Nr. 21 – Klinkers & Tombeur, February 2013

In Papers no. 1-20 we have explained a) why the intergovernmental EU-system is destroying the goal of cooperation for European interests; b) why a federal system would be preferable for Europe; c) that Europe should thus federalize; d) that federalization through an adjustment of the present EU-treaties has always failed and why it will never succeed; e) that European federalists should therefore design a federal Constitution themselves, as was done in America at the end of the 18th century; and f) what constitutional and institutional conditions have to be met in order to prevent the intended federalization from failing due to constitutional construction errors. In the following Papers no. 21-24 we will put forward a federal Constitution for Europe. This draft is based on the 1789 American Constitution, strengthened with elements from the Swiss Constitution and tailored to present-day Europe. Paper no. 21 is dedicated to the Preamble and Article I of the European Constitution.

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

Our version of a draft Constitution for a European Federation is intended to include at least the three Benelux countries and six other countries of the Eurozone. For the record, the 17 countries of the Eurozone are as follows: Austria, Belgium, Cyprus, Germany, Estonia, Finland, France, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Slovakia and Spain.

The final Article of our draft European Constitution determines that the Federation will come into effect as soon as the citizens of the three Benelux countries and of six other countries accept this Constitution. The citizens of those nine countries allow the Constitution to come into force. In this way we follow the same method as applied in America in 1787-1788, when the draft Constitution was submitted to the citizens of the thirteen Confederal States of America: if nine of the thirteen did accept the draft, the federal Constitution would come into force. Thus the founding fathers explicitly did not opt for the requirement of unanimity among the thirteen States involved. The Convention ‘stepped out of the box’ of the Confederal Treaty, thus creating the possibility of designing radically new legislation: a federal Constitution instead of an adjusted confederal Treaty.

In Paper no. 19 we explained why we also opt for the number of countries required for ratifying the Constitution as nine: the Treaty of Lisbon itself indicates that a minimum of nine Member States has the right to organize a strengthened form of cooperation.

Would it be difficult to unite nine countries into a European Federation? We do not know. Change starts with oneself. Over the past hundred years the Benelux countries have proved that they can change. As of 1920 they began cooperating with neighbouring countries, after which this cooperation led to the Oslo-group, in order to draw, in 1944, a structural path for cooperation on a European level, a path that was gradually broadened to include many other countries. The pre-federal European Community, followed by the Union, began with only six Member States.

The other Eurozone countries must decide for themselves whether they wish to continue fighting in the context of their nationalistic-driven decision making. The Benelux countries should not spend any more time on that – nor France, Germany or Italy, countries that in 1950-1951, together with the Benelux, established the European Coal and Steel Community (ECSC). In the words of the aforementioned André Glucksmann, in answer to the question of whether Europe should continue searching for a new challenge: “This would not be hard to find if the Union were not running around like a headless chicken. It began in the early 1950s with the erection of the European Coal and Steel Community (ECSC) connecting the heavy industry of Lotharingen and the Ruhr Region.”

He points out the necessity of a revival by the same countries that in the 1950s lit the European community-fire. 

Glucksmann makes it clear that committing to a new challenge is no free choice, as can be seen from the following two quotes:

“Merkel and Hollande think and act on the rhythm of elections and polls.” This is a variation on the observation made by Jean-Claude Juncker, mentioned in the Foreword, that European politicians know very well what they should do, but if they did so they would lose the next elections. And therefore they remain passive, at best insufficiently active.

“The different European players may not be waging war, but they are far from being benign towards each other. Europe should be aware of danger in this anarchistic jumble. Poetin’s Russia creates a threat. The bureaucratic slave-state of China creates a threat. The militant Islam creates a threat. Europe has to learn again to think in terms of friends and foes.” This observation corresponds with the third driving force for a federal Europe as described by Tombeur in Paper no. 9.

With observations of this kind Glucksmann makes it clear that the salvation for European cooperation lies in action, courage, passion, stepping out of the current domineering way of thinking. That was done by the French thinker Montesquieu in the first half of the 18th century. It has also been done, soon after Montesquieu, by the federalists in America, in full awareness of the fact that thinking from the Citizens rather than thinking from the States would be the compass for walking a successful path. If those people were able, at that time, to make this leap in thinking, then we also must be able to do this now.

