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December 13, 2003

Failure of EU Constitution

The summit to approve a new Constitution for the European Union has broken down-- riven by the debate over whether states like Spain and Poland, with smaller populations than Germany, should essentially have the same voting power in the system.

Whatever the merits, I found this analysis by the UK's Telegraph philosophically and historically illiterate:

Extraordinarily, the summit did not fail over an issue of principle: no one was objecting to the supremacy of EU law, or the creation of a European criminal justice system, or the huge increases in power for the European Commission and Parliament or, indeed, the very fact of having a European constitution.

Rather, the process foundered on the most tangential of questions: voting weights. It is as though the Philadelphia Convention of 1787 had failed because no one could agree on where the signing ceremony should take place.

This is just bizarre-- or a reflection of where the overfocus on judicial power has taken consitutional analysis.

In Philadelphia, NO issue was more important that the voting power of different states. Nothing was more debated or fought over.

The first fight was balancing voting power between smaller and larger population states, which led to the division between the House and Senate.

Then, there was the harsher issue of how to account for slaves, who would never vote but for which southern slaveowners demanded voting power. In every civics class, children learn that the breakthrough in approval of the US Constitution was the so-called "three-fifths compromise" which made representation in the House based on "free persons" plus an additional "three fifths" vote for each slave-- a disgusting valuation on a human life but the absolute key to constitutional agreement but for which Philadelphia would likely have followed the recent EU constitutional summit.

And of course voting weights should be the key debate, for nothing will decide policy more than the relative voting power of different groups with different interests.

Madison saw the Bill of Rights and other paper language as a distraction from the mechanical balance of interests built into the Constitution.

And it's been changes in the allocation of votes that have been most wrenching in our constitutional history-- the enfranchisement of slaves in the 14th and 15th Amendments, the switch from state governments electing Senators to direct elections in the 17th Amendment, the enfranchisement of women in the 19th Amendment, and so on.

Unless you expect judges to referee every dispute over the text of the Constitution, it is the politics of representation that will setlle far more issues and so, rightly, is and should be the focus of constitutional discussions-- and if a Constitution if voted down, it is rightly over such an issue.

The European Union is a grand experiment, but it has sadly has a "democratic deficit" for its history, where "one person, one vote" is barely acknowledged as a goal in favor of raw power negotiations between states for allocation of voting power.

So if the negotiations had to fail, this is the RIGHT issue for it to fail. Constitutions should be political documents-- not blueprints for empowering judges-- so this issues should and will remain the center of negotiations for EU constitutional debate.

Posted by Nathan at December 13, 2003 10:02 PM