Can Europe Learn from American Constitution-Making?





Mr. Banner, a historian in Washington, D.C., is co-director of the History News Service.

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With the recent failure of the French and Dutch votes on the European constitution, it's going to be harder than ever to see that we are witnessing one of the most extraordinary developments in recorded history.
 
Only 60 years after the exhaustion and bitterness of World War II, twenty-five nations of Europe have almost fully yoked themselves together under a single encompassing charter. What's more, the boundaries of the nations so close to placing themselves within a single constitutional regime are almost precisely those of Catholic Christendom in the middle ages seven centuries ago. But this time, Europe is resuming its ancient identity under a constitution, not a church.
 
Yet it's not the magnificence of the European effort that is the focus of attention now. Instead, it's the European economy and the unpopularity of its nation's many governments that commentators are stressing as they assess the one-two punch the European constitution has just absorbed.
 
Those commentators need to look elsewhere - to some basic failures of constitutional strategy. Europeans aren't likely to look to the U.S. Constitution for guidance. But their failure to follow some of the Framers' ways has been a costly mistake.
 
Constitutions are particular to place, time and culture. The American Constitution, written in the early years of a young nation by people of generally similar history who more or less trusted each other, is spare, to the point -- and often vague. It sets up a frame of government but lets the institutions established under it set the detailed rules.
 
Equally significant, in setting the constitutional machinery in motion, the Framers of the American Constitution didn't overlook form and procedure. They anchored its approval in the people, and they made sure that no single state could hold up putting the new system into motion.
 
It's no surprise that the Europeans didn't follow the American example. The Constitution of our federal system of decentralized power, checked and balanced as it is, has never had much appeal to Europeans used to more centralized systems in which legislatures are predominant. Still, if they go back to the table to try to do better next time, they might well borrow a bit from the Framers.
 
They should aim for brevity. Unlike the Constitution of 1787, the constitution put before the voters of France and Holland was more than 450 pages long. Since some of its hundreds of provisions were hopelessly obscure and preposterously detailed, its defeat was made likely by the simple fact that no one could easily know what was in it. Voters weren't likely to trust a document that seemed purposefully obscure. Nor did they like being asked to approve something they were simply unlikely to have had time to read.
 
By contrast, the Framers wanted Americans to read and understand the Constitution they proposed in 1787. Only then was there a chance that those elected to consider the document in each state's ratifying convention would vote in its favor. So the Framers kept it short and comprehensible.
 
The Framers also turned over the decision about the Constitution to ratifying conventions in each state. In Europe, voters have been able to express their views in democratic referenda, as in France and the Netherlands, or through their legislatures -- but not through ratification conventions elected only to evaluate the new constitution.
 
If that means had been adopted, the people could have spoken to and through these once-in-a-lifetime gatherings of their representatives who were meeting for one, and only one, purpose. Transitory issues, such as the state of the economy and the fear of immigration, might then have played a smaller role, longer-range matters a larger one. The unpopularity of a given government, such as  that currently of France, would have counted for less.
 
Most critically, the Framers didn't make the mistake of requiring unanimity of ratification for the Constitution to take effect, as the Europeans have done. In the American case, only nine of thirteen states could set the new system into operation. The Framers' assumption was that if nine ratified, the remaining four would probably be forced to join up sooner or later. And that's precisely what happened. Once Virginia became the 10th state to ratify, enough New Yorkers feared being left out of the new system that they convinced some ratifying convention delegates to switch their votes and make their state the 11th member of the new union. Then laggards North Carolina and Rhode Island finally joined up.
 
If a revised European constitution is to be approved, European leaders will have to adopt new tactics. They could do no worse than to follow American approaches to constitution-making now over 200 years old.


This piece was distributed for non-exclusive use by the History News Service, an informal syndicate of professional historians who seek to improve the public's understanding of current events by setting these events in their historical contexts. The article may be republished as long as both the author and the History News Service are clearly credited.



