The following article written for a seminar in 2008 compares American and European experience in framing constitutions.
This seminar asks if there is a new model for a federal Europe but, as Prof Coombes has pointed out, we have the models; what we need is the strategy. When Douglas Hurd was British Foreign Secretary, he used to argue that the British didn’t like big visions, they preferred small steps. The problem with small steps is that if you don’t have a destination and a direction you go around in circles.
In Europe we have been taking both big and small steps for over fifty years. Our latest attempt to agree on a constitution was seven years in the drafting and two more years before ratification ran into a barrier in Ireland. By comparison it would appear that the eighteenth century Americans were more effective. The Philadelphia Convention met in the summer of 1787 and the constitution was ratified by 9 states by the following summer and by all 13 in 1790. This is a little misleading. Plans for an American Union go back to the Albany Plan of 1754. After the Declaration of Independence in 1776 it took five years to agree the Articles of Confederation and only when they proved inadequate was the famous constitution adopted in 1788. The drafting process was easier. In Philadelphia there were 54 delegates (of whom 30 regularly attended) representing a population of 3.5 million from 13 states. The European Convention and the Intergovernmental Conference involved hundreds of people representing a population one hundred times bigger than that, from 27 states. Also of course 2008 is not 1788.
Consider the differences between the two situations. The Americans were united by their common opposition to British rule and the war they fought to win independence. In 1787 they still faced the general threat of intervention by powerful European nations including the danger of war with Spain or renewed fighting with Britain. In 2008 Europe has forgotten the horror and destruction of the Second World War and the current threat of terrorism does not provoke a desire to unite. Look also at trade. The American states were still imposing tariffs on inter-state trade. Inland states paid customs duties to coastal states in order to export their goods to Europe. In Europe we have already achieved the single Market. Financially there are marked differences too. The American Confederation was saddled with unpaid war debts which nobody seemed inclined to repay. The European Union’s budgetary system does not allow it to have debts. The American Confederation had no taxes. Even when the Continental Congress agreed to impose fiscal demands on the states, there was no sanction if a state failed to pay as they usually did. Although there is continual argument about the European Union’s income from member-states, the “
own resources” system is well-established.
Nevertheless, Europeans today confront the same problem as the newly independent Americans, the weakness of their union and its inability to respond to urgent needs of economy and security. The same confusion arises over identity and sovereignty. During the War of Independence, George Washington asked his soldiers to swear an oath of loyalty to the Confederation. At least one group refused, declaring “
New Jersey is our country!”. At the end of the war, the state of Virginia signed the Treaty of Paris separately. In Philadelphia the credentials of the delegates from Georgia began “
Georgia, by the Grace of God free, sovereign and independent...” The whole business of drafting and adopting constitutions was as familiar an activity to the Americans as it is to us today. Each American state had necessarily adopted a constitution since 1776. The former states of the Soviet Bloc have also adopted new constitutions since 1989. Spain, Portugal and Greece have new ones since the 1970s. Even France and Germany and other member-states have remodelled their constitutions since 1945. The Philadelphia delegates and the European member-state governments in their Intergovernmental Conferences have both felt the business of constitution-making to be so politically sensitive that it must be done in secret. The European Convention was an unusual and not altogether successful exception.
Drafting and agreeing constitutions is indeed difficult and always arouses deep-seated opposition. Comments from the American experience have an amazing resonance to our modern debates in Europe. Then as now much opposition arose from ignorance of the proposals. As Mr Davis of North Carolina noted at the time, “
It is much easier to alarm people than to inform them.” Opponents would always appeal to fears of dominance and loss of freedom. The Virginian Patrick Henry warned that under the new constitution the President would enslave the United States. He likened the “
tyranny of Philadelphia” to the tyranny of George III. The editors of the Pennsylvania Sentinel asked, “
Were Pennsylvania freemen to let themselves be subject to the supremacy of the lordly and profligate few ?”. Farmer Amos Singleby of Massachusetts expressed his fears in biblical terms: “
Lawyers and moneymen will rule and will swallow up us little fellows, yes, just as the whale swallowed up Jonah.” There was also the generalised apprehension of distance and difference. Virginians argued that the New Hampshire Congressmen would not understand Virginia. Less noble motives were adduced. As Joe Wilson of Pennsylvania observed, “
Every person who either enjoys or expects to enjoy a place of profit under the present establishment will object to the proposed innovation – not in truth, because it is injurious to the liberties of his country, but because it affects his schemes of wealth and consequence.” On the other side of the debate were familiar suggestions that union would provide a “
gravy train” or perhaps as it was later called a “
pork barrel”. Francis Hopkinson employed a different metaphor, “
No sooner will the chicken be hatched but everyone will be for plucking a feather.”
