‘A Constitutional Counterfactual’, FreedomDemocrats, 1st December, 2009.
I’ve linked with this item from the FreedomDemocrats, a free market libertarian group within the US Democratic Party, because though it does not mention the Lisbon Treaty which amends the core treaties of the European Union, it is very relevant. I’ve got quite a lot of detailed argument coming, so here is the big point up front. The United States was founded through a process which makes the process of ratifying European Union treaties look like text book democratic fastidiousness, despite which the right-leaning element amongst opponents of European integration, which is the dominant element in the UK, tend to be hyper-enthusiasts for the United States as an example of liberty, constitutionalism and limited governments (things I’m rather supportive of myself). That would be a model of federalism, instituted through considerably less fastidious means than those used by the EU political elite.
In addition it should be noted that the United States fought a Civil War to prevent the secession of the Confederate (southern) States of America. I am sure a few Confederate enthusiasts can be found amongst the Eurosceptics, but not many. No one can deny that the American Union was created by abrogating the Articles of Confederation in favour of the more centralising Constitution of the United State of America; and no can deny that this federal Union was re-founded, and strengthened by President Lincoln and the Republican Party of the time, in the blood and iron of a war fought to coerce the Confederacy to stay in the Union.
The methods employed in that war included a deliberate policy of the destruction of the property of southern whites, suspension of habeas corpus in the Union, and covertly sanctioned illegal violence against the anti-war press. One could argue about how much of this was justifiable, but I would say the price was worth paying to the recreate the Union as a unified democracy freed of slavery, showing as Lincoln argued in the Gettysburg address that the government by the people, of the people, for the people, could succeed and endure. That’s not an unusual argument, and its one shared by most Eurosceptics as well as Euro-federalists who give any thought to American history.
What is the ‘Eurosceptic ‘ criticism of the Lisbon Treaty? In part, that it is the rape of democracy, because only one country held a referendum to ratify it, Ireland, and that country held the referendum a second time, after a no vote on the first occasion. In the language of the Eurosceptics, this was like a rapist who never accepts ‘no’ for an answer from a woman, and a form of totalitarian oppression equivalent to that prevailed in the USSR and its satellite states. I’m not making this up, or exaggerating, this is the standard discourse. Rapists do not request a second answer which might be the same as the first, they use violence. Totalitarian regimes do not hold a referendum a second time, they rig elections in the first place through falsifying results in an atmosphere of terror against opposition.
Even if we take the Eurosceptic language in its (rather rare) calmer moments, it makes accusations of lack of democracy which cannot be sustained. It is the Eurofederalists who are arguing for more direct accountability of EU institutions to a European electorate, through increasing the power of the Parliament, and maybe considering a directly elected head, and certainly a head selected through an open and competitive process in the Parliament. The Eurosceptics oppose such ideas, fiercely, so reducing the EU more and more to a venue for intrinsically unaccountable diplomatic manoeuvres between states lacking a common democratic decision making body.
The second vote in Ireland was held in the context of assurances from the European Union and the Irish government that the claims made by treaty opponents about restricting Irish sovereignty, particularly with regard to military neutrality and the constitutional ban on abortion. were not at all true. No one of any honesty and integrity whatsoever can deny the truth of those assurances and the misguided nature of contrary claims made by anti-Treaty campaigners. Of course politics is a rough nasty business, and everyone tells lies, directly or implicitly. Nevertheless, those who directly use obvious lies, or at least rely on their widespread circulation, cannot reasonably complain when a referendum is held a second time, to test whether the electorate will still vote No after some of the more blatant lies have been countered by official assurances, based on clear law. The Irish people were very free to say no a second time, they did not. The Irish government was very free to block the Treaty of Lisbon, it did not. The Treaty was ratified in other countries through votes in freely elected parliaments in 27 of the world’s more solid democracies. Each of these 27 parliaments was very free to derail the Treaty, none did.