Federalizing Europe is only feasible by stepping out of the box of the Treaty of Lisbon (just like the founding fathers did with the ‘Articles of Confederation’) in order to create something completely new. The motto is: “If you continue doing today what you have been doing yesterday, then tomorrow you will get the same results as you scored today. If you are not satisfied with the todays results, then you must change today. Only then you will get other results tomorrow.”

Therefore, as is the case with the American and Swiss Constitution, our draft of a federal European Constitution begins directly from the perspective of the Citizens. Since our Preamble is derived from the American and Swiss Constitutions we quote them both.

The American Preamble consists of one sentence:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The Swiss Constitution also begins with a short Preamble. It declares in the name of God why the people and the Cantons establish the Constitution. In a free translation the Swiss Preamble states:

“… being aware of their responsibility before the Creation, they are determined to renew their bond in order to strengthen liberty, democracy, independence and peace, in the spirit of solidarity and openness to the world, destined to experience their diversity with respect for the other and in equality, in awareness of the joint realizations and of their plight to take responsibility for the coming generations, knowing that only he is free who uses that freedom and that the power of society is devoted to further the well-being of its weakest members, establish the Constitution ...”

The Swiss Constitution itself goes even further: in Article 2 it describes the goal of the Swiss Federation, namely to protect the freedom and the rights of the people and to safeguard the country’s independence and security, as well as to further the prosperity of the community, sustainable development, the country’s internal cohesion and cultural diversity.

We also see these ancient principles and established concepts from both Constitutions in the answer of the German filmmaker Ulrich Seidl, author of the trilogy ‘Paradies’, to the question (in a recent  interview with the Belgian newspaper De Standaard) as to what, in his opinion, ‘paradise’ entails: “My idea of paradise is vague. But there must be freedom and dignity. Otherwise you cannot even begin to speak of paradise.” We agree: first of all paradise requires freedom and safety in order to achieve a better society. 

However, we realize the controversial character of opening the Constitution with a Preamble. It is not customary for each State to have a Preamble preceding the Articles. In the Netherlands there has been a longstanding debate as to whether the Constitution should open with a Preamble. This debate is always controlled by an agitated discourse between advocates and opponents of references to a Supreme Being in such a Preamble. And between those who favour and those who reject mentioning the Royal Family in that text.

For us this debate is very simple. The best practices of the quoted Preambles guide us. First of all, to have a Preamble is a matter of law-making doctrine. A law should open with at least a Consideration explaining why the law maker deems it necessary to make this law. For a Treaty or Constitution, a Preamble is the Consideration. Without such a brief description you do not know WHO deems it important to have such a Constitution, nor WHY; a statement is required. The Preamble is the answer to that. Second, we opt – as in the American Constitution – not to refer to a Supreme Being. Since the Age of Enlightenment the Church and State are separate entities. It would be inappropriate to refer in a Constitution to a God of whatever religion. Third, a reference to a Royal Family is irrelevant since the majority of the Eurozone countries have no monarch.

For the record we wish to indicate that we follow as literally as possible the American Constitution, thus with respect to structure and text. Where needed or useful, there are adjustments or additions from elements of the Swiss Constitution. With the proviso that we make adjustments as we deem necessary for the Federation Europe.

Therefore, our draft Preamble reads as follows:

PREAMBLE
We, the Citizens of Austria, Belgium, Cyprus, Germany, Estonia, Finland, France, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Slovakia and Spain establish this Constitution for all countries in the Eurozone, and furthermore for each country entering the Eurozone, with the goal of forming a Federation that guarantees freedom, order, safety, happiness, justice, defence of the Federation against enemies, sustainability of the environment as well as acceptance and tolerance of the diversity of cultures, convictions, ways of life and languages of all who live and will live in the territory that belongs to the jurisdiction of the Federation.

