Where’s Publius?

“When the proposed Constitution issued from the Constitutional Convention at Philadelphia on September 17, 1787, Alexander Hamilton foresaw that opposition to it would be great, and though he thought the document would probably be adopted he couldn’t be sure. Three members of the Convention, all of them prominent, had refused to sign it, and others, including Hamilton’s two fellow delegates from New York, had left before the end of its deliberations. Indeed, the form in which the Constitution was approved gave it the appearance of unanimity: the delegates subscribed to it in the name of their states. This covered over defections and absences; for example, Hamilton alone signed for New York, and at least one delegate would have been unwilling to subscribe in his own name.”

So begins my edition of The Federalist, the collection of 85 essays written by Hamilton, James Madison and John Jay under the name Publius. (The authors went on to become the new nation’s first Secretary of the Treasury, fourth President and first Chief Justice, respectively.) The essays were written at a speed that would put many bloggers to shame and distributed by the most advanced technology of the time. They address the toughest criticisms leveled at the proposed Constitution, from the charges that a unitary government would trample citizens’ rights and well-established prerogatives to the supremacy of federal law to the separation and blending of powers.

The title of the final essay sums up the argument: “Not perfect but good. Should adopt and seek to amend.”

Europe has had its Convention, and Europe’s governments are now having their Conference. Soon, there will be referenda, with high stakes and uncertain outcomes.

Where’s Publius?

16 thoughts on “Where’s Publius?

  1. Given the length and complexity of the proposed European constitution in its’ current form, I’d say that it doesn’t *deserve* a Publius just yet. If anything, the whole thing needs throwing in the bin and starting over.

    Any constitution that is so long and so obscure that your typical university graduate can’t read the entire thing in two or three days isn’t worth the paper it is written on, and ought to be consigned to the flames.

  2. Just to play the devil’s advocate, Abiola, many of the US state constitutions are long and detailed. California’s (http://www.leginfo.ca.gov/const-toc.html) has 35 sections on taxation and 23 on miscellaneous subjects. Connecticut’s (http://www.sots.state.ct.us/RegisterManual/SectionI/ctconstit.htm) is a comparative model of brevity. Alabama’s (http://www.legislature.state.al.us/CodeOfAlabama/Constitution/1901/Constitution1901_toc.htm) has 287 sections and 742 amendments, the last of which is “Phase-out of Supernumerary Programs in Wilcox County; Participation in Employees’ Retirement System.” I think Alabama’s is a bit of an extreme. At the other end of the alphabet, the Wyoming constitution has a mere 21 articles; it was written by a constitutional convention in 1989.

    So size may not matter.

    Is the argument, then, that the current hodgepodge of treaties is a better arrangement?

  3. I’d argue that instead of giving support to the state constitutions you’ve mentioned, all you’ve actually done is shown that some states have extremely bad constitutions.

    A document that is too long to be read and debated by intelligent men and women from all walks of life is a terrible basis for a constitution that is intended to govern the lives of nearly 400 million people.

    To frame the issue as being either “the current hodgepodge of treaties” OR the mess that is being called a European constitution is to present a false dichotomy. There IS another way, and that is to start over again, with the intention firmly in mind this time of writing something reasonably compact and clearly-written that does more than pay lip-service to the principle of subsidiarity.

    What is the rush, that we must force ourselves to feast on this dog’s dinner that is being passed off as a constitution? We’re living with the “current hodgepodge of treaties” just fine for the time being, so why not take the time to draw up a document that would be unarguably superior to the one we have?

  4. “Abiola, I agree, but surely it’s a small matter compared to the substance of the constitution.”

    That’s why comprehensibility is so important. How can one get a feel for the substance of a document that is too long and too difficult to read?

  5. Abiola,

    I thinking you are tending to overlook a well-established practice in EU politics of gaining political consent through issuing screeds of paper with soporific text in which controversial provisions are buried in some inconspicuous sub-clause and therefore likely to pass unnoticed by a casual reader who may have already become bored rigid before getting there.

