2005-06-01

On the French rejection of the proposed EU constitution

Since there's been plenty of discussion about what caused the rejection, I won't bother with that question. I think there is something useful to be said, however, for what needs to happen in order for a constitution to get approved in the present EU of 25. Two main points bear keeping in mind:

First, the atmosphere for a constructive debate on a constitution will not obtain until EU governments stop using the EU as an easy way of imposing legislation on their citizens without spending the political capital required to win their approval, and then putting the blame on the EU by claiming to be helpless to stop it. No wonder EU citizens believe the EU is not working in their interests and is not democratically accountable: this is just what their governments are telling them. Moreover, EU governments must keep the EU for becoming more transparent if this strategy is to remain available to them: if EU processes are made transparent, governments will no longer be able to claim that they were not complicit in deciding these policies, and will be forced to fight the political battles necessary to support them, which they are (clearly) desperate to avoid. So long as governments are manipulating the European political structure in this way, EU citizens will be unable to have a clearheaded understanding of what that structure is, or intelligently debate about what it should be.

Second, since EU governments have engaged in the sort of manipulation just described, and the results of that manipulation fill the aquis communitaire, including the treaties, those "infected" elements of EU law must not be included in any EU constitution. Including them in the constitution will place them immediately before EU citizens, and will distract citizens from considering the foundational issues the constitution is really needed to address. Debate about the constitution should concern (insofar as is possible) the structure of Europe's political institutions, not the policies they will be carrying out. But this is just what much of the French debate over the 200+ page proposed constitution was about. This could have been avoided by splitting the document into two parts: a shorter, American-style constitution proper, which would be put to EU citizens for debate and approval; and a series of "basic laws" or treaties, which specify in detail the agreed bounds of EU power, consolidating and revising of the articles of the existing treaties as required by changes contained in the constitution proper. Only in this way will the attention of EU citizens not be distracted from the foundational aspects of the constitution towards reconsideration of countless facets of EU power which have already been decided.

Lest it sound like I too am trying to slip one by the citizens of the EU, let me say the following: Certainly, citizens will want to reconsider many aspects of the current treaties, but with the EU's current institutional structure that is unlikey to occur; fixing that structure is exactly what the constitution proper will address, and so it should be the initial focus of debate. To put it more strongly, whatever parts of the existing treaties EU citizens find objectionable will remain virtually impossible to change under the EU's current institutional structure — a structure which, one must remember, was designed to be "one way" only, towards further integration and the expansion of supranational EU powers; changing that structure is a precondition for reconsidering the role of the EU in particular areas, and needs to be accomplished first. Separating the constitution proper from (what I'm calling) the "basic laws" would facilitate doing so. While some will want to vote on a single document, like the proposed constitution, precisely because a single document is more likely to raise objections and hence not to pass, they are kidding themselves if they think this will lead to dismemberment of the EU; all it will accomplish is to lock-in the current structure which has spawned so much of the dissatisfaction with the EU reflected in the French referendum.

In short, the conditions that will allow a productive debate about constitutional issues in the EU don't obtain, but the EU's political elite is blind to these concerns and proposed a constitution anyway. That document itself reflects the attitudes prevalent in Europe's political elites which accounts for that blindness. Such a document is not what Europe needs for a constitution.

UPDATE: The Dutch have said "no" too, and resoundingly so.

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