Jewish World Review July 28, 2003 / 28 Tamuz, 5763
A Botched Constitution
However in one particular, all of 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.
A proper constitution distributes power among legislative, executive and judicial institutions so that the will of the majority can be measured, expressed in policy and, for the protection of minorities, somewhat limited. A proper constitution does not give canonical status, as rights elevated beyond debate, to the policy preferences of the moment.
But that is what the proposed European Union constitution, with more than 400 articles, does. 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.
Children, the draft constitution says, shall have the right "to express their views freely." The constitution's proscription of discrimination based on birth causes Iain Murray, writing for National Review Online, to wonder what that means for the seven nations that are monarchies. And the sentiment that "preventive action should be taken" to protect the environment is unexceptionable, but what in the name of James Madison is it doing in a constitution?
The European Union has 15 members. Next May there will be 10 more, and Bulgaria, Romania and Turkey head a list of additional petitioners for membership. There is something surreal about the idea of a constitution -- fundamental law codifying a common understanding of political propriety -- for 25 nations with 25 distinctly different national memories, more than 25 durable ethnicities, 21 languages and per capita GDPs ranging from $8,300 (Latvia) to almost $44,000 (Luxembourg). The constitutional guarantee of "social and housing assistance" sufficient for "a decent existence" might mean different things in difference places.
Libraries, it used to be joked, filed the French constitution under periodicals. The more detailed a constitution is in presenting particular political outcomes as elevated beyond the reach of changeable majorities, the more quickly it is sure to seem dated. Friends of democracy should hope that the European Union's constitution will be filed with the daily newspapers.
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.
The European Union already has 80,000 pages of laws and regulations abridging the nations' sovereignty in matters momentous and minute. And the proposed constitution gives the European Union full supremacy over member nations in some areas, including trade. In America, the power to regulate interstate commerce has been the greatest engine for expanding the scope of the federal government at the expense of the states.
Asked to which participant in America's constitution-making he would compare himself, Giscard replied: "I tried to play a little bit the role that Jefferson played, which was to instill leading ideas into the system. Jefferson was a man who wrote and produced elements that consolidated the Constitution."
Not exactly. When the Constitution's framers convened in Philadelphia in 1787, Thomas Jefferson was in Paris. When he read what the convention had wrought, he was distressed, particularly about the potential for consolidation of power in the central government.
Europeans believe that American foreign policy would profit from a deeper understanding of European history, and from the tragic sense of history that comes from such an understanding. That may be true.
This certainly is: Europe's evolving domestic arrangements would profit from what clearly has not yet occurred -- a serious study of ambiguities and difficulties that have surrounded the oldest and most successful written constitution, America's.
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