The Preamble of a possible Constitution
by Leo Klinkers |
INTRODUCTION
The recent election of the new European Parliament has been described in the media as a cry from ‘the Europe of the citizens’. This applies both to the citizens who care about Europe and to those who reject it. But both parties want to develop their own version of ‘the Europe of the citizens’ in a different way. The opponents are seeking the path of a radical dismantling of the European Union, back to the nation-state anarchy of previous centuries with their inevitable wars. The supporters advocate a radical renewal of European cooperation with improved sovereignty, security and solidarity.
This article offers Europe’s supporters a perspective in the form of a Preamble to a federal constitution for a European federation. It gives their version of ‘the Europe of the citizens’ a soul and a heart.
The Preamble
The Explanatory Memorandum of the Preamble
Preliminary
The opening words ‘We, the citizens of the states …..’ show that this constitution is being ratified by the citizens themselves. It therefore belongs by, for and of the citizens of the United States of Europe, in accordance with the adage ‘All sovereignty rests with the people’.
The United States of Europe consists of the citizens, the member states and the federal body.
It is a constitution and not a treaty. If countries or regions want to live together in peace and have to cooperate through historically defined borders, but nevertheless want to retain their autonomy and sovereignty, a federation is the only form of state that can guarantee this. This is not possible with a treaty. A treaty is an instrument for administrators to cooperate in policy areas without being fully-fledged democratically accountable for their decisions.
The fact that this constitution is first ratified by the citizens and only then by the parliaments of the member states shows that, in accordance with the basic aspects of federalism, formulated by Johannes Althusius around 1600, it is based from the bottom up and not imposed from the top down.
This federal constitution guarantees the common interests of the citizens of the United States of Europe and leaves to the citizens of the member states and to the member states themselves the powers to serve their own interests.
That is why this federal constitution consists of a limited number of rules of a general binding nature. It has no exceptions – driven by national interests – to these generally binding rules.
Explanatory note to Consideration Ia
The obvious ‘quest for happiness in freedom’ of the citizens and the mission and task of governments to support the citizens in this is a cornerstone of the Declaration of Independence (1776) and of the subsequent American Constitution (1787-1789), the first federal constitution in the world. This was the model for the federations that were set up afterwards and that currently house 40% of the world’s population. The pursuit of happiness is therefore also a cornerstone of the federal constitution of the United States of Europe. The quest for happiness includes values such as peace, security and social security.
Explanatory note to Consideration Ib
In the first place, this consideration gives the federation the task to work restlessly to preserve the diversity of all forms of life on Earth. Unsuccessful preservation of the diversity of all forms of life threatens the life of mankind on Earth. This task requires maximum cooperation, expertise and reliability from the federation’s authorities.
Secondly, the federation offers maximum respect for diversity in social life. Where it disappears, monocracies develop, which destroy those parts of society by inbreeding. Diversity of sciences, cultures, ethnicities and beliefs creates new sciences, cultures, ethnicities and beliefs. This constitution therefore rejects any action aimed at protecting the so-called ‘own people first’ and will use all legal means to combat such action.
Thirdly, as a consequence of the foregoing, this Preamble explicitly states that there is no room for a slogan such as ‘Europe first’. The federation of the United States of Europe shares its place on Earth with all other peoples and does not shut itself up behind the walls of a ‘fortress Europe’. Closing the external borders for the purpose of protecting one’s own people is not listed as a crime against humanity, but it is punishable by a serious penalty: the eventual disappearance – by demographic decay – of what one wishes to preserve. In other words: there will be open external borders, no closed borders. That creates obligations:
a. the design and implementation of plans such as the Marshall Plan (1948-1952) to support poor countries in their economic development in order to eliminate the need for seeking refuge in Europe;
b. with immediate effect offering a human existence to the approximately sixty million war refugees;
c. to strengthen Europe’s demographic and geopolitical position by providing – through wisdom, knowledge, humanity, justice and integrity – immigrants with a secure life within the federation;
d. to consider the implementation of a-c as one of the federation’s common interests.
This constitution is therefore a task and an opportunity for fundamental political renewal now that the post-war democracies have reached the end of a 70-year life cycle and have led to the exclusion of citizens in favour of treaty-based government, which by its very nature has become increasingly oligarchic and protectionist.
