Which Constitution for what kind of Europe?

Member States of the European Union (EU) are currently debating whether to ratify the Constitutional Treaty. Discussion of the pros and cons of this development tend to focus on two issues.

On the one hand, proponents and opponents of reform seek to legitimate the EU as a “regime” or form of governance. For example, strengthening the powers of the European Parliament is hoped to improve democratic accountability, while incorporating the Charter of Fundamental Rights of the EU is suggested as a way of enhancing legal integrity and the rule of law.

On the other hand, debate centre’s on the EU’s status as a “polity” and the degree to which a Constitution might allow a clear demarcation of what is the EU’s area of competence and what will remain the domain of domestic governments and legal systems.

These two issues are inter-related. Yet, neither politicians nor many academics explicitly address the connections between them. Some politicians focus on “regime” considerations and seek, almost as an after thought, to tailor them to their preferred view of the EU “polity”. Others, especially Eurosceptics, treat the very discussion of the EU as having a “regime” as an undesirable move in the direction of acknowledging it as a “polity”.

In this piece I wish to suggest that both approaches are misguided. Regime and polity interact, with the latter constraining (without determining) the former. I shall explore the three dominant models of constitutionalism to be found within European political discourse. Whilst the first two are the most frequently employed by proponents of constitutional reform, I shall suggest that it is the third that best represents the actually existing EU constitution. Moreover, it has been the key to the successful integration of Europe hitherto precisely because it has allowed both the “regime” and “polity” dimensions of the EU to develop in tandem.

Three models of constitutionalism

The three models can be briefly (and somewhat schematically) outlined as follows:

1. The first model can be loosely identified with the French republican tradition of Rousseau and Sieyes. It assumes a sovereign constituent people who are the source of legitimacy and rights. In this account, a sovereign parliament can act as a constituent power, and so is not bound by any constitution. Judges are simply the voice of the law and there is no room for any independent authority, such as a central bank or a supreme court.
2. The second model can be loosely identified with the German tradition of Kelsen. This model assumes a sovereign “basic norm” consisting of fundamental human rights. This account claims to replace the rule of men with the rule of law. In this model, a Supreme Court is the guardian of the constitution of a relatively inflexible kind.
3. Finally, the third model can be loosely identified with the English “common law” tradition of the 19th and early 20th century. This model identifies different competencies for the legislature, judiciary and executive. However, it leaves the resolution of conflict between these bodies to negotiation between them. No one of them is sovereign over the others. Nor is there any third party that decides who possesses competence. For example, at least until Mrs Thatcher’s period of office and the recent passing of the Human Rights Act, in England the courts as guardians of the common law could challenge the legislative power of parliament by choosing not to apply a law. In these cases, a stand-off exists between the judiciary and the legislature that has to be overcome through negotiation between the two bodies. Likewise, whereas the German and Italian Constitutional Courts follow the second model and can rule on the constitutionality of the law, the US Supreme Court operates in a common law environment and simply rules on the constitutionality of a given case, thereby leaving the legislature free to interpret the legislative impact of its decision.

“Polity” and “Regime”

In different ways, models one and two both treat the EU’s “polity” dimension as settled. The first assumes a culturally homogenous demos, similar to that which the French republican tradition of education has historically endeavoured to create. France notoriously lags behind other member states in the recognition of national minorities, and also adopts more pronouncedly assimilationist policies towards ethnic minorities, even if it has often been more open with regard to immigration.

It is perhaps no accident that Giscard d’Estaing should have expressed opposition to Turkey’s membership of the EU. For unless a coherent “people” exist, who share a common identity, it is meaningless to talk of them as a single, sovereign entity. Even with its current membership, though, the EU consists of a Union of the peoples of Europe. As Eurobarometer polls have consistently shown, a very small percentage of European citizens identify themselves as Europeans - most view themselves as nationals first and foremost, with their allegiance to the EU being linked to (and to some degree conditional upon) the perceived positive benefits to them as citizens of a member state.

In this situation, strengthening a sovereign legislature that aspires to act as a pan-European body could be deeply de-legitimising. It raises a very real danger of majority tyranny and the suppression of minorities. Perhaps for this reason, most recent efforts have been directed to the second model. Yet, it suffers from similar problems. Much is made of the member states sharing a common liberal democratic set of values. However, this heritage is shared by many non-European countries, such as Canada and the United States, as well as European countries outside the EU, such as Norway and Switzerland. In itself, it cannot resolve the “polity” aspect of the EU’s constitution.

Does this matter? Surely a just regime is a just regime whatever the polity. The problem is that although at a very abstract level a consensus may be obtained regarding the desirability of, say, the rights in the European Convention of Human Rights or those in the new Charter of Fundamental Rights, considerable dissent exists over how these rights apply to particular circumstances, should be balanced against each other, or how and by whom they should be implemented.

As I noted in presenting the three models, the member states possess different constitutional and political cultures that lead them to view the source, subjects and scope of rights differently. For example, some traditions give protection to cultural and especially language rights, others do not. Some include a reference to a right to privacy that restricts freedom of speech more than in other countries.