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Europe in the Balance

Friday, June 1, 2001

Ever since the cold war ended 10 years ago, the nations of Western and Central Europe have rapidly moved to transform the European Economic Community, the “Common Market,” into a genuine political union. One after the other, major areas of policymaking responsibility, including important aspects of economic, monetary, social, and legal policies, have been transferred from the nation-states of Europe to the institutions of the European Union (EU). The goal and purpose of this new Europe’s leaders are no secret. In a November 2000 speech in Germany, Romano Prodi, president of the European Commission, the EU’s principal executive and legislative body, stated that the objective of this “European Project” is not just to create “a superstate but a superpower” — a superpower that will work to spread its values and concepts of governance on the international level.

During this critical period, the United States has continued to endorse European integration, as it has done for the past 50 years. The political traditions of the EU-member states, which include principles of popular sovereignty, the fact that European integration has been accomplished through peaceful means, and decades worth of Cold War era support by Washington for a stronger, more unified, Europe better able to stand up to Moscow, have led American policymakers to continue viewing the European Project as democratic and, by and large, beneficial. This is true even of those U.S. officials and commentators who are otherwise uncomfortable with the prospect of an emerging European power capable of challenging U.S. “leadership” in global affairs, and who oppose many of the EU’s policy positions.

However, the assumption that the new Europe, or at least the new Europe planned by the EU’s current leadership, will continue to share the democratic values of the United States is badly in need of reexamination. Although only time will reveal the truth, there are a number of very troubling indicators suggesting that Europe is not moving towards a unified, democratic state on the American model, a “United States of Europe,” but rather retreating to a model of governance characteristic of the Continent before the period of Reformation, Enlightenment, and Revolution that spawned the United States. In this regard, at the heart of the European Project lies the notion of a supernational or “universal” authority, spread across the whole of Europe, very similar to the universalist ideas of the Middle Ages. Moreover, this goal has manifested itself in institutions and assumptions about the role of the citizenry in government that are more characteristic of the Age of Absolutism than of American-style republicanism.

If, in the long run, the political ideas of the Reformation and Enlightenment prove to be exceptions to a more permanent and ancient European rule, departures rather than transformations, this will create unique and serious problems for the United States. The American republic has no place, intellectually or politically, in the pre-Enlightenment European world, and while Francis Fukuyama’s “end of history” thesis is partially correct — communism, at least outside of the halls of academe, does not offer a viable ideological threat to democracy — what model of nontotalitarian governance will ultimately triumph globally is still very much in doubt. Few Americans would disagree with the proposition that popular legitimacy, accountability, limited government, and the existence of a large sphere of private activities free from government involvement are essential attributes of democracy, necessary for both domestic tranquility and international stability. It appears that few of the EU’s leaders would agree, judging by its institutions and their goals. At the same time, Europe has rarely been content, for long, to manage its own affairs without seeking to export its vision of the proper order of things.1 For generations, before the mid-twentieth century, Europe viewed itself as the leader of the world’s affairs — and history has often proved Europe right.

To be sure, this growing ideological gulf between Europe and the United States will not prevent continued cooperation on a number of issues now facing the international community. However, if Europe does retrench to a worldview so fundamentally different from that of the United States, this will create a new — and far less congenial — strategic context for bilateral relations between the Old and New Worlds.

The eternal empire

Although the EU’s practical origins date to the founding of the European Coal and Steel Community in 1951, the basic assumption that “Europe” is by nature a whole, and that there is, or should be, a unifying authority higher than any individual state or ruler, runs very deep in the Continent’s tradition. Indeed, the notion of an “empire” or “imperium” in the form of an ultimate, supernational power can be dated to the Roman Empire itself. And as an intellectual matter, it can arguably be traced to the most influential work of the most respected thinker of the Middle Ages, St. Augustine of Hippo. In his City of God, Augustine took as given that the one divine order of God would be reflected in the one earthly order of Rome: “God himself gave dominion to the Romans.” The City of God envisions Rome’s future as the center of the spread of Christianity.

