Jean Monnet Center at NYU School of Law


Which is the Promised Land?

The second distinct contribution of the Fischer concept has been the huge boost it has given to the idea of a Constitution for Europe (or rather for the core Europe). The idea of constitution is presented as an indispensable part and parcel of a legitimating reform package. Here, too, the idea is not original. But coming from Fischer it received a huge boost. Even the Economist has already come out with its own draft Constitution which is a sure sign of a new fad.

Whether one can have a Europe which would respect the current constitutional acquis and embed it in a formal constitution adopted through a European constituent power and at the same time would not become a federal state in all but name is very doubtful and is examined in other papers in this volume. I think it is a chimera. But the very idea of a formalized constitution requires some serious critical reflection. What appears to be progressive may in fact be regressive. In his ideas of a new constitution for Europe, Fischer may be leading us away from the Promised Land into a familiar and boring desert.

Here are some well known facts that barely bare repeating. As a result of a combination of express Treaty provisions-such as those stipulating that certain types of Community legislation would be directly applicable-of foundational principles of international law-such as the general principle of supremacy of treaties over conflicting domestic law, even domestic constitutional law-and of the interpretations of the European Court of Justice, a set of constitutional norms regulating the relationship between the Union and its Member States, or the Member States and their Union, has emerged which is very much like similar sets of norms in most federal states. There is an allocation of powers, which as has been the experience in most federal states has often not been respected; there is the principle of the law of the land, (Direct Effect); and there is the grand principle of supremacy every bit as egregious as that which is found in, say, the American federal constitution itself.

Put differently, the constitutional discipline which Europe demands of its constitutional actors-the Union itself, the Member States and State organs, European citizens, and others-is in most respects indistinguishable from that which you would find in advanced federal states.

But there remains one huge difference: Europe's constitutional principles, even if materially similar, are rooted in a framework which is altogether different. In federations, whether American or Australian, German or Canadian, the institutions of a federal state are situated in a constitutional framework which presupposes the existence of a `constitutional demos', a single pouvoir constituant made of the citizens of the federation in whose sovereignty, as a constituent power, and by whose supreme authority the specific constitutional arrangement is rooted. Thus, although the federal constitution seeks to guarantee State rights and although both constitutional doctrine and historical reality will instruct us that the federation may have been a creature of the constituent units and their respective peoples, the formal sovereignty and authority of the people coming together as a constituent power is greater than any other expression of sovereignty within the polity and hence the supreme authority of the Constitution-including its federal principles.

Of course, one of the great fallacies in the art of `federation building', as in nation building, is to confuse the juridical presupposition of a constitutional demos with political and social reality. In many instances, constitutional doctrine presupposes the existence of that which it creates: the demos which is called upon to accept the constitution is constituted, legally, by that very constitution, and often that act of acceptance is among the first steps towards a thicker social and political notion of constitutional demos. Thus, the empirical legitimacy of the constitution may lag behind its formal authority-and it may take generations and civil wars to be fully internalized-as the history of the many federal states will testify. Likewise, the juridical presupposition of one demos may be contradicted by a persistent social reality of multiple ethnoi or demoi who do not share, or grow to share, the sense of mutual belongingness transcending political differences and factions and constituting a political community essential to a constitutional compact of the classical mould. The result will be an unstable compact, as the history of Canada and modern Spain will testify. But, as a matter of empirical observation, I am unaware of any federal state, old or new, which does not presuppose the supreme authority and sovereignty of its federal demos.

In Europe, that presupposition does not exist. Simply put, Europe's constitutional architecture has never been validated by a process of constitutional adoption by a European constitutional demos and, hence, as a matter of both normative political principles and empirical social observation the European constitutional discipline does not enjoy the same kind of authority as may be found in federal states where their federalism is rooted in a classic constitutional order. It is a constitution without some of the classic conditions of constitutionalism. There is a hierarchy of norms: Community norms trump conflicting Member State norms. But this hierarchy is not rooted in a hierarchy of normative authority or in a hierarchy of real power. Indeed, European federalism is constructed with a top-to-bottom hierarchy of norms, but with a bottom-to-top hierarchy of authority and real power.

