On the power of the Word: Europe’s
constitutional iconography
J.H.H. Weiler*
1. Premise
At the core of this essay is a simple proposition: The defining feature of
Europe’s new constitution is a word, an appellation. It is not the content of the
Treaty establishing a Constitution for Europe that gives it epochal significance
but the fact that an altogether run-of-the-mill treaty amendment has been
given the grand name of Constitution.
The significance of the Word is not monolithic. To capture the different,
oft-contradictory shades, the reader will have to keep several balls in the air at
the same time. The Word has had, and will continue to have, enormous political
impact (ball one) on the process of adopting the constitution (ball two) and on
its subsequent life (ball three). Whatever the values of the observer, the impact
will be shown to be both positive (ball four) and negative (ball five). It is
not only political impact that the Word imparts. It will become a tool for
understanding some of the core conceptual implications (ball six) that
Europe’s particular constitutional choice implies. As this essay is written in my
habitual narrative style, rather than following the systematic structure
implied by these categories, the reader may wish to keep the balls in mind as an
informal interpretative key.
2. A treaty masquerading as a constitution: process
This is how a semi-official narrative of the current constitutional circumstance in the history of European integration might read:
For decades the Community (as it was once known) and then the Union (as
it later became) were powered by a treaty-based system. Designed in the
fifties, this system had many avant-garde features that served it well in its
early economic phase when it comprised six member states. But as the
Union grew from six to nine, to ten, to twelve and then to fifteen the original
* Joseph Straus Professor of Law; chair and faculty director, Hauser Global Law School Program;
and director, Jean Monnet Center for International and Regional Economic Law and Justice,
New York University School of Law; email: [email protected]
I·CON, Volume 3, Numbers 2 & 3: Special Issue May, 2005, pp. 173–190
doi:10.1093/icon/moi015
© Oxford University Press and New York University School of Law 2005. All rights reserved. For permissions
please email [email protected]
174
Prologue
Model T(reaty) became increasingly creaky. Despite several modifications,
notably the Single European Act of 1986 and the Treaty of Maastricht of
1992, it was still the original power train of Commission-CouncilParliament and the same supranational technology, sitting under a body
that had more than doubled its original population, tripled its original
number of member states, and vastly expanded its political ambition to
meet the realities and opportunities of the post-Cold War world. The
pending enlargement by the accession of ten new member states would,
it was widely believed, strain the extant system to implosion.
The 90s saw two last-ditch attempts to adapt the system prior to
enlargement by the tried and tired treaty-amendment process undertaken in two successive intergovernmental conferences (IGCs). The
urgent rhetoric surrounding the very modest Treaty of Amsterdam had
become almost hysterical by the time the Treaty of Nice was negotiated.
This would be the very last chance to put the European institutional and
constitutional house in order before the expansion to twenty-five
member states. Nice was a failure by most accounts. The institutional
architecture remained largely intact with only slight adjustments to the
weighted voting power of the member states in the Council of Ministers,
driven more by political grandstanding than by functional considerations
of effective, accountable and transparent decision making for the more
than four hundred million citizens of the Union.
In the wake of this failure a different approach was called for: no
longer an IGC but instead a convention, providing a broad-based composition and a more transparent process. No longer a treaty but a constitution. And now here we stand with a Treaty establishing a Constitution
for Europe—referred to by all but the most punctilious of lawyers as “the
Constitution”—signed, sealed, and awaiting ratification by the twentyfive member states of the Union. A veritable constitutional moment.
Even the most innocent of readers will now be suppressing a yawn, having
guessed that this narrative has been set up in order to be knocked down—in
academia, as elsewhere, some childhood games never lose their fascination.
Let us engage, then, in the following mental exercise: Imagine the new
draft, as presented for ratification in the twenty-five member states of the
European Union, with the word “Constitution” excised from all the places in
which it appears. What is it we will find?
It does not look like a constitution: In its English version it weighs in at 66,
497 words. Including the various annexes and declarations, documents that
from a legal standpoint are integral to the instrument, this total grows to 154,
183. For comparison’s sake, the United States Constitution is 4600 words long
and the United Nations Charter 8890. The official two-tome printed version I
have of the EU Constitution actually weighs just under one kilogram.
It does not read like a constitution: Constitutional opening phrases are
typically of a magisterial style and make reference to the ultimate constitutional
J. H. H. Weiler
175
authority undergirding the document—the People. For example:
!
!
!
We the people of the United States, in order to form a more perfect
union. . . .
Le peuple français proclame solennellement son attachement aux
Droits de l’homme et aux principes de la souveraineté nationale tels
qu’ils ont été définis par la Déclaration de 1789. . . .1
Im Bewußtsein seiner Verantwortung vor Gott und den Menschen,
von dem Willen beseelt, als gleichberechtigtes Glied in einem vereinten
Europa dem Frieden der Welt zu dienen, hat sich das Deutsche Volk
kraft seiner verfassungsgebenden Gewalt dieses Grundgesetz
gegeben. . . .2
The opening phrase of the document now before Europe’s peoples is equally
revealing. It is the very same as that which was first used in the treaty establishing the European Coal and Steel Community in 1951 and has since
prefaced all European treaties: His Majesty the King of the Belgians . . .
