THE European Union (EU) has been one of the most successful creations in the history of political institutions. For the past half-century, harmonization of the policies of many European countries has helped make war in Western Europe unthinkable, enhanced the living standards of millions of people, and enshrined into law a vast array of important social, political, and human rights. Integration has fundamentally altered the way Europeans think about their relationships to one another, to their governments, and to the outside world.
In recent years, following the consolidation of the single market and the creation of a common currency, the Euro, EU leaders have undertaken a good bit of collective soul searching. The objective of this self-examination has been nothing less than to redefine and clarify the organization's raison d'etre. Though it was not required by any prior treaty or agreement, the individuals charged with leading this assessment decided that Europe needed a constitution. Only a document carrying the gravity of a constitution, they believed, could properly articulate the purposes of the Union, enumerate the basic rights of its people, and describe its institutional structure and policymaking mandate.
For sixteen months leading up to this past summer, and under the leadership of former French president Valery Giscard d'Estaing, 105 representatives of current and future EU Member States worked to draft a Constitution for Europe. (On 1 May this year the European Union will expand from 15 to 25 Member States with the addition of Poland, Hungary, the Czech Republic, Slovakia, Slovenia, Estonia, Latvia, Lithuania, Cyprus, and Malta.) On 20 June, 2003, the delegates to the Convention on the Future of Europe submitted their draft constitutional document to the full EU, to be considered by the Member States in an inter-governmental conference (IGC) that began in early October.
Sadly, the document produced by Mr. Giscard and the delegates almost totally fails to achieve the objectives set out for it. In particular, the draft constitution suffers from three broad categories of deficiency. First, it does not resemble a constitution. The language of the document is vague, verbose, and indecisive, and therefore woefully insufficient as a matter of process. Second, the document fails to cure the 'democratic deficit' by which the Union has so long been characterized. Neither in form nor in substance does the draft constitution bring power closer to the people. In fact, it may do precisely the opposite. Third, and most important, the document infringes too greatly on the sovereignty of the individual Member States. By proposing types of integration that would strip countries of some of their most essential functions, the draft constitution puts the Member States in the impossible (and unintended) position of choosing between Europe's integration and their own independence.
Virtually all of the document's flaws spring from its vast ambition, but the problem is not that the constitution is ambitious. Constitutions should be ambitious. The problem is that it is ambitious in ways that exacerbate the problems it was meant to remedy, undermine the fundamental principles of integration, and conflict with the idea of a constitution. Mr. Giscard has urged the Member States to adopt his text in something near its current form. That would be a tragic mistake. The European Union has done great things for both Europe and the world, but part of the virtue of doing great things is recognizing those that cannot be done. As discussed more fully below, all of the draft constitution's flaws flow directly or indirectly from the failure to do just that.
The 'Constitution' Does Not Resemble a Constitution
The essential merits of a constitution are found as much in the process as in the substance. An effective constitutional document not only sets out the core rights of citizens and the basic structures of government, but does so in a way that is clear, concise, definitive, and accessible. A constitution is for people, not bureaucrats, and it is imperative that it speak as plainly as possible. Regrettably, the draft constitution produced by Mr. Giscard and his colleagues shows few of these procedural virtues.
At over 200 pages, the document is simply too long. If it takes that much paper to discuss fundamental values and a clear institutional structure, it is likely that the values are not fundamental and the institutional structure is not clear. Ideally, a constitution sets forth little more than core principles, and relies upon subsequent legislation to provide for the practical implementation of those principles. In its current form, the document in many instances strives to be that legislation itself. One is reminded of the old university adage that to emphasize everything is to emphasize nothing.
A typical illustration of this loquacity is Part II of the draft constitution, the Charter of Fundamental Rights, which flows in part from documents such as the American Bill of Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms. That section sets out dozens of important, …