The bid to establish a European constitution is the most interesting
development in the world today, in terms of the structure of
governmental institutions. Americans can learn from how the Europeans
are setting about this task, because the European initiative
addresses problems that are not significantly different from many
that exist in the United States. Those problems broadly involve the
relationship between individuals and their government, and how
they feel about being ruled by a distant central authority.
These issues concern people in Des Moines, Iowa, as much
as they do Neapolitans in Southern Italy. And it is possible that
Europeans may find some answers that we have not yet thought of in the United States.
Of course, one must also stress the
differences between the U.S. Constitution
and the project under way in Europe.
One only has to glimpse at the two
documents to detect an important and
visible contrast. The new European constitution,
for instance, has 50 pages of introduction,
whereas you can recite the
main principles of the U.S. Constitution
in about ten seconds. These are that it
establishes the rule of law, a democratic
form of government, the protection of
basic human rights, a division of power
(vertically and horizontally, so no one
becomes too powerful), and a certain degree
of equality. Most people would
agree that that is what the U.S. Constitution
is about.
It is harder to summarize the proposed
European constitution in this way.
But that does not mean it should be derided,
because the aims and contexts of
the two documents are completely different.
The U.S. Constitution was drawn
up by a rather small number of representatives
of 13 states with little history
and a common culture, who were trying
to create a single government where
none had previously existed. They succeeded
pretty well.
The European document has a completely
different purpose. It is the work
of 200 delegates representing 28 different
countries with long histories and more
divergent cultures, who set themselves
the task, not of creating a new single
government where none had previously
existed, but rather of making modest
changes in existing institutions so as
to allow that government to function
better.
It is not even clear whether the European
document is actually a constitution.
Its official title is a Constitution for
Europe, but the small print refers to it as
a treaty. Is it a treaty or a constitution? It
has certain characteristics of a treaty: it is
very long and very detailed, each nation
has the right to withdraw, and it can only
be amended by unanimity. More to the
point, it does not say that the source of
its authority is "We, the people," but the
member states.
On the other hand, it does establish
highly complex organs of government,
and it grants that government tremendous
authority to control the lives of Europeans
by, for example, legislating harmonized
statutes in most fields that affect human
life. And it says it is a constitution.
Does it matter which it is? Is this just
a verbal quibble or a semantic argument?
No, it is not just a semantic argument
and it does matter, and the reason why it
matters has to do with expectations.
People who think it is a treaty and those
who think it is a constitution are likely to
have different expectations about the
document's susceptibility to change.
People accept change more easily if it is
called a treaty. Constitutions are not
changed quite as often.
Similar uncertainty surrounds the
question of whether the European document
establishes a federation or a confederation.
That is the kind of question
that every professor in Europe likes to
debate. Here again it is impossible to
give a precise answer. If you focus on the
elements of democratic control that the
document proposes, it seems more confederal
and less federal. If you focus on
the power that it gives to the central government,
it looks more federal.
The European institutions were originally
envisaged as follows. There was to
be a Commission, an administrative body
that would determine what was in the
best interest of the European community
and would propose legislation. There
would be a parliament, which would give
advice, and there would be a Council of
Ministers, which would decide. Since that
original structure was established there
has been a lot of movement in a more
democratic direction.
So, to what extent does this new
constitution create more democracy? It
does insist that the European Parliament
has to ratify or agree to all EU legislation.
It gives the Parliament the power to
confirm the President of the Commission
and his or her fellow commissioners
and to remove the Commission.
That could make a difference. It
could place the European Parliament in
the position of the British Parliament
under the Hanoverian Kings in the 18th
century. At that time, the King designated
the Prime Minister, but the Parliament
could respond by refusing to legislate, or
to help the King in any way, if he nominated
a candidate that it did not like.
The European Parliament can do the
same thing.When the Council proposes
a president of the Commission, the Parliament
could decide not to confirm the
Council's candidate. Indeed, the Parliament
could refuse to confirm anybody
that it had not proposed itself, and once
you have reached that point, you have
parliamentary democracy. You have a
government, a Prime Minister called the
President of the Commission, and the
Prime Minister's cabinet.
Now the only trouble with that theory
is that it has been possible for some
time and the Parliament has not done it.
It is not clear whether it will do so. So
the situation remains uncertain.
A minimum test for democracy is to
examine the answer to the question:
"How do I throw the rascals out?" If an
angry citizen of, say, New Hampshire,
asks me how to get rid of the government,
I tell him to get his friends together,
and vote to throw it out. If you
ask the same question in the context of
the European constitution, it is not quite
so easy to answer. It is hard to explain
this clearly and quickly to an ordinary
European citizen. As long as you cannot
clearly say how to "throw the rascals
out," a very important element of
democracy is lacking.