    Least you suspect I’m making some eccentric point, others have remarked on this device before. Some years back now, I became embroiled in an increasingly heated exchange of emails with a well-informed international banker who claimed that Britain had already assented to joining the Euro because of phrase in the preamble to the Rome Treaty of 1957 committing accession countries to “an ever closer union between the peoples of Europe.”

    I joke not. “Closer union” necessarily entailed “monetary union”, it was said, so there was therefore nothing remaining to dispute about whether Britain should join the Euro. We had already agreed to it through accession to the EEC in 1973, notwithstanding Britain’s opt out from monetary union in the Maastricht Treaty of 1992. The other party in this exchange was anything but naive or uninformed about international agreements. His job had depended on this being familiar territory. I mention this to show the ways in which eurocrats tend to think, present and cajole.

    Caveat emptor is the best guide.

    Btw does anyone here recall what happened to the diamonds the late Emperor Bokassa gave to Giscard d’Estaing? My version of Encarta doesn’t say.

  6. Bob,

    The Bokassa diamonds, known in the literature as A Leg Up and Enemy’s Eye (for reasons not worth going into here), are either crowning the chandeliers in the Bastille Opera, used for industrial purposes at the Centre Pompidou, serving as collateral for several of Chirac’s loans for Paris real estate, or backing the CGT, depending on which of several unreliable sources you prefer to believe.

  7. “used for industrial purposes at the Centre Pompidou”, uhm, at a contemporary art museum ???

    This could be funny, what’s the rest of the story ?

  8. Abiola,

    Is there any reason to think that something other than the present draft (amended by IGC) or the current hodgepodge of treaties will come to pass?

    I can see how the consitutional draft could fail – it might not be ratified in one of the crucial countries (analogous to New York in the situation for which Publius wrote). Then the EU would have to go back to the current set of treaties.

    What I have a hard time seeing is the political will to call another convention. If another convention were called, I have a hard time seeing where different people would take part in drafting it. If the same people (broadly speaking, members of the government of the day in each of the member states plus representatives of the national parliaments and the European institutions) are answering the same questions, I have a hard time seeing why they should come up with significantly different answers. In short, there is every reason to frame the question as the proposed draft vs. the current hodgepodge.

    The rush is that institutions designed for six members are likely to break with 25. Ten new members next year will bring a fundamental change, and many of the issues papered over at Nice (that triumph of French diplomacy) will no longer be avoidable. The new Union treaty is an effort to keep things running after enlargement.


    ps Subsidiarity and “ever closer union” are both non-trivial constitutional and epistemological problems. They’re probably on the order of gems such as “regulate commerce with foreign nations, and among the several States” or “the right of the people to keep and bear arms.”

    pps It’s only 265 pages, including typographic revisions and the list of delegates to the convention. Typical university graduates who can’t read that in a couple of days should be asking for their money back. Or maybe their institutions should be asking for the degrees back.

  9. Doug,

    “Typical university graduates who can’t read that in a couple of days should be asking for their money back. Or maybe their institutions should be asking for the degrees back.”

    Typical university grads may well be able to read the Draft Constitution but the real question is whether they are necessarily placed to understand the potential downstream implications in a future context. You are more encouraging and optimistic about this than I am or – more significantly – other observers arguably better placed to recognise the vacuities and wiggle room in the text. We have this:

    “A top German judge, based at the Constitutional Court in Karlsruhe, has said that he fears that Europe is pushing ahead with its plans for an EU Constitution too quickly.

    “In an interview with the EUobserver, Professor Siegfried Bross, a constitutional judge and leading expert in European law, said ‘the problem is that the process at EU level is going too quickly and a certain slowing down would not be amiss’.

    “He adds that the new Constitution is such an ‘extraordinary treaty and the EU is such a complex organism itself that I cannot, as a lawyer and judge, understand why there is so much time pressure and why more time is not taken to think over certain issues’. – from: http://www.euobserver.com/index.phtml?sid=9&aid=12407

    It seems to me that is absolutely correct on scanning through the draft. There is ample scope for contention over competences because of loose drafting. Take Article 11, for example:

    “11(3) The Union shall have competence to promote and coordinate the economic and employment policies of the Member States.
    “11(4) The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.”