The word ‘happiness’ is not mentioned in the American Preamble. Yet we have decided to include it in our European Preamble. Why? Because the overall meaning of the American Constitution is based on the right of the citizen to pursue his or her happiness and the plight of the government to assist him or her in doing so. This basic element of that Constitution stems from the Declaration of Independence (Thomas Jefferson 1776) that includes the words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the Pursuit of Happiness.”

Besides this, there is a remarkable fact from the aforementioned book of Logevall ‘Embers of War: The Fall of an Empire and the Making of America’s Vietnam’. Logevall reveals that Ho Chi Min, when he, after the Japanese defeat in 1945 returned to Hanoi, declared Vietnam independent, in doing so using the exact words of the American Declaration of Independence. He loved America and tried – up until France transferred its control over Vietnam to the USA after the fall of Dien Bien Phu in 1954 – to get America on his side. Always in vain referring to Roosevelt's determination to prevent the European countries from repossessing their former colonies after World War II.

With the explicit use of the word ‘happiness’ in the European Preamble we wish to make clear that the right of each citizen to pursue his or her own happiness, and the obligation of public authorities to help them doing so, is an essential aspect of our federal Constitution. By determining this inalienable right in the Preamble it should be clear for any Government within the European system that achieving this happiness may not depend on the outcome of elections. This construction gives an extra legitimization to having a Preamble: whatever Parliament or Government, these are the goals to which the endeavour of each public official should be dedicated.

With respect to the final part of the Preamble (‘acceptance and tolerance of …’) we like to emphasize that we are no party in a multicultural debate while striving for a federal Europe. Since the Batavians, Galliers, Goths, Huns, Saxonians, Franks, Romans, Mores, Celts, Habsburgs and Vikings traversed Europe, this continent, and each State within it, is multicultural. This is a good thing. Respect for and acceptance of linguistic diversity does not necessarily prevent – though – the use of or striving for one communal language or a purposeful choice of several languages in federal procedures. Look for instance at the Swiss with their four official languages, who experience no linguistic conflict.

An example showing that it is even possible within the European Union to opt for some of the official 23 languages is revealed in two EU-regulations (COM (2011) 215 and COM (2011) 216) regarding closer, binding cooperation with respect to establishing a Patent Court with sites in Paris, London and München. These regulations were supported by 25 Member States and agreed upon by European Parliament. Only Spain and Italy did not follow, for linguistic reasons.

We have to add to this diversity issue that Europe possesses a communal basis going back to the norms and values of Christianity – as Larry Siedentop recalls in his ‘Democracy in Europe’. Also Gerard Mortier, director of the Teatro Real in Madrid, points at this cultural bond. With regard to Europe, Mortier states in an interview with the Belgian newspaper De Tijd: “We all are part of one big cultural community (…). The time of the nation states is over. The European identity exists, throughout history. It is a reality, not an invention by the European Commission or European Parliament. Yet: why is it so difficult for politicians to explain this European cultural identity? (…) European cultural identity does not destroy local identity. The Langue d’Oc has not disappeared by becoming part of France, has it? The many different cultures can even express themselves better in a European Federation.” 

Now we continue with Article I of our draft Constitution. The Preamble answers the WHY of a European Federation. Article I answers the HOW. Contrary to the American Constitution we open with an Article I constituting the federal system and the Bill of Rights (both coming from Amendments to the American Constitution). Adjusting the numbering of the American Articles will also happen in the following Papers 22-24. Partly because we have to incorporate some elements of the twenty-seven Amendments on the American Constitution. Partly because renumbering of some American Articles makes the text looking better. Thus, our draft Constitution will contain ten Articles instead of seven as is the case in the U.S. Constitution.

We determine the European federal system in sections 1 and 2, using both the Swiss and the American Constitution.

Article I – The Federation and the Bill of Rights

  1. The European Federation is formed by the Citizens and the States, participating in the Federation.
  2. The powers not delegated to the European Federation by the Constitution, nor prohibited to the States by this Constitution, are reserved to the Citizens or to the respective States.
  3. The European Federation endorses the rights, freedoms and principles as written in the Charter of the Fundamental Rights of the European Union, excluding the principle of subsidiarity, as mentioned in the Preamble of this Charter. The European Federation accedes to the European Convention on Human Rights and Fundamental Freedoms.

