Posted on 08/06/2003 7:24:03 PM PDT by comnet
Comparing the US and the EU Constitutions
A successful working constitution, like that of the US, is concise and provides a clear political and legal framework -- unlike the counterpart proposed for the EU By William Niskanen
Monday, Aug 04, 2003,Page 9 `Europeans should be careful about any major political structure that is presented for their approval.'
Europeans will soon consider a proposed constitution for the EU that is very different from the US Constitution. The US is the oldest and largest surviving constitutional republic -- a nation that has experienced a larger increase in area, population, and income; absorbing people of more diverse racial, ethnic and language backgrounds than any other contemporary nation. So Europeans are well advised to understand and consider those characteristics of the US Constitution that provided the political and legal framework for the American success story.
Several characteristics of the US Constitution have contributed to its relative success and survival as a body of foundation law. The preamble, for example, describes the objectives of the Constitution in only 52 words of forceful, declaratory and quite general prose, which, by itself, provides no authority for any specific political decision.
The main text, in only seven articles, describes the powers authorized to the several branches of government and the powers denied to the federal government or the states as few, brief, and well defined. All residual powers are reserved to the states.
And the Bill of Rights, with one exception, is a list of the rights of individuals against the state, not a list of claims by individuals on services to be provided by the state; the one exception is the right to a trial by jury. All residual rights are reserved to the people.
The proposed EU constitution is very different in several dimensions. The preamble goes on and on for 293 words to describe the shared values and objectives of the Union; this is wholly unnecessary and sure to provoke continued controversy.
One sentence alone, for example, commits the Union to "work for a Europe of sustainable development based on balanced economic growth, with a social market economy aiming at full employment and social progress," a sentence that includes at least five ambiguous terms.
The proposed constitution has more than 400 articles but leaves several important issues unresolved.
The relation between the Union and the member states, for example, is not clearly defined; one article suggests that the Union could use its power outside its exclusive authority if some unspecified body decides that the Union could do it better than a member state.
Another article authorizes the Court of Justice to give preliminary rulings on the interpretation of Union law but without identifying what body has the authority to make a final ruling on these issues.
The most important difference between the US Constitution and the proposed EU constitution, however, is the concept of rights.
The US Bill of Rights is a list of individual rights against the state. In contrast, the Charter of Fundamental Rights, which constitutes Part II of the proposed EU constitution, includes a long list of rights to services provided by the state. Such rights, for example, include education, a free placement service, paid maternity leave, social security benefits and social services, housing assistance, preventive health care, services of general economic interest and high levels of environmental and consumer protection.
These claims on the state represent the most important potential tension in the Union. On the one hand, the proposed EU constitution states that the "Free movement of persons, goods, services and capital, and freedom of establishment shall be guaranteed within and by the Union ... [and] any discrimination on grounds of nationality shall be prohibited."
Fine. On the other hand, any citizen of the Union seems to have a claim on a wide range of social services wherever that person chooses to live. This will lead to either a massive movement of people to states with a higher level of social services or the harmonization of these services among the member states.
The only way to resolve this potential tension is to allow each member state to restrict access to social services on the basis of such personal conditions as the number of years of work in that state and the absence of a felony conviction. Unless that happens, the EU will become a massive, harmonized welfare state.
As in the US, the proposed EU constitution doesn't deal well with the inherent conflict between nondiscrimination and affirmative action.
The EU constitution states that the "Equality between men and women must be assured in all areas, including employment, work and pay," but this "shall not prevent the maintenance or adoption of measures providing for specific advantages in favor of the under-represented sex."
For the moment, in both the US and the EU, discrimination against people is generally illegal but discrimination in favor of some people is sometimes required. This minor madness, hopefully, will not last.
A final point: The text of the proposed EU constitution is pretentious. Many of the substantive provisions are described as if they were derived from some first principle, as if the crafting of a constitution is some form of algebra rather than the result of political negotiation and agreement.
For example, the text talks about the principles of loyal cooperation, conferral, subsidiarity, proportionality, solidarity, democratic equality, representative democracy, participatory democracy, and on and on.
Broad agreement on the substantive provisions of a constitution is necessary to its effectiveness. Broad agreement on principles is not, because many people may support the same substantive provision for quite different reasons. On these issues, I suggest that Madison is a better guide to an effective constitution than is Descartes.
Europeans should be careful about any major political structure that is presented for their approval, particularly a constitution that was originally presented as a treaty among the member states but now appears to be more like the constitution of a European nation.
