Constitution-Making for the Great Federations

Chapter 1

June 29, 2004

Introduction: Constitution-Making For The Great Federations

Richard J. Sweeney * McDonough School of Business Georgetown University 37th and “O” Streets, NW Washington, DC 20057 (O) 1-202-687-3742 fax 1-202-687-7639, - 4130 email [email protected]

Abstract: This chapter introduces a critical evaluation of the new European Union constitution. The evaluation is based on the lessons of United States experience as derived both from economic and historical analysis. As a by-product, the discussion provides a critical evaluation of the strengths and weaknesses of the U.S. constitution as it stands in the early twenty-first century. Both the EU and the U.S. are federations; some sovereign powers are granted to the federal level, and others are retained by the member states; the member states are not simply administrative districts of a centralized government. As federations, the EU and the U.S. thus face some of the key issues that are peculiar to federations. Further, European parliamentary systems are very different from EU governing institutions and the European constitution. The differences are so great that Europeans and Americans gain a better understanding of EU governing institutions and the EU constitution by comparing them to the U.S. than to European parliamentary systems.

Chapter 1

Introduction: Constitution-Making In The Great Federations

Abstract: This chapter introduces a critical evaluation of the new European Union constitution. The evaluation is based on the lessons of United States experience as derived both from economic and historical analysis. As a by-product, the discussion provides a critical evaluation of the strengths and weaknesses of the U.S. constitution as it stands in the early twenty-first century. Both the EU and the U.S. are federations; some sovereign powers are granted to the federal level, and others are retained by the member states; the member states are not simply administrative districts of a centralized government. As federations, the EU and the U.S. thus face some of the key issues that are peculiar to federations. Further, European parliamentary systems are very different from EU governing institutions and the European constitution. The differences are so great that Europeans and Americans gain a better understanding of EU governing institutions and the EU constitution by comparing them to the U.S. than to European parliamentary systems.

Introduction: Constitution-Making In The Great Federations “What experience and history teach is this—that people and governments never have learned anything from history, or acted on principles deduced from it." Georg Wilhelm Friedrich Hegel Philosophy of History, 1832 “The only thing new in the world is the history you don’t know.” Harry S. Truman in Merle Miller, Plain Speaking, 1974 . 1. Introduction On July 18, 2003, after more than eighteen months of work, the European Convention released its draft of a proposed constitution for the European Union. Less than six months later, the new constitution seemed dead. In Brussels in December, 2003, an intergovernmental conference on the proposed constitution broke up with acrimonious statements and overt threats. On June 18, 2004, however, in another chaotic intergovernmental conference in Brussels, amid even more acrimony and harsher threats, the EU heads of government approved the constitution after only minor changes. For the constitution to go into effect, it must be ratified by each of the 25 EU member states. Almost half of them will submit the constitution to a binding referendum. Many Europeans, and non-Europeans, believe that much is at stake in the effort to build a constitution for Europe. They are right. Though many believe the stakes are high, they often disagree on precisely what the stakes are, how the EU might gain, and how the EU might end up losing. One way to get a handle on the stakes, and to see how things might go right or go wrong in constitution-making, is to look for the lessons of history. When a convention wrote the United

Chapter 1. p. 2. States Constitution in 1787, a number of the men who participated thought it vital to review the lessons to be learned from the history of other federations. They were right. In the belief they were right, this book discusses and analyzes U.S. history to show what light it might shed on the design of a EU constitution. Of course, the U.S. is not the measure of all things, and the U.S. Constitution is not the measure of all constitutions. Its Framers, as the convention members are traditionally called, got many things wrong—but they also got some important things right. The U.S. Constitution of 1787 is the longest-enduring written constitution in the world. The Constitution allowed the United States to go so wrong, however, that the country fell into the U.S. Civil War that left over 600,000 dead. The Constitution’s Framers, in both their right calls and their mistakes, offer lessons for others thinking about constitution-making for a federation. The EU and the U.S. in 2004 are substantially different from each other in many ways, and each is even more different from the U.S. in 1787. The EU had about 385 million citizens in 2003, and after the accession of ten countries on May 1, 2004, had about 450 million citizens. The U.S. had a bit less than 300 million citizens in 2004; in 1787, the U.S. had less than 4 million citizens. The U.S. in 1787, however, was quite different from the ancient, medieval and early-modern federations that the Framers examined, and still many of the Framers believed they learned a good deal from examining these forerunners. In the Constitutional Convention, Alexander Hamilton, later the first secretary of the Treasury under President George Washington, discussed or touched on Athens, Sparta, Thebes, Rome, Carthage, Venice and Poland; the Hanseatic League, the Amphyctionic Council, the Swiss cantons and the United Provinces of the Netherlands; and Philip of Macedon and the Duke of Marlborough, among others. (Hamilton 1962, Vol. IV.) The Framers knew that all previous federations—ancient, medieval and early-modern—had fallen apart (or almost all—the United Provinces of the

Chapter 1. p. 3. Netherlands was on its last legs but still existed)1. These federations had fallen apart, often in war, sometimes in peace, but always with bitterness. The Framers were well aware that forming a federation does not guarantee the federation’s survival. They also knew the costs that a failed federation might have to pay; the history of failed federations that they reviewed was grim and bloody. It is remarkable that history offers relatively few important, useful additions to the list of federations that the Framers had available for study in 1787, and some of these are federations in name only or suffer from peculiar problems that make them relatively uninformative for the EU. The Austro-Hungarian Empire was a multi-ethnic monarchy, as was Czarist Russia, not a federation. The United Kingdom has been highly centralized since before the formal union of England and Scotland in 1707. The Soviet Union was a federation in name, a totalitarian state in fact; the Russian Federation is a centralized authoritarian state. A number of the new states that arose in Europe after the First World War were called federations, but typically were highly centralized, for example, Czechoslovakia and Yugoslavia. Since the collapse of the German Empire in 1918, Germany has had a federal structure, though it has always been more highly centralized than the EU is now, and is less than 20 percent as large as the EU. Canada is a genuine federation, though its close relationship with the U.K. until well after the Second World War, the central role played by the Quebec problem, and the tension over the definition of Canadians somewhat limit the usefulness of its history as a federation.2 Similar, the great internal

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The Framers were well aware of conditions in The Netherlands. Their help had been important in the Revolutionary War, and Amsterdam was the premier financial center in the world, where the U.S. had borrowed and continued to borrow (Tuchman 1988). James Madison, probably the most influential participant at the Convention and later fourth president of the U.S., spoke at the convention on the problems of the United Provinces. 2 A somewhat extreme version of a common view about the effect of Quebec on Canada’s politics is (Black 2004): Ever since the Conservatives imposed conscription on a reluctant Quebec in World War I, the Liberal [Party] formula has been to be the major party more favorable to Quebec and more heavily influenced by Quebec leaders, earning comparative popularity in that province and convincing moderate English-speaking Canadians that it was better equipped to prevent the disaffection of Quebec with Canada….