    That unrestricted transfer of powers or competences from national governments to the EU is quite sweeping, going well-beyond what can be properly described as “just a tidying up exercise,” as British government ministers were claiming in the spring this year.

    Leaving aside controversies about common EU defence and foreign policies, Blair says he intends to preserve national vetoes over EU policy on tax and social security issues. But suppose changes are held by the EU to be essential to “coordinate the economic and employment policies of the Member States”, perhaps because of “prevailing tax competition damaging to the stability and growth of the EU economy”, very likely credibly so given the wide spread between the respective tax burdens of Ireland and Sweden among present EU states, let alone the accession states? Presumably, what would then follow is a lengthy competence dispute eventually taken to the European Court, the outcome of which would be binding on all Member States regardless of whether any state had been party to the court proceedings. That entirely likely scenario is not reassuring and also leads me to seriously doubt just how robust national vetoes over EU tax policies will prove to be for all that Blair may claim.

    And this commentary on the awareness of EU citizens about the Constitution does rather suggest the debates are bypassing the attention of most: http://www.euobserver.com/index.phtml?sid=9&aid=12235

    That doesn’t surprise me – most folks for very understandable reasons get bored with what I call “constitution mongering”, tune out and rely on political loyalties, which is why so often many have only become aware of some impending and burdensome EU regulation when the tabloids go into overdrive. The Europhiles then predictably respond by saying the critics are rabid xenophobes . . and it’s d?ja vu all over again.

  10. It occurs to me that if new and passing readers here might appreciate some friendly guidance on reaching the EU Draft Constitution, the following links could prove helpful:

    A reader-friendly version of the EU’s Draft Constitution with English text by Jens-Peter Bonde is accessible here:

    Multiple language versions are accessible from a menu here:

    All 265 pages of the latest official text without friendly annotations is at: http://european-convention.eu.int/docs/Treaty/cv00850.en03.

    A summary presentation of the Constitution – only 26 pages! – is available here:

  11. Hi Bob,

    I think there’s a pretty direct and causal relation between the neverneverland of British debate on the EU and the UK’s last place on knowledge of the Convention, as reported in the EU Observer article you cited. Your critique does not fall into that category, but an awful lot of the British discourse that I’ve seen and heard is a battle of straw men, depriving the British public of input (even indirect) into real issues, and Europe of a constructive British presence.

    Many British policies would find a sympathetic hearing in a large number of the new members, but if the Conservatives spend their political energy debating whether or not Britain should be in at all, and Labour has to wage the same debate with the opposition, then not enough of the finite time available to decision makers will be available for leading a new Europe. Which is a pity. A UK-Danish-Polish-Hungarian approach to a common defense policy (possibly even an “enhanced cooperation,” pardon the jargon) would be much better suited to the world of the 21st century than a French-Belgian-Luxemburgish-German one. Which one is Europe likely to get? The latter, because the UK government will not pick up the tools available to it, because too much of the country’s debate on Europe reads like it was written in 1973. It’s about like debating the merits of the Fashoda crisis at a reparations conference in 1928. Times have well and truly changed.

    I don’t know Bross, but his cv


    suggests that he comes from a distinctly conservative part of the CSU, including a year’s service in the state chancellery when Franz Josef Strauss was premier. His research early in his career into canon law and the history of church law also suggests a very conservative outlook – and in Bavaria that has often meant suspicion about any authority higher than the state level (national or European). Not that he doesn’t believe it, or that the criticism is purely partisan in nature. But there is a partisan element there. (Nevermind the disingenuous approach to problems of studying them to death.)