Even those who favor the major provisions of the proposed constitution should be careful to ensure that the constitution limits the authority of the EU to define its own powers, because all governments seek broader powers than first authorized.
Over time, an imperfect Europe of national states -- bloodied but hopefully wiser -- may be a better protection of liberty than approving the proposed constitution in the hope for a more perfect EU.
William Niskanen is chairman of the Cato Institute, www.cato.org, in Washington.
(gun grabber)
With another exception being that the Second Amendment pertains only to soldiers in the National Guard.
(/gun grabber).
Unless that happens, the EU will become a massive, harmonized welfare state.Well, duh. That's the goal. The document explicitly states that that is the goal.
The contrast between the EU and US founding documents is evident in the enumeration of what, other than jury trials, the citizenry may demand of the state.The euro citizen has his list of rights. That's where the social services, health care, and welfare surface in the EU.
It is not possible to enumerate all the rights Americans have, because that would be an exercise in infinity; they are subsumed within life, liberty, and the pursuit of happiness.
The Constitution establishes government and limits its powers. Americans tend to not understand this distinction. In defending the attempts of one faction to impose its will onto another, it is common to hear, "Where in the Constitution does it say you can do such and such?"
The question is poorly put. "Where in the Constitution does it give government power to restrict such and such?" is more accurate. The Constitution is a device to keep government power in check, not for setting out what is permissible for a citizen to do.
This distinction was highlighted by the Supreme Court's recognition that the state's reach does not extend into the bedrooms of America. Those looking for the right to sexual freedom in the Constitution are looking for the wrong thing. What they should be seeking is where government is empowered to regulate the sexual choices of consenting adults. Finding nothing of the sort, their quest should have ended. The Court pointed this out and ended the search for them.
Even that is really not an exception. The purpose is not so much as to guarantee a jury trial as to prohibit a trial without a jury, unless the defendent wishes it so.
It's true that the state conducts the trials, but the Constitutional Guarantee is just one more limitation on arbitrary power in government.
Which made me think of somthing. How is that the *federal* judge in San Diego could find against the Boy Scouts without a jury trial? It was a civil trial, but still the amount at issue had to be more than $20. How is that not a violation of the 7th amendment? Perhaps because the suit was against the city of San Diego and not the Boy Scouts? Could the Boy Scouts sue the city for breach of contract, if the new lease contract had already been signed?
The question is poorly put. "Where in the Constitution does it give government power to restrict such and such?" is more accurate.
The federal government is one of enumerated powers. The state governments are not. The Constitution does not set up the state governments nor limit their powers, except in cases where powers are exressly denief to them. The 10th amendment says as much. It's supposed to be between the people of a state and the state goverment what the powers of state government are. They are general but limited by what the state is not allowed to do, rather than by both what it is allowed and what they not allowed to do, as is the federal government under the Constitution.
That is why the Supreme Court had to find a right violated by the Sodomy Law, or at least attempt to cobble one together, out of enmanations from the penumbra and twisted versions of due process and equal protection, rather than just state that the the State of Texas had no power to pass such a law.
Bottom line is that the rules under which government operates are not the same for the Federal and State governments. That might not be the way some would like it to be, but under our federal system that is the way it is, or is supposed to be. The 14th amendment only changed that to the extent that states are prohibited from violating the pre-existing rights protected by the first 9 amendments, but their powers are not limited to some list of delegated power. That may, or may not, be done in a states own constitution.
The EU framers, like our living constitution advocates, put the peoples' rights into the central government's hands.
The EU Bill of Rights is really a Bill of Dependencies.
Just what you'd expect a socialist feudal society to come up with.
We have said that Congress may regulate not only 'Commerce…among the several states,'…but also anything that has a 'substantial effect' on such commerce. This test, if taken to its logical extreme, would give Congress a 'police power' over all aspects of American life.
Under our jurisprudence, if Congress passed an omnibus 'substantially affects interstate commerce' statute, purporting to regulate every aspect of human existence, the Act apparently would be constitutional.
Justice Thomas went on to state that under the substantially affects interstate commerce test adopted by the Court, "[c]ongress can regulate whole categories of activities that are not themselves either 'interstate or commerce.'"
The EU constitution states that the "Equality between men and women must be assured in all areas........."Guys, This is the prime example of the coordinated stupidity among world "leaders". "Equality" is an impossibility to obtain even between two beings, let alone among millions/billions. ONLY equal rights under the law can be legislated in an attempt to guarantee same.
=========================
The EU Constitution guarantees not harmony, but only perpetual discord. And, wealth for lawyers. Peace and love, George.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.