Chapter 1. p. 4. ethnic and political tensions in the Belgium federation severely limit its usefulness for analytical purposes. The United States is among the few modern, genuine federations that may offer some lessons for EU constitution-making, and it is the only federation of comparable size. Certainly, if any modern federations are to be studied, the U.S. should be on the list, and plausibly first on the list. It would be desirable, of course, to study other federations for lessons, but the discussing the United States is a big enough chunk for this book. Understanding the EU by Analogy to the U.S. System. Some observers argue that when the European Union heads of government agreed on a constitution for the EU on Friday, June 18, 2004, they did not very clearly understand what they agreed to. It is sure that few EU citizens understand the constitution, and this is not surprizing—they have virtually no standard of comparison. The governing institutions in the constitution are very different from European countries’ parliamentary systems, the only systems with which Europeans have experience. To be sure, parliamentary systems differ importantly across European countries. Britain has a firstpast-the-post sytem in geographical constituencies; most continental systems have proportional representation, with various threshholds and bonuses, both important in Germany. The British House of Lords now has virtually no power; the German upper house, the Bundesrat, has important powers in certain situations. Most continental countries have a president, though usually with very minor powers, but Britain has no president; the French president dominates the

The threat of Quebec’s separation was so serious for the last third of the 20 th century that English-speaking Canada turned its pockets inside-out for Quebec and Canada has had a prime minister from Quebec for all but a few months since 1968. Associated with the effect of Quebec on Canada’s politics is the distortion caused by its relationship to the U.S.: What makes [Canadians] Canadian are their generous social programs, relatively (to the U.S.) high taxes to pay for them, and the endless repetition of the mantra that Canadians are not Americans, despite being practically indistinguishable from Americans from northern states. Canada is inundated with American popular culture, large numbers of talented Canadians steadily emigrate to larger opportunities and lower taxes in the U.S., and more than 85% of Canada’s foreign trade, about 43% of GDP, is trade with the U.S.

Chapter 1. p. 5. prime minister when both are from the same party, and they have roughly comparable powers during periods of “cohabitation.” Still, all of this institutional variety in parliamentary systems seems trivial by comparison to—and does little to prepare the European to understand—EU institutions. Only by the most painful contortions can the analyst twist the European Commission, European Parliament and the Council of Europe to make them analogous to any country’s parliamentary system. Systems where parliament has supreme power simply are radically different from the set of EU governing institutions, where the European Parliament is substantially less important than either the European Commission or the Council of Europe. European writers have long tried to make sense of EU governance by comparing and contrasting it to United States federal government institutions. The European Commission is sometimes compared to the executive branch, where the president of the Commission is said to be analogous to the U.S. president, and the commissioners to the U.S. president’s cabinet. The U.S. president is chosen in a country-wide election, however, rather than in horse-trading among power brokers as the Commission president is chosen. Romano Prodi clearly felt his political ambitions in Italy more important than his role as Commission president. In contrast, the U.S. president has no higher office to aim at, and seldom runs for or holds another elective office. U.S. cabinet members serve at the “pleasure of the president,” as it is often put, and it is a rare cabinet member that rivals the president in prestige or power.3 Many cabinet members view their services as high points of their careers. Many more senators give up their seats to become

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Franklin Pierce (1853-1857) and James Buchanan (1857-1861), weak men and weak presidents, were content to be one voice in their own cabinets, where they could be overruled by majorities led by cabinet members with stronger personalities (Nevins vol. II, 1947, vols I and II, 1950). More frequent is the presiedent with little previous standing who refuses to be dominated by party leaders with greatly more prestige. Examples from among vice presidents who suceeded on the death of presidents are John Tyler, Andrew Johnson, Theodore Roosevelt and Harry S.Truman.

Chapter 1. p. 6. cabinet members than view cabinet service as a stepping stone to elective office.4 Senior U.S. cabinet members with further political ambitions almost always think in terms of a slot on a presidential ticket.5 EU commissioners are often failed politicians dispatched to Brussells as a sinecure or to get them out of the way (from the U.K., Neil Kinnock a failed Labor candidate for prime minister appointed to the Commission by a Conservative government, and Chris Patten, a Conservative appointed by a Labor government; from France, Édith Cresson, a failed prime minister).6 Sometimes Commission service is a holding pattern the commissioner accepts in hopes of returning to power at home (Pedro Solbes unhesitatingly resigned from the Commission to return to Spain as finance minister when the Socialists won in 2004). In the United States, the two houses of Congress—the House of Representatives and the Senate—have equal powers in principle; historically, sometimes the House has been more powerful, sometimes the Senate, though senators traditionally have more prestige. Commentators sometimes turn to Congress’s two equi-potent houses to try to understand the European Parliament and the Council of Europe. Of course, the Council is far more important than the Parliament, but considering Congress perhaps offers an antidote to the European parliamentary situation where the lower house almost completely dominates the upper house (where one even exists). Further, each state has two senators, they are not obligated to vote in the same way on any measure, and they may be at odds with the party to which their state’s governor belongs or

In order to become Bill Clinton’s first secretary of the treasury, Lloyd Bentsen resigned from the Senate, where he was chairman of the finance committee, a prestigious and powerful post. Bentsen was kept waiting in an outer office while Clinton allegedly assaulted Kathleen Willey. 5 Janet Reno, Bill Clinton’s Attorney General, ran for the Democratic nomination for governor in Florida in 2002, losing to a candidate who then lost badly to the incumbent Jeb Bush, George W. Bush’s younger brother. Among cabinet members who ran successfully for president were Thomas Jefferson (1801-1809), James Madison ((18091817), James Monroe (1817-1825), John Quincy Adams (1825-1829), James Buchanan (1857-1861) and Herbert Hoover (1929-1933). Among cabinet members who ran unsuccessfully for president (or nomination) were John C. Calhoun (ran 1824), Henry Clay (1824, 1832, 1844), Daniel Webster (1836, 1852), William Jennings Bryan (1896, 1900, 1908, Secretary of State under Wilson, 1913-1915) and others who are more obscure. 4

Chapter 1. p. 7. which dominates their state’s legislature. This is very different from the Council, where each country has one vote, which is determined by the governing party in the home country. U.S. House of Representative members are elected under “universal suffrage.” Furthermore, they are elected from geographical districts which have the same number of residents, within relatively tight limits; the vote of a resident of one Congressional district is “worth” almost exactly that of a resident of any other district. European Members of Parliament (MEPs) are elected under “universal suffrage” within each country, but large countries are substantially under-represented and small countries over-represented in Parliament; a Luxembourger’s vote is “worth” much more than a German’s. Further, MEPs are typically elected from party lists rather than from geographical districts. Until 1979, MEPs were members of national parliaments selected to serve as representatives to the European Parliament. Nevertheless, the U.S. Constitution and its history offer some important insights into EU governing institutions, though not through direct analogies. Rather, the ideas of “checks and balances,” “separatation of powers” and federalism are key to understanding the U.S. Constitution, and also play a major role in understanding how EU governance actually works. The Constitution’s Framers consciously wrote in provisions to provide “checks and balances” and “separatation of powers,” but these arose much more by chance in European Union institutions. Still, U.S. experience sheds light on how these restrictions work in practice and may work in the EU. Further, the evolution of the U.S. Constitution provides some guidance as to what might happen in the EU, and also some warnings.