This is followed by the long list of heads of state or government:
The President of the Czech Republic [and other state leaders who] have
designated as their plenipotentiaries . . . Guy Verhofstadt Prime
Minister[,] Karel de Gucht Minister for Foreign Affairs [and so forth].
Who, having exchanged their full powers, found in good and due form,
have agreed as follows . . .
The uninitiated reader would be forgiven if he believed himself to be reading
the standard opening of an international treaty. He would be forgiven for
forming the same opinion by skipping to the end of the document, where
he would find:
This Treaty shall be ratified by the High Contracting Parties in accordance
with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.
This text is followed by:
IN WITNESS WHEREOF, the undersigned plenipotentiaries have signed
this Treaty . . .
Res ipsa loquitur!
And what of the content of the document, its substance? Including the
integrated Charter of Fundamental Rights, it is for the most part the kind of
content that one had hoped to see during the countdown to enlargement in
1
“The French people solemnly proclaim their commitment to human rights and the principles of
national sovereignty as defined in the Declaration of 1789.”
2
“Conscious of their responsibility before God and man . . . Inspired by the determination to
promote world peace as an equal partner in a untied Europe, the German people, in the exercise of
their constituent power, have adopted this Basic Law.”
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Prologue
the Treaty of Amsterdam and, certainly, in the Treaty of Nice: a sensible
though far from radical amendment to the institutional architecture and
decision-making processes of the Union; some meaningful but equally
non-radical nods toward further democratization of the above; the Charter
(discussed in greater detail below) and some sensible cleaning up of language.
The treaty-revision procedures have been amended to provide a multi-tiered
process: convention plus intergovernmental process; intergovernmental
process without convention; and decision of the European Council alone. But
what is significant from a constitutional point of view is that all three
processes are typical, not of constitutions but, rather, of treaties. They all
require unanimity among the governments of the high contracting parties
and ratification by national procedures in all member states.
If you omit, then, the lexical addition to this document of the word “constitution” you will find in front of you a post-enlargement Treaty of Nice bis.
Put differently, if the Nice IGC had developed material content identical to
that of the constitution, it would have been welcomed as a sensible adaptation
of the treaties establishing the European Union prior to enlargement. No one
would have used superlatives to describe its content, it would have attracted
very limited public attention or debate in most member states, it would certainly not have generated the numerous referenda now planned in the Union,
and there would have been no talk of the need for a constitution (except
perhaps among the European federalist fringe). No convention, no European
Philadelphia, no Constitutionspeak. At best, a good old treaty masquerading
as a constitution.
So what is all the fuss about? For decades it has been commonly understood
that, despite its formal treaty format, the structural architecture of the
Communities and subsequent Union were better explained with a constitutional vocabulary than with that of international law. With regard to the
relationship between European law and member state law, a critical area for
both constitutional and international lawyers, the Union has become indistinguishable from a federal state, in that the doctrines of direct effect and its derivatives, supremacy, and implied powers ensure that Union law will enjoy the
position of federal law rather than suffer the status of international law within
a state. Long before Maastricht and Amsterdam and Nice, let alone the more
recent convention and ensuing constitution with its explicit Supremacy
Clause, the law of the Union was the supreme law of the land within all member states, accepted as such by member state courts and capable of being
invoked by individuals. The decisional and institutional architecture, one
could further argue, had become increasingly constitutional through the
growing prevalence of binding majority voting in the Council and the gradual
elevation of the European Parliament to the position of co-legislator with that
Council. On this reading, all that the current Constitution does is codify the
constitutional status quo and formalize the hybrid extant arrangement of a
treaty using constitutional features.
J. H. H. Weiler
177
3. The vicissitudes of the Word in the adoption process
The appropriate question might in fact be: Why all the fuss? There is at least
one answer that seems incontrovertible. The constitutional fuss, it would
appear, was simply necessary for the Union to do what it was otherwise unable
to do: namely, to adapt its constituent treaties to the reality of enlargement.
Even if the current text is no more than Nice bis, the fact is that a Nice bis was
necessary since Nice itself failed to deliver the goods. And the only way to get
there was to change the rules about change. Rather than an IGC that failed to
deliver both in Amsterdam and Nice, we have a differently constituted convention that morphed into a hybrid IGC but was, by debatable consensus, able to
arrive at a text that the classical IGC might never have achieved. The text may
be modest but it is, its supporters cogently argue, a lot better than nothing at
all. It was not simply the composition of the convention, the genius of the
personalities that led it, and its different decisional rules that account for the
result. It was also its mission—drafting a Constitution—that explains a different
internal dynamic, a sense of historical moment, and a consequent grim determination to reach a result. The members of the convention—including the
foreign ministers and the other powerbrokers who joined in the effort once it
became apparent that the process was going to deliver something that the
previous IGCs had failed to do and that the final text would be difficult to
change radically—believed, or had to make believe, that they were not simply
redrafting Nice but were doing something far more transcendent. On this
reading, the treaty had to masquerade as a constitution in order to achieve the
sought-after result. Transcendence and make-believe can only explain so
much. With all the hype, the draft constitution adopted by the convention and
submitted to the heads of state and government (un)ceremoniously failed to be
approved by them in December 2003. It was the reality of the enlargement of
May 2004 that forced the state leaders at the subsequent summit of June 2004
to bite the bullet and accept a somewhat watered-down version of the convention’s institutional package. At the same time, in a mask-stripping exercise
redolent with symbolism, the Intergovernmental Summit decided to excise
from the text some of the most pompous constitutional majesty submitted by
the convention and situate the presumed constitutional document firmly
between the international law prologue of “His Majesty the King of the
Belgians” and the epilogue of “the Undersigned Plenipotentiaries.”
