A LESS PERFECT UNION? The Constitution of the European Union

Wednesday, July 16, 2003

In June 2003, a European constitutional convention presented the fruits of 18 months of work: a draft constitution for the European Union that runs to more than 200 pages. Why does the European Union even need a constitution? Will the constitution limit the powers of the EU over the member countries, or does it mean the creation of a European superstate? Should the constitution be ratified, or is it just a colossal mistake?

Recorded on Wednesday, July 16, 2003

Peter Robinson: Today on Uncommon Knowledge, Europe's proposed constitution--could anyone have thought of a less perfect union?

Announcer: Funding for this program is provided by the John M. Olin Foundation.


Peter Robinson: Welcome to Uncommon Knowledge. I'm Peter Robinson. Our show today: a brand new constitution for the united states of Europe. In June of this year a European convention produced a document that was the result of more than 18 months of labor, a draft Constitution for the European Union that runs to more than 200 pages. The Constitution of the United States by contrast, runs to just five pages and that's including the Bill of Rights. Why does the European Union need a constitution in the first place? Will this document limit the powers of the union over its member states or limit the powers of the member states, creating a gigantic European super-state? Should the constitution be ratified or is it all a colossal mistake?

Joining us, two guests. Timothy Garton Ash is a fellow at Oxford University and at the Hoover Institution. British historian Paul Johnson is the author of more than 28 books including A History of the American People and Modern Times.

Title: The Waste Bin of History

Peter Robinson: The Economist magazine: "The European Constitutional Convention did not even try to write a lasting constitutional settlement. It has written the opposite. In effect, a blueprint for accelerated instability, an intergovernmental conference will now take up the proposal. The governments should take it up for exactly as long as it takes to dump it in the nearest bin." Dump the proposed European Constitution in the nearest bin. Timothy?

Timothy Garton Ash: No, I wouldn't do that. I think it describes this extraordinary creature that the European Union is and it will always be a strange but valuable monster.

Peter Robinson: Paul, dump it in a bin?

Paul Johnson: Dump it but burn it first just to make sure.

Peter Robinson: Take no chances. All right. Why does Europe need a Constitution in the first place? I quote The Economist magazine once again, "When it first began to be argued that the European Union needed a proper constitution, we warmly endorsed the idea. The European Union needed a single text to codify the overlapping and impenetrable treaties that had gone before. More than this, Europe needed a clear statement of what the Union was and what it was intended to be." So you'd agree with that, that Europe needed to codify these and it needed a sort of mission statement? No?

Timothy Garton Ash: Listen, Europe does not need a constitution. States have constitutions. Europe is not a state. So this is not a constitution. It's actually just another treaty, a constitutional treaty. And what it describes is a strange, unprecedented commonwealth of European democracies. And I think Paul will disagree with me but I would say with Churchill, adapting Churchill, that this is the worst possible Europe, apart from all the other Europes we've tried from time to time.

Paul Johnson: I think it's a case of cultural hubris and it's essentially the work of the French. And the French think they know everything. One of the things I've been trying to get into the heads of Frenchmen or any Frenchman, for a very long time now, is that if you want to use history to help you, study the history of how the United States was created because there are so many lessons to be learned from the 1770s and 1780s. And after all, this was the first republican constitution of its kind, subject to a few amendments, it's lasted over 200 years. And under its aegis, it has created the richest, most powerful country in the world. You'd think that the Europeans would want to see how it was done and how this came into existence and incidentally learn a bit about democracy. Not at all. No, we have nothing to learn from those barbarians across the Atlantic. That is virtually what they think. Well it's what they think and they sometimes more or less say it too.

Timothy Garton Ash: On Frenchmen thinking they know everything, there's a wonderful remark of Marshall Petain, one of the few good things he said. He said...of the products of the Grandes Ecoles, he said, "They know everything. The trouble is they don't know anything else…"


Timothy Garton Ash: But the serious point here is that actually although the Constitutional Convention was headed by a Frenchman called Valèry Giscard d'Estaing, this is not a French constitution. What people don't see is that the French are losing the European argument. The French are now an endangered minority in Europe. And this is not becoming a French Europe.

