James Banner: Why the EU's Trouble Creating a Constitution Is Not Surprising





James M. Banner Jr., Writing in the Los Angeles Times (Dec. 4, 2003)

Constitution-making is never easy. But the Europeans who recently failed in Brussels to pull together a workable, agreed-on document to govern themselves should take heart from the hard-fought history of the U.S. Constitution. That constitution, too, was difficult to draft -- yet it was ultimately written and ratified, and it has survived.

If the leaders of the European Union can summon fresh effort and political will, their defeat in Brussels will probably be only temporary.

When the American framers fashioned their document in four months in 1787, they had certain advantages that the Europeans don't have today. They were writing upon a relatively blank historical slate. Centuries of warfare, land-trading treaties and memory did not burden their deliberations.

The American people spoke a common tongue, and the vast majority shared a Protestant faith. None of the uniting states had ever been at war with each other as colonies. Because no new states were about to join the original 13, the just-born nation didn't face the double crisis of writing a constitution while admitting new members -- the situation Europe faces today.

Like the Europeans today, the framers of the U.S. Constitution had to compromise on many deep differences; the Americans had to deal with representation, the power of the presidency, the political integrity of existing states and, most critically, slavery. Like the Europeans, they had to improvise and make up institutions (such as federalism and the electoral college) that would gain the document acceptance as they went along. They had but a single summer to conclude their work. Otherwise, the chance for union would probably be gone forever, and the states would return to their relative autonomy.

The framers scoured the records of the past for examples to emulate and avoid but concluded that their situation was too novel for old wisdom. History gave them examples but also made them wary. To escape it, they created mechanisms and institutions never before known. They constituted a new nation through a frame of government that sought to use the best of, and avoid the worst of, the lessons they found in the past. The past, rather than being a burden to them, energized their search for something better.

For Europe, more weighed down by a long and fractious past, it's vastly different. The wonder is that, since 1945, the divided continent has come as far as it has. The wonder, too, is that it has come so close to drafting a constitution in only 16 months of deliberation. Centuries of state and civil warfare, radical revolution and Holocaust have scarred Europe's face and poisoned relations among its peoples. Representative democracy has had to be extracted out of feudal and royal rule, its nations created from petty dukedoms and principalities. The people's will has sometimes had to be gained by radical act at the barricades. A babble of tongues, different faiths and distinct cultures have long divided its many peoples.

The stumbling block now is that of representation in the European Council. Americans should recognize that obstacle, and Europeans should not wonder that it's a tough one to surmount. In 1787, the most populous American states claimed precedence over the less-peopled ones; the smaller states sought protection from the large. The resulting compromise -- equal representation in the Senate and proportional representation in the House -- was only one of many agreements struck in Philadelphia.

The creation of that curious and undemocratic institution, the electoral college, and the devil's bargain of counting three-fifths of the slaves for representation in the House, were necessary to win ratification.

Though slavery and slave representation are gone, the first of these mechanisms mars American government still. The electoral college still favors rural, little-populated states at the expense of the vast majority who live in larger, more urban states. The U.S. Constitution is not perfect and never has been.

Europe's struggle to create a constitution out of the diverse traditions and histories of its states cannot be easy. That the pace has been slower than the Americans' more than two centuries ago, and that there's now a crisis in the process, should occasion neither surprise nor particular worry. Unlike the framers, the nations of Europe don't have to finish in a short time.

"So hard and huge a task it was to found the Roman people," Virgil wrote in the Aeneid about 2,000 years ago. A similar huge difficulty is to be expected as Europe seeks to reconstitute itself through an unprecedented written constitution under conditions vastly different than those the American framers faced. No doubt its constitution will be written before long. And then, like the United States before it, Europe is likely to emerge stronger rather than weaker for the struggle, its compromises and their eventual acceptance.



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