Wednesday, June 01, 2005

French, Then Dutch, Reject EU Constitution 

So the EU constitution was routed by Dutch voters two days after it was rejected in a respectable landslide by French voters. Why did they vote that way? Who knows, but I think Michael Totten is onto something. He says that the EU Constitution, which is the handiwork of a convention headed by former French President Valery Giscard d'Estaing, is too complex and that if the EU wants a constitution that European voters will ratify, then keep it simple. I couldn't agree more.

Having quickly skimmed over the draft European Constitution, available here in pdf format, a few things stand outfor me. First, unlike the United States Constitution, it creates a "top down" structure rather than a "bottom-up" one. The Union is supreme over each Member State, and the Member States and the citizens of the Union have only those rights and powers that the EuConst and European Government allow them to have. Individual rights are set out in Part II of the EuConst, which contains 54 articles.

Second, the European Parliament may contain as many as 736 members, each elected for a term of 5 years. The Parliament, together with the Council of Ministers, constitutes the legislative branch. The Council of Ministers is made up of Ministers of the Member States.

Third, the European Commission, whose 15 members constitute the executive, is made up of the Commission President and the Foreign Minsiter/VP and 13 other Commissioners selected by the Commission President-elect from lists of candidates submitted by the Member States and ratified by the Parliament. The criteria for selection are "competence, European commitment and 'guaranteed independence'". Commissioners serve for 5 year terms. The European Commission is supposed to be totally independent of the Member States.

Some thoughts and observations:

The top-down form of the proposed EU government indicates that European politics have not really progressed far from the idea of a monarchy. To an American, the notion that the government has plenary power and individuals have only those rights that the government wishes to confer on them is anathema. I have no idea what the European masses think about the proposed EuConst but I guess it's not much different from "the way things have always been." Those who chafed under such a system came to the US.

As wonderful as the many enumerated rights of individuals may be, I think enforcement of those rights will be a practical nightmare, if only because the rights of one person always create a corresponding restriction on other persons. In other words, creating rights is often a zero-sum game. Another issue is that rights not enumerated don't legally exist. There's no equivalent in the EuConst (at least none that I found) to the Tenth Amendment of the US Constitution.

A legislature of 736 will be unruly and it will be difficult to get much done, so the Commission and its President will be pretty much in charge, especially since the Commission is supposed to propose all legislation. How unruly? Look at the House of Representatives with 435 Members. I suspect that the complexity of relationships within such a body increases exponentially with the number of members, rather than linearly. The Parliament is the only institution in the EU Government that's directly elected, and it has the least power.

The real power offices, the Commission, are not directly answerable to the people. The President of the Commission will have much more power in a practical sense than the President of the US. He can dismiss any member of the Commission (Art. 26) and so has a lot of leverage in making the Commission adopt the President's agenda.

Bureaucrats will have a lot of power by virtue of their regulatory function. Again, the regulators are not directly answerable to the electorate. Again, I don't think this is a change in concept from the way things have always been, but it is a change in scale, and there is at least one additional layer of insulation between the regulators and those being regulated.

In short, as others have observed, the EuConst is an effort by a convention led by a Frenchman to create a French-style government for the whole of the EU, and the "qualified majority" provisions pretty much guarantee that nothing of substance will get done unless France and Germany are on board.

I think that the idea of a united Europe is wonderful, and probably a century or so late, but I wouldn't want to live under a government like the one created by the EuConst. If adopted, the EuConst will institutionalize all of Europe's problems and make it an order of magnitude more difficult to solve them. Let's face it, folks, the American Founders in 1789 set up a pretty good system for dealing with a bunch of states with wildly differing interests as well as many common ones. The problem for the Europeans is, it is philosophically impossible for them to adopt a constitution that resembles that of the United States, even though that's probably close to the model that would work best in the real world.

UPDATE: Stephen Green makes a lot of good points about a united Europe.

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