The Philadelphia Convention (1787) made the great leap from the Articles of Confederation to a federal Constitution for a more perfect union, to enter into force between the ratifying states after nine ratifications:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure to Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
The Europeans, more mired in the past than committed to the future, were able only to start on the road towards an ever closer union among the peoples of Europe.
Small steps have brought the project of European integration forward while enlarging the union.
The German Federal Constitutional Court has ruled on the amending Treaty of Lisbon, and we follow its reasoning fairly closely:
The European Union has a structural problem.
In some fields of policy, the European Union has a shape that corresponds to that of a federal state, i.e. is analogous to that of a state. In contrast, the internal decision-making and appointment procedures remain predominantly committed to the pattern of an international organisation, i.e. are analogous to international law; as before, the structure of the European Union essentially follows the principle of the equality of states.
As long as no uniform European people is the subject of legitimisation, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.
In Germany (and elsewhere), accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law (and national Constitutions).
The European Union continues to constitute a union of rule (Herrschaftsverband) founded on international law, a union which is permanently supported by the intention of the sovereign Member States. The primary responsibility for integration is in the hands of the national constitutional bodies which act on behalf of the peoples.
With increasing competences and further independence of the institutions of the Union, safeguards that keep up with this development are necessary in order to preserve the fundamental principle of conferral exercised in a restricted and controlled manner by the Member States.
With progressing integration, fields of action which are essential for the development of the Member States’ democratic opinion-formation must be retained. In particular, it must be guaranteed that the responsibility for integration can be exercised by the state bodies of representation of the peoples.
The further development of the competences of the European Parliament can reduce, but not completely fill, the gap between the extent of the decision-making power of the Union’s institutions and the citizens’ democratic power of action in the Member States.
Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction.
Measured against requirements placed on democracy in states, its election does not take due account of equality, and it is not competent to take authoritative decisions on political direction in the context of the supranational balancing of interest between the states.
It therefore cannot support a parliamentary government and organise itself with regard to party politics in the system of government and opposition in such a way that a decision on political direction taken by the European electorate could have a politically decisive effect.
Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund (Confederation), further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.
The peoples of the Member States are the holders of the constituent power.
A more perfect union
As long as (roughly) equal states hold the power in the European Union, the democratically representative bodies (parliaments) of the peoples of the member states have to guard their interests, and the German Federal Constitutional Court is going to rule on each case brought before it.
The alternative is a European people (EU citizens) as the holder of the constituent power.
This requires a federal Constitution, based on the equality of citizens. Naturally, it would have to safeguard the fundamental rights of its citizens.
In a federal union (Federal Republic of Europe) the European Parliament would be directly elected by the citizens, according to a uniform electoral code, and their vote would determine the European level government through European level and regional parties. (A second chamber for the representatives of the states is conceivable.)
The structural problem and the structural democratic deficit would be eliminated by the federal constitution.
Is anything to be gained by a federal constitution, a more perfect union?
The interests of EU citizens can be better protected and the European Union can more effectively act as a force for good in the world, if the union conducts our external relations, with all disposable means (foreign, security and defence policy, including our common defence).
“Domestic tranquility” relates to our security, to our individual freedoms and justice. Legitimate lawmaking and accountable government are needed at the European level.
The federal constitution needs to be a living document, subject to needed amendments by the Parliament (Kompetenz-Kompetenz).
Our security and prosperity could be better guaranteed in a federation, but major steps are needed. The Treaty of Lisbon is still far from that more perfect union.