You would think that this would result in perennial instability. One of the virtues of the European construct is that it produces not only a surprisingly salutary normative effect but also a surprisingly stable political polity. Member States of the European Union accept their constitutional discipline with far more equanimity than, say, Quebec. There are, surely, many reasons for this, but one of them is the peculiar constitutional arrangement of Europe.

This distinct constitutional arrangement is not accidental. Originally, in a fateful and altogether welcome decision, Europe rejected the federal State model. In the most fundamental statement of its political aspiration, indeed of its very telos, articulated in the first line of the Preamble of the Treaty of Rome, the gathering nations of Europe `Determined to the lay the foundations for an ever closer Union of the peoples of Europe'. Thus, even in the eventual promised land of European integration, the distinct peoplehood of its components was to remain intact-in contrast with the theory of most, and the praxis of all, federal states which predicate the existence of one people. Likewise, with all the vicissitudes from Rome to Amsterdam, the Treaties have not departed from their original blueprint as found, for example, in Article 2 EC of the Treaty in force, of aspiring to achieve ` . . . economic and social cohesion and solidarity among Member States' (emphasis added). Not one people, then, nor one State, federal or otherwise.

Europe was re-launched twice in recent times. In the mid-1980s the Single European Act introduced, almost by stealth, the most dramatic development in the institutional evolution of the Community achieved by a Treaty amendment: majority voting in most domains of the Single Market. Maastricht, in the 1990s, introduced the most important material development, EMU. Architecturally, the combination of a `confederal' institutional arrangement and a `federal' legal arrangement seemed for a time to mark Europe's Sonderweg - its special way and identity. It appeared to enable Europe to square a particularly vicious circle: achieving a veritably high level of material integration comparable only to that found in fully fledged federations, while maintaining at the same time-and in contrast with the experience of all such federations-powerful, some would argue strengthened, Member States.

Whence the drive for a formal constitution of which the Fischer speech has been such a powerful catalyst?

Four factors seem to drive the renewed interest in a formal constitution rather than the existing `constitutional arrangement' based on the Treaties. The first factor is political. As mentioned above, it is widely assumed, correctly it would seem, that the current institutional arrangements would become dysfunctional in an enlarged Union of, say, 25. A major overhaul seems to be called for. In the same vein, some believe, incorrectly in my view, that the current constitutional arrangements would not work. In particular, the absence of a formal constitution leaves all important constitutional precepts of the Union at the mercy of this or that Member State threatening both the principle of uniformity of, and of equality before, the law as well as an orderly functionality of the polity. One is forever worried: `What will the German/Italian/Spanish, or whatever, constitutional court say about this or that.' A formal constitution enjoying the legitimacy of an all-European pouvoir constituant would, once and for all, settle that issue.

The second factor is `procedural' or `processual'. The process of adopting a constitution-the debate it would generate, the alliances it would form, the opposition it would create-would all, it is said, be healthy for the democratic and civic ethos and praxis of the polity.

The third factor is material. In one of its most celebrated cases in the early 1960s, the European Court of Justice described the Community as a `. . . new legal order for the benefit of which the States have limited their sovereign rights, albeit in limited fields'. There is a widespread anxiety that these fields are limited no more. Indeed, not long ago a prominent European scholar and judge wrote that there `. . . simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community'. A constitution is thought an appropriate means to place limits to the growth of Community competences.

Of greatest interest to me is the final normative and conceptual drive behind the discussion. Normatively, the disturbing absence of formal constitutional legitimization for a polity that makes heavy constitutional demands on its constituent Members is, it may be thought, problematic. If, as is the case, current European constitutional discipline demands constitutional obedience by and within all Member States, their organs and their peoples even when these conflict with constitutional norms of the Member State, this, it is argued, should be legitimized by a constitution which has the explicit consent of its subjects instead of the current pastiche which, likeTopsy, just `growed'.

Conceptually, the disquiet with the current European constitutional arrangement must be understood against a European constitutional discourse which for years has been dominated by a strange combination of Kelsen and Schmitt. It is Kelsenian in its attempts, under many guises to describe, define and understand the European Grundnorm-the source whence the authority of European constitutional disciplines derives. The search for this Kelsenian holy grail, whether or not acknowledged explicitly, underscores the great bulk of the academic literature theorizing European constitutionalism. And this holy grail is, typically, understood in Schmittian terms: the search is for the ultimatesource of authority, the one that counts in the case of extremity, of conflict. That is the true criteria of the real Grundnorm.

