Wish Fulfillment: The EU Constitution Lays Down NGOs’ Ideals in Stone

When former French President Valery Giscard d'Estaing was first minted as President of the European Constitutional Convention, he suggested that he might be <?xml:namespace prefix = st1 ns = “urn:schemas-microsoft-com:office:smarttags” />Europe's Ben Franklin, a senior figure lending his authority to the process. Now that the draft Constitution has been published, he has changed his tune. He now compares himself to Thomas Jefferson, ignoring the inconvenient fact that Jefferson was not present at the drafting of the U.S. Constitution. <?xml:namespace prefix = o ns = “urn:schemas-microsoft-com:office:office” />

“I tried to play a little bit the role that Jefferson played, which was to instill leading ideas into the system,” he told The New York Times. “Jefferson was a man who wrote and produced elements that consolidated the Constitution.” Giscard's historical ambiguity aside, Thomas Jefferson would surely be distressed to have his name associated with the draft document: That champion of limited government would be appalled at the paternalist, centralizing, one-sided ideas that the EU constitution embodies. It reads more like an NGO wish list than anything produced by America’s Founding Fathers.

Much of the discussion in English has concentrated on the first part of the EU Constitution, which deals with institutional arrangements. This is hardly surprising, as the implications of more powerful and centralized European institutions are far-reaching. If Giscard has his way, for example, there will be a European foreign minister who will represent the EU as a whole on certain issues. This includes speaking for Europe at the U.N. Security Council, replacing the spokesmen of individual nations. The first holder of the office will likely be the German Green Party's foreign minister, Joschka Fischer, who has already pronounced that, “to change one iota of the Convention would be a catastrophe.” This would, of course, be dreadful news for the United States, as it would lose the independent voices of Britain, Spain, and other America-friendly EU members in meetings of the Security Council.

The institutional arrangements are only part of the constitution. Two other aspects deserve close consideration as well. First is the “Charter of Fundamental Rights of the Union,” which pretends to be the EU Bill of Rights. As we all know, the American Bill of Rights is couched mostly in negative terms, forbidding government from certain action. The European charter, however, is couched in positive terms, bestowing rights upon citizens by the grace of its actions.

And what an interesting collection of rights they are. Human dignity is the very first right enumerated, so signaling that the charter’s drafters feel they should legislate for common decency. The second article outlaws the death penalty. In the third article on the integrity of the person there is a prohibition on “making the human body and its parts as such a source of financial gain” (no payments for blood donation, then). Although odd, these provisions are probably within the generally accepted idea of what “human rights” entail. In Article 14, however, we see that social policy, too, is an area of human rights, as the charter guarantees the “right to education and to have access to vocational and continuing training…[including] the possibility to receive free compulsory education.” Employers must therefore allow their employees to undertake vocational training.  Additionally, home schooling is in serious trouble; European teachers' unions will be happy.

It goes on. Discrimination based on birth is prohibited, which puts those countries with monarchies in an interesting position. Equality between men and women is ensured in employment, work, and pay specifically, except that “the principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.” Children “may express their views freely”—so much for the days of silence in movie theaters!

Then comes the “solidarity” title, which grants labor unions an entrenched constitutional position, giving workers the right to collective bargaining and to take strike action. The welfare state is also entrenched, with welfare benefits guaranteed, including “social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources.” The charter thereby reverses many of the union and welfare reforms introduced into Britain by Margaret Thatcher—reforms that have been instrumental in lifting that country back into the ranks of strong economies—and forbids Germany and other nations from embracing them at a time when they desperately need to do so. To his credit, Tony Blair has said he will oppose this part of the EU Constitution.

The charter moves on to guaranteeing “a high level of environmental protection and the improvement of the quality of the environment.” It then turns to justice, where it guarantees fair trials, the presumption of innocence, proportional penalties, and protection from double jeopardy, but says nothing about self-incrimination or trial by jury.

Yet the charter contains a get-out clause. Any of these rights may be limited in the interest of meeting “objectives of general interest recognized by the Union.” A raison d'etat is thereby enshrined in the Constitution. Presumably this is how the European Union will reconcile its actions against “xenophobia” with the general principle of freedom of expression.

This is only the tip of the iceberg, however. The next and largest part of the Constitution actually lays down ground rules for the policies that the Union shall follow in areas where it has “shared competence” with member governments. These areas include transport, energy, social policy, the environment, consumer protection, criminal justice and policing, and “economic, social and territorial cohesion.” As British convention member David Heathcote-Amory pointed out, “'Shared' is defined to mean that, when the EU decides to legislate in these areas, member states are forbidden to.”

So, European political choices are laid down in constitutional form. As an example, Article III-124 on environmental policy states that it “shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.” Greenpeace could not have asked for more, really. It is perfectly possible to envisage a situation where a member government trying to pull out of its Kyoto agreements, having realized how damaging they are for its economy, is taken to court for unconstitutional action.

The EU constitution is in many ways the complete opposite of the U.S. Constitution. It protects institutions' powers and enumerates rights. It limits its member states' freedoms while accruing powers based on one political worldview to the center. It is not something that Jefferson or, for that matter, Madison would regard as a just settlement. The draft reflects not so much the will of the people as the will of pressure groups—labor unions, NGOs, and other single interest groups—all collected together in one vast, 224-page manifesto. In selling out to these lobbies, Giscard has shown himself to be not Europe's Madison, but its Benedict Arnold.