4. If any of you know cause, or just impediment, why
these two persons should not be joined together in
holy matrimony, ye are to declare it; this is the first
time of asking . . .
It may be that constitutional fuss was an indispensable element in arriving at
an indispensable text. It might be that it will also be the undoing of such a text.
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In these fallen times one is reminded of a couple who have cohabited for
years, begat a child or two, and now, with enlarged family, have taken it
into their mind to solemnize their union by a very public and traditional
wedding. “Why all the fuss?” one might wonder, staring at the invitation. Is it
wise to put up for solemn approval the banns of marriage and the vows of
union one had already consecrated through the practice of living together?
And what if someone steps forward and asserts cause or impediment, just or
otherwise?
As I have remarked, the material content of the document awaiting ratification cannot explain the constitutional hoopla now in play. Rather than true
constitutional exigency, the decision to submit the text to referenda in so many
member states is almost entirely a consequence of the very same historical
moment that I have used to explain the dynamic of the convention, as is the
growing popular call that such process be followed in other member states.
A clear passage is likely in those states where ratification of the proposed
constitution will be in the hands of governments that normally command a
parliamentary majority. But as the number of referenda grows, so do the
chances of rejection in one or more member states. And the reason for rejection would not, it is respectfully submitted, be linked to any specific provision
of the new constitution, nor even to its overall material content. I am arguing,
rather, that such rejection may be linked to extraneous issues rooted in
national politics, to a general “anti-Europe” sentiment, and, most intriguingly,
to something other than the content of the new Treaty of Rome but rather to
the very idea of a European constitution. Thus the very same symbolism that
explained why non-radical content that was rejected by the Amsterdam and
Nice intergovernmental conferences was nonetheless able to gain consensus
within the convention and might, in an ironic constitutional twist, explain
eventual rejection by some of the peoples of Europe.
Imagine a scenario whereby the constitution is rejected by one or more
member states. Could a rejection by, say, Malta and Estonia bring the constitutional edifice down?
The legal rules of the game are clear enough. The extant treaties require
unanimity for any amendment. The new treaty requires unanimous ratification. Various legal constructs have been advanced as to how the unanimity
requirement for modification of the extant treaties may be bypassed. On its
own terms, the constitutional treaty does not constitute a formal amendment
of the current treaty but rather its repeal.
This Treaty establishing a Constitution for Europe will repeal the Treaty
establishing the European Community, the Treaty on European Union,
and, under the conditions laid down in the Protocol on the acts and
treaties having supplemented or amended those previous treaties, the
acts and treaties which have supplemented or amended them subject to
paragraph 2 of this Article. (CT IV 437(1)).
J. H. H. Weiler
179
And the new Union is conceptualized as just that: A new Union:
The European Union established by this Treaty shall be the successor
to the European Union established by the Treaty on European Union and
to the European Community. (CT IV 438(1)).
Thus, in the face of one or two recalcitrant member states blocking progress
to the brave new constitutional order, one can imagine a situation whereby the
ostensibly forward-looking member states would withdraw from the old Union,
leaving the laggards behind to join this new Union. There are many variants of
this reasoning but none are particularly promising from a legal standpoint. It is,
to begin with, a construct that begs the question whether unilateral withdrawal
is possible under the old treaties, in contrast with the new treaty that has a specific clause regulating such unilateral withdrawal. It is an argument that runs
up against the express unanimity requirement of article 337(1) of the new constitutional treaty. It is also difficult to find a basis for a legal theory that would
require unanimity for small amendments to the current treaties but would dispense with that unanimity if the amendments were radical or perceived to be
radical. It is, finally, a construct that would undermine constitutional confidence
in the new treaty, which itself provides for unanimous amendment and, at most,
provides the famous and enigmatic passerelle:
If, two years after the signature of the treaty amending this treaty, fourfifths of the member states have ratified it and one or more member
states have encountered difficulties in proceeding with ratification, the
matter shall be referred to the European Council. (CT IV 443(4)).
This construct would require us to accept that a new constitution that
provides for its own amendment by way of treaty, which then fails to be ratified
by a fifth of its Members for a mere reference to the European Council, could
itself come into being without unanimity.
Difficult as the unanimity-avoidance legal argument might be, it will continue to lurk in legal drawers because the political rules of the game are almost
as clear as the legal ones: All member states are equal, but some are more
equal than others. A rejection by the United Kingdom alone will, when all
is said and done, amount to an act of British self-exclusion. A rejection by
France, alone, will mean that the constitution must be renegotiated. A rejection by the U.K., Ireland, and Denmark would not thwart the constitution. Add
one or two members of the old guard to the rejection bloc and the constitution
sinks. Imagine a rejection by Poland alone: the constitution lives. Add the
Netherlands, and it dies. There is a powerful pedigree to this kind of political
maneuvering: The U.S. Articles of Confederation required unanimity to be
amended. Yet not all thirteen colonies immediately ratified the Constitution
of the United States, a fact that did not prevent it from coming into force even
in the face of abject illegality from the confederal perspective. It would seem
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that Original Sin is provoked not only by the drive of flesh and blood towards
carnal union.