I want to explain why the unique brand of European constitutional federalism-the status quo-represents not only its most original political asset but also its deepest set of values. I also do not think that a formal constitution is a useful response to other concerns such as the issue of competences.

The reason the question of ultimate authority and constitutional Grundnorm seems so important is that we consider the integrity of our national constitutional orders not simply as a matter of legal obedience and political power but of moral commitment and identity. Our national constitutions are perceived by us as doing more than simply structuring the respective powers of government and the relationships between public authority and individuals or between the state and other agents. Our constitutions are said to encapsulate fundamental values of the polity and this, in turn, is said to be a reflection of our collective identity as a people, as a nation, as a state, as a Community, as a Union. When we are proud and attached to our constitutions we are so for these very reasons. They are about restricting power, not enlarging it; they protect fundamental rights of the individual; and they define a collective identity which does not make us feel queasy the way some forms of ethnic identity might. Thus, in the endless and tiresome debates about the European Union constitutional order, national courts have become in the last decade far more aggressive in their constitutional self-understanding. The case law is well known. National courts are no longer at the vanguard of the `new European legal order', bringing the rule of law to transnational relations, and empowering, through EC law, individuals vis-à-vis Member State authority. Instead they stand at the gate and defend national constitutions against illicit encroachment from Brussels. They have received a sympathetic hearing, since they are perceived as protecting fundamental human rights as well as protecting national identity. To protect national sovereignty is passé; to protect national identity by insisting on constitutional specificity is à la mode.

Thus, on this new reading, to submit to the constitutional disciplines of Europe without a proper Kelsenian constitution, which formally vests in Europe Schmittian ultimate authority, is something that not only contradicts an orderly understanding of legal hierarchy but also compromises deep values enshrined in the national constitution as well as a collective identity which is tied up with these values. Indeed, it is to challenge the idea of constitution itself.

Modern liberal constitutions are, indeed, about limiting the power of government vis-à-vis the individual; they do, too, articulate fundamental human rights in the best neo-Kantian tradition; and they reflect a notion of collective identity as a community of values which is far less threatening than more organic definitions of collective identity. They are a reflection of our better part.

But, like the moon, like much which is good in life, there is here a dark side too.

It is, first, worth listening carefully to the rhetoric of the constitutional discourse. Even when voiced by the greatest humanists, the military overtones are present. We have been invited to develop a patriotism around our modern, liberal, constitutions. The constitutional patriot is invited to defend the constitution. In some states we have agencies designed to protect the constitution whose very name is similar to our border defences. In other countries, we are invited to swear allegiance to the constitution. In a constitutional democracy we have a doctrine of a fighting democracy, whereby democratic hospitality is not extended to those who would destroy constitutional democracy itself. To be a good constitutional liberal, it would seem from this idiom, is to be a constitutional nationalist and, it turns out, the constitutional stakes are not only about values and limitations of power but also about its opposite: the power which lurks underneath such values.

Very few constitutionalists and practically no modern constitutional court will make an overt appeal to natural law. The formal normative authority of the constitutions around which our patriotism must form and which we must defend is, from a legal point of view, mostly positivist. This means that it is as deep or shallow as the last constitutional amendment: in some countries, like Switzerland or Germany, not a particularly onerous political process. Consequently, vesting so much in the constitutional integrity of the Member State is an astonishing feat of self-celebration and self-aggrandizement, of bestowing on ourselves, in our capacity of constituent power, a breathtaking normative authority. Just think of the near sacred nature we give today to the constitutions adopted by the morally corrupted societies of the World War II generation in, say, Italy and Germany and elsewhere.

