Europe's Draft Constitution: A Recipe For Disaster

At the end of June, the European Convention, a gathering of delegates from the European Union's member states, presented a new draft constitution to the E.U.'s leaders. It was an important moment. This misbegotten proposal, greeted by every government concerned as an excellent piece of work, spells no end of trouble for the Union. It is quite likely, in fact, to bring relations among the members to a crisis—and I would say there's a fair chance that, in the fullness of time, it will break the Union apart.

The convention was appointed in the first place because of mounting popular discontent with the Union's political arrangements. Europe's citizens are not as keen on the Union as they used to be (and this is putting Britain, which has never been keen, to one side). Opinion polls show growing disenchantment. There is a groundswell of complaint over the lack of democratic accountability.

The Union has become a hyperactive legislator: It accounts for a large proportion of new laws coming into force in member countries. These laws pour out of Brussels without any of the popular discussion or other inconvenience that attends the passage of domestic legislation, and people seem to be getting fed up with it. Lately, when national governments have consulted their citizens about new E.U. initiatives, the results have often been embarrassing. Ireland, for instance, has gained far more than most, in enormous subsidies and other ways, from its membership in the Union. But when its citizens were asked in 2001 to endorse a new E.U. treaty that moved new powers from Dublin to Brussels, they startled their leaders by voting no.

Shocks like that convinced the E.U. leadership that Europe's "democratic deficit" would have to be bridged. What Europe needed, they reckoned, was a constitution that would "reconnect" citizens (as if they had been connected in the first place), on the one hand, and the E.U.'s various branches of government, on the other. First of all, the convention would seek to simplify and stabilize the constitutional arrangements, hitherto a shifting, impenetrable morass of undertakings from a succession of complicated treaties; then it would set down—in plain, concise terms, accessible to all—how the Union would henceforth work.

An excellent idea. But to judge by the document it subsequently produced, the convention thought it had a better one: Write a constitution that further complicates and obscures relations among citizens, member states, and the Union; take new and unnecessary steps toward greater centralization of powers at the center, contrary to the evident wishes of most of its citizens; make these new arrangements even less stable than the existing system by seeding the document with anomalies, which will detonate in due course and require further work on the constitution; finally, arrange it so that the result of these detonations is always to drive Europe in the direction of further unwanted integration.

An example of one such purposeful anomaly will give you a flavor. The new constitution—a concise and accessible 200-plus pages—includes a bill of rights, called the Charter of Fundamental Rights. But this European bill of rights is much more ambitious than America's timid concept. Among the fundamental rights it affirms are, for instance, the right of workers to strike, their right to receive free job-placement advice, and the right of all citizens "to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources."

Desirable or not as such entitlements and immunities may be, they are plainly not "fundamental rights." Indeed, some governments do not want to pass the laws that the charter would seem to demand. That is why, to shield domestic law from the extraordinary scope of such a declaration, the new constitution confines the charter's application to the Union's own laws and institutions. In other words, the constitution proclaims all these things and more as fundamental rights—and then says that most of Europe's citizens may lawfully be denied them. It is an absurd position, and a patently unsustainable one. It invites the European Court of Justice, the ultimate arbiter of the constitution, to extend the center's reach. The court, if its record is any guide, will happily accept the invitation.

If all of this is true, why did Europe's national governments say they were pleased with the convention's work? Partly because some really were, and partly because the others decided that for the moment they had better pretend to be.

The governments of the 15 nations (soon to be 25) that constitute the European Union each make their own complicated calculations about where their political advantage lies: No two governments are exactly aligned when it comes to European politics. Broadly speaking, though, the governments divide into federalists (those seeking closer political integration, possibly going all the way to a United States of Europe) and anti-federalists (those seeking to halt the process now, and maybe even take a step or two back).

In all this, France is pivotal. The ambition of successive French governments has been clear: to lead a Europe that challenges American power—economic, cultural, diplomatic, and military. Until recently, its alliance with a compliant Germany meant it could aspire to do that without needing to pursue the intermediate goal of a United States of Europe. But this is changing, a crucial shift in the European dynamic. Germany is no longer so compliant. Now that France cannot rely on being able to steer Europe exactly as it wishes without creating a genuinely European government, its rulers see that they will have to choose between their desire to retain national sovereignty and their ambition to rival America. No contest. For the French ruling elite, anti-Americanism will trump nationalism every time. So France is turning federalist.

Germany has long been avidly federalist in any case, partly because it has a domestic system of delegated powers that it thinks works pretty well, but more because it wants to blur its identity in a larger Europe. (In its early years, the European Union was about securing peace in Europe. With that goal no longer in doubt, the two other animating spirits of European integration have come to the fore: French anti-Americanism and German shame.)

Italy is neither stridently federalist nor staunchly anti-federalist. But most Italians hold their politicians in such contempt that they regard a diminution of the country's sovereignty as no great loss. (Germany surrendered the solid deutsch mark regretfully; when the crisis-prone lira was absorbed into the euro, Italians said good riddance.) Most of the Union's smaller or poorer countries see further integration as a way either to give themselves more of a say in the region, or to collect more subsidies from rich members, or both. And needless to say, the existing institutions of the E.U.—the Parliament, the Commission, and the penumbra of other executive and judicial entities—have a vital interest in moving power from national governments to themselves.

So there you have the federalist majority coalition. Far less happy with the idea of an ever-closer European Union are Sweden, Denmark, and a few other smaller countries—the ones, you might say, with more regard for their own distinctive institutions, less antipathy toward the United States, and more-modest ambitions to direct their neighbors' policies and/or receive a smaller entitlement to E.U. subsidies. And then there is Britain, ever Europe's odd man out. It scores highly on all those tests; in addition, it has delusions of importance concerning its unique role in the world. There you have the small and heavily anti-federalist axis.

The only way for the constitutional draftsmen to bind these different ideas of Europe together would have been, in effect, to call a halt—that is, to fix in place the present tight and reasonably harmonious confederation of independent nation-states. This would have given federalists and anti-federalists alike much of what they want. But the convention has not done that. By transferring to the center yet more new powers (notably in areas hitherto regarded as exclusively domestic, such as criminal law), it will give the federalists another great stride toward political integration. Far more important even than this, however, is that the draft constitution, by design, is so unstable. It does not describe a constitutional end point. It describes a path. This path leads only one way: toward eventual political integration.

Several governments therefore find themselves in a terrible bind, and none more so than Britain's. Tony Blair has staked his reputation on Britain's being a "good European." But the country's voters, he knows, are unlikely to stand for this slow-motion federalist putsch. At the moment, he is pretending, as British prime ministers do, that Europe is not really heading in the federalist direction at all, whatever everybody else may think. That is no longer working, either. Something, sooner or later, will have to give.