European Affairs

Of course, one must also stress the differences between the U.S. Constitution and the project under way in Europe. One only has to glimpse at the two documents to detect an important and visible contrast. The new European constitution, for instance, has 50 pages of introduction, whereas you can recite the main principles of the U.S. Constitution in about ten seconds. These are that it establishes the rule of law, a democratic form of government, the protection of basic human rights, a division of power (vertically and horizontally, so no one becomes too powerful), and a certain degree of equality. Most people would agree that that is what the U.S. Constitution is about.

It is harder to summarize the proposed European constitution in this way. But that does not mean it should be derided, because the aims and contexts of the two documents are completely different. The U.S. Constitution was drawn up by a rather small number of representatives of 13 states with little history and a common culture, who were trying to create a single government where none had previously existed. They succeeded pretty well.

The European document has a completely different purpose. It is the work of 200 delegates representing 28 different countries with long histories and more divergent cultures, who set themselves the task, not of creating a new single government where none had previously existed, but rather of making modest changes in existing institutions so as to allow that government to function better.

It is not even clear whether the European document is actually a constitution. Its official title is a Constitution for Europe, but the small print refers to it as a treaty. Is it a treaty or a constitution? It has certain characteristics of a treaty: it is very long and very detailed, each nation has the right to withdraw, and it can only be amended by unanimity. More to the point, it does not say that the source of its authority is "We, the people," but the member states.

On the other hand, it does establish highly complex organs of government, and it grants that government tremendous authority to control the lives of Europeans by, for example, legislating harmonized statutes in most fields that affect human life. And it says it is a constitution.

Does it matter which it is? Is this just a verbal quibble or a semantic argument? No, it is not just a semantic argument and it does matter, and the reason why it matters has to do with expectations. People who think it is a treaty and those who think it is a constitution are likely to have different expectations about the document's susceptibility to change. People accept change more easily if it is called a treaty. Constitutions are not changed quite as often.

Similar uncertainty surrounds the question of whether the European document establishes a federation or a confederation. That is the kind of question that every professor in Europe likes to debate. Here again it is impossible to give a precise answer. If you focus on the elements of democratic control that the document proposes, it seems more confederal and less federal. If you focus on the power that it gives to the central government, it looks more federal.

The European institutions were originally envisaged as follows. There was to be a Commission, an administrative body that would determine what was in the best interest of the European community and would propose legislation. There would be a parliament, which would give advice, and there would be a Council of Ministers, which would decide. Since that original structure was established there has been a lot of movement in a more democratic direction.

So, to what extent does this new constitution create more democracy? It does insist that the European Parliament has to ratify or agree to all EU legislation. It gives the Parliament the power to confirm the President of the Commission and his or her fellow commissioners and to remove the Commission.

That could make a difference. It could place the European Parliament in the position of the British Parliament under the Hanoverian Kings in the 18th century. At that time, the King designated the Prime Minister, but the Parliament could respond by refusing to legislate, or to help the King in any way, if he nominated a candidate that it did not like.

The European Parliament can do the same thing.When the Council proposes a president of the Commission, the Parliament could decide not to confirm the Council's candidate. Indeed, the Parliament could refuse to confirm anybody that it had not proposed itself, and once you have reached that point, you have parliamentary democracy. You have a government, a Prime Minister called the President of the Commission, and the Prime Minister's cabinet.

Now the only trouble with that theory is that it has been possible for some time and the Parliament has not done it. It is not clear whether it will do so. So the situation remains uncertain.

A minimum test for democracy is to examine the answer to the question: "How do I throw the rascals out?" If an angry citizen of, say, New Hampshire, asks me how to get rid of the government, I tell him to get his friends together, and vote to throw it out. If you ask the same question in the context of the European constitution, it is not quite so easy to answer. It is hard to explain this clearly and quickly to an ordinary European citizen. As long as you cannot clearly say how to "throw the rascals out," a very important element of democracy is lacking.

On the other hand, the European constitution somewhat expands the power of the central government in Brussels. It does not give Brussels much new authority except for providing for greater coordination that could lead to more power in foreign affairs and defense, and perhaps taxation. But the central institutions exercise tremendous power in a wide range of areas, such as trade, the single market, intellectual property, the workplace, health, safety, the environment and so on, which really affect human life.

