Tuesday, 17 June 2008

Constitutions: USA versus Europe

The Philadelphia Convention drafted the short and readable Constitution of the United States of America (1787), with little in the way of democratic (Britain, Holland) and republican precedents to follow, and their ability to construct a federal system was revolutionary.

Still, by getting it right the first time and by using broad brush-strokes, the Convention left little to be tinkered with later, although the Bill of Rights was added almost immediately to ensure ratification, and the abolition of slavery, election procedures and civil rights have caused some amendments during more than 200 years of existence.

In spite of being almost perfect at birth, the US Constitution avoided the dangers of petrification by providing for future amendments. Changing the Constitution was made difficult, but not impossible, as laid out in Article V:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; ---

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The European experience has been different: The texts have been long and unwieldy. Detailed provisions and laborious compromises have been enshrined at the ‘constitutional’ level. Both treaty negotiations and later ratifications have required unanimity.

All this has led to the constant need for treaty revision in order to avoid ossification.

The Irish referendum has, once again, shown how feeble the general interest is in the European context.

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In an earlier post we saw that the Treaty of Lisbon has to be ratified by 27 member states to enter into force in its present form.

The preceding phase, making the needed amendments, is another source of relative impotence. It does not need a special provision, because it follows from the application of principles of traditional international law and from the requirement that each participating government has to be willing to propose and able to get ratification from its national parliament (as a rule).

The current rule on treaty change is Article 48 of the Treaty on European Union:

Article 48 TEU

The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded.

If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those Treaties. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

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Constant tinkering, frequent intergovernmental conferences, proposed half-measures, protracted ratifications, unreadable texts, alienated electorates …

If the European Union is in a hole, it is one it has dug itself.


Ralf Grahn