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George W. Bush chose John Ashcroft as Attorney General and Spencer Abrahams as Secretary of Energy after each lost a close Senate re-election fight in 2000. Partly, this was “taking care of” party stalwarts; perhaps more imporant, both were valuable to Bush in pleasing important Republican constituencies.

Chapter 1. p. 8. The United States Constitution. The thirteen sovereign American states had good reasons to write a constitution in 1787 that pooled some of their sovereignty, but reserved some to the individual states and their people. The overriding issue the Framers faced was which sovereign powers to give to the central government, and which to reserve to the states. As of 2003, the fifteen sovereign countries of the EU had already pooled some of their sovereignty, and through the European Convention were considering where to pool more and to what extent. Just as for the American states in 1787, the overriding issue for EU constitution-making is which sovereign powers to give to the central government, and which to reserve to the member states. In some ways, the issues facing the U.S. in 1787 are strikingly similar to those facing the EU early in the twenty-first century—trade, defense and foreign policies, monetary policies, taxing and spending policies, for example. Of course, the concrete issues facing the EU—for example, in defense and foreign policies, which weapons systems to adopt, how to deal with postcommunist Russia, what policy to adopt toward missile defense, etc.—are far from the concrete problems the American states faced in 1787. At the constitutional level, however, the defense issue facing the EU is the extent to which defense policies should be at the federal level or left to the individual member states, and this was the same issue that the Framers faced. The Framers thought they had good reasons for making defense largely a federal issue. Their decision on defense does not mean that defense should be a federal issue for the EU. Rather, the type of reasoning the Framers used, and their analysis of the types of threats the U.S. faced, can be applied to the EU’s situation. In fact, the reasons that were compelling for federalizing defense power in the U.S. in 1787 are almost wholly lacking for the EU’s decision today. If the Framers had faced the EU’s current situation, it is highly unlikely that they would have treated defense as they did. (See below, Chapter 2.)

Chapter 1. p. 9. U.S. constitutional history offers a concrete example of the problems a federation can face if it adopts an ill-designed constitution. The American states’ first try at a constitution, the Articles of Confederation (proposed in 1777, adopted 1781), was so inadequate, and constitution-making had proved so difficult, that many thought the Federal Convention in 1787 was the last chance to save the United States from falling apart. Indeed, though the U.S. Constitution of 1787 was a great improvement on the Articles of Confederation, 73 years later the Union began to dissolve with the secession of Southern states; the U.S. fought a Civil War from 1861-1865, in which over 600,000 military died. The Union dissolved despite the fact that the Framers knew that dissolution was a severe threat and an ever-present danger and did their best to write a constitution that would endure. If a constitutional convention fails to view the federation’s long-term survival as a major issue, it is making a grave mistake that can have severe consequences. The U.S. Civil War was precipitated by the secession of the southern states, and they seceded in large part over the issue of slavery. Of course, the EU does not have slavery, and the EU is unlikely to go to war to prevent say Sweden, Denmark or Estonia from seceding. For those with a sense of history, however, the U.S.’s tragic Civil War experience cries out to be searched for lessons in constitution-making that may help save twenty-first century federations from bitter collapse. The EU’s greatest triumph is that Western Europe has experienced no general war since 1945. If the EU were to collapse, Europe from the Atlantic to the Urals might once again face the stresses that led to two world wars in the twentieth century and to three Franco-German wars in the space of 69 years (in 1870, 1914 and 1939). “The Lessons of History” and EU Constitution-Making. It is a cliché, but sadly true in general, that Americans do not study history, their own or others’. Many Europeans do study

Chapter 1. p. 10. history, but very often know little about the history of any European country but their own, save to the extent that other countries figure as enemies or allies in particular parts of their own national history. The days when liberal education in Europe (and the United States) was based on study of the Classics are long gone, and with them the living sense of a common base to European history in ancient Greece and Rome. Some may take Henry Ford’s view that “History is bunk!”—not worth studying in its own right and certainly not for lessons. Hegel, in the quotation at the start of this chapter, claimed that lessons could be learned from history and principles deduced from it, but that people and governments seemed obdurately never to learn from history. Harry Truman, president of the U.S. from 1945 to 1953, believed that history has lessons, and woe to the politician who does not search them out, as seen in the quotation at the start of this chapter. Truman was one in a long line of American politicians and political thinkers who set great store in searching for the lessons of history; other presidents were John Adams, Thomas Jefferson, James Madison, John Quincy Adams, Abraham Lincoln, Teddy Roosevelt, Woodrow W. Wilson and John F. Kennedy. It is naïve to think that people have always been correct in “the lessons of history’ they have found. Indeed, often they have been quite wrong. Both sides in the U.S. Civil War appealed to the history of the American Revolution to justify their actions. One side had to be wrong in the lessons it drew, and in many instances both sides were demonstrably wrong. Sometimes the practical politician points to the bungled use of history in the past, to justify rejecting history and denying the benefits of looking for its lessons—“History is bunk!” In the same way, one might argue “Science is bunk!” by citing the discredited theories of flogiston, the humors and the four elements of earth, water, air and fire. History is so important to the motivations of men and women, however, that totalitarian states seize it for their own ends and persecute those who

Chapter 1. p. 11. would search history with an open mind. The First and Second World Wars arose in part because of beliefs about national histories. Often these beliefs about national history had no basis in fact, and were at best partial and one sided. From these abuses of history, some draw the lesson that history should be ignored or even suppressed. Others draw the lesson that history is so important that it should be got right and not left to manipulators. Necessity of a EU Constitution? Many who favored the draft EU constitution hinted that in its absence, the EU might dissolve, with possibly catastrophic consequences. These same observers, however, often pooh-poohed the notion that the draft constitution might be so inadequate that it threatened the EU’s very existence; they argued that muddling along with relatively minor changes is not an option. They were right that dissolution of the EU would have possibly catastrophic consequences, but they were wrong to minimize how adoption of an inadequate constitution might threaten the EU. (See below, Chapter 7.) This book spells out some concrete lessons for the EU that seem clear from U.S. history. Typically, these lessons are fairly general rather than focused on minutiae. Indeed, as a choice of method, this book explicitly follows the common American view that constitutions are best written at a fairly high level of generality, rather than filled with details. This book is long on discussion and analysis of U.S. history and U.S. constitutional evolution, and the lessons of both. This book also discusses EU constitutional developments at length, particularly aspects of the Maastricht and Nice Treaties and of the proposed EU constitution; it does not attempt, however, to go into the history and constitutional development of EU member states in any way comparable to American history. This book develops lessons from U.S. history that should be taken into account by any group trying to design a federal constitution for a set of independent, sovereign states. The analysis in this book, then, offers some clear-cut conclusions regarding a

