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The Anti-Constitution
Has Europe crossed the Rubicon? The Lisbon Treaty signals the end of constitutionalism in the EU
The Lisbon Treaty (formerly the EU Constitutional Treaty) will be shortly by confirmed by Britain's Parliament, with barely a whisper of dissent. Indeed, most readers with an interest in the progress of the treaty through the "Mother of Parliaments" will have had to go looking for information on the debate: Few newspapers or broadcasters have bothered covering the debate with any vigour, possibly because the government's parliamentary fixers have ensured troublesome amendments have been sidelined and dropped from the debate.
What debate the treaty has attracted has missed the point. Supporters of the treaty who want to play down calls for a referendum argue that it is not a "Constitution", that much of the alleged constitutional elements of the treaty were dropped following the French and Dutch rejections of the Constitution. Opponents counter that the Lisbon Treaty does indeed create an EU Constitution, and as it alters the status and relationship between London and Brussels, it must be put to the people.
EURSOC goes further: The Lisbon Treaty is neither a constitution nor a mere "tidying up" exercise. Instead, it is an "anti-constitution".
The Lisbon treaty is an ‘anti constitution’ because its aim is to destroy Europe’s national constitutions and replace them with a power vacuum to be taken up by Brussels. Rather than setting out clear limits for the EU and its officers, the Lisbon Treaty is a self-amending document, reserving the right to alter its terms in response to changing circumstances and the principle of ever closer union.
No more inter-governmental conferences, never mind no more referenda.
Whereas the US Constitution is interpreted by judges, the EU Treaty will simply change as the EU reserves more powers. The only elements in the text which will be subject to legal examination by constitutional experts in the courts are likely to be the exemptions granted to nations like Britain.
This is a bombshell. Europe's governments have previously been limited by constitutions, as envisaged by John Locke - that government can and should be legally limited in its powers, and that its authority depends on its observing these limitations. It stands to reason, therefore, that if a government continues to divest of these “powers” to a supranational institution then they cannot be in the position to “legally limit” those powers.
Here's Wikipedia on constitutions: "A constitution is a system for governance, often codified as a written document, that establishes the rules and principles of an autonomous political entity.” How does Britain's unwritten constitution govern an autonomous political entity now all powers have been ceded to Brussels?
And the French Constitution, famously clear, simple and inspiring - except that it has now been rendered useless following its modification to incorporate the superiority of the Lisbon Treaty?
The EU Referendum Blog gives an example:
"No better can be seen the demise of parliament than in Article 12 of the new consolidated treaty, with the insertion of a new article which states:
"National parliaments shall contribute actively to the good functioning of the Union".
"Under current constitutional doctrine – in theory at least – our Westminster parliament is sovereign in its own house (...) But, by accepting this mandatory requirement, incorporating as it does, the word 'shall' MPs are accepting de jure that which has been de facto for some time – that parliament is no longer a sovereign body. It has subordinated itself to the treaty.
"Refer then to Protocol 2, and in particular Article 6 which states that, "any national parliament … may …". This is the provision which "allows" our parliament to make representations to the EU commission on subsidiarity. It is a power that our parliament already had but, the treaty, in graciously granting such a power, again cements Westminster's position as a subordinate body.
"Consider, if you will, that happy occasion when you own your house – the house in which you live. That means you have absolute right of occupancy, and the freedom to dispose of the property as you wish. Imagine then that "the government" decides to pass a law stating that you have permission to occupy the house in which you live.
"Good stuff, you might say, except that you no longer own your house – in the sense that ownership necessarily conveys with it the right to occupy the premises. You now occupy it under licence from the government. And the licence that the government has granted, it can also take away. You are no longer "sovereign" in your own house.
"Thus it is with parliament. When the majority – as they will – vote to ratify the treaty, they will be wiping out centuries of tradition and abolishing a fundamental tenet of our constitution.
"The reckoning will not come tomorrow or immediately. Over term, however, we will see the continuation of the gradual decline in the authority of the parliament as it is consigned more and more to the margins. This will be reflected in the continued decline in election turnouts, as more and more people sense, mostly intuitively, that parliament is no longer relevant."
The EU Referendum blog also pointed to an interview with Henry Kissinger from German newspaper Spiegel:
"The major events in European history were conducted by nation-states which developed over several hundred years. There was never a question in the mind of European populations that the state was authorized to ask for sacrifices and that the citizens had a duty to carry it out. Now the structure of the nation-state has been given up to some considerable extent in Europe. And the capacity of governments to ask for sacrifices has diminished correspondingly", said the former US Secretary of State,
"The problem now is: Nation-states have not just given up part of their sovereignty to the European Union but also part of their vision for their own future. Their future is now tied to the European Union, and the EU has not yet achieved a vision and loyalty comparable to the nation-state. So, there is a vacuum between Europe's past and Europe's future."
How do the EU's visionaries plan to build this future? Jean-Dominique Giuliani, President of the Robert Schuman Foundation in Paris, has a few answers in a recent article on the "Brave New Europe" glimpsed in the "Reform Treaty." He says that the EU will become more political or it will stagnate.