In light of the above one might be tempted to draw the conclusion that if,
indeed, the continued constitutional talking up of a document that is in form
no more than a treaty masquerading as a constitution, and that in substance
does no more than codify the status quo, then Europe will have made a major
blunder. This is because it will mean not only that the constitution has failed,
but that the constitutional status quo will have been put in jeopardy.
This conclusion would, in my view, be shortsighted in terms of its own
premises. Imagine each and every member state deciding to hold a referendum
increasing almost exponentially the risk of rejection. In fact, this will be a
win-win-win situation for those who favor a constitutionalized Europe.
Scenario 1: A small and noncritical number of member states rejects the
proposal. Diplomacy and negotiation most likely result in some cosmetic
concessions followed by ratification in a second referendum. If rejection persists,
Europe will not need to go to its legal drawer. It is almost certain that negotiation will lead to some form of special status for the non-ratifying member
state while the rest go ahead with the constitutional project. Although the de
jure forms of unanimous ratification will have been respected, the all too clear
message will have been sent that in a constitutionalized Europe there is some
form of de facto constitutional-majority convention. One will have achieved
through praxis that which was impossible formally.
Scenario 2: The number and composition of the rejecting front is such that
the project is defeated. Pragmatically speaking, the world will not come to an
end. After all, since May 2004 and for a considerable time yet to come, Europe
will have been functioning under the Nice rules without major difficulty, let
alone implosion. An interesting dynamic is in place that one recognizes from
other organizations. Knowledge of the inadequate rules makes the players
behave more responsibly. Symbolically, such rejection will be a huge victory
for European democracy, as the rejection of elites’ projects every now and
again by popular will can be a salutary experience. It will also constitute a
lesson in one of the little understood disciplines of democracy: the need, when
qualified majority rules apply—as is almost always the case with constitutional amendment—for the majority to accept that it must convince a
minority and not ride over it roughshod.
Scenario 3: The Constitution secures ratification by referenda in all member
states. This would be an ironic twist in this complex constitutional saga. Recall
how the member states encased the constitution within a frame that begins
with His Majesty the King of the Belgians and concludes with the High
Contracting Powers and their Plenipotentiaries. We contrasted that with
typical constitutional language that valorizes Le peuple français or das Deutsche
Volk or We the people of the United States. And yet, under scenario 3, the people
will have had the last laugh, since a European instrument ratified constitutionally by referendum in all or even a majority of member states will have the
J. H. H. Weiler
181
kind of democratic constitutional legitimacy that runs counter to the spirit
encapsulated by the international legal framing. Formally, this will be no more
than a treaty ratified in accordance with the internal procedures of each
member state. But what international treaty in Europe can claim to have been
ratified by popular referendum in more than half the member states? One need
not be a card-carrying legal realist to understand the impact that this outcome
will have on the ensuing constitutional conversation, including constitutional
adjudication. The process will have become a constitutional process of ratification, and the peoples of Europe will have spoken, at least in some sense, as a
pouvoir constituant.
The final ironic twist is that this elevated legitimacy and de facto constitutional status will have been given to an instrument whose form and content
hardly merit such constitutional resplendence.
5. A constitution masquerading as a treaty: substance
I have argued that the mere name of the document, rather than its content,
has resulted in a level of public debate and political discourse, notably referenda, which defines the process as never before in the course of European
integration.
The same may be said of the life of the document should it come into force.
The attempt to clothe the constitution in traditional treaty garb will, I predict,
be defeated ultimately by popular and ubiquitous usage. At one level my point
is simple enough: It is about the suggestive power of comparative lexical assimilation. The word “constitution” has, of course, far from one political significance. As was pointed out facetiously in the United Kingdom when the
government was trying, for political reasons, to make light of its sudden
support for the constitutional project, every bowling club has a constitution.
In the context in which the European discourse takes place, the word “constitution” comes with a well-determined set of associations derived from the
context of national constitutionalism. When political actors from all walks of
life think about (if they do) or discuss, or form psychological reactions toward
the European constitution, it is not a bowling club they have as their principal
reference, but their own state constitution. Indeed, one of the reasons the
constitutional debate in the U.K. is so fraught lies in the fact that the very talk
about a constitution seems threatening to many in a national context that is
often hostile to the very idea of a formal constitution.
