Tuesday 24 April 2007

Constitutions – USA versus Europe

As the concepts Union, Convention and Constitution show, the makers of the new Treaty for the European Union have more than glanced at the United States of America and US constitutional history. This can be seen as a sincere form of flattery. At the same time it begs factual comparison.

The several States (former Colonies), thirteen in number, joined in arms to prevent their return under British rule. The Declaration of Independence (1776) was soon followed by the first Constitution in common, the Articles of Confederation of 1777. However, ratifying the Articles took four years.

These freedom loving States had managed to form a loose Confederation. A Congress, comprising representatives of sovereign States, was the only political body holding them together and leading the efforts to conduct a taxing war. Financing for Washington’s army and other expenditure could be raised only by requisitions from the States; in effect, by begging.

When, in spite of the inherent weaknesses of the Confederation, the War of Independence was concluded successfully, the Continental Congress lost most of its meagre powers. The several States started to drift from each other. Local and more or less direct democracy was the order of the day. The Confederation had accrued huge foreign debts, but had no means to service them. Internal strife, troubles and currencies of decreasing value added to the gloom.

Was this what the men of the Colonies had fought and died for? Was it possible to find a way to guarantee internal and external security? How could the conditions for trade be improved and the opportunities of a vast continent be harnessed?

These were some of the questions confronting the representatives of the States, when they met in Philadelphia. They rose to the challenge by writing a republican, federal Constitution during four months in 1787. After intense debate the Convention managed to forge a compromise, which was unique for its time. All power emanated from the people, but several checks were put in place to secure deliberation over passion. The legislative power, the executive and the judiciary were separated, but forced to interact by way of checks and balances. Central government, the Union, was given crucial powers, but the individual States preserved extensive tasks.

The American Constitution was short, clear and easy to read. Congress had the power to lay and collect taxes, to pay debts and provide for the common defence and general welfare of the United States and to make all laws necessary and proper for carrying into execution the federal powers enumerated in the Constitution.

The Constitution opened up the eventuality of constitutional change, on fairly rigorous conditions: ratification by three fourths of the States.

After the first ten Amendments, the Bill of Rights, changes to the Constitution have been few and far between.

With hindsight, it may be astonishing to find that the ”divinely inspired” Constitution – the oldest one in force in the world – was not received by an overjoyed people. Instead, the battle between federalist proponents and anti-federalist opponents of the Constitution raged in every ratifying State.

In the end all thirteen States ratified the new Constitution. The United States of America had taken a crucial step towards becoming a prime object for admiration, envy and hate.

In one decade these colonial “bumpkins” had managed to amalgamate their European heritage from Antiquity to the philosophers of the Enlightenment with their own experiences as largely self-ruling colonial settlements into a federal structure based on republican and democratic values and the rule of law, including basic human rights.

Two centuries of European history, in contrast, experienced almost incessant wars, from Napoleon to the end of World War II; in Central and Eastern Europe democracy and human rights did not start to blossom before the 1990’s, after the fall of the Berlin wall.

Fifty years have passed since the signing of the Rome Treaties, which led to the European Economic Community and Euratom. There have been treaty revisions, from the EEC to the European Community and to the European Union. The EU has seen two treaty revisions realised and a third one agreed on, but the legal basis of the European Union owes as much to the Articles of Confederation as to the US Constitution, even in the form signed by all the Member States in 2004, the Treaty Establishing a Constitution for Europe.

Should the Constitutional Treaty be ratified and enter into force, further amendments would be well nigh impossible: still dependent on ratification by every Member State (27 today) and consequently hostage to the veto power of any Member (or additionally its voters, if submitted to a referendum).

The European Union may have a larger population than the United States, but the EU is and is going to stay a giant on clay feet for the foreseeable future.

Ralf Grahn

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