For at least a thousand years after Augustine’s time (354-430), European intellectuals, including the likes of St. Thomas Aquinas and Dante, accepted the imperative of some supernational authority uniting Europe, and the sovereignty of individual states was (at least before the sixteenth century) genuinely debatable. In spiritual matters, the papacy was generally accepted as Christendom’s final word, and papal claims extended to political affairs as well. Powerful popes arbitrated between secular rulers, and the Holy See was looked to as the ultimate source of legitimacy. Over time, kings and emperors, as well as cities and communes, sought papal sanction for conquest, condominium, or innovation. For example, it was the papacy that approved, in the eighth century, the replacement of France’s Merovingian kings by the new Carolingian dynasty; that sanctioned William of Normandy’s expedition against Anglo-Saxon England in 1066; and that recognized Portugal as an independent state in 1179.

Papal claims were, in fact, traced directly to a supposed grant to the Holy See of political authority over the Western half of the Roman Empire by Constantine the Great, at the time he moved his own capital East to Constantinople, today’s Istanbul. This document, the “Donation of Constantine,” gave to the Bishop of Rome and his successors “all provinces, palaces and districts of the city of Rome and Italy and of the regions of the West.” Although the Donation of Constantine was later proved to be a forgery (probably created in good faith by a cleric who genuinely believed that the original had merely been lost), it nevertheless provided, until the eve of the Reformation, documentary evidence for papal claims to govern, temporally and spiritually, a united Western Europe. In the eleventh century, Pope Gregory VII, heading a reformed and newly assertive Church, aggressively claimed this ultimate authority for the Holy See:

Does anyone doubt that the priests of Christ are to be considered as fathers and masters of kings and princes and of all believers? . . . Evidently recognizing this, the emperor Constantine the Great, lord over all kings and princes throughout almost the entire earth . . . at the holy synod of Nicea took his place below all the bishops.

Papal claims to exercise the imperium in secular affairs were, of course, contested — most especially by the Holy Roman Emperors. These rulers also grounded their claims to preeminence in Europe on the caesars’ inheritance, tracing their title to the year 800, when Pope Leo III crowned the Frankish King Charles “august emperor of the Romans.” The empire of Charles “the Great,” Charlemagne, incorporated most of today’s EU, including France, Germany, Italy, and the Low Countries. It disintegrated within a generation or two of his death in 814, but Charlemagne’s imperial title and dignity survived in the German, Italian, and Netherlandish parts of his empire — the “Holy Roman Empire of the German Nation,” which also included significant parts of modern France. The title “Roman Emperor” was, in fact, held by one German prince or another until 1804, when Napoleon Bonaparte established his own empire, on Charlemagne’s model.

It is, therefore, not by accident that many of the European Project’s supporters today look to the Europe united under Charlemagne for precedent and inspiration. Indeed, every year a “Karls Preis” or “Charlemagne Prize” is awarded to an individual to recognize the “most meritorious contribution serving European unification and the European community, serving humanity and world peace.” The award is made in Charlemagne’s old capital, Aachen, in Germany’s Rhineland.

In any case, whether exercised by pope or emperor, the existence of a European imperium, uniting the Continent through the exercise of a final, ultimate authority, fully capable of binding individual states and princes, was widely acknowledged in theory, if not always in practice, up to the early sixteenth century. However, with the Protestant Reformation, and the Wars of Religion that followed, acceptance of this predicate evaporated. Even theoretical papal claims to a political predominance were no longer subscribed to by Europe’s rulers, including the Catholic kings of France and Spain. At the Peace of Westphalia, which ended the Thirty Years War in 1648, the “Roman” emperor accepted the independence of the Dutch Republic and the effective sovereignty of the German states. It was at this point that the “empire,” the “right of sovereign command, by which the nation ordains and regulates at its pleasure, every thing that passes in the country” (in the 1792 characterization of Vattel in his Law of Nations or Principles of the Law of Nature Applied in the Conduct and Affairs of Nations and Sovereigns) formally passed from supernational authorities, to national ones. And there it has firmly remained. It was, of course, during this Westphalian Age of national sovereignty that the American Republic was founded, and our form of democracy is premised upon it.2

Such notions of national sovereignty are, however, considered outdated, and even ridiculous, in the EU’s corridors of power. As Sir Christopher Patten, the European commissioner for external relations, put it in the 2000 Chatham Lecture at Oxford University, “‘sovereignty’ in the sense of unfettered freedom of action, is a nonsense. A man, naked, hungry and alone in the middle of the Sahara desert is free in the sense that no one can tell him what to do. He is sovereign, then. But he is also doomed.”3