Peter Robinson: Next topic. Does the proposed constitution create a true federal European state?

Title: Too Close for Comfort?

Peter Robinson: At the Constitutional Convention there were, broadly speaking, two parties. The Federalists wanted to draft a Constitution that would expand the powers of the European Union, nudging along the European project toward a United States of Europe or something closer to that. The other party wanted to create a constitution that would limit the powers of the European Union once and for all. Which side won?

Paul Johnson: I think the federal side did. But it's like judging the degree of iniquity between a louse and a flea, as Dr. Johnson observed. You see I would personally prefer it if Dutch lawyers and German lawyers had played a greater part in the thinking behind all this because they've both got good traditions. If you look at the tradition of constitution-making in France, of course, it's one lurching from one disaster to another and that is true of most Latin countries. But the Germans created Teutonic law before anyone else, certainly Northern Europe. And that is the basis of the English legal system. And that, of course, was a common law system and the English system underlay the American Constitution. So you can trace all back to German. But this is a constitution done by Latins and I think Tim made very shrewd and true remark which I entirely endorse, which is the French and Europe--and I tried to get this into the head of Tony Blair who is wrong about a lot of things in Europe too and much too optimistic and trusting--the moment the French lose control of Europe, they will smash it to bits. They haven't yet lost control of it by no means, I don't agree with Tim there. But sooner or later, they are bound to lose control of Europe and it's going to cease to be an instrument of French domestic and foreign policy. The moment they are satisfied that they have lost on a major battle, they will withdraw from Europe and smash it up. So Europe is not something you can take for granted because it cannot exist without France, geographically and in lots of other ways, it's too near the center. Europe is a provisional creation just as those Napoleonic states were of the French. And when it ceases to be useful to the French, they will smash it up. Well, and that's why I say to Tony Blair, why bother to join this wretched thing? It's not going to last.

Peter Robinson: Tim?

Timothy Garton Ash: Well, I think it's very interesting what Paul says. I mean, first of all, I think it's true that the federalists are losing. This is not going to be the United States of Europe. And the French are losing because you now have a European Union of 25 states, including Poland, including Slovenia, including the Czechs. And they will not accept having just regained their sovereignty after 40 or 50 or 100 years of lost sovereignty, sacrificing their sovereignty to a federal super-state. Also they will not accept domination by the French. So agreed. And then what I think the French Gaullists will do is to say okay, we can't dominate a Europe of 25, so we're going to try and re-create the old core Europe of five or six. And they will try and make what they will call core Europe where they will be in charge. And that, I think, is where the great challenge will come and I think they will lose that argument and then I'm more optimistic than Paul because I don't think that the French ultimately will destroy the whole shop because they can't dominate it.

Peter Robinson: In this core Europe, do the French envision Britain playing a role or is it continental?

Timothy Garton Ash: France, Germany, Italy, Benelux.

Peter Robinson: All right. And that would suit you just fine, wouldn't it, because they could go their own way.

Paul Johnson: The trouble is they've got no solution to the problem, which is overwhelming, looming over Europe, which is population. Apart from Britain and Ireland and Luxembourg, they are all going to have smaller working forces in 50 years' time than they have at present. And granted their small working hours and their low productivity, this is catastrophic. How do they fill the ranks of the workers? Do they let in more and more Muslims? France already has a ten percent Muslim population. What happens when Italy and Spain have a thirty or--and they have got the lowest birth rates--thirty or forty percent Muslim…

Peter Robinson: Paul brings up one area where the European Constitution would have teeth, immigration law.

Title: Give Me Your Huddled Masses, Yearning to Eat Brie

Peter Robinson: As it stands now, any attempt to harmonize immigration law at the European Union level can be blocked by a single veto, single nation voting against. Under the proposed constitution, large swathes of immigration law could be harmonized by majority vote and that could change things, could it not?

