over the past 50+ years, been effective.


micah 07.29.03 at 4:58 am

While Will is lecturing the EU, maybe he should turn some of that righteous skepticism on constitutions a bit closer to home. Consider Alabama’s. This from the “Economist:”:http://parca.samford.edu/

bq. At well over 300,000 words, [the Alabama constitution] is longer than “Moby Dick” [not to mention A Theory of Justice!] and 40 times the length of the US constitution. The 1901 document itself accounts for only about a tenth of this. The rest comes from some 700 amendments, which are appearing with increasing rapidity (52 in 2000 alone) . . . Many of Alabama’s changes have nothing to do with the basic framework of government. Three amendments permit counties to spray for mosquitoes; two permit poultry growers to levy a tax on each hen sold in the state; one allows the Alabama Music Hall of Fame to buy CDs. The constitution is not so much a founding document as a sort of constitutional preamble to hundreds of pages of rules.

So much for the “older, wiser, better” argument.


micah 07.29.03 at 5:03 am

Sorry–the Economist article is available “here”:http://parca.samford.edu/Economist%20article.htm.


back40 07.29.03 at 6:19 am

That makes perfect sense. If it’s good enough for Alabama it’s good enough for Europe, no need to pay any attention to the crufty old US constitution.


Scott Martens 07.29.03 at 9:09 am

Y’know, I should think it would be better to argue the opposite point from Safire. Europe has far more experience writing constitutions. Look at the French. They’ve had – lemme think – something like seven of them since the revolution. Germany’s been through two since WWI, and the Belgians – the core of the Eurocracy itself – just rewrote their constitution in ’89.

And what has America done in that time? Why, kept the same constition, with only a handful of fairly technical changes since the 14th amendment. Hardly any important textual changes at all in 150 years – just Supreme Court rulings. I should think it’s America that’s out of practice.


dsquared 07.29.03 at 12:38 pm

Back40: You’re reading more into Will’s article than is there. His critique rests on two points: first, that the only acceptable model for a constitution is the USA, and second that the European Union hasn’t considered matters which they in fact have considered. Both are ignorant, and don’t give support to any more sensible critique.


linden 07.30.03 at 4:52 am

I think there are different conceptions of what a constitution should look like and do at play here. I believe a constitution should clearly articulate the form and function of the government as well as articulate fundamental rights. Anything more particular such as who can or cannot spray for mosquitoes or, in the case of the proposed EU Constitution, requiring the government to provide job placement assistance does not belong in a constitution so much as it should purely be part of the body of law. A constitution should be for the ‘big stuff’ not for scribbling all over with regulations on mosquitoes and job assistance.

ANyway, I think we can all agree that the proposed EU Constitution is a bloody mess, a nightmare of beaurocratese. I also dislike how the constitution-drafting sessions have been performed far away from the public’s eye. They should be more open to the public about such an important topic.


Lurker 07.31.03 at 10:53 pm

The most important thing you need to know about a constitution is its legitimacy. The US Constitution is held in such high esteem among US citizens, that it is virtually a civic religious cannon. I don’t think many Europeans understand that.

Remember all of the complaints from Europe about the 2000 election fiasco, with all the lawsuits and everything? Somehow, their argument was that this ‘constitutional crisis’ damaged the legitimacy of the US election process and the US government. Could they have gotten the picture more wrong?

So, whatever the EU does. If there is no buy-in from the citizenship, they’re doomed to fail.

Maybe they don’t need to look at the US Constitution as much as it’s process of adoption. Sure the elites fashioned the whole thing, but much of the debate was public. Where are the EU’s Federalist papers?


tapety 01.13.04 at 9:57 pm

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