From the perspective of the European Project, the justification of this retreat from the principle of national sovereignty is to ensure a stable and peaceful Europe, capable of dealing with challenging global issues and of balancing the current American global preeminence. In an October 2000 speech to the Paul-Henri Spaak Foundation in Brussels, Romano Prodi explained that the older, European Community model of “intergovernmental co-operation is not sufficient” because “all too easily it degenerates into conflict. And it is precisely to prevent such conflicts ever happening again in Europe that our supernational institutional system was set up.” Prodi’s sentiments echo those of his thirteenth century countryman Dante, who explained the need for a universal imperium as follows:

There is always the possibility of conflict between two rulers where one is not subject to the other’s control; such conflict may come about either through their own fault or the fault of their subjects (the point is self-evident); therefore there must be judgement between them. And since neither can judge the other (since neither is under the other’s control, and an equal has no power over an equal) there must be a third party of wider jurisdiction who rules over both of them by right.

European opinion, it appears, has come full circle.

Moreover, there are indicators that the reassertion of universalist political principles in Europe will likewise herald a return to a universalist cultural model, a renewed concept of Europe as a kind of “Christendom.” European integration is not, of course, a project of the Catholic Church, which, in more recent times, has devoted itself to the cure of souls rather than the correction of kings. However, a profound emphasis on “shared values,” this time of the secular twentieth century “humanistic” variety, is a very strong element of the European Project. Nowhere is this more evident than in the marked reluctance to welcome one of Europe’s most important states, Turkey, into the EU fold. Indeed, despite the fact that Turkey has been a member of NATO for decades, and was one of its most faithful members throughout the Cold War, recent polls in the EU suggest that some 70 percent oppose Turkey’s admission.4 Although geography is, occasionally, cited as the reason for the EU’s frosty reception to Turkey’s application, since most of Turkey is in Asia Minor, this can hardly be the real reason. Turkey’s largest city, Istanbul is, in fact, in Europe, while not one square inch of either Britain or Ireland, both EU members, touches the Continent. A much more honest explanation is “cultural,” i.e., religion. The Turkish Republic is a secular state with an overwhelmingly Muslim population.

A new absolutism?

If the universalist goals of the European Project, uniting the Continent under a single, supernational authority, can be described as premodern or “medieval,” the institutions of the new Europe seem more characteristic of “early modern” models. There are, in fact, many aspects of the new Europe’s political philosophy, and its practical application in the EU’s institutions, that can fairly be described as “absolutist.” It is not, of course, the case that Europe is about to reprise the Age of Kings. There will be no bewigged princes presiding over gilded salons in the new Europe, and the apartments of Versailles will be left to its curators and the tourists. Monarchy, however, is not essential to absolutism.

Stripped of its velvet and lace, absolutism’s essence is surprisingly straightforward. Its chief attribute is the initiation and execution of policy by a centralized and unaccountable bureaucracy, rather than though electoral politics and a system of political accountability. This bureaucratic centralization was, as historian John C. Rule, has noted, “the very stuff of which so-called seventeenth-century absolutism was made” (Louis XIV and the Craft of Kingship, 1969). Throughout Europe, absolutism was characterized by a basic belief that good government had to be professional government, where experts and professionals make policy as well as implement it. By contrast, government by elected officials and elected legislatures was viewed as, at best, inefficient and parochial. At worst, it was considered to be corrupt and dangerous. Similar attitudes are readily discernable among the EU’s governing elite, and they permeate its institutions.

The EU has three principal policymaking bodies: the Council of the European Union (council), composed of one Cabinet-level representative from each of the EU’s member states; the European Parliament, elected by the citizens of the EU’s member states; and the European Commission, the EU’s executive and, for all practical purposes, its legislative body. In theory, the European Commission is accountable to both the council and the European Parliament. However, neither the council, nor the European Parliament, initiate policymaking. Their power is mostly a negative one, the ability to withhold approval of policies formulated and adopted by the European Commission, and even this checking function is exercised infrequently. Without doubt, the European Commission is the most powerful EU institution.

The European Commission is composed of a president and 19 members. These individuals are selected by the EU’s member states and are subject to a process of collective approval by the European Parliament. The European Commission acts as the EU’s executive branch, and it also is the true source of its policy and legislative initiatives. It usually gets its way and, in areas such as “competition,” agricultural, and trade policy, it is virtually autonomous. In an April 2000 white paper, “Reforming the Commission,” the body described itself as follows:

It was established to act impartially in the interests of the European Community as a whole and to act as guardian of the founding Treaties, notably by exercising its right of legislative initiative; controlling Member States’ respect of Community law; negotiating commercial agreements on behalf of the Community; implementing the common policies and ensuring that competition in the Community was not distorted.