If the varying interpretative communities, such as courts and jurists, politicians, administrators, and, most critically, the media and through them the
general public, will, as is certain to be the case, refer and think and henceforth
relate to Europe through a constitutional lens, inevitably that will shape the
reality of the constitutional understanding. I am not interested in predicting
with precision the ensuing shape of that reality. Constitutions and constitutionalism are understood in very different ways in different polities throughout
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Europe, which can result in a messy cocktail. But one can predict that there
will be in this cocktail many more flavors imparted by the statal context in
which constitutionalism is normally understood. I can illustrate this by a
proposition I made above. Simply calling it a constitution will make it more
difficult in the case of a rejection by an individual member state to enlist
sympathy for such intransigence in the face of a European majoritarian constitutional will. Likewise, from time to time in the last half century, there have
been eruptions in member states in which the state was faced with the reality
of the already well-established doctrine of supremacy and the need to bring
national law, even law of a constitutional nature, into line with Community or
Union law. Again, simply calling the overriding text a constitution is going to
reshape and condition that debate differently.
In this part of the essay, I wish to turn the focus away from the political
impact of the Word and concentrate instead on its conceptual significance.
I want to relate the current constitutional circumstance of Europe to two
theoretical propositions.
6. “Constitutional treaty,” Kelsen and Schmitt, and
the phenomenon of “global law”
I want to turn now to a different Word—not “constitution,” but “constitutional treaty.” Conceptually, the current circumstance of the European
constitutional arrangement must be understood against the background of a
European constitutional discourse that for years has been dominated by a
strange combination of Kelsen and Schmitt. It has been Kelsenian in its
attempts, under many guises, to describe, define and understand the European
Grundnorm—the source whence the authority of European constitutional
disciplines derives. The search for this Kelsenian holy grail, whether or not
acknowledged explicitly, underscores the great bulk of the academic literature
theorizing European constitutionalism. And this grail has been, typically,
understood in Schmittian terms: the search is for the ultimate source of
authority, the one that counts in the case of extremity, of conflict. That is the
true criterion of the real Grundnorm.
Early “Europeanists” liked to argue that the Grundnorm, typically expressed
in, say, the principle of supremacy of European law over national law in case
of conflict, had shifted to the central, or general, power—that is, to Europe.
That view is less in fashion today and is contested by those who point out that,
both in fact and in law, ultimate authority still rests in national constitutional
orders that sanction supremacy, define its parameters, and typically place
limitations on it.
According to this latter view, the statal Grundnorm would shift only if one
were to take the existing constitutional precepts and enshrine them in a formal
constitution adopted by a European “constitutional demos”: Only when the
J. H. H. Weiler
183
peoples of Europe act as one people will constitutional authority in fact and in
law shift to Europe. For the most part, both for friends and foes of European
constitutionalism the debate is conducted on these Kelseno-Schmittian
grounds.
The treaty-constitution debate is a perfect example. What are typically
suggested as the hallmarks of internationalism (expressed by a treaty), as
opposed to constitutionalism? For example, the amendment procedure, which,
much to the chagrin of many “constitutionalists” at the convention, was not
amended into majoritarian-constitutional mode and was retained in its
pristine unanimous international-treaty mode. It is a treaty if, ultimately, the
member states and their governments are the masters of its content. This is a
perfect example of Schmittian-exceptionalism thinking.
From this perspective, to say that the European constitution is “both,”
“hybrid,” or other words to that effect, is meaningless because for, according to
the Schmittian construct, such hybridity is taken for granted and is what gives
rise to the question of what is the real and essential characteristic of any constitutional phenomenon. Exceptionalism—the exercise of power and the power
to exercise in the exceptional moment—is meant to define the true essence.
But the document in question is a hybrid and that is its essence. The fact
that, in its quotidian constitutional existence, Europe is constitutional and
accepted as such is in part explicable because of the ever more ephemeral
safety net provided by the exceptional constitutional moment when Europe
reverts to the international. At the deepest level the question is: Why should
one privilege the exceptional rather than the quotidian moment as defining?
What defines the essence of marriage—the exceptional possibility or impossibility of divorce or the reality of a life lived together? The two are not disconnected. The possibility or impossibility of divorce may have receding impact on
the quotidian reality of life lived together, but it is still that reality of the life
lived together that not only characterizes a specific relation but, also, is integral
to understanding the institution itself. This understanding is even more relevant as the exceptional power, and power in the exceptional moment, becomes
more of a theoretical prospect than a meaningful and realistic option. In the
European landscape this hybrid quality is captured perfectly when we try to
disentangle the significance of, say, article I 60(1) of the constitutional treaty,
which provides as follows:
Any member state may decide to withdraw from the Union in accordance
with its own constitutional requirements.
I would like to take this point one step further. European hybridism, as
encapsulated in the term “constitutional treaty,” is not a sign of European
exceptionalism. It is, in my view, simply a very transparent example of a ubiquitous condition that one may call global law. This is not about universal
international norms that prevail globally. It is about a condition in which legal
normativity in an increasing number of fields, across most states, can only
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be explained by reference to a mélange of domestic constitutional and international sources. Moreover, the comforting Schmittian notion that locates
sovereignty in the state, the constitutional law of which will determine the
insertion of the international normativity, is losing its persuasive power not
only in the highly formalized European context but, more generally, as the
contexts of global constitutionalism spread.
7. The fate of constitutional tolerance
The reason the question of ultimate authority and constitutional Grundnorm
seems so important is that we consider the integrity of our national constitutional orders as a matter not simply of legal obedience and political power but
of moral commitment and identity. Our national constitutions are perceived by
us as doing more than simply structuring the respective powers of government
and the relationships between public authority and individuals or between the
state and other agents. Our constitutions are said to encapsulate fundamental
values of the polity and this, in turn, is said to be a reflection of our collective
identity as a people, as a nation, as a state, as a community or as a union.
