Commentary

A Hard Look at the European Constitution

By William A. Niskanen and Marian L. Tupy
This article appeared on Techcentralstation.com, May 27, 2005.

The French and the Dutch will hold referenda on the proposed European constitution on May 29 and June 1 respectively. Regardless of the outcome, the constitution will have many hurdles to overcome before coming into force. While Czech President Vaclav Klaus may be fighting a quixotic battle against the constitution in a country where the constitution enjoys considerable public support, the British public is very unlikely to be persuaded to say “yes.” Here we look at three reasons why such skepticism may be warranted.

First, there has been little debate on the constitution. The vast majority of the European public has not read it and does not know what is in it. That has partly to do with the length of the Constitution (70,000 words) and its impenetrable language. In contrast, the U.S. Constitution is 15 times shorter and easily comprehensible. Not surprisingly, its chief architect, James Madison, believed that “It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.”

Moreover, the little debate that is actually taking place is heavily skewed in favor of the “yes” camp. Brussels and most of the national governments lavish taxpayer Euros on “information campaigns” designed to bolster the case for the constitution. In those rare cases when the “yes” campaign encounters serious opposition, Brussels resorts to issuing outrageous threats. While visiting the Czech city of Terezin, which used to be a site of a Nazi concentration camp during World War II, the vice president of the EU Commission, Margot Wallstrom, linked the possible rejection of the constitution to the return of the Holocaust. As she said, “They [opponents of the constitution] want the European Union to go back to the old purely intergovernmental way of doing things. I say those people should come to Terezin and see where that old road leads.”

Second, the language of the constitution concerning the division of powers between Brussels and national governments is imprecise. The constitution enumerates areas where Brussels has “exclusive” competence. But it also states that “in areas which do not fall within its exclusive competence the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.” That sentence suggests that Brussels might exercise some competence outside its exclusive authority if some undefined body decides that the EU could do it better than a member state.

Similar problems arise out of areas where the competences are to be “shared” between Brussels and national governments. Such areas include internal market; security and justice; agriculture and fisheries; transport; energy; social policy; economic, social, and territorial cohesion; the environment; consumer protection; and common safety concerns in public health matters. But the constitution also states that “the member states shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.” In other words, member states may be allowed to legislate in areas of “shared” competences only when Brussels allows them to do so.

Over time, all governments seek broader powers than first authorized. To quote Madison, “In framing a government, which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, oblige it to control itself.” That is why the U.S. Constitution was crafted in a way that carefully enumerates and thereby limits the powers of the federal government.

Where the language of the U.S. Constitution is imprecise, consequences have been far-reaching. The U.S. Constitution, for example, does not specify the maximum number of Supreme Court justices. That crucial omission enabled President Franklin D. Roosevelt to threaten to pack the U.S. Supreme Court with his appointees if the Court continued to stand in the way of his “New Deal” legislative agenda. In that sense, the current debate over the future of Social Security is a continuation of the controversy that surrounded the adoption of the New Deal legislation in the first place.

Third, the definition of individual rights, as enshrined in the EU constitution, is deeply problematic. The U.S. Bill of Rights, with one exception, is a list of the rights of individuals against the state, not a list of claims by individuals on services to be provided by the state. The one exception is the right to a trial by jury. In contrast, the EU constitution includes a list of rights to services provided by the state. The list, for example, includes rights to education, a free placement service, paid maternity leave, social security benefits and social services, housing assistance, preventive health care, services of general economic interest, and high levels of environmental and consumer protection.

Such rights, in effect claims on the state, represent the most important potential tension in the European Union. On the one hand, the proposed constitution states that the “free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union … [and] any discrimination on grounds of nationality shall be prohibited.” On the other hand, any citizen of the Union seems to have a claim on a wide range of social services wherever he or she chooses to reside. That will either lead to a massive movement of people to member states with a higher level of social services or the harmonization of these services among the member states.

The only way to resolve the potential tension between the right of free movement and the rights to social services is to allow each member state to restrict access to social services, not by nationality, but by such personal characteristics as the number of years of work in that state and the absence of a felony conviction. Unless member states are allowed to impose such requirements for access to social services, the EU would become a massive harmonized welfare state, relegating the member states to only such roles as maintaining law and order and safeguarding internal security.

Europeans have every reason to be concerned about a government in Brussels, the powers of which are not clearly defined. Consequently, a demonstrably imperfect Europe of national states, as it is at present, may be a better protection of European liberty than approving the proposed constitution in the hope for a more perfect European Union.

William Niskanen is chairman of the Cato Institute. Marian L. Tupy is assistant director of Cato’s Project on Global Economic Liberty.