Chapter 1. p. 12. EU constitution; it is also a starting point and a tool for people who wish to apply detailed knowledge of particular European countries’ histories and constitutions to designing or critiquing a EU constitution. The value of this book is that the lessons of U.S. history discussed here are not very well known by Americans, and are even less known by others. 2. Federalism and Its Meanings “Federalism” has a number of denotations, often with strong connotations. In current EU debates, some use federalism to denote a tendency, trend or attempt to increase centralization of the EU, and often give “federalism” negative connotations. Some modern authors contrast a federal state with a unitary state (Wildavsky 1998), where the central government is supreme over the country’s lower-level jurisdictions, which are essentially central-government administrative districts. An example of a unitary state is modern France, where the central government is wholly dominant in its relations with the provinces and municipalities. An example of a federal state, in contrast, is the United States, where state governments have some retained sovereign powers with which the federal government cannot interfere. To be sure, the United States is now much more centralized than it was in 1860 at the start of the Civil War, or in 1904, a century ago, but it is still a federal system in crucial ways. At the time of the Constitutional Convention in 1787, the Framers understood federal in at least two ways. First, federal might be taken to mean “confederal,” referring to a confederation. A confederation was taken to mean a group of sovereign states bound together by treaty. In contrast to a confederation was a national state, referring to a more or less unitary state, though one where traditional rights might limit the central government in some ways.7 In a confederation, each of the sovereign states retained its sovereignty, and could abrogate the treaty,

Chapter 1. p. 13. thus leaving the confederation, and perhaps causing its automatic dissolution. The conventional view of international law at the time was that any signatory to a treaty could abrogate it, in which case the treaty no longer bound other signatories unless they newly agreed to abide by the treaty but with fewer signatories. Further, the general view was that a confederation, as a treaty organization, gave each of the members an equal vote. Under the Articles of Confederation, each state’s delegation had one vote, and all major decisions required agreement by nine of the thirteen states; amendments to the Articles required unanimity. Because Congress had representatives present from fewer than 13 states on many occasions, opposition from even a few states could prevent agreement by the required nine states for action. Traditionally, a confederation had no or very limited power to coerce member states to obey confederation decisions. For example, under the Articles of Confederation, Congress could assign quotas or requisitions for taxes to each state, but state compliance was entirely voluntary. Related, Congress could not deal directly with individual citizens, but had to do so through the states. If the states ignored or opposed Congress, then Congress had no way to reach the citizen, for example, to collect taxes or to compel military service. Second, most of the Framers took “federal” to refer to a situation where the central government has supreme power over a certain range of issues, and lower-level government has supreme power over another range of issues. In this sense, a federation was somewhere between a confederation and a unitary state.8 In this second sense, the U.S. was the first federation in history. The concept of a federal government exercising sovereignty on some issues, with

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Further, bureaucratic under-development and binding restrictions on central-government revenues might limit the extent of actual central control, as was true of France until Louis XIV and England until the later part of George III’s reign. 8 To add to the confusion, some opponents to ratification of the Constitution claimed that supporters of ratification used “federal” in debates as simply a euphemism for a national or central government, similar to some views in the EU today. To these opponents, federal and confederal meant the same thing; the “federalists” were simply masking an attempt to centralize power by an abuse of language.

Chapter 1. p. 14. member states exercising sovereignty on other issues was unknown; in effect, the Framers had to invent the concept. Indeed, the concept of a sovereign state within a larger sovereign entity had long seemed a logical contradiction—there could not be a sovereignty within a sovereignty, and imperium in imperio was a solecism. Over time, the Framers and their peers came to use federal in this second sense, and it is so used today in the U.S. It is clear that the EU is a federal system, or federation, in this second denotation of the term federal. The connotations may be much different in the EU from in the U.S. In the EU, many use federalization to mean increases in the powers of the central government, with a unitary state as its limit; some are adamant against further centralization, and some look forward to, or at least anticipate even if with dread, the EU becoming essentially unitary. Despite disputes in the EU over further centralization, every member of the EU has adopted as part of its constitution the stipulation that in some but not all areas, EU law overrules national law—and that means the EU is a federation. 3. Summary and Comparison of Federal Powers in the EU and the U.S. It is worthwhile to compare federal powers in the U.S. and the EU. It is also worthwhile to give an explicit account of when and how the federal governments got their powers, particularly the U.S.. As discussed below, the U.S. federal government’s police powers, and its powers to tax income and thus support enormous federal expenditures, developed long after the Constitution was written in 1787. Federal authority can usefully be considered across five areas:9 1. International and interstate trade 2. Police powers 3. Monetary policy

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If these categories are interpreted broadly enough, they can be taken to include all federal powers. Regulation of financial markets, as opposed to monetary policy, is not listed separately; it might, however, be taken as included in either police powers or in monetary policy. Whether the categories are interpreted as all-inclusive or not, it is clear that the following discussion omits explicit discussion of many important areas.

Chapter 1. p. 15. In these first three areas, the European Union has powers comparable to those of the United States federal government—though greater power on some issues in a given area, less on others. In two areas, the European Union has substantially less power than the U.S. federal government: 4. Defense and foreign policies 5. Taxation and expenditures For these five categories, Table 1 shows the extent of federal power in the U.S. at the time of the Constitutional Convention, and as of 2003, and shows the extent of federal powers for the EU under its treaties up to 2003, including the Nice Treaty. It is clear from Table 1 that federal power expanded greatly between the time the Constitution went into effect in 1789 and 2003. The same sort of expansion in federal powers occurred for the EU, though Table 1 does not show it, during its relatively brief existence from its start as the European Coal and Steel Community in 1952 and the European Economic Community in 1957. The expansion of EU powers is obvious in comparing the modest scope of the European Coal and Steel Community or even the European Economic Community with the far greater reach of today’s EU. Chapter 6 below discusses how the U.S. federal government acquired these increased powers. Chapter 6 also draws some lessons for the EU. First, it might be wise to reduce some of the powers the EU has, particularly the police powers. To be sure, returning police powers to the member states is not likely to reduce the exercise of police powers, but to relocate them to a lower level where citizens are more likely to find their exercise acceptable. Second, it might be wise to forego giving the EU further powers in defense and foreign policies and in taxation and expenditures. It is not at all clear that the EU needs expanded powers in these areas to function well, and granting them to the EU places enormous strains on the EU federal system. Federations can dissolve because of too much power at the federal level as well as because of too little federal power.