It further boasted that “[t]he Commission has been an engine of change in the transformation from customs union to economic and then political union.”

In other words, this unelected and, for all practical purposes, unaccountable body has embarked on the creation of a unified European state, wherein it is the single most powerful institutional actor. With remarkable candor, the European Commission has admitted, in the same white paper, that this very lack of accountability has been the secret of its success: “The original and essential source of the success of European Integration is that the EU’s executive body, the Commission, is supranational and independent from national, sectoral, or other influences. This is at the heart of its ability to advance the interests of the European Union.”

The undemocratic nature of the European Commission is widely recognized, and supporters of the European Project, including and especially the European Commission itself, acknowledge that not all of Europe’s “citizens” have embraced Brussels and its institutions. In a September 2000 “communication” to the other EU institutions on its “Strategic Objectives 2000-2005,” the European Commission noted that “[a]t present, public faith in our national and European institutions is low. Citizens feel remote from them and are calling for a greater say in how things are done at [the] European level.”

From the European Commission’s perspective, the solution to this “democracy deficit” is not, however, a radical reworking of the EU’s institutions to ensure that only elected officials exercise the initiative in policymaking. In fact, officials at the highest levels acknowledge that this is currently impossible. In the words of Sir Christopher Patten at his Chatham Lecture, the EU “has to accept that there is no European ‘demos’ in the sense of a population which feels itself to be one. The problem of legitimacy and democracy is therefore especially difficult. And it is especially acute, because the European Union is so powerful.”5 The proposed prescription, however, is not to slow the integration process until the aspirations of Europe’s peoples actually mirror those of the EU’s leaders. Rather, the solution lies (in the European Commission white paper’s assessment) in “efficient and vigorous institutions which connect with our citizens,” and that give the citizens “a permanent stake in shaping and implementing policy.”

Despite the benevolent and comforting tone of these statements, they reveal exactly how far the European Project has moved away from the model of democracy that Americans take for granted. Popular sovereignty is discarded. The citizenry has been transformed from the ultimately source of legitimate authority, which can be exercised only by elected officials, into one of several stakeholders in the process of government. Indeed, the assumption that there are issues not fit for decision by the citizenry, or its elected officials, runs deep in the philosophy of the new Europe. It is evident, for example, in the explanation of the core EU doctrine of “subsidiarity” offered in a February 2001 speech at the Free University of Berlin by Pascal Lamy, European commissioner for trade:

The principle by which we tackle subjects at the right level which means as close to the man in the street as possible. We should only transfer to a higher, or more general, political body those questions which individuals, families, villages, regions, nations cannot decide for themselves.

Under the principles of American republicanism, there are no issues that individuals, families, villages, regions, or nations cannot decide for themselves, either directly or through their elected representatives.

Here, it is important to understand that the question of subsidiarity is not akin to the dual sovereignty, and the disposition of authority between the federal government and the states, in the United States Constitution. Under American federalism, the sole question is whether a particular issue will be addressed by the elected representatives of the entire U.S. electorate on the federal level, or whether it will be addressed by the elected representatives of the people of each individual state. The U.S. Constitution envisions that only a finite set of national issues is to be resolved at the national level, a constraint reflected in the proposition that the federal government has limited and enumerated powers.6 By contrast, under the EU model, matters that are to be decided at the European level — a lengthening list of economic, environmental, trade, social, and legal policy questions — are to be removed from popular politics altogether. In his October speech to the Spaak Foundation, Prodi criticized a European system that would depend on cooperation between the elected governments of the EU’s member states: “national governments are bound to their countries’ electoral cycles. Short-term domestic agendas can thus easily deflect them from considering the long-term interests of Europe as a whole.”

In fact, parliamentary democracy, where policies are determined through political processes rather than by professional bureaucracies, already is considered passé by many in the European Project’s vanguard. Indeed, in the European Commission’s view, the real authority of Europe’s national parliaments is already so diminished that it has sponsored a study to find some useful role for them to play in the new Europe. As Luciano Violante, the chair of this project and president of Italy’s Chamber of Deputies, explained in an October 2000 speech in Budapest, such elected bodies already “have lost their monopoly position in representing society. NGOs, trade unions and industry associations, pressure groups and the media give public voice to broad or narrow interests with apparently much greater effectiveness than parliamentary bodies.”

