I have been following the EU’s Conference on the Future of Europe, particularly its democracy chapter which has helped shape some thoughts. I was interested to note that the US’ route to a federal republic seemed to be a harbinger for the EU’s journey. I wrote, Subsidiarity, representation and human rights, which frankly got blown of course and became a review of Prof. Mark Stoler’s lecture on the US constitution. I had drawn inspiration from the original US restriction on direct taxation and the 10th amendment which defines the powers of the federal government and those of the States, although the 10th amendment also purports to constrain the States power by defining a right of subsidiarity to the people.

This article looks at the flawed route taken by the US Constitution and foresees with hope the EU’s [and the UK’s] adoption of new rules and rights.

When I say it was blown of course, it was hoped to be a polemic for ensuring that the principle of subsidiarity ensured that the EU’s member states implemented a democracy where decisions were taken as close to the citizen and their communities as feasibly possible. The EU Treaties only promise subsidiarity between the Union and the member states, a bit like the 10th amendment and in contradiction to Article VI of the US Constitution, also known as the Federal Supremacy clause.

The EU has its democratic problems, and one of them is that theories of good political governance are dominated, at the least in the Anglosphere, by the US Constitution, even with its obvious flaws, it original racism, and its failure to consider economic justice as a constitutional right. These problems are still extant in both the US, most countries that have adopted similar constitutions but also in Europe.

I was taught and came to believe that the US separation of powers between the legislature, the executive, and the judiciary was an important means of constraining power in government. This insight has recently been reinforced by observing the behaviour of the Johnson government in the UK, where the legislature would not exercise its control, and the executive sought to undermine the judiciary. But is the value of the separation of powers true?

The US Constitution is not neutral and those that seek inspiration from it need to be careful.

Recently, the Jacobin magazine published an article, called, The Constitution Is a Plutocratic Document, in which its author Robert Ovetz, argues that the taxation and public debt management functions of the proposed federal government were designed to transfer private & State debt to the Federal Govt, who then issued bonds. The private debts had often been factored and the attempts to obtain payment had caused riots, and it was becoming difficult to collect both interest and the principal. State debts had often been defaulted. The new Federal Government replaced these private debts with treasury bonds and the repayment and interest was underwritten by the tax payments of all citizens, or at least all tax payers. At this time direct taxation was prohibited to the Federal Govt.

Stohler in his lecture mentions the need to reform debt laws, Ovetz puts this into a class perspective arguing that the new federal public funding/bond issuing programme transferred the risk of private debt default to the federal state.

These measures were in addition to the constitution’s author’s fear of democracy and thus the withholding of power from the people, with indirect election to the senate and the presidency, the racist and property based qualification to vote, the gridlocked legislative process, and the complex super majority required to change the constitution. Ovetz also argues that Article VI, the federal powers article, also known as the federal supremacy clause, was designed to ensure a brake on regional radicalism. This is reinforced by the Senate where each state has two votes irrespective of its population, together with the ubiquitous use of first past the post elections, which allows minorities to win power. Furthermore, with large electorates the electoral system jeopardise the ability to win a loser’s consent. The legislative gridlock inherent in the US Constitution also makes progressive reform hard. Ovetz’s penultimate statement in the article is,

The Constitution was designed with all these pitfalls and roadblocks that make it very difficult to get the changes we need unless we give the economic elites what they want so they no longer block it. This is how the economic minority is empowered by the Constitution to impede political democracy and prevent economic democracy.

When checking the Jacobin for this piece, I also found, “Toward a Marxist Interpretation of the US Constitution” by Bertell Ollman, also in the Jacobin. This is shorter and less detailed, but makes the point that the limited view of rights, and the ideology of the wisdom of the “founding fathers” makes the constitution a brake on progressive reform.

… an important part of the Constitution’s work is ideological. As ideology, the Constitution provides us with a kind of bourgeois fairy tale in which claims to equal rights and responsibilities are substituted for the harsh realities of class domination. Through the Constitution, the struggle over the legitimacy of any social act or relationship is removed from the plane of morality to that of law. Justice is no longer what is fair but what is legal, and politics itself is transformed into the technical wrangling of lawyers and judges.

This last line, reminds me of the theories of Dr Fritz Scharpf, the abstract to his paper says,

Judge-made law has played a crucial role in the process of European integration. In the vertical dimension, it has greatly reduced the range of autonomous policy choices in the member states, and it has helped to expand the reach of European competences. At the same time, however, ‘integration through law’ does have a liberalizing and deregulatory impact on the socio-economic regimes of European Union member states. This effect is generally compatible with the status quo in liberal market economies, but it tends to undermine the institutions and policy legacies of Continental and Scandinavian social market economies. Given the high consensus requirements of European legislation, this structural asymmetry cannot be corrected through political action at the European level.

The crucial part of this abstract may be the last sentence; progressives need a flexible and accountable government that can act in a timely fashion. Linz in the “Paradox of Presidencies” criticises the US Constitution; its immutable terms of office makes it unable, unlike a parliament to allow the electorate to force a change of direction on an administration through recall. This is shown in both the USA and UK recently by the cowardice of legislators fearing retaliation from their parties and loss of their position, even for doing the right thing.

How do you defend democracy against the corruption of its political parties?

To return to my start point I can see that the EU has problems because of the Council, the veto, and the Commission’s exclusive right of legislative initiative together with a problem with subsidiarity especially on the decisions of intra-state secession and the current treaties act as a brake on devolution within the member states. At least it doesn’t have a directly elected presidency, and despite leading European Parliamentarian’s ambitions to the contrary, this is unlikely to occur soon. It does have a Charter of Fundamental Rights, which guarantees many of the social rights missing from previous attempts to write a constitution including, the right to education, fair conditions at work, access to benefits, and healthcare.

It’s useful to be reminded that the rule of law is not always neutral.

While many of the undemocratic features of the US Constitution are replicated, some would say inspired by the UK, I have some hope that an incoming Labour Government will make some positive change, informed by the Brown Commission. Political subsidiarity, which it proposes is not enough, to back it up it is necessary to have a transfer union, and/or a solidarity contract! Having discovered that the US with its separation of powers is insufficient, I ask can we learn from the Swiss or do we need to look further afield. I am certain that Labour’s plans for further English devolution are not enough as they seem unwilling to back it with equitable funding and their target entities for devolved powers while, better than not having any, are too large for the advantages of genuine social solidarity to express itself.  

Is big change coming to the EU?
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