Subsidiarity, representation and human rights

Despite the picture above, this is a short piece of comparative politics, comparing the US Constitution with that of the EU, taking in some lessons from the UK. I have just watched The Original Intent of the [US] Constitution by Prof. Mark Stoler. This taught me some things and this essay reviews these points and looks at lessons for the UK, the EU and the rest of the world.

For so long, I have considered the US separation of powers to be the model of democratic control but what was to become the USA was governed by the Articles of Confederation which implemented a legislative government^[1]; the Revolutionaries didn’t want a King/Monarch nor powerful judges as previously appointed by the King.

The Confederation was designed to protect the power of smaller states, there was no taxation without a super majority and a veto on amendment to the Articles. The weakness and reasons that they decided to revise the constitution were due to an inability to conduct an effective foreign policy, a need for a common currency, and a need for further commercial policy developments including a law of debt and foreclosure.

Two other important political theory issues drove the development of the 2^nd US Constitution. The founding fathers did not want a democracy, they feared the tyranny of the monarch and of the mob. It was also common sense that republics had to be small, as large republics degenerated into tyrannies.

Stoler quotes Madison on parties, and the paradox, that they are a threat to liberty, yet liberty requires that they be allowed to exist. Madison also argued that in large republics, societal centripetal forces would ensure multiple factions and inhibit the creation of a [tyrannical] majority. This is an interesting idea, but one completely undermined by the existence of a monarch, there can only be one, and the means of electing the House of Representatives i.e. single seat constituencies elected by simple plurality. These two features motivate the development of two competing parties.

Stoler argues that the founding fathers chose two tools to constrain the new federal government which they were in the process of inventing. The first is the separation of powers between branches, the second the division of powers, a horizontal division of authority between the states and federal govt, an 18^th century subsidiarity agreement if you like. An interesting, if not mainstream view is articulated by Dr Fritz Scharpf, who argues that comprehensive judge interpreted constitutions militate against social democracy; I have concluded that parliaments need a freedom of action i.e. freedom from party tyranny, and the freedom to negotiate between party programmes. The paradox is that they need to be constrained which is why we have human rights law.

He also argues that the amendment process was an important safety valve against having got it wrong. We can see from the outcomes of the Conference on the Future of Europe (CoFoE), that the EU constitution may be too inflexible, although it may just be that the forces for reform are just too weak.

In terms of being seen as a precedent for the development of the EU Constitution we should note that the US Senate was originally appointed by the States just as the Council of Ministers\European Council is appointed by the member states. The Senate also has equal representation from each State; this was a compromise to get the thing signed and a state of affairs from which the EU is moving on.

Stoler also argues that final constraint and inducement to ratify was the Bill of Rights. In his lecture, as he is concentrating on authority, he calls out the 10^th amendment which reserves power to the States or people,. Yet observing today, Europe’s constitutional reconstruction post 1945 has ensured that all states, with one exception, are constrained by a basic law, enumerating individual human rights eventually articulated as the European Convention on Human Rights, and latterly the EU’s Charter of Fundamental Rights.

In the US, in the run up to the ratifications, a series of then pseudonymous articles, called the Federalist papers, were published, aimed at winning the New York ratification. In wikipedia, it says,

In Federalist No. 10, Madison discusses the means of preventing rule by majority faction and advocates a large, commercial republic. This is complemented by Federalist No. 14, in which Madison takes the measure of the United States, declares it appropriate for an extended republic, and concludes with a memorable defense of the constitutional and political creativity of the Federal Convention.

In Federalist No. 84, Hamilton makes the case that there is no need to amend the Constitution by adding a Bill of Rights, insisting that the various provisions in the proposed Constitution protecting liberty amount to a “bill of rights.”^[6] Federalist No. 78, also written by Hamilton, lays the groundwork for the doctrine of judicial review by federal courts of federal legislation or executive acts. Federalist No. 70 presents Hamilton’s case for a one-man chief executive. In Federalist No. 39, Madison presents the clearest exposition of what has come to be called “Federalism“. In Federalist No. 51, Madison distills arguments for checks and balances in an essay often quoted for its justification of government as “the greatest of all reflections on human nature.”

I argue above that the 10^th Amendment is a statement of ‘subsidiarity’ but it’s better than today’s statement in the EU. The EU agreement is between the EU and the member states only, and a guarantee that the Union will not exercise powers better exercised at the member state level; the member states make no such reciprocal commitment to pass powers onto local authorities as a study of the French, Spanish and British constitutions show.

I also recognise that in Chile, they are trying something new. , a presidential system with a constitution committed beyond individual rights such as life, liberty and the pursuit of happiness.

The lecture to me reinforces the need for a subsidiarity guarantee within a constitution, including taxation powers, and a human rights guarantee, remembering that human right law is designed to protect you from the Government. Vetoes are a topic for another day, although much of the failings in the US Constitution can be placed at the door of single seat constituencies, including the Presidency, elected by simple plurality, or indirectly in the case of the Presidency.

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[1] It can be argued that the UK’s constitution is a legislative government, it can revoke Judges rulings, and there is no legal restraint on its power.

Image Credit: Publisher – The signing of the Treaty of Lisbon – https://www.prezydent.pl : GNU Free Documentation License, Version 1.2