All of these countries have experienced moments of change in national political and constitutional arrangements without a referendum, no one denies that these countries are democratic. Of course a referendum can be appropriate in deciding on constitutional issues, but most established democracies in the world allow constitutional change without referendums. A referendum is a tool of democracy, not the only aspect of democracy; and while a few Eurosceptics may be advocates of government by direct democracy, most are not, and no one has tried to argue that established democracies are not democracies, because at least part of their constitutional development took place without legitimation through referendum.
It must also be noted that while the Eurosceptics shriek about undemocratic repression, the Lisbon Treaty increases the power of the European Parliament in relation to the non-elected decision making elements of the European Union (Council of Ministers and the Commission). That would be the kind of ‘totalitarianism’ that keeps transferring more and more powers to freely elected, multi-party bodies then. A variety I had previously overlooked, and which Hannah Arendt, Albert Camus, and George Orwell carelessly ignored.
So back to the FreedomDemocrats. Like many of the UK Eurosceptics, the FreedomDemocrats identify themselves as libertarians of a kind who advocate free markets. There are other Eurosceptics, but the dominant tendency, such as the United Kingdom Independence Party and Daniel Hannan, a well known Conservative Member of the European Parliament (!), the current Big Man in Conservative Eurosceptic circles. UKIP Libertarianism is the kind which favours reducing immigration, that would be the kind of libertarianism that reduces individual liberties to cross borders freely. I would like to say that this kind of nonsense is unusual, but unfortunately it is all too normal for militant social conservatives to adopt the ‘libertarian’ label to mean freedom to be oppose rights for people they don’t like. The point of the item I’ve linked to, is that the (federal)Constitution of the United States of America was adopted without a popular vote, and that it is clear that a popular vote would have failed. The only consultative vote that would have had any chance of succeeding would have been one restricted to the biggest property owners. The FreedomDemocats like the idea of a history in which the Constitution was not ratified, which they think would have meant a number of regional confederacies lacking the power to violently expropriate Native Americans or create a militaristic interventionist superpower.
That brings up the whole question of the ‘libertarian’ (in the sense of individualist property owning and limited government principles) basis of the United States Constitution. The idea that the Constitution is either a perfect libertarian document, or at least that the adoption of the Constitution was the nearest the United States has ever come to libertarian perfection and that is has been in constant decline since some later point at which it apparently started to move away from the Constitution, is rather prevalent amongst US libertarians, though particularly those who could best be described as conservative-libertarian fusionist, and who tend to think conservative and libertarian mean the same thing.
The FreedomDemocrats in this item, and others posted on their website, correctly insist that the US Constitution was designed by large property owners who wished to use political power to preserve an existing pattern of property distribution, including ownership of slaves, and the freedom to increase property by violating the rights of Native Americans, along with various trade, tax and monetary rules designed to give their property a privileged status. The FreedomDemocrats lean towards minarchism (a state that does nothing but uphold the right to life and property rights in a purely neutral way), and even outright anarchism. I cannot go along with them on that, partly because I think what they say in a critical way about the US Constitution is really inevitable, in some form, to stabilise and legitimise the state body that is necessary to uphold law. A feasible libertarianism can only try to make the trades of self-interests around the constitution and around state policy, as balanced and as genuinely beneficial to the common good as is possible.
The other tendency in libertarian thought, to make the Constitution a quasi-religious document is just bad for liberty, bad for legal thinking, and bad for critical rational thought, for reasons I cannot explain in this already long post. But returning to the right-wing UK Eurosceptics, they cannot both: commend a US Constitution adopted with no referendum and designed to be very difficult to amend; and condemn the European Union for a process of progressive integration through Treaties, all ratified by representative assemblies elected by popular vote. The Treaties have been ratified by the unanimous agreement of all parliamentary bodies in all member states. It is difficult to reverse these treaties, but that is because the requirement of unanimity goes both ways. It would be good to see easier means of amending treaties, or even rejecting them at a later date. but that would only be possible if the ratification became easier in the first place.
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