Explanatory note to Consideration Ic
The end of the political life cycle of the post-war democracies, mentioned above, places those countries that consider democracy to be of great importance on a tour de force, similar to the revolution of the Enlightenment. Democracy and the representation of the people must be reinvented on the basis of the principle of ‘All sovereignty rests with the people’.
The Treaty of Lisbon is giving way to a constitution based on the representation of citizens. This implies, among other things, the abolition of the European Council of Heads of Government and State, the creation of a European Parliament on the basis of proportional representation within one electoral district – the territory of the federation – and a government under the leadership of a President, elected by the citizens. So, equipped with a democratic mandate.
This can only be achieved with wisdom, knowledge, humanity, justice and integrity. With just two certainties: if it succeeds, it will be a crucial revolution for the preservation of Europe. If it fails, by the end of this century, after the last tribal war in Europe initiated by nation-state anarchy, someone will turn off the lights in Europe.
Democracies cannot prevent elections from leading to groups within the democratic institutions that wish to use their power against democracy. This constitution enables the institutions of democracy, as far as possible, to deal with the abuse of democratic procedures by building in defence mechanisms. The task is therefore a fundamental reorientation of the concept of ‘democracy’ in 21st century Europe. With a task for political parties to reflect on their own responsibility to design instruments to defend democracy against parties that (would like to) abuse the procedures of democracy in order to destroy that democracy. Probably more than any other organisation within a democratic system, political parties will have to consider wisdom, knowledge, humanity, justice and integrity in order to guarantee the viability of a federally united Europe.
II. Considering furthermore:
Explanatory note to Consideration IIa
The ‘building blocks’ of federalism as a form of state stem from the ‘Political Method’ of Johannes Althusius (1603). The ‘cement’ to connect these ‘building blocks’ indissolubly was provided in the writings of European political philosophers such as Aristotle, Montesquieu, Rousseau and Locke with their views on popular sovereignty and the doctrine of the trias politica. The American federal constitution is based on these writings, while Europe has condemned itself to wars for centuries.
It was not only philosophers who provided the ‘cement’ for the building blocks of federalism. Also political and social leaders – in the Interbellum period for example the British Philip Kerr, better known as Lord Lothian – and after the Second World War the Italian Altiero Spinelli who, with his Ventotene Manifesto (1942), laid the foundation for the post-war pursuit of federalism. A goal that between 1945 and 1950 was led by a large number of conferences and plans led by statesmen, scientists, culture bearers and civil movements, but which in 1950 radically ceased to exist with the Schuman Declaration. Although this declaration demanded the creation of a federal Europe in its entirety, it put its implementation in the hands of government leaders. In this way – unintentionally, but through guilty ignorance of the way in which a federation should be created – the Treaty-based intergovernmentalism that has brought the European Union to the end of its current political life cycle was created.
Explanatory note to Consideration IIb
The thirteen former colonies in America at the end of the 18th century solved the dilemma of ‘never again a ruler versus the need for representation of the people’. They applied the system of shared sovereignty devised by Althusius by inventing the vertical separation of powers between the sovereign member states and a federal body. Without transferring the integral member state’s sovereignty, they asked a federal body to take care of a limitative number of common interests, to execute with the powers of the member states.
Contrary to the claim that in a federation member states transfer all or part of their sovereignty in the sense of ‘giving it away and thus losing it’, this is not the case. Parents who hand over their child to a teacher do not lose anything of their parenting but give the teacher the power to teach the child knowledge that the parents themselves cannot realise. That is why another popular view is also wrong. Namely the view that a federation is a superstate that destroys the sovereignty of the member states.
The vertical separation of powers, leading to shared sovereignty, also solves another problem. Namely, the principle of subsidiarity. This principle in the Treaty of Lisbon states: ‘The institutions of the European Union should leave to the member states what the member states can do better themselves’. Since Article 352 of the Treaty allows the European Council to take any decision that the Council considers serving the objectives of the Union, the Council can ignore this principle of subsidiarity. In a federal state, the principle of subsidiarity coincides with the vertical separation of powers and therefore does not need to be mentioned as such in the articles of the Constitution.
