Europeans will soon consider a proposed constitution for the EU that is very different from the US Constitution. The US is the oldest and largest surviving constitutional republic -- a nation that has experienced a larger increase in area, population, and income; absorbing people of more diverse racial, ethnic and language backgrounds than any other contemporary nation. So Europeans are well advised to understand and consider those characteristics of the US Constitution that provided the political and legal framework for the American success story.
Several characteristics of the US Constitution have contributed to its relative success and survival as a body of foundation law. The preamble, for example, describes the objectives of the Constitution in only 52 words of forceful, declaratory and quite general prose, which, by itself, provides no authority for any specific political decision.
The main text, in only seven articles, describes the powers authorized to the several branches of government and the powers denied to the federal government or the states as few, brief, and well defined. All residual powers are reserved to the states.
And the Bill of Rights, with one exception, is a list of the rights of individuals against the state, not a list of claims by individuals on services to be provided by the state; the one exception is the right to a trial by jury. All residual rights are reserved to the people.
The proposed EU constitution is very different in several dimensions. The preamble goes on and on for 293 words to describe the shared values and objectives of the Union; this is wholly unnecessary and sure to provoke continued controversy.
One sentence alone, for example, commits the Union to "work for a Europe of sustainable development based on balanced economic growth, with a social market economy aiming at full employment and social progress," a sentence that includes at least five ambiguous terms.
The proposed constitution has more than 400 articles but leaves several important issues unresolved.
The relation between the Union and the member states, for example, is not clearly defined; one article suggests that the Union could use its power outside its exclusive authority if some unspecified body decides that the Union could do it better than a member state.
Another article authorizes the Court of Justice to give preliminary rulings on the interpretation of Union law but without identifying what body has the authority to make a final ruling on these issues.
The most important difference between the US Constitution and the proposed EU constitution, however, is the concept of rights.
The US Bill of Rights is a list of individual rights against the state. In contrast, the Charter of Fundamental Rights, which constitutes Part II of the proposed EU constitution, includes a long list of rights to services provided by the state. Such rights, for example, include education, a free placement service, paid maternity leave, social security benefits and social services, housing assistance, preventive health care, services of general economic interest and high levels of environmental and consumer protection.
These claims on the state represent the most important potential tension in the Union. On the one hand, the proposed EU constitution states that the "Free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union ... [and] any discrimination on grounds of nationality shall be prohibited."
Fine. On the other hand, any citizen of the Union seems to have a claim on a wide range of social services wherever that person chooses to live. This will lead to either a massive movement of people to states with a higher level of social services or the harmonization of these services among the member states.
The only way to resolve this potential tension is to allow each member state to restrict access to social services on the basis of such personal conditions as the number of years of work in that state and the absence of a felony conviction. Unless that happens, the EU will become a massive, harmonized welfare state.
As in the US, the proposed EU constitution doesn't deal well with the inherent conflict between nondiscrimination and affirmative action.
The EU constitution states that the "Equality between men and women must be assured in all areas, including employment, work and pay," but this "shall not prevent the maintenance or adoption of measures providing for specific advantages in favor of the under-represented sex."
For the moment, in both the US and the EU, discrimination against people is generally illegal but discrimination in favor of some people is sometimes required. This minor madness, hopefully, will not last.
A final point: The text of the proposed EU constitution is pretentious. Many of the substantive provisions are described as if they were derived from some first principle, as if the crafting of a constitution is some form of algebra rather than the result of political negotiation and agreement.
For example, the text talks about the principles of loyal cooperation, conferral, subsidiarity, proportionality, solidarity, democratic equality, representative democracy, participatory democracy, and on and on.
Broad agreement on the substantive provisions of a constitution is necessary to its effectiveness. Broad agreement on principles is not, because many people may support the same substantive provision for quite different reasons. On these issues, I suggest that Madison is a better guide to an effective constitution than is Descartes.
Europeans should be careful about any major political structure that is presented for their approval, particularly a constitution that was originally presented as a treaty among the member states but now appears to be more like the constitution of a European nation.
Even those who favor the major provisions of the proposed constitution should be careful to ensure that the constitution limits the authority of the EU to define its own powers, because all governments seek broader powers than first authorized.
Over time, an imperfect Europe of national states -- bloodied but hopefully wiser -- may be a better protection of liberty than approving the proposed constitution in the hope for a more perfect EU.
William Niskanen is chairman of the Cato Institute, www.cato.org, in Washington.
The Chinese Communist Party (CCP) continues to bully Taiwan by conducting military drills extremely close to Taiwan in late May 2024 and announcing a legal opinion in June on how they would treat “Taiwan Independence diehards” according to the PRC’s Criminal Code. This article will describe how China’s Anaconda Strategy of psychological and legal asphyxiation is employed. The CCP’s People’s Liberation Army (PLA) and Chinese Coast Guard (CCG) conducted a “punishment military exercise” against Taiwan called “Joint Sword 2024A” from 23-24 May 2024, just three days after President William Lai (賴清德) of the Democratic Progressive Party (DPP) was sworn in and
Former US president Donald Trump’s comments that Taiwan hollowed out the US semiconductor industry are incorrect. That misunderstanding could impact the future of one of the world’s most important relationships and end up aiding China at a time it is working hard to push its own tech sector to catch up. “Taiwan took our chip business from us,” the returnee US presidential contender told Bloomberg Businessweek in an interview published this week. The remarks came after the Republican nominee was asked whether he would defend Taiwan against China. It is not the first time he has said this about the nation’s
In a recent interview with the Malaysian Chinese-language newspaper Sin Chew Daily, former president Ma Ying-jeou (馬英九) called President William Lai (賴清德) “naive.” As always with Ma, one must first deconstruct what he is saying to fully understand the parallel universe he insists on defending. Who is being “naive,” Lai or Ma? The quickest way is to confront Ma with a series of pointed questions that force him to take clear stands on the complex issues involved and prevent him from his usual ramblings. Regarding China and Taiwan, the media should first begin with questions like these: “Did the Chinese Nationalist Party (KMT)
The Yomiuri Shimbun, the newspaper with the largest daily circulation in Japan, on Thursday last week published an article saying that an unidentified high-ranking Japanese official openly spoke of an analysis that the Chinese People’s Liberation Army (PLA) needs less than a week, not a month, to invade Taiwan with its amphibious forces. Reportedly, Japanese Prime Minister Fumio Kishida has already been advised of the analysis, which was based on the PLA’s military exercises last summer. A Yomiuri analysis of unclassified satellite photographs confirmed that the PLA has already begun necessary base repairs and maintenance, and is conducting amphibious operation exercises