Today 55% of the voters of France showed they had enough sense to reject a European "constitution" that must stand as the most incompetent effort to draft a national or federal constitution in history. At http://www.constitution.org/cons/natlcons.htm we have copies or links to every national constitution we have been able to find, both past and current. None of them, including the Constitution for the United States, is perfect, and some are pathetic or corrupt, but none of them are as badly drafted as the proposed "constitution" of Europe.
The art of constitution writing is a highly advanced art. It is not just another kind of legislation. Every word is critical, and a single defect in wording or punctuation can make the difference between success and failure of the government and its society. There are probably not more than a dozen persons on Earth who have the advanced skills to do it right. Compared to constitutional design, fields like computer circuit design, or the design of space missions, are trivial. The men who designed the U.S. Constitution were geniuses who spent decades of intense study and the years between 1776 and 1787 experimenting with the design of their state constitutions. During the ratification debates of 1787-89 nearly the entire population of the American states became experts in constitutional design in a way that no other population has done before or since, hammering out a common understanding and agreement on the meanings of the words in the proposed Constitution drafted by the Philadelphia Convention. Even so, they left many ambiguities that led to civil war and ongoing controversies that continue to this day.
I usually refrain from criticizing the ways the constitutions of other nations are written, because the peoples of those nations seldom understand the criticisms and are just offended by the criticisms in a way that prevents them from thinking about what I am saying. I have avoided much criticism of the proposed European "constitution" because I wanted to let the Europeans discover its shortcomings for themselves. Unfortunately, a few of the proposed member nations have ratified it, allowing their hopes to triumph over their intellects.
The problem with the draft is that it is the result of political negotiations and compromises that became expressed in what is not a law but a political document, worded like a political platform or party manifesto, full of vague aspirations, suggestions, and abstractions that are the kinds of things overschooled European intellectual imbeciles would come up with.
The English version of the proposed European "constitution" is at http://europa.eu.int/constitution/en/lstoc1_en.htm and its deficiencies should be readily apparent to anyone familiar with the U.S. Constitution or its state constitutions, but I will just point out a few examples of them:
The term competences. What does that mean? It is used throughout the document, and seems to suggest authority to do something, rather than ability to do something with a likelihood of success. It is associated not with specifics like legislative bodies, officials, or courts, but with the "Union" generally. It does not delegate powers, or mandate their use as duties, or forbid the exercise of specific powers as rights, or specify procedures for taking actions or making decisions, including interpreting the provisions of the "constitution" itself. What does it mean that "the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas".
The term right. Instead of using it correctly to refer to restrictions on the powers of government officials, it is used loosely as "principles" that are nowhere defined, or suggestive of some vague "rights" to receive a sufficiency of a scarce resource, which has no place in a constitution of government. Socialistic drivel.
The various principles. What in the world is the "principle of conferral", the "principle of subsidiarity", the "principle of proportionality", the "principle of sincere cooperation", or any of the other "principles" it refers to? Sounds like a formula for the exercise of unlimited powers.
What does it mean that "The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions." What does "jointly" mean, and what does "functions" mean?
What does it mean that "Representation of citizens shall be degressively proportional"? How does anyone get from that to an exact number of representatives for each well-defined group of citizens, and who decides? Sounds like empowerment of some legislative body to exercise plenary powers to effectively rewrite the constitution from one day to the next.
What does it mean that "Citizens of the Union shall enjoy ... the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections ..."? Even children, or the mentally incompetent, or convicted criminals?
I could go on, but the reader can find more of the same kind of deficiency. The problem is that more voters in the European countries haven't pointed out these shortcomings in their public debates.
A properly designed written constitution of government must specify structures, procedures, rights, powers, and duties with sufficient unambiguity and precision that most ordinary people can understand all its provisions and consent to all the processes by which disputes over their interpretation are decided. Ultimately, all law rests on common understanding and consent by the people in general. It must provide for every process contingency and not mandate anything that is beyond the competence of government, such as providing people with a sufficiency of some scarce resource. "Creative ambiguity" might work for some treaties if all parties are cooperative, but it does not work for constitutions or other kinds of laws. It must never presume consensus on anything but the text of the written constitution, and allow for worst-case scenarios: wars, depressions, natural disasters, subversion, corruption, incompetence, and popular ignorance and passion. The American Constitution arose out of recent experience with war and depression. Hopefully, Europe won't have to go through another war to learn to get this kind of thing right.
The proponents of an European constitution need to go back to the drafting process with the help of competent constitutional designers, without the involvement of politicians or diplomats.
The way to make constitutions more unstandable to people is to teach them how to read constitutions, not restate or dumb down the document. That is self-defeating. One way to make the topic more interesting is to ask people to imagine public officials bent on violating peoples' rights, or otherwise engaging in corrupt ro abusive practices, and ask how a particular provision makes it more or less difficult to do that, depending on how it is written, assuming that if a provision is violated, members of the public may or may not step forward to resist the abuse. How does a constitutional provision empower resistance to tyranny? What happens if it is too vague, or can be interpreted in more than one way, etc. Then examine the structure. How well does it keep different centers of power falling into the "same hands", factions that will cooperate to defeat its protections.
ReplyDeleteThe science of constitutional design is highly advanced. It is not a job for amateurs.
There are no good books on the principles of constitutional design, although several on constitution.org discuss elements of it. It looks like I am going to have to write the first one, if I live long enough and can find the time.
ReplyDeleteThe best one can do for the time being is compare various constitutions and the histories of how well they have worked out. Putting those constitutions online has been the first step toward doing that.
But what may be more worth my time is the work I have been doing on agent-based computer modeling of constitutional development, after the work discussed in documents linked from http://www.constitution.org/pd/pd.htm What I expect is to be able to run the computer model many times and have it show a pattern of rational constitutional design that is not just a matter of taste or whim, but a matter of sound engineering design not unlike that in the fields of architecture or rocketry.
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