A similar doubt should dampen somewhat any enthusiasm towards the new constitutional posture of national courts which hold themselves out as defending the core constitutional values of their polity, indeed its very identity. The limitation of power imposed on the political branches of government is, as has been widely noticed, accompanied by a huge dose of judicial self-empowerment and no small measure of sanctimonious moralizing. Human rights often provoke the most strident rhetoric. Yet constitutional texts in our different polities, especially when it comes to human rights, are remarkably similar. Defending the constitutional identity of the state and its core values turns out in many cases to a defence of some hermeneutic foible adopted by five judges voting against four. The banana saga, which has taxed the European Court of Justice, the German Constitutional Court, the Appellate Body of the World Trade Organization, and endless lawyers and academics is the perfect symbol of this farce.

Finally, there is also in an exquisite irony in a constitutional ethos which, while appropriately suspicious of older notions of organic and ethnic identity, at the very same time implicitly celebrates a supposed unique moral identity, wisdom, and, yes, superiority, of the authors of the constitution, the people, the constitutional demos, when it wears the hat of constituent power and, naturally, of those who interpret it.

It was Samuel Johnson who suggested that patriotism was the last refuge of a scoundrel. Dr Johnson was, of course, only partly right. Patriotism can also be noble. But it is an aphorism worth remembering when we celebrate constitutional patriotism, national or transnational, and rush to its defence from any challenges to it. How, then, do we both respect and uphold all that is good in our constitutional tradition and yet, at the same time, keep it and ourselves under sceptical check?

The advocacy for a European constitution is not what it purports to be. It is not a call for `a' constitution. It is a call for a different form of European constitution from the constitutional architecture we already have. And yet the current constitutional architecture, which of course can be improved in many of its specifics, encapsulates one of Europe's most important constitutional innovations, the Principle of Constitutional Tolerance.

The Principle of Constitutional Tolerance, which is the normative hall mark of European federalism, must be examined both as a concept and as a praxis. First , then, the concept. European integration has been, historically, one of the principal means with which to consolidate democracy within and among several of the Member States, both old and new, with less than perfect historical democratic credentials. For many, thus, democracy is the objective, the end, of the European construct. This is fallacious. Democracy is not the end. Democracy, too, is a means, even if an indispensable means. The end is to try, and try again, to live a life of decency, to honour our creation in the image of God, or the secular equivalent. A democracy, when all is said and done, is as good or bad as the people who belong to it. The problem of Haider's Austria is not an absence of democracy. The problem is that Austria is a democracy; that Haider was elected democratically, and that even the people who did not vote for him are content to see him and his party share in government. A democracy of vile persons will be vile.

Europe was built on the ashes of World War II, which witnessed the most horrific alienation of those thought of as aliens, an alienation which became annihilation. What we should be thinking about is not simply the prevention of another such carnage: that's the easy part and it is unlikely ever to happen again in Western Europe, though events in the Balkans remind us that those demons are still within the continent. More difficult is dealing at a deeper level with the source of these attitudes. In the realm of the social, in the public square, the relationship to the alien is at the core of such decency. It is difficult to imagine something normatively more important to the human condition and to our multicultural societies.

There are, it seems to me, two basic human strategies of dealing with the alien and these two strategies have played a decisive role in Western civilisation. One strategy is to remove the boundaries. It is the spirit of `come, be one of us'. It is noble since it involves, of course, elimination of prejudice, of the notion that there are boundaries that cannot be eradicated. But the `be one of us', however well intentioned, is often an invitation to the alien to be one of us, by being us. Vis-à-vis the alien, it risks robbing him of his identity. Vis-à-vis oneself, it may be a subtle manifestation of both arrogance and belief in my superiority as well as intolerance. If I cannot tolerate the alien, one way of resolving the dilemma is to make him like me, no longer an alien. This is, of course, infinitely better than the opposite: exclusion, repression, and worse. But it is still a form of dangerous internal and external intolerance.

The alternative strategy of dealing with the alien is to acknowledge the validity of certain forms of non-ethnic bounded identity but simultaneously to reach across boundaries. We acknowledge and respect difference, and what is special and unique about ourselves as individuals and groups; and yet we reach across differences in recognition of our essential humanity. What is significant in this are the two elements I have mentioned. On the one hand, the identity of the alien, as such, is maintained. One is not invited to go out and, say, `save him' by inviting him to be one of you. One is not invited to recast the boundary. On the other hand, despite the boundaries which are maintained, and constitute the I and the Alien, one is commanded to reach over the boundary and accept him, in his alienship, as oneself. The alien is accorded human dignity. The soul of the I is tended to not by eliminating the temptation to oppress but by learning humility and overcoming it.