Chapter 1. p. 16. International and Interstate Trade. Many have long thought of the European Union as centered on international trade and, particularly with the emphasis on the single market after the Maastricht Treaty (1992)10, on interstate trade within the EU. EU law is supreme over memberstate law in matters of international trade. Further, in matters of interstate trade that fall under single-market provisions, EU law and regulations are supreme. Under the U.S. Constitution,11 Congress has sole right to regulate international and interstate commerce. Thus, in the area of international and interstate trade, the EU has roughly the same amount of power as the U.S. federal government. As in all five categories, of course the EU and the U.S. do not have the same regulations even if they have roughly the same amount of power, and regulations might be “better” in one federation than the other in particular instances or on average. Police Powers. “Police power” refers to the traditional British and American categories of property relations, family relations, education, religion, public health, public safety, public morals and crime. A non-technical definition is: Police. n. (fr. L., politia, government, administration; fr. Gr. … polis, city) 1. The internal organization or regulation of a state; esp. such regulation with regard to matters affecting the comfort, health, morals, safety or prosperity of the public…. (Webster’s 1960.) New Collegiate Dictionary. Springfield, MA: G.C. Merriam, Co., Publishers, 1960. Both the EU and the U.S. federal government started out with very little police power, but both have accumulated large amounts over time. For example, both have substantial power over wages, working hours and working conditions within member states. Both have some, though limited, power over education across member states. The EU generally has less power over crime detection and punishment, and over some aspects of public safety, than does the U.S. federal

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Maastrict Treaty (1992): Article 2: “The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing the common policies or activities referred to in Articles 3 and 3a, …” 11 Constitution of the United States: “Article I, Section 8, Clause 3: The Congress shall have Power … [t]o regulate Commerce with foreign Nations, and among the several States…”

Chapter 1. p. 17. government.12 In both the EU and the U.S., most police officers are under member-state control; law enforcement is substantially more centralized in the average EU member state, however, than in the average U.S. state. All EU members have incorporated the Maastricht Treaty and the European Convention on Human Rights in their fundamental laws. The Maastricht Treaty’s single-market provisions and its Social Chapter, and also the European Convention on Human Rights, give the EU its extensive “police powers” within the member states, or powers to control wages, working conditions, etc.,13, 14 as well as social issues such as prostitution and laws relating to homosexuality.15 EU police powers through these treaties are similar to the powers the U.S. federal government has developed since the early 1900s but particularly the 1930s, under the Constitution’s Interstate Commerce Clause16, its Necessary and Proper Clause17, and its

12

For example, for crimes that are not federal in the U.S., and most are not, individual states decide whether to have capital punishment; 38 states permit it and 12 do not. The EU forbids capital punishment is all member states. 13 Maastricht Treaty (1992): Article 123: “In order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living, a European Social Fund is hereby established in accordance with the provisions set out below; it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Community, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining.” 14 Proposed European Union constitution (same as in Maastricht Treaty, 1992): Article III-108, Clause 3, “European laws or framework laws shall establish measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. They shall be adopted after consultation of the Economic and Social Committee.” “Article II-31: Fair and just working conditions 1. Every worker has the right to working conditions which respect his or her health, safety and dignity. 2. Every worker has the right to limitation of maximum working hours, to daily and weekly rest periods and to an annual period of paid leave.” 15 Proposed European Union constitution: Article III-8, Clause 1, “Without prejudice to the other provisions of the Constitution and within the limits of the powers conferred by it upon the Union, a European law or framework law of the Council of Ministers may establish the measures needed to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.” 16 Constitution of the United States: “Article I, Section 8, Clause 3: The Congress shall have Power … [t]o regulate Commerce with foreign Nations, and among the several States…” 17 Constitution of the United States: “Article I, Section 8, Clause 18: The Congress shall have Power ... [t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” (emphasis added)

Chapter 1. p. 18. Fourteenth Amendment18. The Constitution grants the U.S. federal government no police powers; the extensive police powers that the federal government has accumulated over wages, working hours and working conditions, etc., come in large part from Supreme Court decisions that take an expansive view of the government’s powers to regulate under the Interstate Commerce Clause.19 Similarly, the EU Commission derives a substantial part of its police power over work and social conditions from interpretations of EU treaties, rather than from explicit grants of power in the treaties. (See Chapter 6.) The extensive control that the Supreme Court has exercised over state courts and laws has arisen from expansive interpretations of “due process of law” and “equal protection of the laws” in the Fourteenth Amendment. Monetary Policy. The U.S. federal government has good deal of control over money and monetary policy. The federal government decides what legal tender is, not the states; the states are not allowed to issue money or to have their own captive banks to use for financing purposes.20 To be sure, the states can charter banks, just as the federal government can, but regulations are now in great part federal. The U.S. central bank, the Federal Reserve System, is a federal institution, and though described as an independent agency, it is subject to federal law and its powers can be changed by a majority vote of both houses of Congress.21 The Fed has control over monetary policy, and has some control over bank regulation for purposes of fraud and solvency. The Controller of the Currency, located in the Treasury Department, is much more directly involved in bank audits than the Fed, however, including audits of state banks. Another

Constitution of the United States: “Amendment XIV, Section 1…. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws ….” 19 The common distinction, often made with a chuckle or a raised eyebrow, is that the federal government does not exercise police powers, but merely regulates. 20 Constitution of the United States: “Article I, Section 8, Clause 5: The Congress shall have Power … [t]o coin Money, regulate the value thereof, and of foreign coin …” “Article I, Section 10, Clause 1: No State shall … coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts …” 18

Chapter 1. p. 19. federal agency, the Federal Deposit Insurance Corporation, ensures deposits at all national banks, at all banks that are members of the Fed, and at many state banks. Other federal agencies deal with savings and loans institutions and credit unions. The EU has somewhat similar powers over monetary affairs for those twelve member states (out of fifteen member states in 2003 and twenty-five in 2004) that are in the European Monetary Union, use the Euro,22 and are under a common monetary policy,23 run by the European Central Bank. The European Central Bank has substantially less prudential regulatory authority over banks than do U.S. federal institutions, but these institutions’ powers have evolved over time, and this seems likely for the ECB or other EU-level institutions. The ECB is independent, as organized under the Maastricht Treaty. The key question about its independence, in the absence of treaty changes, is whether those ECB governors appointed by member states will act independently of member-state governments, as the Maastricht Treaty specifies they should. Defense and Foreign Policies. So far, the EU has relatively little power over its member states’ defense and foreign policies.24 In contrast, the Constitution grants the U.S. government most of the power, the states very little, in these areas.