On the other hand, the European
constitution somewhat expands the
power of the central government in
Brussels. It does not give Brussels much
new authority except for providing for
greater coordination that could lead to
more power in foreign affairs and defense,
and perhaps taxation. But the central
institutions exercise tremendous
power in a wide range of areas, such as
trade, the single market, intellectual
property, the workplace, health, safety,
the environment and so on, which really
affect human life.
In these areas, there are three ways in
which the new constitution seeks to limit
the delegation of power to the central institutions
in Brussels. First, the document
uses language that strongly implies
limits on the scope of the delegation of
authority by national governments, for
example in the sections on workplace organization,
education and culture. Second,
the document stresses the principle
of subsidiarity, under which decisions
must be taken at the lowest possible
level, whether local, regional or national,
and only those decisions that require
EU-wide action are taken in the central
institutions. Third, in certain important
areas, the new constitution still requires
unanimity to pass a law in the Council of
Ministers, not just a qualified majority.
How well will these limitations
work? I am skeptical because I have experience,
not with Europe, but with similar
efforts to achieve the same purpose
in the U.S. Constitution. Attempts to impose
limitations on central authority
have not worked well. The U.S. Constitution,
for instance, contains a Commerce
Clause, which says that Congress has the
power to regulate commerce among the
states. Does that sound like just a power
to regulate inter-state trade? It turns out
that "commerce among the states" can be
taken to include just about every subject
that Congress wants to legislate on.
The Supreme Court of which I am a
member has tried to trim those powers,
but we have not had much more than a
marginal impact. There is little that Congress
cannot do. Even under the Court's
more recent and stricter Commerce
Clause interpretation, Congress can still
exercise huge power under its authority
to regulate inter-state commerce.
Let us compare that example with
some of the limiting language in the European
constitution. One article of the
European document, for example, attempts
to limit central authority by giving
the European Union authority to
enact legislation that shall contribute to
the development of quality education by
encouraging cooperation. That is all it
says. The constitution allows member
states to cooperate and, if necessary, to
support and complete the member
states' actions. If you were to give language
like that to the people who work
in the U.S. Congress, with their good
minds and excellent legal training, they
would find in it justification for almost
any law Congress would like to pass with
respect to education.
There are quite a few examples of this
kind of vague, supposedly limiting language
in the EU document. As a result,
the interpretation of the language will
likely depend on political circumstances.
The subsidiarity principle certainly
looks as if it should limit central authority.
But how is it to be enforced? The European
constitution proposes three
methods. First, national parliaments
would have to be appropriately notified
when a law was coming up in the Council
of Ministers that threatened to violate
the principle. Second, national parliaments
would then be allowed to force reconsideration
of the proposed legislation.
And third, court action would be authorized
to enforce the subsidiarity principle.
The United States has tried a variation
of the first method by requiring
"federalism impact statements." If one
imagined that the EU system applied to
the United States, someone in Washington
would send a letter to somebody in,
for example, Sacramento, saying that
Congress is thinking of legislation that
threatens the autonomy of California. If
this notification did not get into the
newspapers, it would likely sink without
a trace in the California bureaucracy.
When federalism impact statements become
known to state legislators, there is
little evidence that they have made much
difference.
If Europeans discover that they can
make their comparable ideas effective,
many Americans will want to know how
they work that is what I find interesting.
Permitting national parliaments to
require EU draft laws to be reconsidered
is also interesting because it is new.
As for the third method, enforcing
the subsidiarity principle in court, we
have had over 200 years of experience
with our own version of the principle,
the Tenth Amendment. And the
Supreme Court has recently been examining
whether it can find some kind of
new principle under which to impose
some limits on congressional action. The
answer is that even the best legal brains
have been unable to do so.
In today's world, in both Europe and
the United States, all aspects of human
affairs are interconnected. You can make
a good argument in respect to almost any
decision that it should be made at the
center. The attitude of our Court is that
these are matters of opinion, which normally
should be left to the people who
are charged with reflecting opinion,
namely elected officials, not judges. That
is why judicial enforcement has not made
a huge difference in the United States.
The European constitution does impose
serious limitations on the central
authority's power to tax. The EU institutions
do not have much power in this
field, and that is very important. On the
other hand, it must be pointed out that
the U.S. Congress has sometimes imposed
obligations on the states as "unfunded
mandates." Congress requires
each state to provide special education
for handicapped children but does not
levy a tax to pay for it. Congress takes the
politically popular position of requiring
help for handicapped children, but
leaves the states the unpopular task of
finding the money to do it.