In these areas, there are three ways in which the new constitution seeks to limit the delegation of power to the central institutions in Brussels. First, the document uses language that strongly implies limits on the scope of the delegation of authority by national governments, for example in the sections on workplace organization, education and culture. Second, the document stresses the principle of subsidiarity, under which decisions must be taken at the lowest possible level, whether local, regional or national, and only those decisions that require EU-wide action are taken in the central institutions. Third, in certain important areas, the new constitution still requires unanimity to pass a law in the Council of Ministers, not just a qualified majority.

How well will these limitations work? I am skeptical because I have experience, not with Europe, but with similar efforts to achieve the same purpose in the U.S. Constitution. Attempts to impose limitations on central authority have not worked well. The U.S. Constitution, for instance, contains a Commerce Clause, which says that Congress has the power to regulate commerce among the states. Does that sound like just a power to regulate inter-state trade? It turns out that "commerce among the states" can be taken to include just about every subject that Congress wants to legislate on.

The Supreme Court of which I am a member has tried to trim those powers, but we have not had much more than a marginal impact. There is little that Congress cannot do. Even under the Court's more recent and stricter Commerce Clause interpretation, Congress can still exercise huge power under its authority to regulate inter-state commerce.

Let us compare that example with some of the limiting language in the European constitution. One article of the European document, for example, attempts to limit central authority by giving the European Union authority to enact legislation that shall contribute to the development of quality education by encouraging cooperation. That is all it says. The constitution allows member states to cooperate and, if necessary, to support and complete the member states' actions. If you were to give language like that to the people who work in the U.S. Congress, with their good minds and excellent legal training, they would find in it justification for almost any law Congress would like to pass with respect to education.

There are quite a few examples of this kind of vague, supposedly limiting language in the EU document. As a result, the interpretation of the language will likely depend on political circumstances.

The subsidiarity principle certainly looks as if it should limit central authority. But how is it to be enforced? The European constitution proposes three methods. First, national parliaments would have to be appropriately notified when a law was coming up in the Council of Ministers that threatened to violate the principle. Second, national parliaments would then be allowed to force reconsideration of the proposed legislation. And third, court action would be authorized to enforce the subsidiarity principle.

The United States has tried a variation of the first method by requiring "federalism impact statements." If one imagined that the EU system applied to the United States, someone in Washington would send a letter to somebody in, for example, Sacramento, saying that Congress is thinking of legislation that threatens the autonomy of California. If this notification did not get into the newspapers, it would likely sink without a trace in the California bureaucracy. When federalism impact statements become known to state legislators, there is little evidence that they have made much difference.

If Europeans discover that they can make their comparable ideas effective, many Americans will want to know how they work ­ that is what I find interesting. Permitting national parliaments to require EU draft laws to be reconsidered is also interesting because it is new.

As for the third method, enforcing the subsidiarity principle in court, we have had over 200 years of experience with our own version of the principle, the Tenth Amendment. And the Supreme Court has recently been examining whether it can find some kind of new principle under which to impose some limits on congressional action. The answer is that even the best legal brains have been unable to do so.

In today's world, in both Europe and the United States, all aspects of human affairs are interconnected. You can make a good argument in respect to almost any decision that it should be made at the center. The attitude of our Court is that these are matters of opinion, which normally should be left to the people who are charged with reflecting opinion, namely elected officials, not judges. That is why judicial enforcement has not made a huge difference in the United States.

The European constitution does impose serious limitations on the central authority's power to tax. The EU institutions do not have much power in this field, and that is very important. On the other hand, it must be pointed out that the U.S. Congress has sometimes imposed obligations on the states as "unfunded mandates." Congress requires each state to provide special education for handicapped children but does not levy a tax to pay for it. Congress takes the politically popular position of requiring help for handicapped children, but leaves the states the unpopular task of finding the money to do it.

This practice has not commended itself to students of good government. It allows Congress to avoid responsibility for raising the money, even though it has the power to mandate the end result. If that model were to be followed in Europe, I would predict there would be efforts made to put the political responsibility for taxation in the hands of those who have the power to require member states to take the actions that impose these costs.