When we are proud and attached to our constitutions, we are so for these very
reasons. They are about restricting power, not enlarging it; they protect fundamental rights of the individual; and they define a collective identity that
does not make us feel queasy the way other forms, such as ethnic identity,
might. Thus, in the endless and tiresome debates about the European Union
constitutional order, national courts have become in the last decade far more
aggressive in their constitutional self-understanding. The case law is well
known. National courts are no longer at the vanguard of the new European
legal order, bringing the rule of law to transnational relations and empowering, through EC law, individuals vis-à-vis member-state authority. Instead they
stand at the gate and defend national constitutions against illicit encroachment from Brussels. They have received a sympathetic hearing, since they are
perceived as protecting fundamental human rights as well as protecting
national identity. To protect national sovereignty is passé; to protect national
identity by insisting on constitutional specificity is à la mode.
Thus, on this new reading, to submit to the constitutional disciplines of
Europe without a proper Kelsenian constitution, which formally vests in Europe
a Schmittian ultimate authority, is something that not only contradicts an
orderly understanding of legal hierarchy but also compromises deep values
enshrined in the national constitution, as well as a collective identity that is tied
up with these values. Indeed, it is to challenge the idea of constitution itself.
Miguel Maduro, one of the most brilliant of the new generation of
European constitutional thinkers, gives eloquent expression to this concern:
European integration not only challenges national constitutions . . . it
challenges constitutional law itself. It assumes a constitution without
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a traditional political community defined and proposed by that
constitution . . . European integration also challenges the legal monopoly
of states and the hierarchical organisation of the law (in which constitutional law is still conceived of as the ‘higher law’.3
Is this challenge so threatening?
In part it is. Modern liberal constitutions are, indeed, about limiting the
power of government vis-à-vis the individual; they articulate fundamental
human rights in the best neo-Kantian tradition; and they reflect a notion of
collective identity as a community of values that is far less threatening than
more organic definitions of collective identity. They are a reflection of our
better part.
But, as with the moon, as with much that is good in life, there is a dark side
here too.
It is, first, worth listening carefully to the rhetoric of the constitutional discourse. Even when voiced by the greatest humanists, the military overtones
are present. We have been invited to develop a patriotism based on our
modern, liberal, constitutions. The constitutional patriot is invited to defend
the constitution. In some states we have agencies, designed to protect the constitution, whose very name is similar to our border defenses. In others, we are
invited to swear allegiance to the constitution. In a constitutional democracy
we have a doctrine of a fighting democracy, whereby democratic hospitality is
not extended to those who would destroy constitutional democracy itself. To be
a good constitutional liberal, it would seem from this idiom, is to be a constitutional nationalist and, it turns out, the constitutional stakes are not only about
values and limitations of power but also about its opposite: the power that
lurks beneath such values.
Very few constitutionalists and practically no modern constitutional court
will make an overt appeal to natural law. Thus, unlike the constitution in the
parable, the constitutions around which our patriotism must form, and which
we must defend, are endowed with a formal normative authority that is, from
a legal point of view, mostly positivist. This means that it is as deep or shallow
as the last constitutional amendment—which, in some countries, such as
Switzerland or Germany, is not a particularly onerous political process. Thus,
vesting so much in the constitutional integrity of the member state is an
astonishing feat of self-celebration and self-aggrandizement, of bestowing on
ourselves, in our capacity of constituent power, a breathtaking normative
authority. Just think of the near sacred nature we give today to the
3
MIGUEL MADURO, WE, THE COURT 175 (Hart 1998). His formulation is superior to my own clumsy
attempt to formulate the dilemma as a “constitution without constitutionalism,” as “doing before
hearkening.” Joseph H. H. Weiler, “We Will Do, And Hearken”—Reflections on a Common
Constitutional Law for the European Union, in THE EUROPEAN CONSTITUTIONAL AREA (Roland Bieber &
Pierre Widmer eds., Schulthess 1995).
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constitutions adopted by the morally corrupt societies of the World War II
generation in, say, Italy and Germany, and elsewhere.
A similar doubt should dampen any enthusiasm toward the new
constitutional posture of national courts that hold themselves out as
defending the core constitutional values of their polities, indeed its very
identity. The limitation of power imposed on the political branches of government is, as has been widely noticed, accompanied by a huge dose of judicial
self-empowerment and no small measure of sanctimonious moralizing.
Human rights often provoke the most strident rhetoric. Yet constitutional texts
in our different polities, especially when it comes to human rights, are remarkably similar. Defending the constitutional identity of the state and its core
values turns out in many cases to be a defense of some hermeneutic foible
adopted by five judges voting against four.
Finally, there is also an exquisite irony in a constitutional ethos that, while
appropriately suspicious of older notions of organic and ethnic identity, at the
very same time implicitly celebrates a supposed unique moral identity, wisdom,
and, yes, superiority of the authors of the constitution—the people, the
constitutional demos, whenever it wears the hat of constituent power—and
those who interpret it.
