European constitutional fight echoes America's

January 13, 2004|By John O'Doherty

AT FIRST SIGHT, Philadelphia and Brussels seem to have little in common. But recent events suggest they may be kindred cities. They have both been the scene of fierce disputes over the creation of new political systems.

While Philadelphia witnessed these arguments 200 years ago, the Belgian capital is still the epicenter of a debate that would bring the 25 countries of the European Union into a stronger relationship under a new constitution.

Until now, the EU has functioned as a loose union between sovereign European states. With a small bureaucracy centered in Brussels, the EU's rules of business have been set out largely in a series of multilateral treaties dating to 1957. Two years ago, a process was started that would replace this mass of treaties with a single constitution.

The results of this process culminated in December with a breakdown of the constitutional convention. The delegates could not agree on the text presented to them and so the constitution was not ratified.

The debates over the European constitution have been remarkably similar to the debates over the U.S. Constitution more than 200 years ago.

Europe now has its own anti-Federalists, who are opposed to a "flexibility clause" in the draft constitution. The clause states that the government of the EU may take powers not explicitly given to it in the constitution if these powers are needed later to achieve some of the explicitly stated objectives of the EU. It is curiously similar to Article 1, Section 8 of the U.S. Constitution, which states that Congress can make all laws "necessary and proper for carrying into execution the foregoing powers."

The similarity between these provisions is striking, as is the similarity of the responses to it.

Writing about this clause in the draft European constitution, and the likelihood that it would be invoked, British Conservative John Bercow stated that it would threaten the autonomy of the individual European member states and that "democratically elected members of national parliaments would be impotent to do anything about it."

Compare Mr. Bercow's reaction with that of Patrick Henry to the "necessary and proper" provision of the U.S. Constitution: "There is to be a great and mighty American President, with very extensive powers. ... The whole of our property may be taken by this government by laying what taxes they please, giving themselves what salaries they please, and suspending our laws at their pleasure."

Added to these concerns is the fear that some small European states such as Denmark and Greece have of being swamped by larger states such as France and Germany. In effect, Europe is also witnessing a modified version of the clash between the Virginia Plan and the New Jersey Plan. The Virginia Plan proposed that representation in Congress be based on population. The New Jersey Plan sought a fixed number of representatives from each state, regardless of population. The draft European constitution proposes to change the current voting system by giving more power to the larger European states.

Taking up the mantle of defender of medium and smaller states have been Poland and Spain, but their defense of a New Jersey Plan for Europe did not succeed. Failure to agree on this crucial point brought the EU convention crashing down.

Europe has not yet struck a compromise between big states and small states. The American Great Compromise resolved the debate over representation by creating a bicameral legislature - a House with representation based on population and a Senate in which each state would have two representatives.

The rotating presidency of the EU passed Jan. 1 from the Italians to the Irish, and now Ireland is tasked with sorting out the mess. Here, perhaps, the analogy between Delaware and Ireland may provide a source of hope. It was John Dickinson of Delaware who first spoke up in favor of an accommodation between the Virginia and New Jersey plans. This led to the Great Compromise. Bertie Ahern, the Irish prime minister, will have his work cut out for him if he is to prove himself worthy to inherit the mantle of Dickinson.

John O'Doherty, an Irish national, is a doctoral student in political science at the Johns Hopkins University.

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