Fifty years ago, the United States decided to eliminate the racial segregation which 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 laws, prohibited racial segregation by a public authority, overriding previous executive, legislative and judicial actions. Ten years later, Lyndon Johnson secured congressional approval for the Civil Rights Act which outlawed racial discrimination by private bodies.

As Europe moves towards agreement on a constitution, it is a timely moment to ask what role judges should enjoy making policy in a democratic society.   There is a proper 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 United States 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 Roosevelt’s industrial policy and appointed George 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 abortion debate in the United States is polarised between incompatible assertions of right to life and right to choose.  The two camps have no means of conducting their dispute beyond shouting at each other, or attempting to seize control of the judicial process.  Most European countries have resolved the same issue through widely accepted compromise with little foundation in principle.

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 which led Pope Julius II to choose Michelangelo rather than the town plasterer to complete the Sistine Chapel is the foundation of European civilization.   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 discrimination, and who decides? Opinions vary.  The forms of discrimination which cause concern today are those which were commonplace not long ago but are now offensive:  racism, homophobia, and the denial of workplace opportunities to women.  Should the measure 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 undertaking, 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 gives 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 inseparable from politics.  But they also undertook a profound analysis of the nature of the society they aimed to create.  The result was the founding of a new political order and the promulgation of a document which has for two centuries given inspiration to forces of democracy and liberty around the world. 

Europe’s traditions deserve no less:  a debate which identifies distinctive European values and defines the nature of the great political experiment in which the states of Europe are engaged.  A document which raises the spirit.  The constitutional convention and the proposals which emerged from it fall far short of that ideal.