Explanation of Section 1
Article I is inspired by the American and Swiss Constitution. The text of clause 1 describes the specific nature of a public Federation: she consists not only of States, but also and primarily of her Citizens; a Federation is owned by the Citizens and the States. Anyone who is afraid that a Federation would absorb, as a super State, its participating nation states’ sovereignty, should understand by now that within a Federation the States maintain their national identities: France remains France, Estonia remains Estonia, Spain remains Spain and the United Kingdom remains the United Kingdom, if it is prepared to accede to the Eurozone and to the Federation.

But there is even more: by emphasizing that the Citizens are co-owners of the Federation there is a constitutional duty to consult the Citizens in case of changing the Constitution and its territory, a right that they up until now do not have under the Treaty of Lisbon: an example of direct democracy. In line with the structure of the American Constitution we shall deal with this right in Article VII of our draft.

The States are also represented on the federal level, next to the Citizens. Their delegates possess an individual mandate. They do not act in name of or on account of the political institutions of their States. We will emphasize this important principle with respect to the functioning of the Federation when we deal with the organization of the bi-cameral European Congress.

Explanation of Section 2
A few years after the ratification of the American Constitution the need occurred to have a Bill of Fundamental Rights. This Bill was established through the ratification of ten Amendments. Amendments 1-9 refer to the Fundamental Rights. We have incorporated them in our Article I, Section 3. The tenth Amendment (introduced by James Madison and ratified on December 15th, 1791), was of a different, more stately nature, due to the explicit reaffirmation of the federal system. We find it important to determine this element in Section 2 of Article I. It clarifies that the European Federation possesses a non-hierarchical division of vertical powers. Governance of both the federal level and that of the States is sovereign in the cases attributed to these levels – in the sense that the federal level has only limitatively enumerated powers, no more. For those who like the historical best practice at the end of the 18th century: this principle of a vertical division of powers was achieved within ten days of the Convention of Philadelphia, some weeks later elaborated in an official draft of the Constitution. It determines that the federal governing body does not possess hierarchical powers above the States.

Those who are unfamiliar with the Treaty of Lisbon, particularly the sub-treaty called ‘Treaty concerning the European Union’, may wonder “What’s new?”. Indeed, that Treaty states in Article 4, Section 1: “According to Article 5 the powers that the Treaties have not delegated to the Union belong to the Member States.” This seems similar to our Article I, Section 2.

But this is deceptive. Article 5 of the sub-Treaty concerning the European Union determines that the delineation of the Union’s powers is controlled by the principle of power attribution. That principle has two sides:

1. Whether the EU has the power to operate is determined by the principles of subsidiarity and proportionality. In short: the European Union is allowed to act in cases where the Member States (or parts of them) cannot act (better). In other words: the principle of subsidiarity (leave to the States what the States themselves can do best) is relative, not absolute.

2. The other part of the Treaty of Lisbon – the sub-Treaty concerning the Working of the European Union – contains some articles with a detailed list of powers attributed to the Union. However, these articles have a hierarchical character, particularly in the group of shared powers. These are powers attributed to both levels of governance, but in case the Union uses those powers the Member States have to obey. This does not exist within a Federation.

If this is not yet enough, the Union possesses also subsidiary powers, based on Article 352 of the sub-Treaty concerning the Working of the EU. This implies that the Union can act if this is necessary for realizing a Treaty-goal and if there is no other article to achieve this goal. This is called ‘flexible legal  basis’. In our view this is a manipulative, arbitrary key fitting any lock. Apparently, the European Union cannot let go of the technique of invoking the goal of ‘more integration’ in order to attract power whenever it suits.

