Normalization and the Pure Constitutional Question

Some Unconventional Thoughts on the Constitutional Convention[*]

J.H.H. Weiler

University Professor and Jean Monnet Chair

New York University School of Law

L’Europe c’est Moi

As the Convention draws to a close there is less and less talk of the untold benefits it would yield in comparison with the traditional IGC.

Valery Giscard d’Estaing, in comments made in a public presentation in New York[1] provided the official line in explaining the setting up of the current methodology:

There was a general belief amongst the leaders and the governments that a new intergovernmental conference [IGC] would produce few results because the last IGC in Nice had been very frustrating. This was because the debate was, again, a nationalistic debate. It was not a European debate. If you look at what the Heads of Governments said when they came back to their capitals, they didn’t say, ‘We improved the European system.’ Not at all. They said that we gained this and that for our country. The British said, ‘We opposed the fact that [the] taxation system could be communiterized’. The French came back saying that the public services would be protected. The Germans said that some of their national interests were defended. So everyone was fighting for nationalistic results.

There are particular features to an intergovernmental conference. First, it’s a diplomatic process not a political process. It is conducted by the Ministers of Foreign Affairs. In diplomacy you try to gain at the expense of the others. If you want to stay in history, you say, ‘I got very good results for my country and we got it at the expense of the others’. So it is a game in which there are winners and losers. When you have at the same time the unanimity rule, it cannot function because you cannot have many losers in the system with the unanimity rule, because the losers will not accept your proposal. We had an example of this problem at the last meeting at the Laeken European Summit. The agenda included the question of the location of some European agencies; one for the protection of our health and food and the other for protection from danger on the sea due to possible accidents. For each agency, there were several candidates. For food/health, you had Italy and Finland. For security on the sea/seashore, you had France and Portugal. It was impossible to find an agreement. They spent hours on this issue and found no agreement because the Finns said, ‘No, we will not accept the decision’. The Italians said, ‘Parma is a very good location so it will be in Parma’. The French said, ‘All the accidents are on the French coasts so it is normal to have the agency in Nantes’.

The Convention was meant to change all that. Politics, rather than diplomacy; the interests of Europe, rather than national interest; a virtuous circle of deliberation rather than the zero-sum vicious circule of negotiation. And a legitimacy born of process rather than results – a process to be characterized by transparency and participation.

In some respect the success of the Convention heralded its problems. Its very importance was reflected in the increasing prominence of the Governmental Delegates – soon becoming a surrogate IGC without, however, all the virtues of behind-the-doors diplomacy. The website, the open plenary sessions with the salles d’ecoutes, “Civil Society” hearings were indeed fresh innovations compared to the old IGCs. But transparency? The inner workings of the Presidium and the inner workings of Giscard’s own kitchen have been more opaque than the worst of the IGCs. One has had the impression – an impression shared at times even by the Presidium – of a latter day Louis XIV, highly intelligent, highly confident but highly imperial too. It is one thing to decry the consensus basis underlying IGCs. But the Convention has adopted its own process of consensus with thousands of amendments being adopted or rejected in closed conclaves self-empowered to decide which to adopt and which to reject. In IGC’s consensus meant just that. In the Convention the consensus of Europe turns out to be, well, that which VGE decides it is. L’europe c’est moi. Indeed. The pressing schedule will enhance these tendencies with a cowered Convention, terrified by public failure to meet its ‘historic destiny’ eventually adopting in Ceausescu style acclamation a final Giscard approved text. Whether the results will be better than those which would have been achieved at an IGC is still open to question. But the irony of legitimacy cannot escape our notice: Once again it will be the results, the Bread and Circus of the Third Millennium Europe, rather than process which will determine the measure of success and it will the endorsing IGC which will lend these results democratic legitimacy.

Whatever these results, the Convention will stand out as an historic occasion which transformed the vocabulary of European reform. Who remembers the Draft Constitution prepared by the European Parliament in the follow up to the Maastricht Treaty? Even its promoters were quick to consign it to oblivion since, at that time, it spelt political death. To speak of a constitution for Europe was to be tainted with the F word -- to be branded as an old fashioned Federalist. Ten years later, there is a political and intellectual stampede to embrace the idea of a constitution for Europe. Joschka and Jacques and Valery and Helmut have all waded in and given the idea political respectability.[2] Habermas (1992; 1999; 2001) has koshered the reptile in intellectual circles. Though the Convention on the Future of Europe is not officially a Constitutional Convention, it has been dubbed, by its very President as the European Philadelphia and there is little doubt that it will produce some form of Constitutional document to European public opinion and to the Intergovernmental Conference which is to follow. The taxonomy is interesting: From Constitution to Constitutional Treaty and now Treaty establishing a Constitution. The idea of a constitution has lost at least in part that progressive-integrationist connotation. Indeed, Euro-Skeptics may be willing to embrace constitutionalism as a means (perhaps even a last ditch stand) for arresting the march of integration. There are many possible explanations for both the reasons and the significance of this change in mood and political discourse.

Let us leave to historians and social scientists to explore the reasons. But the significance of the change should be a matter of public discussion. The turn to constitutionalism is often tied with the project of Enlargement. Institutionally, it is said, Europe is need of a major overhaul. Under its bonnet, after all, despite endless paint jobs, the same old Commission-Council-Parliament engine circa 1951 or 1957 still rattles on and risks imploding under the additional weight of ten new Member States. The institutional architecture requires, so the emerging consensus seems to suggest, a constitutional structure. There is, of course, no consensus on the content of that structure, which is seemingly one of the strengths of the constitutional option.