The answer, however, is not a return to the supremacy of legislative bodies in the business of legislating, “a sort of nineteenth-century legislative simplicity,” in Violante’s words. Rather, according to a November 2000 review of a European Commission “green paper” entitled “The Future of Parliamentary Democracy: Transition and Challenge in European Governance,” the solution is for parliaments to establish the procedural rules whereby others — including “organizations, agents of civil society, and experts in governance processes,” make policy: “Parliament could concern itself less with detailed governance issues in highly specialized areas, and focus instead on developing frames for relevant and engaged actors to self-govern in a manner satisfying, for instance, rules of access and participation, due process, and accountability.”

While Europe’s legislatures are to content themselves with behaving, like the European Parliament, as exalted debating societies with no real power, the European Commission itself plans to “remain the driving force within this process [of European integration] both through its vision and its action. The Commission will focus more on its core functions of policy conception, political initiative, enforcing Community law, monitoring social and economic developments, stimulation, negotiation, and where necessary legislating.” In the words of President Prodi, “[a] strong Commission, uniquely serving the interests of Europe as a whole, must remain the system’s driving force, its powerhouse.”

In defending the “democratic” character of the new Europe’s institutions, supporters can, and do usually, point to the values of human rights and equality also espoused by the EU. But these lofty concepts cannot alter, or mask, the absolutist character of those institutions. Respect for “human rights,” and the rule of law, are necessary but not sufficient features of democracy. Even serfs had rights, genuinely enforceable in court, and absolutist regimes in the past have often offered elaborate judicial and legal processes. Bourbon France, for example, was thick with courts, and private citizens could obtain redress even against the king and his agents. Procedural requirements (although far from what would today be considered to be acceptable standards) in these tribunals were respected, and the judiciary was, on the whole, well-educated and professional.

Similarly, an emphasis on the value of equality also is not inconsistent with an absolutist form of government. Equality — in society, before the law, and (most especially) before government bureaucracies — has proven to be a favored and useful tool of absolutism. The Emperor Joseph II (1741-90) made the equality of all subjects under the crown — regardless of wealth or aristocratic birth — a key aspect of his absolutist program in the late-eighteenth century Habsburg monarchy.

From the perspective of U.S. philosophical and constitutional traditions, the key question in determining whether any particular model of government is a democracy is whether the governed choose their governors — in practice as well as in theory. This form of democracy appeared also to be the trend among the European states (with some notable exceptions) over the past two hundred years. Unfortunately, the reemergence of a pre-Enlightenment pan-European ideology that denies the ultimate authority of the nation-state, as well as the transfer of policymaking authority from the governed and their elected representatives to a professional bureaucracy, as is evident in the EU’s leading institutions, suggests a dramatic divergence from the basic principle of popular sovereignty once shared both by Europe’s democracies and the United States.

“The World’s Debate”

Whether this divergence will continue remains in doubt, as does the final result of the European Project itself. Although many of Europe’s leaders assume that the nation-state’s day is past, many ordinary Europeans are not so sure. In September 2000, the Danes refused to approve Denmark’s accession to the common European currency, and British public opinion remains strongly against exchanging the pound sterling for the euro. Similarly, in the states of Eastern Europe, where elites ache for EU acceptance and admission, public sentiment remains dubious. In Estonia, the government has decided to stop commissioning opinion polls on EU membership, since they keep getting the “wrong” answer, suggesting that less than half of the Estonian electorate actually supports joining the EU. Even Sir Christopher Patten, in the speech in which he confidently termed unfettered national sovereignty “nonsense,” has admitted that “[t]he concept of an international society is not one towards which people are attracted by sentiment or tradition.”

Nevertheless, the EU’s current leadership seems fully committed to universalism implemented through a new absolutist bureaucracy. To be sure, some of these leaders acknowledge, and even mourn, the loss of traditional democratic values represented by the EU’s institutions, but none appears to doubt that the “project” must go on regardless.