It was Samuel Johnson who suggested that patriotism was the last refuge of a
scoundrel. Dr Johnson was, of course, only partly right. Patriotism can also be
noble. But it is an aphorism worth remembering when we celebrate constitutional patriotism, national or transnational, and rush to defend it against all
challenges. How, then, do we both respect and uphold all that is good in our constitutional tradition yet, at the same time, hold it and ourselves in skeptical check?
The European constitution now before us does not introduce constitutionalism to the European construct. It is in fact a different form of European
constitution from the examples of constitutional architecture we already have.
It may bring with it an intangible loss. The current constitutional architecture,
which, of course, could be improved in many of its specifics, encapsulates
one of Europe’s most important constitutional innovations: the principle of
constitutional tolerance.
European integration has been, historically, one of the principal means by
which to consolidate democracy within and among several member states,
both old and new, with less than perfect historical democratic credentials.
Thus for many, democracy is the end objective of the European construct. This
is fallacious. Democracy is not the end. Democracy, too, is a means, even if an
indispensable means. The end is to try, and try again, to live a life of decency,
to honor our creation in the image of God, or the secular equivalent. A democracy, when all is said and done, is as good or bad as the people who belong to
it. The problem of Haider’s Austria is not an absence of democracy. The problem is that Austria is a democracy, that Haider was elected democratically, and
that even the people who did not vote for him are content to see him and his
party share in government. A democracy of vile persons will be vile.
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Europe was built on the ashes of World War II, which witnessed the most
horrific alienation of those thought of as aliens, an alienation that became
annihilation. What we should be thinking about is not simply preventing a
repetition of such carnage: that’s the easy part, as it is unlikely ever to happen
again in Western Europe, despite the grim events in the Balkans reminding us
that those demons are still within the continent. More difficult is coping at a
deeper level with the source of these attitudes. In the social realm of the public
square, the relationship to the alien is at the core of such decency. It is difficult
to imagine something normatively more important to the human condition
and to our multicultural societies.
There are, it seems to me, two basic human strategies of dealing with the
alien and these two strategies have played a decisive role in Western civilisation.
One strategy is to remove the boundaries. It is the spirit of “come, be one of
us.” It is noble since it involves, of course, elimination of prejudice and of the
notion that there are boundaries that cannot be eradicated. But “be one of us,”
however well-intentioned, is often an invitation to the alien to be one of us by
becoming us. Vis-à-vis the alien, it risks robbing him of his identity. Vis-à-vis
oneself, it may be a subtle manifestation of both arrogance and belief in one’s
own superiority as well as intolerance of others. If I cannot tolerate the alien,
one way of resolving the dilemma is to make him like me, no longer an alien.
This is, of course, infinitely better than exclusion, repression, or worse. But it
is still a dangerous form of internal and external intolerance.
The alternative strategy for dealing with the alien is to acknowledge the
validity of certain forms of identity not bounded by ethnic lines while simultaneously reaching across boundaries. We acknowledge and respect difference
and what is special and unique about us all as individuals and groups and
also bridge differences in recognition of our essential humanity. The significant
elements in this strategy are the maintenance, on the one hand, of the identity
of the alien, who is not invited to be saved by becoming one of us, and the
acceptance of the alien in his alienship, according him human dignity while
preserving the boundaries between “I” and “the alien.”
The current European constitutional architecture embraces this alternative, civilizing strategy of dealing with the other. Constitutional tolerance is
encapsulated in that most basic articulation of its meta-political objective in
the preamble to the EC treaty:
Determined to lay the foundations of an ever closer union among the
peoples of Europe.
No matter how close the Union, it is to remain a union among distinct
peoples, distinct political identities, and distinct political communities. An ever
closer union could be achieved by amalgamating distinct peoples into one
collective grouping that is both the ideal and/or the de facto experience of most
federal and non-federal states. The rejection by Europe of that one-nation ideal
or destiny is, as indicated above, usually understood as being intended to
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preserve the rich diversity, cultural and otherwise, of the distinct European
peoples as well as to respect their political self-determination. But the
European choice has an even deeper spiritual meaning.
An ever closer union is easier to achieve if differences among the
components are eliminated, if the components grow to resemble each other
and aspire to become one. The more identical the other’s identity is to my own,
the easier it is for me to identify with and accept him. Conversely, it is more
difficult to attain an ever closer union if the components of that union
preserve their distinct identities, retain their otherness vis-à-vis each other,
and do not become one flesh, politically speaking. Herein resides the principle
of tolerance. Inevitably I define my distinct identity by a boundary that differentiates me from those who are unlike me. My continued existence as a distinct
identity depends, ontologically, on that boundary and, psychologically and
sociologically, on preserving the feeling of otherness. The call to bond with
those others in an ever closer union demands an internalization—individual
and societal—of a very high degree of tolerance. Living the Kantian categorical imperative is most meaningful when it is extended to those who are
unlike me.
