Willful ignorance

Via “William Sjostrom”:http://www.atlanticblog.com/archives/001011.html#001011, I discover that “George Will”:http://www.washingtonpost.com/wp-dyn/articles/A48554-2003Jul25.html 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”:http://europa.eu.int/rapid/start/cgi/guesten.ksh?p_action.gettxt=gt&doc=IP/03/1115|0|RAPID&lg=EN&display=, 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.

bq. 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

bq. 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”:http://classic.sacbee.com/voices/national/will/will_20010617.html, 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.

bq. 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.

bq. 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.

bq. 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).