It is hard to tell what the framers of the European Consitution intend, and it’s clear that they haven’t quite worked it out. In this week’s article, John calls for a debate that identifies distinctive European values and defines the nature of the political experiment in which the European states are engaged.
Fifty years ago, the US decided to eliminate the racial segregation that had disfigured American society since the foundation of the republic. This was probably its most important postwar policy initiative.
The decision was not made by Dwight Eisenhower, the president, or by elected members of Congress but by the Supreme Court. In Brown vs Board of Education, the court concluded that the constitutional right to equal treatment under the law prohibited racial segregation by a public authority, overriding previous executive, legislative and judicial actions.
As Europe moves towards agreement on a constitution, it is timely to ask what role judges should have in making policy in a democratic society. There is a debate over whether gay marriage should be allowed. There is a separate debate as to who should decide whether gay marriage should be allowed. Many people find it difficult to distinguish their opinion on what a decision should be from the issue of who should make it, but this distinction is the essence of a constitution.
The founding fathers of the US intended to give the courts a political role when they established a system of government based on checks and balances between executive, legislature and judiciary. And so liberal courts attacked racism and upheld abortion, while conservative ones struck down Franklin D. Roosevelt’s industrial policy and appointed George W. Bush president. The process through which decisions in the disputed election in Florida in 2000 were made by officials and judges on essentially partisan grounds seems startling from a European perspective.
America resolves many contested issues through adjudication based on politically motivated interpretations of constitutional rights, while Europe prefers pragmatic mediation among divergent views. The compromises of the old world are brokered by an executive drawn directly from an elected legislature, and the courts have a narrower interpretative role.
The draft European constitution begins to engage with racism and gay marriage as soon as Article 2, where it asserts that non-discrimination ranks with tolerance, justice and solidarity as a fundamental European value. Whether a statement of fact or a policy ideal, this is absurd. The discrimination that led Pope Julius II to choose Michelangelo rather than the town plasterer to complete the Sistine Chapel is the foundation of European civilisation. We discriminate among friends, employees, students, suppliers: how could we do otherwise? What is objectionable is not discrimination, but inappropriate discrimination.
But what is appropriate and inappropriate and who decides? The forms of discrimination that cause concern today are those that were commonplace not long ago but are now offensive: racism, homophobia and the denial of workplace opportunities to women. Should the measurement of changing social values be undertaken by judges or legislatures?
It is hard to tell what the framers of the constitution intend, and apparent that they have not really worked it out. A sweeping Article II-21 announces a blanket prohibition of many kinds of discrimination that you have never contemplated, while a timid Article III-8 tentatively suggests that the Union might establish measures to combat discrimination, provided the Council of Ministers acts unanimously after obtaining the consent of the European parliament. The new constitution expands the political role of judges, but its rambling style and bloated rhetoric give them confused and contradictory material from which to work.
In Philadelphia in 1787, James Madison, Alexander Hamilton and the others engaged in the horse-trading that is inseparable from politics. But they also undertook a profound analysis of the nature of the society they aimed to create. The result was a new political order and a document that has for two centuries inspired democracy and liberty around the world.
Europe’s traditions deserve no less: a debate that identifies distinctive European values and defines the nature of the great political experiment in which the states of Europe are engaged. A document that raises the spirit. The constitutional convention and the proposals that emerged from it fall far short of that ideal.
CESifo/EEAG Report on the European Economy 2004, Chapter 4: Economics of Discrimination