Timothy Garton Ash: I mean, Paul is absolutely right. Apart from the Poles, who are still having quite a lot of babies as good Catholics. But that will change as it changed in Spain and Italy as the country becomes secularized with the advent of democracy and capitalism. But by and large, we need much more immigration. And one of the things that really gets my goat is the assumption of moral superiority on the part of Europeans towards the United States. A lot of people think Europe is better than United States whereas in this respect, the United States is a model to all of us. I mean we are incredibly bad in Europe at making immigrants feel at home. And that is the one thing we have to do. You know, a Muslim in France still feels himself to be a foreigner.

Peter Robinson: Can I just ask isn't it the case that you, I address you now as a European rather than as an Englishman, that you have a harder problem than we have? Is that not correct?

Timothy Garton Ash: It's a hell of a lot more difficult for two reasons. One, because the United States is by definition, a country of immigrants. Everyone here came from somewhere. So everyone is an immigrant.

Peter Robinson: True.

Timothy Garton Ash: That is not true of most European countries apart from Britain, apart from Britain which is rather different, which have old established ethnic nationalities. And B, the first mention of Europeans is in a chronicle, an 8th century chronicle of the Battle of Tours, which was a battle against the Muslims. Europe defined itself for most of its history against Islam, against the Muslim world. So it's a huge leap for us and for them to accept the idea that you can be a Muslim European. You know, in the Middle Ages, people would have thought that was like saying you can be a male woman.

Peter Robinson: But you reckon it'll all get sorted out in the next couple of…

Timothy Garton Ash: No, I don't. I think it is the biggest problem in Europe.

Paul Johnson: Far from it. The Mullahs, particularly in the Balkans, are already talking about the day when we recover the kingdom of Granada that they lost in 1492. And they have their own agenda and it doesn't include a United Europe or a free Europe or a Christian Europe or any other kind of Europe. It is an Islamic Europe.

Peter Robinson: You think it can be handled though? I'm just trying to probe the differences here. This man is clearly a pessimist…

Timothy Garton Ash: Perhaps, I'm also a pessimist but a moderate pessimist, in this sense. I think it is the most difficult single issue facing Europe at the moment, immigration, specifically Muslim immigration. And the danger I see is that it will encourage the rise of populist nationalist parties.

Peter Robinson: Le Pen?

Timothy Garton Ash: Le Pen, Haider, Pim Fortuyn, and so on. You already have these parties getting 10%-25% of the vote with the immigration we have now. We're going to have more and I think you'll get more of those politics. And I think they will be extremely destabilizing.

Peter Robinson: Next, let's take a look at what the proposed European Constitution says about individual rights.

Title: Too Many Rights Make a Wrong?

Peter Robinson: The Charter of Fundamental Rights of the Union in the proposed European Constitution runs to 50 paragraphs and listen to a few of the rights included: the right to join trade unions, the right to vocational training, the right to free education, the right to paid maternity leave and to parental leave, the right of access to a free placement service. So I put it to you, Timothy Garton Ash, that the proposed charter in this new Constitution does not merely call on member nations to respect fundamental human rights but to maintain in perpetuity the vast apparatus of the welfare state.

Timothy Garton Ash: Well, I think it's a very good thing to have written rights in a constitution, something the British haven't had for quite a long time.

Peter Robinson: They've done all right without them, haven't they?

Timothy Garton Ash: Well, until recently. But my good friend, Charles Moore, the editor of the Daily Telegraph is now worried about the government's plan to ban fox hunting. And so I said to him, Charles why don't you go to the European Court of Human Rights? And he said, we already have. And so in defense of fox hunting, they're going to the European Court of Human Rights. So that's…

Peter Robinson: He's the editor of the Telegraph?

Timothy Garton Ash: Exactly.

Peter Robinson: Well it's all over if the editor of the Telegraph is going to the European Court of Human Rights. There's no hope is there? Your game's lost.

Paul Johnson: Well, anyone who is in a real mess goes to the European Court of Human Rights...

