Friday, June 15, 2007

Constitutional DoubleSpeak and the EU Constitution

About the only constant aspect of the machinations that have characterized the long struggle for a "constitutional treaty" for the European Union, has been its ambiguities. The long march to the draft of the EU Treaty in 2005 represented an extraordinary act of hubris by the elite political classes of Europe. Its quick collapse on the negative vote of French and Dutch voters in 2005 demonstrated both the fragility of the coalition that had cobbled together the "constitutional treaty" and the lack of enthusiasm for "progress" in the transformation of the political institutions of Europe among the masses (or at least the masses that bothered or threatened to vote). And, of course, the usual form of democratic authoritarianism that has characterized the entire constitutionalization process (as well as the intergovernmental treaty amendment processes from the 1980s (that is, from the Maastricht to the Nice Treaties) played no small part on the disillusionment that has marked treaty transmogrification since the Treaty of Amsterdam.

It should come as no surprise, then, that at the end of the German Presidency of the E.U., Angela Merkel was sounding a bit pessimistic about the future of the process toward constitutionalization. What is odd, however, is the way that pessimism was reported in two very different places--Britain and Spain. In Britain, the BBC posted a fairly sunny report on the state of the forced march toward constitutionalization. Merkel Warns EU Over Constitution, BBC News, June 14, 2007. Although an agreement on a constitutional treaty was not in sight, Ms. Merkel was reported as suggesting, "Mrs Merkel told parliament in Berlin she hoped the summit would take a clear step forward and produce a "roadmap" to a new treaty by 2009." Id. The BBC News story also suggested that "The plan would lead to a new EU constitutional treaty by 2009." The story quoting Ms. Merkel a caution from Ms. Merkel: "This is not just up to us, but we will do our part. If this doesn't succeed, it will not yet be the downfall of Europe, but it will have... extremely serious consequences." The German chancellor added that a solution was essential to enable the enlarged EU bloc to "function properly"." Id. As one might expect from a news organization that prides itself on both its status as a member of the global media elite and as a "good" European citizen, the story highlighted the (perhaps inevitable) progress towards constitution: "Mrs Merkel has made the constitution a priority during Germany's presidency of the EU - which comes to an end at the end of June - and her reputation hinges on securing a deal, our correspondent says." Id.

The story from Spain was both much more curt and much less positive.
La presidencia alemana de la UE propuso ayer formalmente abandonar el proceso constitucional y volver al método clásico de reforma de los tratados como solución al “estancamiento” e “incertidumbre” que vive la UE desde el rechazo francés y holandés a la Constitución en 2005. [The German Presidency of the EU yesterday formally proposed abandonment of the constitutional process and a return to the classic method of treaty reform as a solution to the stagnation and uncertainty that has gripped the EU since the French and Dutch rejection of the constitution in 2005]
Merkel propone desechar la constitución, Què Barcelona, June 15, 2007 at 13. This presents to its readers a much less positive picture of EU constitutionalism than the BBC version. Ironically, of course, the actual substantive results might well be the same. After all, many of the European elite had spoken in favor of the constitutional treaty on the grounds of its similarity to the current treaty structure, including Tony Blair. And so, quite perversely it seems. once again, Europe (through its media) is speaking through more than one side of its mouth. In this they serve as amplification of the divisions within Europe as to the form and content of the EU. The multiple levels of perversity, of indicating one thing in order to obtain something quite distinct, is amply described in (of all places) the Guardian's version of events:

Tony Blair [the U.K,'s lame duck Prime Minister and EU job seeker] is poised to forge a united front with Nicolas Sarkozy [France's new leader] at next week's European summit in Brussels, raising hopes that Europe's 27 leaders will finally reach a deal on replacing the EU constitution. . . . The EU is divided into two broad camps. On one side stand the 'maximalists', the 18 countries, led by Germany, that have ratified the measure and who believe it should be salvaged. They are faced by the 'minimalists', led by France, the Netherlands and Britain, who want to introduce a more modest measure to avoid having to hold referendums. Merkel [Germany's leader] has moved in the direction of the 'minimalists' by dropping the word 'constitution' and describing the new measure as an 'amending treaty'. But she is keen to maintain key proposals in the constitution that are unacceptable to Britain. Nicholas Watt, Anglo-French Cordiale Sets the Scene for EU Deal, The Guardian (the Observer: Politics) (UK), June 17, 2007.
None of this can auger well for any progress on a constitution (much less on any intergovernmental progress toward treaty revision). Perhaps 2009 is wishful thinking.

My sense is that the Spanish version of the news makes better sense, both as a matter of the long term integrity of EU lawmaking and as a matter of European politics. The intergovernmental system of periodic treaty revision had the benefit of compelling a European wide conversation about the shape of the EU among all of its members. It permitted a greater degree of participation within a system that is more functionally protean--precisely because the founding documents are still denominated "treaties" even though they might (at least in the eyes of the European Court of Justice) be treaties with constitutional effect. It is to some extent comforting, within democratic systems, to force political decisions from representative institutions of government, than to foist the job onto the courts. Not that the European Court of Justice has done a bad job--indeed, to some great extent, it has been the most successful instrument in the "dirty work" of crafting a European "constitution" on the ground. But courts better serve to articulate, preserve and enforce fundamental rights, than to constitute a state. See Larry Catá Backer, Reifying Law: “Let Them Be Lions,” in LAW AT THE END OF THE DAY.

Constitutions tend to be change inhibiting documents. And they tend to shift power to change constitutional foundations from the political (intergovernmental process and treaty revision) to the judicial (treaty interpretations and applications). It is not clear to me that power at the European level ought to shift that far toward the judicial and away from the political branches. See Backer, Larry Cata, "Restraining Power from Below: The European's Constitution Text and the Effectiveness of Protection of Member State Power within the EU Framework" (July 2004). Federal Trust Constitutional Online Paper No. 14/04. While such a shift might bring a greater degree of stability (to the extent the political institutions are willing to follow through on judicial determinations), it will threaten the sort of slow moving comitology that has served the EU well enough this past half century. Efficiency in foundational norm making, in this case, may not be worth the price of powewr shifting at the Community level.

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