Why does this not resemble federalization? For many years the principle of subsidiarity has been leaking severely. The Protocol that should prevent the Union from taking decisions outside of the domain of the explicitly attributed powers, including the watch-dog function of national Parliaments to force the Union to respect the Protocol, already operated rather poorly before the Treaty of Lisbon. It stopped working altogether when the Treaty came into force in 2009, since from that moment on the European Council took over the principal decision-making process. No one can stop that machine. Why not? Due to the hierarchy we mentioned under b): once the European Council has made a decision, Member States are obliged to carry it out – this is the aforementioned centrally imposed uniformity. This is not only alien to a federal system, it is also completely unclear who has exclusive powers in what areas. Here and there you may find references to exclusive powers of one or another institution, but the Articles 1-15 of the sub-Treaty concerning the Working of the EU contain so many vague additions that it remains far from the clarity of the American Constitution.

The American Constitution does not acknowledge that the federal body would be able to overrule the powers of the States. That Constitution attributes to the federal governing body a limitatively enumerated set of powers and that is it. No hierarchy with regard to the States, nor a sharing of powers. Just as it is the case in the Swiss Constitution.

This is the essence of federalism: a true Federation acknowledges a shared form of sovereignty but no shared powers; each level possesses its own powers. This is the result of the first two weeks of debate in the Convention of Philadelphia starting at the end of May 1787. The aforementioned ‘Virginia Plan’, put forward by James Madison as a federalist-oriented piece of work, contained the clause attributing to the federal level the power to overrule ‘improper’ state laws. This provoked opposition, made explicit in the following ‘New Jersey Plan’.  The debating parties solved this problem in the ‘Great Compromise’ by opting for a vertical division of powers, made clear by a limitative enumeration of the federal powers: no hierarchy. Thus, no top-down interference if a State carries out its legislative and executive powers improperly.

This is the way to do it. In a federal system the Member States are sovereign in their own territory. Therefore our draft Constitution nowhere refers to the principle of subsidiarity, for the simple reason that the limitative enumeration (to be dealt with later) of powers constitutes the subsidiarity absolutely. The federal body does not have any discretionary powers – let alone arbitrary ones – to determine what a Member State could realize or not realize by itself.

Explanation of Section 3
Due to the fact that the EU Charter of Fundamental Rights is of a very high quality we adopt this Charter in Section 3. The reason why we adopt the Charter as such, but not the principle of subsidiarity (as mentioned in the Preamble of the Charter) was explained above: the structural mal-functioning of that principle allows the EU – following a tradition since the establishment of the European Communities – to proceed annually in producing its centrally imposed uniformity. We can also rephrase it: the principle of subsidiarity, as laid down at the beginning of the EU-treaties, has never worked according to its goal, namely to leave to the Member States what the Member States can do best. It is always passed by ‘Brussels’. Only by giving the federal body a limitative set of powers (as the Germans say: a ‘Kompetenz Katalog’) this ignoring of the principle of subsidiarity can be stopped.

In this context we struggle with the issue of law-making technique. You have seen that we apply Article 20 of the sub-Treaty concerning the European Union: nine Member States have the power to establish a strengthened form of cooperation. This is allowed if this strengthening furthers the goals of the European Union, protects its interests and strengthens the integration process. It must not lead to the deterioration of the internal market: one common market for goods, people and capital.

The respective articles of the Treaty of Lisbon (including the Articles 326-334 of the sub-Treaty concerning the Working of the European Union) indicate that in case nine countries opt for such a strengthened cooperation (in our view in the form of a Federation) they are allowed to make use of the institutions of the Union. This would mean, in our interpretation of Article 20 of the sub-Treaty concerning the European Union, that a Federation of nine EU-countries within the intergovernmental EU-system has legal access to all existing EU-institutions, and to their powers. Thus to the European Central bank, the European Court of Justice et cetera.

If this is a correct interpretation – we would like this either confirmed or refuted by a person or persons better qualified than ourselves – Section 3 would be superfluous. Indeed, in that case the Charter of European Fundamental Rights would be applicable as such within the Federation Europe. We would appreciate it if others would educate us on this subject.

Thus far the basis of the federal European Constitution in the Preamble and Article I. The following three Papers will discuss the draft of the other Articles of the Constitution. We describe, among others, the legislative, executive and judicial powers of the European Federation.