Tuesday, April 04, 2006

On the First Anniversary of the French Rejection of the European Constitution: Why the Proposed Constitution for the E.U. May be Better Left Dead

It has been almost a year since the French electorate refused to ratify the proposed European Union Constitutional Treaty. That reject in 2005 produced a certain theatrically over dramatic bit of reaction from media and political elites in the United States and Europe. At the time, the French government began to look for the appropriate high level official to cashier, as if the machinations of a single person or government might have better manipulated a docile population into cooperating more fully with its political masters. The Euro fell slightly in value as against the U.S. Dollar, as if to suggest that the rejection of a document characterized by Prime Minister Blair as changing relatively little would somehow affect the international financial status quo. American pundits chuckled at the complexity of a document that was virtually unreadable, and on this basis pronounced it rightly unfit for the establishment of a governance system. The Americans, of course, given their culturally induced short attention spans, are happy to forgetting, for a moment, that the documents the Constitutional Treaty sought to replace are no less complex, yet have worked extraordinarily well in reconstituting Europe as a great economic power. We were told that the experiment that is European integration had been damaged, perhaps even mortally wounded.

One year on from this disaster, European elites still cling to the notion that some sort of constitutional project, perhaps even a resurrection of the lost cause of last year, would be in Europe’s long-term best interest. With each successive E.U. Presidency, there is a carefully cultivated expectation of constitutional revival. Yet, the past year has demonstrated that the reality is nothing like the hysterics blasted from out of the propaganda machinery of the European elites for the benefit of the impressionable in the aftermath of the French vote. The rejection by French voters ought to serve to remind Europeans that the institutions they have so carefully built over the last half century may be worth preserving, and that momentous changes in political organization of the type to which the European Constitutional Treaty pointed (though by no means was prepared to grasp) require a more thorough and transparent political dialogue before they are adopted.

What, exactly, were the consequences for Europe after its effective rejection of the proposed Constitutional Treaty?

The precise answer, in a word, is nothing.

A slightly longer answer starts by reminding the reader that, at the time of its unveiling, several key proponents of the proposed Constitution, especially within the United Kingdom, suggested that the proposed instrument was largely technical in nature, effecting no substantial fundamental changes in European governance. To the extent that changes have not been made, a new form of instrument, especially an instrument the form of which might be used to effect changes not bargained for, seemed unnecessary at best and anti-democratic at worst. To the extent that technical changes were offered, dealing with enlargement and the like, it seemed that well targeted appropriate amendments to the present Treaties were a better alternative. To pour technical changes into a new instrument suggested that the changes in the proposed Constitution were more substantive and less technical than advertised. Given the thrust of the language and the centralizing proclivities of the European Court of Justice, this reading was not far fetched.

Those who continue to contemplate committing their nations to the embedded vision of progress toward some state of political being, as well as to the technical terms contained in an instrument purporting to be one thing and suggesting any number of other things, might well heed this caution: it might be prudent to be clear about the exact nature of the commitment and realistic about the feasibility of controlling participation in a political system in which control by any one Member State is limited at best. To the extent that France and Germany continue to believe that they can amplify their national instruments through control of the instrumentalities of a docile and obedient European Union, might do well to remember the difficulties of herding the E.U. to a common policy with respect to the American invasion of Iraq. Both might also contemplate the fate of Virginia and New York under the federal constitution, very influential in the 18th century, and far less so in the 21st. Moreover, as the American constitutional experience has well demonstrated, embedding disagreement in constitutional text is a dangerous thing indeed. To defer consensus on fundamental issues by embedding disagreement within the text itself is to invite decision by others. And within the European Union, the European Court of Justice has assumed that task, to a significant extent.

A much longer answer involves confronting an issue with respect to which the Member States remain divided, and around which much policy has been directed. That issue centers on the ultimate character of the European Union as a political, social, cultural and economic entity. Is it to remain an association of states, or evolve into something else -- a classical federation, a federation in which control is vested in the Member States, a unitary state, or a confederation? One year after the constitutional failure, the answers remain as elusive as ever. But perhaps this is best for all involved. A development of an organic sense of unity, that is, of a sense of Europe from the bottom up, rather than from the top down, might produce a stronger and more stable basis for the construction of a European political, social and cultural entity. Oddly enough, recognition of European cultural solidarity from outsiders may have a greater effect on the construction of Europe than the manipulation of the usual internal cultural levers by the European elite. The recent international response to the publication of the Mohammad political cartoons by a Danish newspaper, especially from the Muslim world, might have done more to push European together as a people than anything that has recently come out of the spin mills in Brussels.

But the elites, who drove the constitutional drama of the last year, did not think so. It seems clear enough that the proponents of this new instrument sought something more than the sum of the changes therein contained. But what is this ‘extra’ bit of value they meant to squeeze from the instrument? It might well be that those who have constructed it might be conniving a further evolution of the entity created thereby to something approaching a more concrete state. It would work like magic—from document to reality: Presto!