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Peter K. Clarke - 10/9/2007

Arnold, You obviously did not understand my irony. I invite you to try again.

Peter


Peter K. Clarke - 10/9/2007

Oh no Europe, not the U.S. constitution. It is filled with terrible sinister and aviary leftwinged ideas about "we the people" and "promoting the general welfare". A much better and closer role model would surely be the Mayflower Compact. It was actually signed by Europeans. Surely architects of a new set of rules for a 21st century 25 nation multilingual polyglot don't want anything as new fangled and high tech as what those long haired (or at least long wigged) radicals came up with in Independence Hall just a few short centuries ago.


Arnold Shcherban - 6/16/2005

Peter,

Your irony towards Europeans, French and Dutch, in particular, is seemingly motivated not by the sincere care about their well-being, but their rejection of the perceived anglo-saxon domination, i.e. British one.
(Britain, consciously or not, was always playing the role of the American Trojan Horse in European affairs.)
Besides, the American historians' narcistic, almost schisophrenic, obsession of indiscriminate prescription of the US Constitution, that, as you self-defeatingly mentioned, originated "just a few short centuries ago", to any nation in the world, regardless of their past and present, has really transformed from the genre of comedy,
a-la M.Twain, to the drama of universal proportions.

What I find much more ironic (though easily explanable
on my terms) is that it was none other country than the US that for decades strived for the United Europe: militarily and economically. And everything was going well enough, as planned,... until the systemically short-sighted American strategists started to realize that truly united and free Europe might grow into a much greater economic and political challenge than they ever expected. It became clear to even half-brained now, as it has been for long time to the more sophisticated observers, that this country was really striving for
the United States of Europe, not the united European states.


Oscar Chamberlain - 6/14/2005

You are right about public vigilance being extremely important. And such vigilance is easier with a short comprehensible constitution, even when, as in the US in all its history, there are differences in interpreting it.


Jon Robins - 6/13/2005

You state that, " the more spare the constitution, the more robust are the powers of the government it establishes."

While this may be the common result, in the American example, the lack of specified powers was an effective limit on the size and scope of government for most of a century. I think a case could be made that a government, regardless of constitution, is only as powerful as the complacency of its citizens allows. The Founders and their peers were not complacent, particularly since they had just committed treason and risked death to shirk unfair taxes. They weren't about to put up with nonsense from the government about imagining new and creative ways to control everyday life (see perhaps the Whiskey rebellion as a short-lived attempt at bucking the government's vile and malicious scheme of illegally taxing poor, honest whiskey-makers).

If Europeans write a short constitution, and stay snarky enough about it invading their lives and business, the central authority will stay limited. With a host of antagonistic ethnicities around, I think it would be several centuries before you'd see the Germans acquiescing to French administrators in Brussells telling them how much alcohol is permissible in their beer.


Oscar Chamberlain - 6/13/2005

One would hope that the europeans would look at the 1787 consitution making for ideas or at least for inspiration. And one piece of advice here--the use of ratification conventions--strikes me as intriguing.

However, the situation Europeans face is very different from that in 1787, and those differences weigh against a wholesale use of the American model. Consider these three points.

Banner suggests don't require unanimity. This makes sense, to a point, but the ratio of samll to large nations, and their geographic distribution, makes a simple 3/4 or even 7/8 requirement challenging. Just think of a European Union with everyone but France and Germany, and you get a sense of the problem. Still, total unanimity is almost impossible in this universe, and some provision probably needs to be made for it.

Trade and constitutions. The constitution of 1787 was a response, in large measure, to problems of trade among the literally sovereign states. That created an urgency among trade elites that I suspect was lacking in a Europe where open trade borders is a largely accomplished fact.

Brevity. 450 pages is much too long: that's correct. However, the more spare the constitution, the more robust are the powers of the government it establishes. It seems to me that many in the European governments--and perhaps the populace at large--want to regulate closely the expansion of the Euro-government's power. Close regulation is not an act of few words; and a closely regulated government is not a robust one.

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