He continues, "There is no hiding the fact that the European Union will become more political under the new treaty. Economic union is now almost complete and monetary union largely accomplished. Our goal now must be political unity. The EU must acquire the legitimacy that is still primarily vested in the nation states."
This amounts to an admission that the Treaty is dismantling the legitimacy of nation states (governed, naturally, by their respective constitutional arrangements) and transferring those powers to Brussels.
In his article, Giuliani graciously allows Europeans to retain their national identities, but elsewhere he attacks the UK for refusing to enforce the Charter of Basic Rights through the Lisbon Treaty: "This constitutes a grave attack on the movement towards European unification since it concerns the fundamental values of European society that ought to be shared by all member states. We can be sure that the British will try to win support for their position from other countries to avoid being isolated on such a crucial issue. This example illustrates one of the dangers of accepting intergovernmental cooperation in the hope that a more community-minded approach will develop over time. Now we are left with a situation where a national exemption is effectively being applied to a core principle of European unity."
So building a European identity, based on shared values such as human rights, will be how the EU wins hearts and minds. As if these values are uniquely European!
Mercifully, we are a long way away from the EU being able to expect sacrifices from Europeans or from Europeans believing they owe any duty to the EU and its functionaries. But the Lisbon Treaty, acting like a virus which melts away national constitutions, does its job by stripping citizens of any duty to their nation: Why should citizens esteem their nation, when the rules that govern that nation's relationship to its people have been rendered meaningless? As the Lisbon Treaty works its magic on the British Parliament, will anyone seriously believe that, in Kissinger's words, the British state is "authorized to ask for sacrifices and that the citizens had a duty to carry it out?"
Strip a nation of its constitution - of its bargain between rulers and ruled - and you strip it of its meaning. Not only for citizens of that country, but, as the recent report on British security by RUSI sagely observed, by potential enemies of that country.
Europe has crossed the Rubicon. The Lisbon treaty, in moving away from ‘constitutionalism’ towards an experimental supra-national, centralized state represents, even for its most avid supporters, a huge leap into the dark and surely means political upheaval.
Already we see the seeds of ‘newfound’ nationalism in Europe. Europeans are going through a struggle with their identity and as a result, old-fashioned sectarianism is also on the increase.
Kissinger gets to the heart of the problem. What he describes as ”a vacuum between Europe's past and Europe's future," was also at the heart of the RUSI report that identifed a serious security threat within this situation. EURSOC is more concerned with popular and political reactions and over-reactions and of the danger of throwing out our most treasured possession, our freedom and our democracy.
It took European countries the best part of a thousand years to achieve democracy and freedom under the law, along with independent judiciaries, free press, free elections, independent civil servants and settled national identity. Currently Europeans look to their elected governments to provide the above: The Lisbon treaty says they now have to look to Europe. There is Kissinger’s vacuum.
Constitutions, tradition and a sense of nationhood are what ultimately bind the peoples of Europe together, even if they are quite different in each country . Constitutions were set in place to guarantee the rights and freedoms under the law of all citizens, to protect the people from over-zealous government or dangerous ideologies.
Constitutionalism is also what keeps Europe at peace (the EU has also has played a role in underpinning this peace). Neither of the last world wars were caused by the ‘constitutional democracies’ but rather by departures from this model. Frederick Hayek’s Road to Serfdom demonstrates how a “well intentioned” German bureaucracy managed to create the conditions for the Nazis who were able to usurp the fragile political structure.
Along with their common history and Christian heritage, Europeans share freedom through constitutional democracy. The common struggle for this freedom entwines all Europe's nations: The struggle to build an enlightened and free society started centuries before America was discovered - its European origins go back to ancient Greece and Rome
A robust constitution has kept the United States a free, democratic, successful country. The European Union also claims to want the same for the ‘new Europe’ that is being forged.
We have no reason to doubt these good intentions.
The Lisbon treaty, however, could prove a step too far. There is no real precedent for what is being done, other than it would be safe to say that no country that has dismantled a constitutional democracy in favour of something else - even if ‘it seemed a good idea at the time’ - has ever escaped the unpleasant fate of draconian government or even war.
We should have learnt our lessons from the past. Those with the responsibility of building Europe and those in positions of power in national governments are taking an enormous risk on our behalf. Lets hope they have a Plan B as it is doubtful that there is a universal popular mandate for what the Lisbon Treaty represents.
Ultimately Europe cannot be built without its people. If constitutional change in this extreme form is forced upon them, then it will crumble: That is also a lesson from history. Bring Europeans along with you, discussing every step of the constitutional development, consulting (and not just with hand-picked NGOs, who rely on the EU for funding) and calling plebiscites when necessary, and the results will be very different.
Forcing through sneaky, ambiguous and confusing treaties that undermine the national democracies is not the way to make friends. A more open and more engaging approach would be appreciated by most, if not all Europeans. If this Europe has to be built, then let it be built on the fundamentals and standards that most Europeans expect: we are, are we not, free people?