The European current constitutional architecture represents this alternative, civilizing strategy of dealing with the `other'. Constitutional Tolerance is encapsulated in that most basic articulation of its meta-political objective in the preamble to the EC Treaty mentioned earlier in this chapter:

Determined to lay the foundations of an ever closer union among the peoples of Europe.

No matter how close the Union, it is to remain a union among distinct peoples, distinct political identities, distinct political communities. An ever closer union could be achieved by an amalgam of distinct peoples into one which is both the ideal and/or the de facto experience of most federal and non-federal states. The rejection by Europe of that One Nation ideal or destiny is, as indicated above, usually understood as intended to preserve the rich diversity, cultural and other, of the distinct European peoples as well as to respect their political self-determination. But the European choice has an even deeper spiritual meaning.

An ever closer union is altogether more easy if differences among the components are eliminated, if they come to resemble each other, if they aspire to become one. The more identical the `Other's' identity is to my own, the easier it is for me to identify with him and accept him. It demands less of me to accept another if he is very much like me. It is altogether more difficult to attain an ever closer Union if the components of that Union preserve their distinct identities, if they retain their `otherness' vis-à-vis each other, if they do not become one flesh, politically speaking. Herein resides the Principle of Tolerance. Inevitably I define my distinct identity by a boundary which differentiates me from those who are unlike me. My continued existence as a distinct identity depends, ontologically, on that boundary and, psychologically and sociologically, on preserving that sentiment of otherness. The call to bond with those very others in an ever closer union demands an internalization-individual and societal-of a very high degree of tolerance. Living the Kantian categorical imperative is most meaningful when it is extended to those who are unlike me.

In political terms, this Principle of Tolerance finds a remarkable expression in the political organization of the Community which defies the normal premise of constitutionalism. Normally in a democracy, we demand democratic discipline, that is, accepting the authority of the majority over the minority only within a polity which understands itself as being constituted of one people, however defined. A majority demanding obedience from a minority which does not regard itself as belonging to the same people is usually regarded as subjugation. This is even more so in relation to constitutional discipline. And yet, in the Community, we subject the European peoples to constitutional discipline even though the European polity is composed of distinct peoples. It is a remarkable instance of civic tolerance to accept to be bound by precepts articulated not by `my people' but by a community composed of distinct political communities: a people, if you wish, of others. I compromise my self-determination in this fashion as an expression of this kind of internal-towards myself-and external-towards others-tolerance.

Constitutionally, the Principle of Tolerance finds its expression in the very arrangement which has now come under discussion: a federal constitutional discipline which, however, is not rooted in a statist -type constitution.

Constitutional actors in the Member State accept the European constitutional discipline not because as a matter of legal doctrine, as is the case in the federal state, they are subordinate to a higher sovereignty and authority attaching to norms validated by the federal people, the constitutional demos. They accept it as an autonomous voluntary act, endlessly renewed on each occasion, of subordination, in the discrete areas governed by Europe to a norm which is the aggregate expression of other wills, other political identities, other political communities. Of course, to do so creates in itself a different type of political community one unique feature of which is that very willingness to accept a binding discipline which is rooted in and derives from a community of others. The Quebecois are told: in the name of the people of Canada, you are obliged to obey. The French or the Italians or the Germans are told: in the name of the peoples of Europe, you are invited to obey. In both, constitutional obedience is demanded. When acceptance and subordination is voluntary, and repeatedly so, it constitutes an act of true liberty and emancipation from collective self-arrogance and constitutional fetishism: a high expression of Constitutional Tolerance.

To extol the extant constitutional arrangement of Europe is not to suggest that many of its specifics cannot be vastly improved. The Treaty can be paired down considerably, competences can be better protected, and vast changes can be introduced into its institutional arrangements. But when it is objected that there is nothing to prevent a European constitution from being drafted in a way which would fully recognize the very concepts and principles I have articulated, my answer is simple: Europe has now such a constitution. Europe has charted its own brand of constitutional federalism. It works. Why fix it?



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