Although the proponents of the American Constitution faced similar arguments to us in their search for union, they had or adopted a number of procedural advantages. Above all, they abandoned the requirement of unanimity. The Articles of Confederation required unanimity for amendment but the Philadelphia Convention decided that the new constitution would come into force when 9 out of the 13 states had ratified it. This was a revolution or as President Martin Van Buren later put it, “
an heroic and lawless act.” The state of Rhode Island was so opposed to altering the Articles of Confederation let alone adopting a new constitution that it did not even send delegates to Philadelphia. Nathaniel Graham of Massachusetts demanded, “
Were all states to suffer themselves to be ruined if Rhode Island should persist in her opposition ?” The answer was no and because unanimity was not required, it was eventually achieved. In the end, isolated and not wanting to be left out, even Rhode Island ratified the constitution in 1790. When the European Parliament adopted the Draft Treaty of Union under the leadership of Altiero Spinelli, it also wisely recommended that the Union should come into force when over half of member-states representing at least two-thirds of the population had ratified.
The American federalists also managed to avoid a damaging or delaying debate in the Continental Congress, which was not asked to approve the draft but merely to receive and transmit it to the states. The federalists who drove forward the new constitution built a “
staircase of agreement” ensuring that sympathetic states ratified early, making it harder for the slower and more doubtful states to say no. There was moreover one other fundamental difference in the process of ratification which we do not enjoy today.
In any dispute, conflict or negotiation one psychological element is crucial to success. If any party to the question is to accept its resolution, they must feel that their views have been expressed, listened to and taken into account. No-one can expect that the outcome will represent 100% of their opinions but, if they want agreement at all, they will accept it if they have their place in the discussion. With a constitution, this means the opportunity to amend. Many of the ratifying conventions in the American states attached amendments to their votes of approval. At the Convention, Edmund Randolph had suggested that there should be a second general convention to consider all such amendments. Massachusetts offered amendments first, then Maryland suggested 13; Virginia wanted a Bill of Rights and 20 amendments, New York 32. Crucially, their ratifications were not conditional on the acceptance of their amendments, although some were subsequently agreed without the need for a second Convention. Contrast the absurd procedure of adopting a new constitution for the European Union, which like the Latin num presupposes a question expecting the answer “
No”.
What can we learn from the experience of the extraordinary men of 1787 ? Jefferson wrote of Washington and Franklin “
They lent their shoulders to the great points, knowing that the little ones would follow of themselves.” Firstly, the project of a federal Europe, which has to overcome the ingrained opposition born of fear, ignorance and love of office, needs a vanguard of committed federalists. Of course it helps if some of those federalists already hold national office themselves. Secondly, federalists must seize the agenda as they did in Philadelphia. Thirdly, as the Andrews Sisters sang, we have to “
accentuate the positive”. Our present procedure for making treaties between member-states accentuates the negative. Ministers and officials meet in secret and produce a draft which neither parliaments nor people can amend, only ratify or not. National governments have the obligation to present the draft to their national parliaments or to popular referendums which can only vote yes or no. Is it any surprise that so many choose the latter ? Our procedure forces anyone who objects to one article in a document of hundreds of pages to vote no. We push those who are merely critical or have some small difficulty with the text into the same camp as those who want no agreement at all. Thus where there may be support for over 90% of a treaty, those who object to 10% can defeat it. They don’t even have to object to the same 10% ! If the European Union would adopt a suggestion like Edmund Randolph’s, the Intergovernmental Conference could transmit the draft to national parliaments to discuss AND amend. The results of these debates could then be considered by the Intergovernmental Conference before a final text is agreed. This approach would stimulate popular debate and end secrecy. We would have a clear record of how much is agreed and how little disliked and by how many. In this way we could show how small the level of dissent is and separate those who want no agreement at all from those who merely want amendments. Governments may object that they already hold these debates in their closed meetings with each other, but how different is an open debate in each country ! We could explore the grounds of dissent and meet them with argument and compromise and avoid the inevitable veto of the dissatisfied few. The American constitution expressly forbids referendums on constitutional amendments. Some European countries would still insist on referendums but in a different climate and with more chance of success.
Finally perhaps we could take the advice of Benjamin Franklin writing to friends in Europe in 1788, “
I send you the proposed new federal constitution for these states. I was engaged four months of the last summer in the Convention that formed it. If it succeeds, I do not see why you might not in Europe carry the project of good King Henry IV into execution, by forming a Federal Union and one grand republic of all its different states and kingdoms; by means of a like Convention; for we had many interests to reconcile.”