21

If the president vetoes the changes, a two-thirds vote in each house overrides the veto. Proposed European Union constitution (same as in Maastricht Treaty, 1992): Article III-78: “1. The European Central Bank shall have the exclusive right to authorise (sic) the issue of euro bank notes in the Union. The European Central Bank and the national central banks may issue such notes. Only the bank notes issued by the European Central Bank and the national central banks shall have the status of legal tender within the Union. 2. Member States may issue euro coins subject to approval by the European Central Bank of the volume of the issue. The Council of Ministers, on a proposal from the Commission, may adopt European regulations laying down measures to harmonise (sic) the denominations and technical specifications of all coins intended for circulation to the extent necessary to permit their smooth circulation within the Union. The Council of Ministers shall act after consulting the European Parliament and the European Central Bank.” 23 Proposed European Union constitution (same as in Maastricht Treaty, 1992): Part I, TITLE III, Article 12, Clause 1: “The Union shall have exclusive competence to … monetary policy, for the Member States which have adopted the euro…” 24 Insert EU Treaty and proposed EU constitution articles dealing with EU foreign minister and with requirements for consultation among EU member states, and EU central institutions, over foreign and defense actions and treaties by member states. 22

Chapter 1. p. 20. The U.S. Constitution assigns to Congress the power to declare war, and through the “power of the purse,” to control war expenditures.25 It designates the president as the commander in chief of the armed forces; he makes war, the “power of the sword,” though he cannot declare war.26 The Constitution assigns many powers over the state militias to the state governments, but the militias have become less important over time relative to the national armed forces, and the president has accumulated more powers over them, especially after the start of the Civil War in 1861. Once the president declares a national emergency, the states lose virtually all control over the states’ National Guard units, the modern version of states’ militias. The president deals with all foreign policy issues and negotiates treaties,27 but treaties must be ratified by two thirds of the Senate to go into effect.28 Further, treaties often require funding, which has to be legislated by the Congress, that is, by both houses of Congress. Thus, the president takes the lead role in international relations, but Congress has significant checks on him, both from ratification powers and from funding.29 The Constitution provides that treaties are part of federal law and are thus supreme over state law.30 Further, states may not run their

Constitution of the United States: “Article I, Section 8, Clauses 11 – 16: The Congress shall have Power … [t]o declare War, … raise and support Armies, … provide and maintain a Navy; … make Rules for the Government and Regulation of the land and naval Forces; … provide for calling forth the Militia … provide for organizing, arming, and disciplining, the Militia, … reserving to the States respectively, the Appointment of Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.” 26 Constitution of the United States: “Article II, Section 2, Clause 1. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States; …” 27 Levy (1988) presents the case that the Framers intended the Senate to run foreign policy, with the President as its agent. From the start, however, the president took a very strong role. 28 Constitution of the United States: “Article II, Section 2, Clause 2: He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; …” 29 President Bill Clinton negotiated and signed a number of treaties that were either not submitted to the Senate or not passed by the Senate. An example is the Kyoto Treaty on global warming; the Senate voted against it 95 – 0 in advance of his signing, but he signed it anyway and never submitted it to the Senate for consideration for ratification. If the president wants actually to put treaties into effect, he has to meet some of the concerns both of the Senate, and later for funding, of both the Senate and the House. 30 Constitution of the United States: “Article VI, Clause 2: This Constitution, and the Laws of the United States .. and all Treaties … shall be the supreme Law of the Land; …” Further, Supreme Court decisions have held that in 25

Chapter 1. p. 21. own foreign policies. In contrast, the EU member states are free to make a range of treaties on their own regarding defense, and can also make some treaties outside defense, as long as they do not conflict with their obligations under EU treaties, for example, dealing with trade. Taxation and Expenditures at the Federal Level. In the area of taxation, the EU has substantially less power than the U.S. federal government. As ratified by the thirteen states, between 1787-1790, the Constitution does not grant the federal government power to collect an income tax.31 The Constitution gives the U.S. federal government the power to impose and collect tariffs and excises (“sales” taxes), and to levy direct taxes on citizens.32 These limitations on sources of federal tax revenue provided stringent limits on federal expenditures. In a major change, the Sixteenth Amendment (1913) gives the federal government the power to impose income taxes. The federal government collects these taxes directly from individuals, rather than from the states after the states collect them from individuals. Starting in the 1930s, the federal government grew voluminously, using federal income taxes to finance the expansion, and by virtue of its taxing and spending accumulated greater power over the states and their people. One example is Medicare and other programs that provide health care to the elderly and some of the poor. These are entitlement programs, which as a class, consume over 70% of the federal budget. Through the federal government’s role in health care spending and associated regulations, it has

cases of conflict between federal law and international treaties that the U.S. has ratified, the treaty obligations are superior. 31 This is a convoluted subject. The Constitution does not grant the federal government explicit power to impose income taxes. During the Civil War, the federal government imposed income taxes. After the Civil War, the Supreme Court ruled the income tax unconstitutional (1895), though many thought the issue quite ambiguous. The federal income tax was authorized by the Sixteenth Amendment: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.” (Wright 1942, p. 162, 251.) 32 Constitution of the United States: “Article I, Section 2, Clause 3: Representatives and direct Taxes shall be apportioned among the several States … according to their respective Numbers …” “Article I, Section 8, Clause 1: The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises … all Duties, Imposts and Excises shall be uniform throughout the United States; …”

Chapter 1. p. 22. great influence on the organization and behavior of the entire health care sector, which accounts for more than 13 percent of U.S. GDP. In contrast, the EU receives allocations of funds directly from member states. Further, the member states have strong powers over how large these allocations are. The EU cannot now collect taxes directly from individuals. Well over half of EU expenditure is for the Common Agricultural Policy (CAP). The U.S. government collects taxes equal in value to a large percentage of Gross Domestic Product, on average perhaps 20% of GDP, but the EU budget is small relative to total Gross Domestic Product of the EU member states. In the U.S., individual states, localities and special districts levy a wide variety of income, sales, property and other taxes. The rates vary greatly across states, and the federal government has relatively little power to impose harmonization of rates across the taxing authorities. Some states have no sales taxes; others have sales taxes of almost 10 percent. A few states have no income tax; others have rates well over 10 percent. Property tax rates can vary substantially across U.S. towns in the same part of the same state, as well as across states. The EU has taken steps towards imposing some degree of tax harmonization across member states, but there is resistance. Nevertheless, in principle, taxes may in the future be subject to substantial harmonization across EU member states. Federal taxing power gives the U.S. government strong influence in some cases over the states and their people. Federal taxes finance many spending programs in the states, and these programs often carry requirements the states must meet to qualify for funds. Examples are past restrictions on maximum speeds of 55 miles per hour to qualify for federal highway funds, and current student-testing requirements to qualify for federal education funds. Further, the federal tax code has a large number of incentives and disincentives that affect individuals’ behavior. For

Chapter 1. p. 23. example, the federal government imposes excise taxes on gasoline, alcohol and tobacco, and allows tax credits or deductions, for example, for children or for certain favored types of energy conservation. It is important to note that the influence that the federal government can bring to bear through taxes is in some ways a substitute for federal controls under its police powers. For example, the tax code can subsidize use of some types of energy, and the government can also require use of some types of energy. In this way, the EU’s lack of tax powers can be offset to a major extent by its vigorous use of police powers. Further, the EU need not institute an income tax to enjoy the spending power of the U.S. federal government. Rather, if EU institutions gain the power to set allocations of funds from member states by majority votes, it could achieve the same degree of power. 4. Lessons for Designing an EU Constitution For good or ill, the EU has as much federal power as the U.S. when it comes to trade, monetary policy, and economic and social regulation, particularly under its police powers. The EU has substantially less power over foreign and defense policies, and over federal taxation and expenditure policies. Two issues arise. To what extent should a EU constitution curb, hedge or limit these powers already granted to the EU? To what extent should the EU be given increased powers of taxation and spending, and powers over defense and foreign policies? Federations and Type I and Type II Errors. In designing a constitution for a federation, its framers have to decide which issues to raise to the federal level, and which issues to leave to the member states. These decisions can be thought of in terms of traditional analysis of Type I and Type II errors. A Type I error is to raise an issue to the federal level that should not be there. A Type II error is to leave at the member state level an issue that should be at the federal level.