Peter Robinson: But carry on.

Paul Johnson: …whatever their views are and that's a well-known bit of double thinking.

Peter Robinson: All right but this is a serious point that it enshrines the welfare state.

Timothy Garton Ash: The serious point you're making is a very good one, namely that you actually devalue the notion of fundamental rights if you include in it these absurd social and economic rights. And I am much more clearly pro-European than Paul, but I don't believe in a Europe which says our identity and our moral superiority derive from 1950s style corporatist welfare state. I think that's what we actually have to reform and change. And I don't think this is a good way to go about it.

Paul Johnson: And there's another point to be made is it is no use listing all of the rights. Personally I'm against rights as such. I think human beings don't have rights; only God has rights. Human beings have duties and if anyone did their duty, if everyone did their duties, you wouldn't need to have a Bill of Rights. But to list a lot of rights without mentioning duties at all, it's the duties that ought to be listed in a constitution. If you just have all these rights, all you end up with is a conflict of rights. And any lawyer will tell you those are the most difficult to resolve.

Peter Robinson: All right. Let me ask our guests for some advice for three important parties.

Title: C'est L'Economie, Stupide

Peter Robinson: First the continental Europeans. The largest economies on the continent are stagnant. France and Germany both have unemployment rates in double digits and have had for more than a decade. The proposed Constitution is a snare and a delusion, diverting the continent's attention from its true problems and continental leaders should be advised to say just that. Timothy?

Timothy Garton Ash: For starters, if we had been sitting here in 1953 and I had told you that the whole continent of Europe is basically free, consists of democracies, which are more or less cooperating together and that there are no wars in Europe, you wouldn't have believed that possible. So actually in a sense, Europe has never had it so good. That's a starting point. Now the problem is that most continental West European states, not East European, West European states are encumbered with this totally outdated sort of 1950s Mercedes model of the welfare state. And my advice to them--and it's not an advice to the Poles because they don't need this advice, it's to the French and the Germans, okay--is: reform or die. They have to liberalize drastically and radically otherwise, firstly, all their jobs will go to Poland, which has a low cost skilled economy and then the jobs will go to Taiwan or to California.

Peter Robinson: Paul?

Paul Johnson: My advice to Europe is to scrap the Europe that exists. It's 50 years out of date as you've just observed and find some leaders. That's what Europe needs is leaders, leaders of courage and enterprise and vision and imagination, not the very disgusting collection they've got at the moment, leaders.

Peter Robinson: Paul, next advice for the British. Here's a speech from the year 2000 by the Right Honorable the Baroness Thatcher of Kesteven, "In this 21st century, the dominant power is America, the global language is English, the pervasive economic model is Anglo Saxon capitalism, so why imprison ourselves in a bureaucratic Europe? Britain's integration within a European super-state is unacceptable to me," Lady Thatcher, "because it means the loss of our freedom, of our independence and ultimately of our very identity." Tony Blair should be advised to listen to Margaret Thatcher.

Paul Johnson: Well, he does listen to her. And I agree with every word of what she said. And I only wish that when she'd been in power for 11 years, she hadn't of acted on those words and helped to kick the European monstrosity to pieces.

Peter Robinson: So how do you answer this, Britain should just go its own way and let the continent cut them off.

Timothy Garton Ash: For the whole of my adult life, Britain has been having this argument about Europe. And I'm getting a little bit bored with it. And I think it's time we resolved it. And my problem, you see I think that what Paul or Margaret Thatcher says is absolutely true, that there is a language of liberty, which we share with the English-speaking peoples around the world. Our difference is that they think that Europe is bound to be a French-dominated, Gaullist, Napoleonic, corporatist, etatist monster. And I don't. I and Tony Blair incidentally, think there is an argument to be won in Europe, an argument for an open, free-trading, Atlanticist Europe. And then that will be the best possible thing for Britain because we would literally be in a position to have the best of both worlds. Otherwise, we will be torn apart, even if we say to hell with Europe, join the United States, join the Anglo-sphere, we will still be torn because we're 20 miles from continental Europe, half our trade is with Europe.