    My very short answer to the question, why now, remains: enlargement. Gears in the machinery are slipping with 15 members; with 25 they shall surely grind most hideously. Planning for budgets in the out years, arrangements for things like research programs, all of the longer-term workings of the Union are already straining under the current set of treaties. (Further, are proponents of delay excited about going to Poland, Latvia, Hungary and having to say, “Thanks for toppling Communism, and we know it’s been a decade and a half, but Western Europe hasn’t been able to get its act together, could you wait another half decade or so? We’re rather worried about our tax breaks and our subsidies, you know.” Is that the true level of Western Europe’s ability to change?)

    Reliance on a national veto as some supposed bulwark of sovereignty seems an unwise course. First, resorting to it too often risks encouraging everyone treating it like voting – something to do early and often. Second, on the tax question you raised, it seems that many of the new members will have views similar to those of the UK. Build that coalition. Third, on matters that are truly vital to national interests (or perceived by the governments to be that way), EU member states with effective sovereignty will continue to do what they please. See Iraq. See France’s deficit.

    Interesting argument on chapter and verse. How different are the 11(3) and 11(4) cited from existing community decisions? Is it having them stated so clearly what’s painful?

    Finally, I agree – I don’t see an end to litigation about competencies or other key issues under the proposed constitution. On the other hand, I don’t see an end to such litigation under the existing treaties. The new constitution would, however, give greater coherence to the basis for dispute.

  12. Doug,

    Much of the European debate is of low quality whether in Britain or mainland Europe IMO.

    The Draft Constitution is plainly integrationist when it will prove difficult to convince sceptics that closer integration is going to resolve why the major Eurozone economies are performing so poorly – Britain’s economy has lower rates of both inflation and unemployment than the Eurozone as well as stronger economic growth. On top of that, yet another EU Commission corruption scandal has surfaced in today’s news.

    In that context, it is not transparent what is to be gained for Britain from either closer European integration or from joining the Euro. Until that yawning credibility gap is closed up, scepticism will tend to flourish in Britain and probably elsewhere as well.

    What matters about Professor Bross is not his Conservative political affiliations but whether his legal assessment is correct that the Draft Constitution, if adopted, will lead to a spate of cases contesting the division of competences between the EU and national governments. I rather fear he is correct and we are not reassured by knowing that the outcome of the contested cases can be resolved by the European Court.

    Our tradition in Britain has been that Parliament is “sovereign”, meaning that decisions of the courts in Britain can be changed through due legislative process. In historical perspective, that principle has worked tolerably well over centuries, arguably at least as well as formal, written constitutions of countries in mainland Europe. Instead of that, we are being asked to entrust an increasing array of governmental decisions to European institutions which have a conspicuously uneven record of managing affairs within their range of competences and where it will prove verging on impossible to amend decisions of the European Court through legislative process.

    A few years back in another online forum, someone from the Netherlands said I needed to appeciate some had what was akin to a fundamentalist religion about Europe. Since then, I’ve come to realise that was an astute insight. My sad experience is that Euro-fundies switch quickly into denial mode when faced by the realities of the integration predicament. The predictable outcome is that the problems don’t get addressed because of the pretence that the problems don’t exist – that’s why the high unemployment rates persist and why the EU Commission continues with a flawed accounting system with the result that the European Court of Auditors has refused to endorse the EU accounts for eight years in succession.

  13. For those interested, here’s a link to an on-line library of documents related to the American revolution. It includes British and American writers, and basically tracks the English enlightenment via Anglo-American Whig thought into the 19th century.


    The brain power of that era on both sides of the Atlantic was amazing. I don’t think much of the Romance infection that in my opinion polarized all sides (give me Voltaire over that pathetic flasher Rousseau any day).

    I’d say any Country would be blessed with Publiusx3. But that said, I can think of a couple other men from that era that’d be more effective given the EU morass. For Britain, William Pitt the Elder (a couple of his speeches in Parliment are at the above site), and Burke. For France… I’d say a French George Washington, as the sixth Republic will very quickly become the seventh Republic without a leader who can resist the temptation of power. Jefferson for Germany???

    Any other suggestions?

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