Wednesday, June 25, 2003

So it looks like the EU's draft constitution was accepted in Greece over the weekend, with very little fanfare -- muted probably because the damn thing isn't even done yet, with many of the most important questions still up in the air (like individual nations' veto power over things like foreign policy, security and taxation).

Sunday before last, an essay of mine was published in the Boston Globe about the new constitution. Unfortunately I've waited too long to post this to my blog, so you can't read it without paying, but I'll send it to you if you like.

The piece was supposed to be sort of a primer on the intellectual history of European federalism, or at least, on federalism in its most recent incarnation, since you could go all the way back to Charlemagne on that one. Most people don’t know, for instance, that Vaclav Havel was arguably the first major European politician to openly call for a European government structured along federal, bi-cameral lines (i.e. two legislative houses, like the U.S. Congress). Under the new constitution, which doesn’t really change the complicated structure of the EU, the role of the “Senate” or upper chamber is actually played by the Council of Ministers, the meeting of ministers of EU governments.

Some people told me this part was confusing:

Anti-federalists say the "nation" -- in the sense of a "people" -- is the only legitimate source of European political power. According to this view, the legitimacy of the European Union derives from the national parliaments, whose legitimacy in turn derive from electorates that must communicate directly with itself via a common language, in a common media, with a common historical experience.
Not very well stated. Think of the peasant Dennis, the harvester of filth in Monty Python and the Holy Grail who starts railing against King Arthur to his face. Off the top of my head, I think he said something like this: “Now look. Strange women lying on their backs in ponds is no basis for a system of government. Supreme executive power is derived from a mandate from masses, not some farcical aquatic ceremony!”

According to the “intergovernmentalists” or anti-federalists, supreme executive power in Europe lies with the national parliaments, i.e. the House of Commons in the British case. This is simply a case of "legitimacy." The European Parliament is the “farcical aquatic ceremony” according to this point of view -- even though it, too, is directly elected. The reason is that there is no European “nation,” only a collection of nations – Britons, French, Danes, Germans (although that’s a rather recent invention), Italians (ditto), Spanish (ditto). Any body of officials that doesn’t represent a nation-state is somehow an artificial contrivance lacking in legitimacy, even if those officials are directly elected.

There’s a lot of ink spilled about how to define a “nation,” with various criteria proposed, such as common language, common media and common historical experience, but there always seems to be a catch or an exception (Switzerland, Belgium) that messes up the equation. (I think the German philosopher Jurgen Habermas is lurking somewhere near here, but I can’t say where, exactly.) The problem is, there’s no empirical test of whether a nation exists. I asked one Danish euro-skeptic MEP who’s also a delegate to the convention how he will know if there’s one day a European “nation.” He said he will know it when he walks around the streets of Paris or Frankfurt and people stop him on the street and talk to him about issues, the way they do in Copenhagen. (I felt like asking if he thinks thinks that happens to a U.S. Senator from Wyoming on the streets of Miami.) Basically, it’s sort of like the judge’s definition of pornography: It’s a nation if it feels like one.

And then there’s the vexing concept of “subsidiarity."

At the core of the constitution's ambiguity lies its allusions to "subsidiarity," a lofty term with echoes of Thomas Aquinas and Aristotle lifted from a 1931 papal encyclical. Pope Pius XI defined subsidiarity as the principle that governing powers should solve social problems at the most local level possible. On paper, the mention of subsidiarity in the EU constitution seems to be a nod toward decentralized power. But even a defender of the doctrine like Phil Syrpis, who teaches European law at the University of Bristol, concedes that subsidiarity "is known as a bit of a weasel word that doesn't really mean anything." In practice, when a disagreement arises over the scope of federal power, it is the European Court of Justice in Luxembourg that has the final say -- and so far, it has never ruled that the Commission has come close to infringing on the subsidiarity principle, says Syrpis.

"We're left with the crumbs," says Jeffrey Titford, an anti-EU British member of the European Parliament. "All the big decisions are made elsewhere. We think the only thing they're going to leave [to national parliaments] is our education and our health service."
It’s an irony that the EU Constitution stole the word from the Catholic church, while at the same time Valery Giscard d’Estiang, the writer of the constitution, refuses to mention Christian values in the preamble -- even though he was keen to cite the ancient Greeks and Romans and the Enlightenment, references removed in the most recent version. (That said, I don’t think God has any business in government at all. People usually forgot that the Western usage of the word "God" denotes quite a specific figure, the one who said "Let there be light" and whose real name in the Old Testament was actually Yahweh. Frankly I think "One nation under Yahweh," which is basically the same thing as "One Nation Under God," sounds creeeeee-py.)

Anyway, the big question is, is subsidiarity really such a fantastic doctrine? In the U.S., states-rights people often use the same principle to argue that states are better capable than the federal U.S. government to decide most things, simply because they’re closer to the citizen. I’ve never really bought it completely. There are a number of things which the federal government has handled much better than the states – most civil rights issues, to begin with.


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