Chapter 1. p. 24. Either type of error can have serious consequences. Those who wanted to create a new U.S. constitution in 1787 pretty much agreed that defense and foreign policies had to be at the federal level, and they had good, objective reasons for their beliefs. They made a strong case that if defense and foreign policies were not raised to the federal level, the U.S. was likely to disintegrate and the individual states were likely to fall prey to the great powers of that period. The real danger for them with defense and foreign policies was to make a Type II error and leave too much power with the member states. At the start of the twenty-first century, the arguments for making defense and foreign policies EU-level issues are much less compelling than those the Framers faced for the U.S. The danger is that the EU will make a Type I error, raising defense and foreign policy issues to the federal level, when these issues can well be left with the member states. (See below, Chapter 2: A Federal Constitution for the European Union: Some Lessons from United States Constitutional History, and Chapter 6: Creeping Federalization: Limits on Economic Harmonization in the United States and the European Union.) The large majority of the Framers of 1787 believed that trade issues had to be at the federal level, that certain monetary policies issues had to be at the federal level, and that defense and foreign policies issues had to be at the federal level. They included no federal police powers in the Constitution, and gave the federal government no power to impose or collect income taxes. Of course, the list of powers granted to the federal government, and the explicit limitations on them in the Constitution, resulted from negotiations and compromises among the Framers at the Convention. Many of the individual framers wanted other issues raised to the federal level. Some thought, for example, that the national legislature should have veto power over all state legislation. Others thought the federal government ought to establish a national university; and the list goes on. But the Convention whittled down the federal government powers that were

Chapter 1. p. 25. included in the Constitution close to a minimum of what had to be in the Constitution. After all, ratification of the Constitution was to be by conventions of the people in each state, specially elected to consider the Constitution. In the end, the Framers were under stern political discipline: Put in what people think has to be in, and leave out what people think does not have to be there. (See below Chapter 2: A Federal Constitution for the European Union: Some Lessons from U.S. Constitutional History.) Federation: Too Strong or Too Weak? The Framers of the U.S. Constitution each had direct experience of a federation that was too strong and then a federation that was too weak. A short explanation of how the American Revolution occurred is that the Americans came to think that they were part of a relatively loose federation, but the British Parliament viewed the British Empire as a unitary state in which Parliament had full sovereignty. Americans came to think that impositions from the central government were unjustified and unendurable. Parliament would not let the Americans go, the Americans would not stay, and the Revolutionary War resulted. (See below, Chapter 5: Self-Denial in Federalizing Power in European Union: Lessons from the Causes of the American Revolution.) If a federation centralizes too much power, inevitably there are frictions with member states. In the case of America and Britain, the frictions became fatal to the relationship. This is a major danger that any federation must avoid if it is to survive. Because any federalization of power will generate frictions, the center should receive those powers that really should be at the center—but only those powers. Otherwise, there is needless friction, or at least friction that buys relatively little for the federation. During the Revolutionary War, Congress proposed the Articles of Confederation in 1777 to the states, as a way of formally joining together, and the Articles were finally ratified by all thirteen states in 1781. Even before ratification, many came to see the Articles as too weak,

Chapter 1. p. 26. though many were afraid of the consequences of strengthening them. In particular, many thought that the Articles had to be strengthened or there was strong likelihood the Confederation would break up—and they had good reasons for their fears. Many in the EU would like to see further centralization of power over defense and foreign policy issues, though many are opposed. Few pretend to make a compelling case that the EU will break up unless defense and foreign policy powers are centralized. Of course, a federation has to be strong enough to survive, but the set of powers that should be centralized for survival need not be the same across all federations, in all time periods. The Fall of Federations. The men at the Constitutional Convention of 1787 talked easily of the Amphyctionic Confederation, the Athenian Confederation, and other federations that few know today and fewer think of. These federations failed, but many dismiss their history as so out of date as to have no implications for today and the future. The twentieth century, however, is full of the failure of federations, the breakup of countries. Yugoslavia is gone. Czechoslovakia is gone, and the USSR is gone. As the British left, their Raj split into India and Pakistan; these two countries have fought four wars since 1947, one of them over Bangla Desh’s split from Pakistan. Many Indians fear that giving an inch of Kashmir will trigger India’s breakup. The United Arab Republic (of Egypt and Syria) is a bad memory. How long can Belgium last? Can Canada survive? Will northern Italy split off? In Spain, the Basques want independence, and many Catalans want it, too. China may break up—it has many times in the past, and the Chinese government clearly fears unrest in its western provinces and Tibet. Can Iraq survive as a unitary state? a federation? The British ruled Ireland for hundreds of years, but had to let most of it go in 1921; now they are stuck with an intractable mess in Northern Ireland, and the United Kingdom may break up. The Austro-Hungarian Empire is gone. Iceland declared independence from

Chapter 1. p. 27. Denmark in 1944, and Denmark has only the loosest of holds on Greenland and the Faeroe Islands. Russia is under tremendous pressure to let some of its regions go. Is retaining Chechnya worth the cost of ongoing war there and terrorism in Russia? for how long? Czechoslovakia had the “velvet divorce,” with little violence and tolerable costs. If Belgium goes, it may go the same velvety way. Denmark will let Greenland and the Faeroes do what they want—though Denmark will finance only so much of what these territories may want. Most of the breakups of the twentieth century have been hostile, however, and most have involved substantial violence. Violence is a major threat whenever a federation breaks up. U.S. history suggests that it is easier to avoid a breakup by carefully designing a constitution at the start than to try to renegotiate constitutional arrangements to avoid a breakup once secession pressures arise, or to see to it that a breakup is peaceful when it comes. (See below, Chapter 7: Secession and Expulsion: Lessons for the EU from United States History, 1789-1861.) Secession often leads to war. The U.S. endured perhaps the greatest civil war in history. The Civil War ended with the U.S. reunified, and with eventual reconciliation among the states on both sides. The war ended cleanly, in the sense that there was little guerilla warfare in its aftermath, and no later rebellions, as was the case historically in Ireland and Poland after uprisings were suppressed. This clean end and reconciliation is a rarity; it happened with the U.S. Civil War because of quite special circumstances that are highly unlikely to recur. (See Chapter 8: Secession, the EU, and Lessons from the U.S. Civil War: Why Didn’t the U.S. Civil War Go On and On?) If the EU were to fall apart, war is a possibility that cannot be ignored, and a war that results from a EU breakup might well be worse than the U.S. Civil War. Further, in such a bad-outcome case, U.S. history suggests that reconciliation would be highly unlikely.