Peter Robinson: But why does it follow that pressing that argument requires Britain to sign all the various protocols and attach itself formally to the European Union?

Timothy Garton Ash: Because you only win the argument from inside the European Union. You will never win it from outside and I say again, the argument in a Europe of 25, with the new Central and East European members, with a younger generation in Germany, with the business community in Germany, with all sorts of constituencies in Europe, which see that Europe cannot go on cantering along in a 1950s Mercedes, that it has to change, all of whom, by the way, speak as good English or better than we do, many of whom have spent years in the United States. That argument is there for the winning.

Peter Robinson: Last topic: Should the United States continue to support European integration?

Title: Union Yes?

Peter Robinson: Since the end of the Second World War, it has been formally American policy to encourage further European integration. Would you now advise President Bush to reverse that policy?

Paul Johnson: I wouldn't advise him to reverse that policy. I would advise him to subject it to benign neglect. I would advise him to pay much more attention to Eastern and Northern Europe and to some extent, Southern Europe than to the Franco-German axis. And thirdly, I would advise him to always keep the British in his camp.

Peter Robinson: Tim?

Timothy Garton Ash: I would say this. Put an offer on the table to the Europeans. If you try and define yourselves in the Gaullist way as a rival superpower to the United States, we will--I was going to use an impolite word--we will divide and rule. And it is in the United States' power as the only hyperpower to destroy the European project. You can win the Poles, you win the Spaniards, you win the British, Europe is finished. But you must also say to the Europeans, if you define yourselves as a partner to the United States on the basis of our shared values, then we will support the European Union because we the United States, need a strong Europe to address the common challenges that we face, starting with the whole Middle East.

Peter Robinson: Last question: I set it up by quoting someone who was a participant in the Constitutional Convention and I'm drawing this quotation from The Economist yet again. "If 22 countries," we've established there are 15 members of the European Union, this year, next year, 10 more are joining, each of them, all 25 will have to accept the Constitution in order for the Constitution to take effect. Senior participant in the Constitutional Convention says, "If 22 countries say yes and 3 say no, we have a problem. Legally we cannot proceed. Politically we cannot stop." Two questions. First, will Britain ratify this Constitution? Paul?

Paul Johnson: No. No chance.

Timothy Garton Ash: Yes.

Peter Robinson: And will the government hold a referendum?

Timothy Garton Ash: No, but I wish they would.

Paul Johnson: I think they probably will. They'll have to.

Peter Robinson: And the people will overwhelmingly vote against it?

Paul Johnson: Not overwhelmingly but decisively.

Peter Robinson: Decisively.

Timothy Garton Ash: But I mean, can I just add that I would like--like Paul, and I'm unusual among pro-Europeans because most British pro-Europeans are scared of what the British people will say. I'm not scared. I would like the British people finally to face the question, do you want to be in the European Union or not? And that's what a referendum on the Constitution would do.

Peter Robinson: And is your side willing to take no for an answer?

Timothy Garton Ash: Well, my side…

Peter Robinson: You're tired of the question, you want it settled?

Timothy Garton Ash: Listen, my side is me and I'm not speaking for Tony Blair. And the answer for Tony Blair is I don't think he's prepared to take that risk. I think he's running scared. But me personally? Absolutely.

Peter Robinson: And so, in the end, what happens? If Britain says no, what happens to the whole constitutional project?

Paul Johnson: History moves on. And Europe has to take its rather lowly place in it.

Peter Robinson: Tim, final word to you.

Timothy Garton Ash: I think actually it's a very interesting question because what happens initially is that the government will try to pose the question again. They would get some changes to the Constitution and they would come back to the British people. And if the British people voted no, then you would have a huge crisis on your hands and there might be rejoicing in Paris.

Peter Robinson: Timothy Garton Ash, Paul Johnson, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge. Thanks for joining us.