A final aspect of this Consideration IIb implies that, due to the exhaustive range of competences of the federal body, all other competences remain with the citizens and the member states. This means, among other things, that the member states retain their own constitution, parliament, government and judiciary, including their own policy areas insofar as these have not been laid down in the exhaustive list of interests that the federal body must represent on behalf of the member states by means of the vertical division of powers. Monarchies are also preserved.
Explanatory note to Consideration IIc
The horizontal separation of the three powers – the legislative, the executive and the judiciary – is not a specific feature of a federal form of state alone but is the adage of any state that wants to prevent domination by one power. Within a federation, however, there are two particularities.
Firstly, from the first federal state – that of the United States of America – the trias politica must be established both at the level of the federal body and at that of the individual member states. Secondly, in addition to the invention of the vertical separation of powers mentioned above, the federal constitution of the United States of America has introduced a second innovation: the checks and balances. To say that a self-respecting state considers the trias politica to be a very important aspect is only a declaration of its value. But values can only be monitored and preserved through norms. That is why the American Constitution – and also this European Constitution – contains articles that prevent the inevitable action of the three powers in the field of another power from slipping into the supremacy of one power over the other. That is the purpose of the checks and balances. They are the indispensable countervailing powers to limit the ever-present striving of the three powers to expand their complex of powers, at the expense of the powers of the others.
Explanatory note to Consideration III
The citizens derive from the English Magna Carta of 1215, the Dutch Plakkaat of Abandonment of 1581, the American Declaration of Independence of 1776 and the French Revolution of 1789 the inalienable right to expel governments from the federal body if they violate the provisions under I and/or II.
In accordance with the adage ‘All sovereignty rests with the people’, the citizens of the United States of Europe are the alpha and omega of the federation. Alpha in the sense of: they ratify the federal constitution and thus establish a system of representation of the people, of executive administration on the basis of political decision-making by the representative body and of justice for the resolution of disputes. Omega in the sense of the inalienable right to dismiss those who abuse the federal system, for example by (attempted) establishment of an autocratic system.
Establish the following articles for the constitution of the United States of Europe,
Article 1 ….
Article 2 ….
And so on.
Final
This Preamble contains the complex of values of the constitution of the United States of Europe. It shows what the United States of Europe stands for.
Then follow the constitution’s articles.
Leo Klinkers – Editor
Leo Klinkers graduated in 1968 from the Faculty of Law at the University of Utrecht in the Netherlands. After a few years working in local government, he became responsible for research and education in public administration at the Law Faculty of Utrecht from 1971 until 1983. He wrote his Ph.D. thesis in 1974 on open access to Government documents. Between 1971 and 1983 Leo Klinkers developed a method for interactive bottom-up policymaking. This methodology has been published in a number of books and articles and applied in many projects in the Netherlands and abroad. Since 1983 he has worked as an independent consultant in public administration in several countries, as well as for the EU and the UN. In 2013 he was co-author of the ‘European Federalist Papers’ with Herbert Tombeur.
He recently finished his last book ‘Sovereignty, Security and Solidarity, arguing why and how the present intergovernmental administrating system of the EU should be replaced by a federal system and thus creating The United States of Europe, making America Europe’s little brother.
He is actually a co-founder and member of the Promoting Committee of FAEF (Federal Alliance of European Federalists)
It sounds like a sort of Heaven! May God help us all to grow up, to understand once for all that perfection is not possible on Earth, that there are and will always be mistakes and steps back or astray, that the most important thing is that we all, or at least a great majority, will become responsible for our lives and the welfare of the planet and of the communities we live in and get involved, deeply involved in everything that occurs around us in our life time. Life is not about expectations only, but about learning from mistakes, being alert and fighting incessantly that a bigger part of the humankind is to live first free and second as safe as possible. The EU is a great happening in Europe’s history and I hope that it will grow more and more strong and wise, a blessing for us and for the planet.
This is a great initiative. Perhaps Europe should not borrow too much from the US Constitution. For instance, perhaps a system could be worked out in which Europe will have only three political parties, one right-wing, one left-wing and one centrist. And perhaps Europe could expand democracy to include economic democracy. So the first consideration sub letter a could read: “That the federation of the United States of Europe, which we hereby establish, has the mission and duty to support us as citizens in our quest for happiness in political and economic freedom”. An explanatory note could explain what economic freedom entails.