Thus, for example, a representative of French institutional thinking, Valery Giscard D’Estaing, the Chairman of the European Constitutional Convention, gave a well publicized address in 2003 in which he told whoever was willing to listen that European Union was at a major crossroads in history. He spoke of the need for Europe to define the role it wishes to play on the international scene. He said that Europe is strong economically, but weak politically. D’Estaing’s main argument is that a stronger, more united, Europe would be a much more valuable and trustworthy partner for the U.S.A. with which it would be possible to have a better organized and more productive dialogue on global strategic issues. A divided Europe would have little impact politically, which he said will hurt the United States, as the U.S.A. is in need of a strong ally and partner in Europe in global political affairs. Other authoritative speakers (that is, speakers whose voices tend to be amplified by publication in the press or other organs for the dissemination of political speech) have also spoken of the E.U. in evolutionary terms; in those cases, the evolutionary end point seems to resemble more a traditional federation than anything else.

It is with respect to this evolutionary project that proponents of the proposed constitution referred when they spoke about a crisis resulting from a failure to embrace a constitution for Europe. That appears to be the thrust of remarks from the United Kingdom’s Peter Mandelson, the E.U. Commissioner for External Trade. Mr. Mandelson was right to suggest in an August 2004 interview with the BBC that the failure to adopt the proposed Constitution would spark a “major crisis.’ The crisis affects not the current status but the scope, nature and timing of the evolution of the Union; “we will have to go back, look at the reasons for the rejection, understand why the treaty has not been embraced by the public and address those concerns.” But this is proving to be a very good thing indeed.

Consequently, European should continue to use the anniversary of the effective abandonment of the proposed Constitution to embrace whatever ‘crisis’ it has spawned. Such a crisis will be healthy for the long-term stability and growth of the Union. To the extent that the ‘crisis’ unearths the tensions long masked by the treaties, and redirects the conversation about their resolution from the judicial department of the European Union to the political departments of the Member States, that ‘crisis’, however resolved, may be long overdue. Such a conversation, to a greater extent than any sort of technical amendments to the treaties, will in the long term resolve the problem of the democratic deficit that seems to plague the process of integration, as and to the extent that further integration is embraced by the Member States.

Into what should the European Union evolve? It could focus, as the proposed constitution suggested, into something like a federal nation-state. On the other hand, the recent efforts by the E.U. to forge more formal trade and associational ties with the regions around it—in the Mediterranean basin and in Eastern Europe—also suggest a fruitful line of development. This is economic integration separated from political integration. For some, this might be the more fruitful approach, and certainly an approach more consistent with the economic globalization that is such a powerful force for integration today.

Ought it to evolve at all? It is possible to suggest that the great and fundamental changes of the 1980s and 1990s require more than a couple of years to digest. It might well be in the long term best interests of Europe to deepen the relationships among its members before they seek to broaden them. There is still plenty of room for such deepening within the framework of the current Treaties.

There is little point in hiding from those questions. There is, however, a great danger in supposing that finessing an instrument of governance around this issue without resolving it will either make the issue go away or provide a certain method for imposing one solution without the bother of negotiation or instrumental reform. The United States, of course, ought to serve as the great cautionary tale for those who believe they can use the institutions of the European Union to control or direct solutions to foundational issues that remain unresolved. Problems are rarely solved, and progress rarely follows, solely from the stroke of a pen or the enactment of measures without popular support.

And now for a little perspective: I do not mean to suggest a belief that Europeans ought to walk away from Europe. Rejection of the proposed Constitution did not have that effect. Nor do I necessarily counsel rejection of and future constitutional proposal. But fundamental political change by subterfuge or sleight off hand is hardly a prescription for sound governance. This first anniversary should remind the powers that be of this lesson. The rejected constitution required acceptance of a number of fundamental propositions that were not necessarily evident from the face of the document. It certainly seemed to suggest transfers of power in excess of that set forth in its black letter. These propositions were unpalatable, and would have been more unpalatable still had they been more clearly evident. In any case,

It seems to me that association of some kind is inevitable for the nations of Europe. It is possible to argue that the Member States of the European Union made that choice when each joined – for good or ill – the European Communities. Each now must embrace the consequences, including the evolution of the Union into a very different form of governance system. But I believe that argument like that beg the real question Europe must confront. It assumes a necessary passivity on the part of Member States with respect to fundamental questions and a transfer of authority over those matters to the collective that is the Union itself. I see no reason to adopt passivity except in the service of an evolutionary model of Union. While change may be wise, it deserves at least some sort of active consideration by government before the state binds itself to a system over which it has less control. The real question for the governments of the Member States of the E.U. thus center on the form and nature of its association with other states. With respect to those issues, the Member States might well wish to retain a significant amount of control, even as each might choose to integrate itself more fully with its European partners. At a minimum, analytical clarity and rigor will be essential to understand the terms of the constitutional ‘contract’ which the Member States will, sooner or later, again be asked to adopt.

Rejection of the European Constitution provided the people of the Member States with an important opportunity to rigorously examine its associational relationships and to more actively chart a course for its future. That is the greatest service the Constitution performed. A year’s reflection ought to make Europeans grateful for the crisis reject brought, and for the opportunity to be more active masters of their fates.

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