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Wednesday, July 09, 2008

An American in Paris: Why I am mystified by the French Government’s attitude towards the Lisbon Treaty

As I noted in an earlier post, all of the biggest constitutional news this summer comes from abroad. Apart from the Turkish Supreme Court’s apparent coup d’etat against the AKP in the name of secular Kemalism, the constitutional fight that tops all other stories is the rejection of the Lisbon treaty by Irish voters. The Lisbon Treaty is a set of complex proposals designed to strengthen the European Union by (among other things) limiting the unanimity rule in the European Council such that individual states will no longer be able to veto proposals. The treaty would also make the charter of fundamental rights binding on member states. The Treaty must be ratified by all of the member states, but only one state – Ireland -- held a popular referendum on the Treaty’s ratification.

To any red-blooded, true-blue American, that last fact is the second-most shocking aspect of the EU’s approval process. The EU’s leadership is essentially building a federal state by accretion – but it has made no substantial effort to enlist European citizens in the project. We Yankees, of course, took special care in Article VII to provide for popular (convention) ratification of our Constitution, rejecting mere legislative approval. Even the most elitist Federalists realized in 1788 that big legal changes require big efforts to mobilize the people affected by them. Therefore, to a Yankee, the absence of any systematic effort to insure popular participation in the Lisbon approval process is simply wacky – as if one could create a nation on the sly, by dozens of incremental and invisible decisions.

But the absence of conventions, plebiscites, or other general popular mobilization, is only the second most appalling aspect of Euro-constitutionalism. The most appalling aspect is the attitude of the Sarkozy government towards the Irish’s rejection of the treaty. The Irish have been among the EU’s biggest fans. If they reject a treaty strengthening the EU, then one would think that the proponents of the treaty would think long and hard about the deficiencies in their salesmanship and, in a larger sense, the democratic legitimacy of the whole EU enterprise. Instead, Sarkozy has been demanding a re-vote and refuses to budge on the contents of the treaty. What is most appalling about Sarkozy is that he is supposed to be a populist, contrasting with the ENS-style elites who normally govern the French: he is allegedly France at its most democratic.

Of course, there are other opinion leaders in Europe who share my distaste for the arrogance of the French leadership. But these opinions seem curiously absent from the Eurocracy. (For a survey of reactions, see here).

Sarkozy’s attitude encapsulates everything that I find repulsive about European constitutionalism – dirigiste arrogance towards outlying provinces, elitist indifference to popular opinion, and sheer bureaucratic incompetence at speaking intelligibly to constituents. If this attitude runs deeper in international constitutionalism, then I’m with Scalia in trying to purge it from American law and quarantine it in some Eurocratic watering hole in Davos or Bellagio.

Posted by Rick Hills on July 9, 2008 at 10:33 AM in Constitutional thoughts | Permalink


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Re Turkey, quite a common view here(Europe)is that US enthusiasm for widening even further the EU may have something to do with hobbling well in advance a potential rival power bloc. Turkey, anyway, is hardly a society that is based on the rule of law in the US/old Europe sense of that term. That the ascendency of Turkey to full membership would significantly weaken the EU is an entirely reasonable view to entertain. Such opposition should not be dismissed as racist, that is much too easy. Some hate Sarkozy or merely dismiss him as a figure of fun; many thoughtful, responsible people hate him because he is a figure of fun. Gravitas needed now, but he hasn't any. Credibility would be nice too. It is naive to wonder whether the fellow is a 'populist'!

Posted by: R Hannay | Jul 12, 2008 12:16:30 PM

Well, Sarkozy makes a big noise about having a culturally popular style -- about not paying homage to elite values in high art, haute cuisine, etc. Also, he did not graduate from the ENA, like most high French politicians. Apparently, he got mediocre grades as well.

As for his being a personally nasty guy -- well, how would I know? I certainly deplore his opposition to Turkish membership in the EU. If I were in a indignantly soap-boxy mood, I'd even declare it to be a bit racist. But I'm not, so I'll just say that his stand on Turkey and immigrants and law and order is a sort of populism -- a nativist sort that I do not particularly like.

Posted by: Rick Hills | Jul 9, 2008 3:00:06 PM

Are you sure that Sarkozy is all that "populist" or even allegedly represents France at its "most democratic"? My French friends -- admittedly, probably not an entirely representative bunch -- think he's an elitist a**hole (roughly translated from the original French).

Posted by: Joseph Slater | Jul 9, 2008 2:38:46 PM

A good point about how Congress has used Article V, CL. But I'd point out that none of Congress' twenty-seven Amendments have involved far-reaching changes in the nature of the national decision-making process. Even the "big" changes like the Fourteenth Amendment have been (in the lingo of American state constitutional law) "amendments" rather than "revisions" (see, e.g., Raven v. Deukmejian, 52 Cal.3d 336 (1990) -- that is to say, relatively brief text that could fit on a postcard and that expresses a single, fairly well-publicized idea. None have involved the simultaneous (a) change in the voting rules in the legislature; (b) addition of a bunch of ill-specified rights; and (c) enlargement of the scope of national executive powers in defense and foreign affairs.

The closest American analogy to the Lisbon Treaty that I can imagine is an amendment simultaneously altering the Senate's "one state, two Senators" rule, enlarging the President's Article II powers, and adding provisions to the Bill of Rights, all in one package. I tend to think (in a mood of self-congratulatory, exceptionalist American patriotism) that we'd provide for a convention when overhauling our document so comprehensively.

Posted by: Rick Hills | Jul 9, 2008 12:21:03 PM

To any red-blooded, true-blue American, that last fact is the second-most shocking aspect of the EU’s approval process.

Is it, though? Our Constitution provides for amendment by special convention, but all 27 amendments have gone through Congress and state legislatures instead. The Lisbon Treaty, from what I understand, has been ratified by parliaments and national assemblies everywhere but Ireland. That seems every bit as democratic (or not) as the standard procedure for amending our Constitution--"if you don't like it, vote them out."

That said, I think Sarkozy's reaction to the Irish rejection has been alarming. It may well be that as the European Union grows and changes, some member states will see fit to leave because it drastically changes from what they sign up for. But you'd think there would be an extended dialogue process before that happens, one that addresses the problems those skeptical states have with certain changes and at least makes a good-faith effort at trying to resolve them. Instead, Sarkozy and other EU elites have pursued a "fine, we'll move on without you" strategy that I think is antithetical to the idea of a "united Europe."

Posted by: CL | Jul 9, 2008 11:49:24 AM

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