What then? If European integration continues on its current path, Europe can be expected to challenge the United States ideologically and politically. As the European Commission instructed the European Parliament in September 2000: “Our objective must be to make Europe a global actor, with a political weight commensurate with our economic strength; a player capable of speaking with a strong voice and of making a difference in the conduct of world affairs.” This goal was similarly echoed by British Prime Minister Tony Blair, when he accepted the Charlemagne Prize in Aachen, Germany, in May 1999:

For Europe the central challenge is no longer simply securing internal peace inside the European Union. It is the challenge posed by the outside world, about how we make Europe strong and influential, how we make full use of the potential Europe has to be a global power for good. To achieve this, we must accept that our economy needs reform to compete; our European defense capability is nowhere near sufficient; we do not yet wield the influence in global issues that we should. We are less than the sum of our parts.

The new European assertiveness extends to the promotion of Europe’s social and political values as a model for a new international system. As Romano Prodi noted in April, 2000, “we need a new world order, a new, democratically accountable system of global governance and Europe, with its distinctive ethical and political values, must seek to play a leading role in that new system.” The seriousness of this purpose is fully evident not only in the EU’s efforts to create a European-wide foreign and defense policy, but also in the efforts of EU member states to steer U.S. policy through assertions that the substance — if not the actual terms — of new international treaty regimes, such as the Kyoto Protocols on Global Climate Change and the proposed International Criminal Court, can be imposed on the United States even if it has not ratified those instruments.7 Indeed, Europe’s political and intellectual leaders have certainly not been reticent about vigorously criticizing virtually every facet of American domestic and foreign policies, with the more reflective European pundits challenging the bedrock principles of American society and government.

There is every reason for the United States to join the issue, and to compete vigorously in both the ideological and political aspects of this debate. It is only by discoursing candidly on why and how we disagree about these “first principles” that the United States can manage successfully a number of specific policy disputes, including the death penalty, gun control, the Kyoto protocols, the proposed International Criminal Court, and national missile defense, which already trouble our relationship with Europe. Trying to sweep our differences under the rug will not work. While there is nothing wrong with justifying our policy preference in terms of American raison d’etat, it is still essential to explain them also in terms of normative moral principles. For far too long, we have been conceding the moral high ground to the Europeans.

1 This is a characteristic, it must be admitted, that the United States inherited from Europe in full measure. The notion that major countries seek to export in the global marketplace of ideas their distinctive political philosophies has been embraced by, among others, Montesquieu, Hume, Carlyle, as well as by many of the Framers of the American Constitution.

2 Contrary to the typical European criticisms, our stubborn insistence on retaining a freedom of action overseas, including the right to repudiate customary or treaty-based legal norms, is not an isolationist tendency. It is simply a reflection of the fact that, since there is no global democratic body polity, the nation-state remains the highest and the only legitimate expression of popular sovereignty.

3 American attachment to this evidently discredited principle also is viewed with a jaundiced eye. One of Sir Christopher’s criticisms of the United States is Americans’ “hostility to any external authority over their own affairs,” a sentiment that no doubt drew a sad and knowing smile from Lord North’s ghost.

4 This attitude is fully shared by at least some of the EU’s leaders — when they are disposed to be candid. At a recent luncheon in Washington, attended by numerous foreign policy professionals and one of the authors, a senior EU official admitted that the real problem with admitting Turkey was that it is too large and its admission would inevitably change the EU’s cultural fabric. This, as he put it, will not be allowed. Similarly, it should also be noted, the EU has not indicated much interest in the admission of Russia or Ukraine, states indubitably part of continental Europe, but which never formed part of medieval, Western Christendom.

5 Some have tried to define the problem away. Andrew Moravcsik, writing in the May/June 2001 edition of Foreign Affairs, notes that the EU bureaucracy is quite small — “only 2,500 [employees of the Commission] have any decision-making capacity” — exercises only a few of the entire penumbra of governmental powers, and is “almost devoid of the power to tax, spend, or coerce.” These claims, however, are misleading. Since the EU is ultimately the judge of its own authority, its bureaucrats are able to find adequate justification for whatever actions they choose to undertake. The fact that their approaches are often convoluted and have to be implemented by the national institutions of member states does not decrease the democracy deficit; it only increases the economic and social compliance costs and promotes inefficiencies.

6 The fact that, despite all of the constitutional constraints, the power of the federal government has grown steadily over the past 225 years underscores the problem. The existence of a written constitution, of a political and popular culture that features a healthy dose of mistrust toward the government, and of an independent judiciary does, though, provide a mitigating factor in the United States. These “checks and balances” are absent in the EU case.

7 For a discussion of how Europeans view “new” international law as a way of disciplining American power, see, for example, our article, “The Rocky Shoals of International Law,” in the National Interest, Winter 2000–01.

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