The hardest and most consequential constitutional decision seems to have been taken, and in typical European fashion: Deus ex Machina. There is something, indeed more than one thing, deceptive in the juxtaposition of Enlargement and Constitution. First is the notion that these two concepts are conceptually different – as if the decision on Enlargement was not a constitutional decision. The opposite is the Truth. The Enlargement decision was the single most important constitutional decision taken in the last decade and arguably longer. For good or for bad, the change in number of Member States, in Europe’s population size, in its geography and topography and its cultural and political mix are all on a scale of magnitude which will make the new Europe a very, very different polity independently of any constitutional structure adopted.

Second, is the notion that whereas Enlargement just happens, the constitution merits a very special decisional procedure – hence the Convention.[3] Descriptively Enlargement did just ‘happen.’ There was no serious public debate either at European or Member State level – unless a discussion at the European Council counts as serious public discussion. The consequences, political and economic, have not been transparently set out, and the process of negotiation itself is the European equivalent to the American Fast Track: The Commission negotiates and then presents a de-facto Take-it-or-leave-it package. Normatively, there is something deeply ironic in that whatever constitution eventually is born from this process, it will have been the result of this Original Sin.

This is not to call into question the per se wisdom of Enlargement though the non transparent decisional process may seriously be critiqued. Likewise the methodology for Enlargement may be questioned: Does it really make sense to integrate ten new Member States all at once (And how did that hugely consequential decision come about)? Does it make sense to premise Enlargement on the basis of a monolithic polity, or would any of the ‘concentric circle’ models have made more political sense? These issues and others like them are as grave as any likely to be treated in the constitutional debate. Indeed, in some sense they are primordial since they will condition the constitutional debate.

Most attention at present is focused on the political issues – on, e.g., the question whether the new Europe will see a significant strengthening of the Council or a reinvention of the Commission. Here, instead, are some of the fundamental constitutional issues which underlie the debates of the Convention on a future Enlarged Europe. Particularly worth highlighting are those constitutional issues which risk, like the question of Enlargement itself, being decided almost by default. The issues are fundamental. Fundamental too should be the process of deliberation.

The Pure Constitutional Issue: Constitution or Constitutional Treaty?

By this I mean the question that goes to the formal status of the Constitution, independently of its content. The formal status might appear just that – an issue devoid of real political or social significance. In fact, this will be one of the most consequential decisions Europe will take.

The basic options seem to be two.

Imagine that the discussion of content reaches some finality. That there is agreement on the shape of the new Institutions, on new competences, human rights and all the rest. Imagine that these new arrangements are redacted into a document of suitable length, in suitable constitutional language. But this could be the outcome of any IGC. This ‘constitutional’ document could still be signed by its ‘High Contracting Parties’ and sent for ratification in each of the twenty five Member States in accordance with their constitutional requirements. Just like any other treaty of significance. In such a case, Europe would not have a constitution but a Constitutional Treaty. The obligations included therein would have been assumed by the respective Member States acting as sovereign actors in international law free to undertake obligations, even obligations of a ‘constitutional’ nature.

What, instead, would be the hallmarks of a ‘True’ constitution? There could be many, but I would suggest two critical and easily discernable criteria. The first is whether the amendment procedure in the new constitutional document insists on unanimity among the Member States or whether it allows amendment by some, even if very privileged, majority. Unanimity, embodying the principle of sovereign equality and consent is typically a hall mark of internationalism, not constitutionalism. Amendment by majority is not a ‘mere’ political issue. It is of profound constitutional and social significance. The willingness to submit one’s collective self to the discipline of a majority decision making, even at the very high constitutional level is a sign of a polity, of the intention to associate with Others on a non-arms length basis. It is an invitation to associate with Others with the ties of loyalty and commitment which imply subjugation to a newly drawn collective and its will. The material obligation of what is agreed in a treaty or a constitution can be identical. The basis of acceptance and the relationship are different – representing a move to polity.

Later in this essay I will explore some ‘middle positions’ in relation to this point.

The second sign concerns the type and measure of popular involvement in the adoption process. Almost any Europe-wide plebiscite (and there can be many models) which calls on the (single) people of Europe, as such, to approve the new constitution would be of huge legal and political significance and transformative of current European constitutionalism. It gives a different expression to the same social currency articulated through submission to majoritarian amendment. Approval, instead, by the (plural) peoples of Europe, in their status as national communities, will affirm the constitutional status quo, independently of the content of the document.

It is this move to classical constitutional polity which seems so seductive. It is also entirely pragmatic and historical. One does not and cannot wait until the bonds of loyalty, of constitutional demos, of polity are in place as a precondition for a constitutional settlement. The constitutional settlement is a voluntary invitation, self conscious and autonomous to create, over time, such a polity, such a demos and such a loyalty.

The best metaphor to capture this choice, with its idealism and stark realism combined is Marriage. At the moment of marriage, the young couple (setting passion aside) do not – and cannot – have the deep affection, loyalty and commonality which can only happen after years of living together and traversing the travails of life jointly. The nuptials are an invitation for a life long process of marriage. Likewise, when peoples adopt a constitution, it is an invitation for polity. The constitutional state, like the marriage state, is a process. Many European ardently want to take that step.

Is there any virtue in the constitutional treaty, in the status quo, or is this option just a failure of nerve? Contrary to what one may initially think, also the status quo and the constitutional treaty option reflect deep values.

Europe has, of course a Constitution – in the same way that, say, the United Kingdom has one. Indeed, in the relationship between the Union and the Member States, Europe makes heavy constitutional demands, equal to and in some cases going beyond many a federal state.[4] 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 US testifies. 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.