In political terms, this principle of tolerance finds a remarkable expression
in the political organization of the Community and Union, which defies the
normal premise of constitutionalism. Normally in a democracy we demand
democratic discipline, that is, acceptance of the authority of the majority over
the minority, only within a polity that understands itself as being constituted
of one people, however defined. A majority demanding obedience from a
minority that does not regard itself as belonging to the same people is usually
regarded as subjugation. This is even more relevant to an understanding of
constitutional discipline. Yet, in the Community, we subject the European peoples to constitutional discipline even though the European polity is composed
of distinct peoples. It is a remarkable instance of civic tolerance to accept to be
bound by precepts articulated not by my people but by a community composed
of distinct political communities—other peoples, if you will. I compromise my
self-determination in this fashion as an expression of this kind of internal—
directed toward myself—and external—directed toward others—tolerance.
Constitutionally, the principle of tolerance finds its expression in the very
arrangement that has now come under discussion: a federal constitutional
discipline that is not rooted in a statist formalized constitution. At least that is
the argument.
Constitutional actors in a member state accept the legal doctrine of the
European constitutional discipline not because, as is the case in the federal state,
they are subordinate to a higher sovereignty and authority attaching to norms
validated by the federal people, the constitutional demos. They accept it as a
continually renewed, autonomous, and voluntary act of subordination, in the
discrete areas governed by Europe, to a norm that is the aggregate expression of
other wills, other political identities, other political communities. Of course, to
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do so creates in itself a different type of political community, one unique feature
of which is this very willingness to accept a binding discipline that is rooted in
and derives from a community of others. The Quebecois are told, “in the name
of the people of Canada, you are obliged to obey.” The French or the Italians or
the Germans are told, “in the name of the peoples of Europe, you are invited to
obey.” In both cases, constitutional obedience is demanded. When acceptance
and subordination are voluntary, and repeatedly offered, it constitutes an act of
true liberty and emancipation from collective self-arrogance and constitutional
fetishism, a high expression of constitutional tolerance.
The principle of constitutional tolerance is not a one-way concept: It applies
to constitutional actors and constitutional transactions at the member-state
level, at the Union level, and among the member states as well. This dimension
may be clarified by moving, from concept to praxis, to an examination of
constitutional tolerance as a political and social reality.
It is, in my view, most present in the sphere of public administration, in the
habits and practices it instills in the purveyors of public power in European
polities, from the most mundane to the most august. At the most mundane
administrative level, imagine immigration officials overturning the practices of
decades and centuries and learning to examine the passports of Community
nationals in the same form, on the same queue, with the same scrutiny, as
their own nationals. And a similar discipline will be practiced by customs
officials, housing officers, education officials, and many more, subject to the
disciplines of the European constitutional order.
Likewise, a similar discipline will become routine in policy-setting forums.
In myriad areas—from local councils to parliaments—every norm will be
subject to an unofficial European impact study. So many policies in the public
realm can no longer be adopted without examining their consonance with the
interests of others, the interest of Europe.
Think, too, of the judicial function, from the neighborhood giudice conciliatore
to the highest jurisdictions—suddenly European law, the interest of others, is
part of the judicial normative matrix.
I have deliberately chosen examples that are daily and commonplace yet, at
the same time, annul what, until recently, would have been considered important constitutional distinctions. This process operates also at the Community
level. Think of the European judge or public official who must understand
that, in the peculiar constitutional compact of Europe, his decision will take
effect only if obeyed by national courts and executed faithfully by a national
public official, both belonging to a national administration that claims from
them a particularly strong form of loyalty and habit. This, too, will instill a
measure of caution and tolerance.
What defines the European constitutional architecture is not the exception,
the extreme case that will situate definitively the Grundnorm here or there.
It is the quotidian, the daily practices, even if done unthinkingly, and even if
executed simply because the new staff regulations require that they be done
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in this new way. This praxis introduces its myriad practitioners, at all levels
of public administration, to their untapped virtues.
What, then, of the non-Europeans? What of the inevitable boundary
created between those within and those without? Does not constitutional
tolerance implode as an ethos of public mores if it is restricted only to those
chosen people with the violet passports? Let us return to the examples mentioned above, such as the new immigration procedures that group all
Community nationals together. What characterizes this situation is that
though national and Community citizens will be grouped together, they will
still have distinct passports, with independent national identities, and still
speak in their distinct tongues, or in that peculiar Eurospeak that sometimes
passes itself off as English. This is critical because, in the daily practices that
I am extolling, the public official is invited and habituated to deal with a very
distinct other but to treat him or her as his own. One should not be overly naïve
or starry-eyed, but the hope and expectation is that there will be a spillover
effect, a gradual habituation to various forms of tolerance, and with it a
change in the ethos of public administration that can be extended to
Europeans and non-Europeans alike. The boundary between European and
non-European is inevitable, dictated if by nothing else by the discipline of
numbers. In too large a polity the specific gravity of the individual is so diminished that democracy, except in its most formal sense, becomes impossible. But
just as, at the level of high politics, the Community experience has conditioned
a different ethos of intergovernmental interaction, so, at the local level, can it
condition a different ethos of public interaction with all aliens.
To extol the extant constitutional arrangement of Europe is not to suggest
that many of its specifics cannot be vastly improved.
The final, unanswered and unanswerable question is whether the discourse
of formal constitutionalism, the very power of the Word outlined above, will
rob Europe of this ethos of tolerance that was its defining spiritual Grundnorm.