This practice has not commended itself
to students of good government. It allows
Congress to avoid responsibility for
raising the money, even though it has the
power to mandate the end result. If that
model were to be followed in Europe, I
would predict there would be efforts made
to put the political responsibility for taxation
in the hands of those who have the
power to require member states to take
the actions that impose these costs.
The European Charter of Human
Rights also looks somewhat familiar to
Americans. The Charter contains most
of the major rights that are in the U.S.
Constitution. It has others, too particularly
social rights, some of which have
been successfully applied in Germany. It
includes, for instance, the right to work,
i.e. the right not to lose your job without
cause.
The authors of the European constitution
maintain that this should not be a
cause for concern. They say the Charter
would only apply to EU, not to national,
rules; so it cleverly gives with one hand
and takes away with the other. But that is
not quite what the Charter says. It actually
says that it applies to European rules, and
also to national laws when they are enacted
to put the European rules into effect.
We must not forget that European
rules can range over very broad areas,
and cover almost anything. They may
harmonize national practices, or they
may, for example, set new environmental,
health and safety standards, or create
new entities for delivering electricity. All
of these must be implemented by the
member states.
Suppose, for example, that the European
Union adopts a new environmental
regulation, and the British Parliament
implements it by enacting a standard
that puts certain companies out of business
because they are heavy polluters.
The workers at those companies might
then attack the EU regulation, and
Britain's implementing legislation, in the
European Court of Justice, on the
grounds that the authors of the regulation
did not consider whether it would
deprive the workers of their jobs without
cause. They could argue that this violated
their right to work, enshrined in
the European constitution alongside free
speech.
The workers might be right. The decision
would have to be taken by the European
Court of Justice, and, according
to the constitution, there would be no
way to change its decision without unanimous
agreement by every country in the
European Union. I think of the Charter
as a sleeping giant.
There is further uncertainty about
how the European Court of Justice will
work now that it has been expanded
from 15 to 25 judges, following the admission
of ten new EU members in May,
2004; and it will also have 20 official languages.
The European Court of Justice
has excellent judges. But the U.S.
Supreme court has only nine judges and
one language, and it is hard enough for
us to find agreement.
The Charter on Human Rights will
involve real changes.We do not know either
how the Court is going to interpret
the detailed clauses of the new constitution,
or what overall approach it will
take. As a judge, I find it easier to work
with a document in which I can find
something close to a single purpose. For
half a century, the European Union has
had documents in which one could find
such a purpose liberalizing the movement
of goods, services, investment and
persons throughout the European
Union. Judges like such documents because
it is easier to find solutions when
the original intentions are clear.
It is much more difficult to work
with documents with different and
sometimes conflicting purposes, such as
the European constitution. It will certainly
be difficult to agree on a fair interpretation
of some sections of the
European document, especially the
Charter of Human Rights. There are references
to European social democracy
and a social welfare state. This kind of
commitment can sometimes conflict
with other important goals, such as trade
liberalization. I am not saying that is
bad. But it means that the European
Court of Justice will have to answer
questions embodying those conflicts.
And these conflicts will make many important
issues of legal interpretation difficult
to decide.We cannot be certain of
the outcome.
There is one change in the constitution
I would propose. As others have suggested,
I would reduce this document in
size by about 80 percent and I would
enact those extra words into an organic
law. The organic law would be insulated
from immediate change, but could be
amended over time by a majority of
member states. The remaining part of the
document, the actual constitution, would
acquire the degree of certainty and immunity
from change that is required.
I have criticized the European constitution,
but I favor the project.My attitude
is probably shared by most people
of my post-World War II generation.We
have a romantic vision, encouraged by
those older than we, who fought to create
a post-War world of free trade, democratic
institutions, protection of human
rights and cooperation among nations.
In his novel La Peste (The Plague),
Albert Camus likens Europe's horrific
wars to a bacillus that never dies, just
goes into remission, and then can return
and re-infect countries that have become
happy and peaceful. That is what the European
constitution is intended to prevent
I can only support it.
Stephen G. Breyer was appointed Associate Justice of the Supreme Court by
President Bill Clinton in 1994. He served as Chief Judge for the United States
Court of Appeals for the First Circuit from
1990 to 1994, and as a Judge of the same court from 1980 to 1990. He also served
as a member of the Judicial Conference of the United States from 1990 to 1994,
and of the United States Sentencing
Commission from 1985 to 1989. He was Chief Counsel for the United States Senate
Judiciary Committee from 1979 to 1980, and Special Counsel of the committee
from 1974 to 1975. Justice
Breyer has taught at Harvard Law School, Harvard University Kennedy School of
Government, the College of Law in Sydney, Australia and the University of Rome.
This article is based on Justice
Breyer's remarks at The European Institute on April 29, 2004.
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