The European Charter of Human Rights also looks somewhat familiar to Americans. The Charter contains most of the major rights that are in the U.S. Constitution. It has others, too ­ particularly social rights, some of which have been successfully applied in Germany. It includes, for instance, the right to work, i.e. the right not to lose your job without cause.

The authors of the European constitution maintain that this should not be a cause for concern. They say the Charter would only apply to EU, not to national, rules; so it cleverly gives with one hand and takes away with the other. But that is not quite what the Charter says. It actually says that it applies to European rules, and also to national laws when they are enacted to put the European rules into effect.

We must not forget that European rules can range over very broad areas, and cover almost anything. They may harmonize national practices, or they may, for example, set new environmental, health and safety standards, or create new entities for delivering electricity. All of these must be implemented by the member states.

Suppose, for example, that the European Union adopts a new environmental regulation, and the British Parliament implements it by enacting a standard that puts certain companies out of business because they are heavy polluters. The workers at those companies might then attack the EU regulation, and Britain's implementing legislation, in the European Court of Justice, on the grounds that the authors of the regulation did not consider whether it would deprive the workers of their jobs without cause. They could argue that this violated their right to work, enshrined in the European constitution alongside free speech.

The workers might be right. The decision would have to be taken by the European Court of Justice, and, according to the constitution, there would be no way to change its decision without unanimous agreement by every country in the European Union. I think of the Charter as a sleeping giant.

There is further uncertainty about how the European Court of Justice will work now that it has been expanded from 15 to 25 judges, following the admission of ten new EU members in May, 2004; and it will also have 20 official languages. The European Court of Justice has excellent judges. But the U.S. Supreme court has only nine judges and one language, and it is hard enough for us to find agreement.

The Charter on Human Rights will involve real changes.We do not know either how the Court is going to interpret the detailed clauses of the new constitution, or what overall approach it will take. As a judge, I find it easier to work with a document in which I can find something close to a single purpose. For half a century, the European Union has had documents in which one could find such a purpose ­ liberalizing the movement of goods, services, investment and persons throughout the European Union. Judges like such documents because it is easier to find solutions when the original intentions are clear.

It is much more difficult to work with documents with different and sometimes conflicting purposes, such as the European constitution. It will certainly be difficult to agree on a fair interpretation of some sections of the European document, especially the Charter of Human Rights. There are references to European social democracy and a social welfare state. This kind of commitment can sometimes conflict with other important goals, such as trade liberalization. I am not saying that is bad. But it means that the European Court of Justice will have to answer questions embodying those conflicts. And these conflicts will make many important issues of legal interpretation difficult to decide.We cannot be certain of the outcome.

There is one change in the constitution I would propose. As others have suggested, I would reduce this document in size by about 80 percent and I would enact those extra words into an organic law. The organic law would be insulated from immediate change, but could be amended over time by a majority of member states. The remaining part of the document, the actual constitution, would acquire the degree of certainty and immunity from change that is required.

I have criticized the European constitution, but I favor the project.My attitude is probably shared by most people of my post-World War II generation.We have a romantic vision, encouraged by those older than we, who fought to create a post-War world of free trade, democratic institutions, protection of human rights and cooperation among nations.

In his novel La Peste (The Plague), Albert Camus likens Europe's horrific wars to a bacillus that never dies, just goes into remission, and then can return and re-infect countries that have become happy and peaceful. That is what the European constitution is intended to prevent ­ I can only support it.

Stephen G. Breyer was appointed Associate Justice of the Supreme Court by President Bill Clinton in 1994. He served as Chief Judge for the United States Court of Appeals for the First Circuit from 1990 to 1994, and as a Judge of the same court from 1980 to 1990. He also served as a member of the Judicial Conference of the United States from 1990 to 1994, and of the United States Sentencing Commission from 1985 to 1989. He was Chief Counsel for the United States Senate Judiciary Committee from 1979 to 1980, and Special Counsel of the committee from 1974 to 1975. Justice Breyer has taught at Harvard Law School, Harvard University Kennedy School of Government, the College of Law in Sydney, Australia and the University of Rome. This article is based on Justice Breyer's remarks at The European Institute on April 29, 2004.


This article was published in European Affairs: Volume number V, Issue number II in the Spring of 2004.