Chapter 1. p. 28. The EU Without “Ever Closer Union.” Ever since the Treaty of Rome of 1957, the EU has been committed to “an ever closer union.” These essays suggest that the EU has already federalized the issues that need to be federalized, though of course there is much room for improving how it used its federalized powers. If this is so, the EU should not aim at an ever closer union. What then is the purpose of the EU, if not an ever closer union? One American’s view is this: From the Argonne Forest to the Anzio beachhead, conflicts in Europe have drawn the blood of millions, squandering and shattering lives across the earth. There are thousands, thousands of monuments in parks and squares across my country to young men of 18 and 19 and 20 whose lives ended in battle on this continent. Ours is the first generation in a hundred years that does not expect and does not fear the next European war. And that achievement—your achievement—is one of the greatest in modern times. --George W. Bush, Berlin, May 22, 2002 Less than sixty years ago, the citizens of eleven of the EU’s fifteen member-states of 2003 were killing each other on the battlefields of Europe (Ireland, Sweden, Portugal and Spain33 were lucky). None of the ten accession countries that entered the EU in 2004 escaped the violence of the Second World War. A major European war can happen again. Some claim that the Treaty of Versailles, which was supposed to settle European issues after the First World War, contributed greatly to the start of the Second World War. The extent to which a better-designed treaty might have reduced the likelihood of the Second World War is much debated. One thing is clear, however: Political institutions matter to political outcomes. Solutions to the great issues of war and peace are political solutions, and thus depend on the political institutions that condition the political outcomes that are feasible. Even the best political solutions are never forever. They always have to be guarded and nurtured. The EU has one of the greatest achievements of modern times to its credit—peace in Europe. If the EU makes mistakes

Chapter 1. p. 29. in adopting a constitution that federalizes issues that need not and should not be federalized, it runs the risk of destroying this achievement—the risk of destroying peace in Europe.

33

Many view the Spanish Civil War of 1936-1939 as a practice run by the totalitarian powers—Germany, Italy and the USSR—for the Second World War.

Chapter 1. p. 30.

Table 1. Powers Allocated to the Federal Level U.S., 1789

U.S., 2004

EU, 2004

International and interstate trade

Supreme

Supreme

Supreme

Police powers

None

Substantial

Substantial

Monetary policy

Supreme

Supreme

Supreme in Euroland

Defense and foreign policies

Supreme

Supreme

Minor

Taxation/Expenditures

Moderate

Substantial

Minor

Notes: The table gives qualitative estimates of the degree to which the federal level had powers in these five categories: (a) for the U.S., in the Constitution of 1787, (b) for the U.S., including powers gained after the Constitution was ratified, and (c) for the EU, from treaties up to 2003. The five main categories of federal powers are taken as: 1. International and interstate trade; 2. Police powers; 3. Monetary policy; 4. Defense and foreign policies; and, 5.Taxation. This classification may be taken as exhaustive. It does not explicitly include, for example, financial market regulation, but financial market regulation may be taken as included under say monetary policy or police powers, and similarly with other items not explicitly included. “Police powers” is a technical term in British/American law, and refers to government power to legislate for and regulate property relations, family relations, education, religion, public health, public safety, public morals and crime.

Chapter 1. p. 31.

Note on Subsequent Political Careers of U.S. Presidents The U.S. president has no higher office to aim at, and seldom runs for or holds another elective office. When a U.S. president does remain active in politics after leaving office, usually his term was not successful. After losing his re-election attempt, against Andrew Jackson, in 1828, John Quincy Adams served eight terms in the House, representing Massachusetts. Often his House service is thought to redeem his lackluster presidential term, particularly after he became involved in the anti-slavery fight. Martin van Buren was vice president for two terms under Jackson, and was elected president in 1836, but lost his re-election attempt in 1840. In 1848, he ran for president on a third-party ticket (the Freesoil Party, successor to the Liberty Party and forerunner of the Republican Party); he ran essentially for revenge and as part of his manuveuring against rival Democrats (Nevins, 1947, vol. I). Millard Fillmore, elected vice president on the Whig ticket with Zachary Taylor in 1848, became president when Taylor died in 1850, and was denied nomination in 1852; deeply angry, he allowed himself to be nominated in 1856 on a third-party ticket (the American Party or Native American Party, often called the “Know Nothings”). (Nevins, 1947, vol. II.) Theodore Roosevelt, vice president under William McKinley, became president after McKinley’s assassination in 1901, and was elected in his own right in 1904. Roosevelt handpicked his successor, William Howard Taft, in 1908, but became disillusioned with Taft and challenged him for the Republican nomination in 1912. Denied the nomination by party leaders, though likely the overwhelming choice of party members, Roosevelt ran on a third-party ticket, split the vote, and allowed the Democrat, Woodrow W. Wilson, to win. Gerald Ford succeeded to the presidency when Richard Nixon resigned in 1974, and after losing in 1976, he essentially withdrew from politics. Jimmy Carter won in 1976, lost to Ronald

Chapter 1. p. 32. Reagan in 1980, and thereafter periodically injected himself in politics, often by attacking others, though with little influence, partly because of his partisanship. George H. W. Bush was elected in 1988, after serving two terms as Reagan’s vice president, and essentially withdrew from politics after losing to Bill Clinton in 1992. Bill Clinton is prevented from running for a third term by the 23rd Amendment to the Constitution. In the nature of American political parties, he cannot be the leader of the Democratic Party; the president is leader of his party, and the party out of power has many competitors for power with no one leader, until one is nominated for president. Nevertheless, Clinton remains active in partisan politics, often far more active than desired by Democrats seeking the presidency.

Chapter 1. p. 33.

References Black, Conrad, “Finally, a Lively Canadian Contest,” Wall Street Journal, June 23, 2004, p. A16. Hamilton, Alexander. The Papers of Alexander Hamilton. 26 vols. Harold C. Syrett, ed. New York: Columbia University Press, 1961-. Levy, Leonard W. Original Intent and the Framers’ Constitution. New York: Macmillan, 1988. Nevins, Allen. The Ordeal of the Union. Vols. I and II. New York: Charles Scribner’s Sons, 1947. Nevins, Allen. The Emergence of Lincoln. Vols. I and II. New York: Charles Scribner’s Sons, 1950. Tuchman, Barbara W. The First Salute. A View of the American Revolution. New York: Ballantine Books, 1988. Webster’s New Collegiate Dictionary. Springfield, MA: G.C. Merriam, Co., Publishers, 1960. Wildavsky, Aaron, “A Bias Towards Federalism,” in Aaron Wildavsky, Federalism and Political Culture, eds. David Schleicher and Brendon Swedlow, pp. 17 - 37. New Brunswick, NJ: Transactions Publishers, 1998. Wright, Benjamin F. The Growth of American Constitutional Law. New York: Reynal and Hitchcock, 1942.