No Democratic Perfection in the Birth of the USA

‘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.

John Bruton tipped for EU Presidency


‘Bruton for EU Presidency’, Croooked Timber, 29th  October, 2009

An item today in the leading political theory, and politics, blog Crooked Timber suggests that John Bruton will run for the ‘EU Presidency’, i.e the two and half year presidency of the European Council (council of minister of EU member states).


Bruton was Prime Minister of Ireland from 94 to 97s, and has served as Ambassador of the European Union to the United States.  He was leader of Fine Gael, a centre-right party which sits with the largest political group in the European Parliament, the European People’s Party.


Why Bruton?  The connection with the EPP is a good starting point. He is an ideal anti-Blair, a centre-right figure from a small member state.  Blair’s candidature is not popular all over Europe, and the idea of a centre-right figure from a small country is the popular alternative.  Fine Gael is not as Euro-federalist as most of the EPP, it sat with the British Conservatives in satellite group  of the EPP before the British formed a new Euro=sceptic right group.  it would therefore not be so easy for the UK to veto him, and presumably would be an advantage in other less federalist countries.


Blair is unpopular for various reasons: could be too dominant, and out of control,  in a currently undefined position; did not take the UK into the Euro, did take the UK into the American invasion of Iraq using now discredited arguments; David Miliband (current UK foreign minister) is apparently a candidate (he denies it) to be High Representative for Foreign Affairs (which might turn out to be more important that the Presidency), and no one thinks two people from the same party in the same country could occupy two out of three of the senior posts in the EU (the other is President of the Commission).

Foucault, Libertarianism and Europe

Primary version of this post, with visual content, at Barry Stocker’s Weblog

I’ve pasted in a conference abstract below. It’s an expanded version for the conference book of abstracts and serves as a summary of themes I am interested in around liberal political philosophy, European identity and politics.

‘Political Theory and the End of Europe: Foucault against Habermas’

I’ve taken the opportunity to look at Habermas’ status as a philosopher of the European idea, examine his political concepts critically and take up Foucault from a Classical Libertarian political point of view. Thee Foucault versus Habermas debate is well established, but the the best of my knowledge no one has looked at them in these terms before. I’ll look at how the anarcho-conservative Hoppe takes up Habermas, and the areas of difficulty that suggests in Habermas’ progressive liberal-Marxist synthesis; and look at Foucault’s relation to Antique Republican and Classical Liberal ideas in his later texts. This is in the cause of suggesting that Foucault provides a better basis for European political integration, because it is less reliant on ideal harmonisation than Habermas.

The conference is Beyond Boundaries: Media, Culture and Identity in Europe, hosted by Bahçeşehir University in Istanbul, 2nd to 3rd October 2009. The conference is supported by an EU funded project run by Bahçeşehir University, University of Potsdam, and the University of Applied Sciences, Potsdam.

Jürgen Habermas is almost the uncrowned Philosopher Prince of the emergent European polity (the European Union, and more loosely the Council of Europe, with the EU as its ‘hard core’); and its cultural and media ecology. Habermas’ analysis of deliberative democracy, and cosmopolitanism, is of obvious relevance in constructing a European polity; and is embedded in theories of discourse ethics and communicative action which provide strong, ethical, and epistemological context for his political theories. Habermas tries to overcome two polarities: hierarchy of the political system versus democratic participation; individual rights versus economic egalitarianism. He works on this through notions of ethics, and rationality, in which it is assumed that both lead the individual to act according to the rules of the public sphere and a cosmopolitan political order. Habermas is sometimes troubled by the relation between the consensual aspect of the state and its more coercive ‘steering aspect’; and the difficulties of instituting democratic, and legal, accountability for the complex bureaucracy, which administers the social state through administrative orders, rather than to democratic political decisions, or court judgements, in accordance with legal norms. Habermas’ analysis also, more indirectly, suggests a problem with harmonising democratic decision with the power of judges in a law governed democracy. These tensions in Habermas’ work find expression in the work of Han-Hermann Hoppe, who wrote his doctorate with Habermas, but has since turned discourse ethics into a foundation for a ‘propertarian’ anarcho-conservative position. Without endorsing Hoppe’s position, it does give a very useful indication of how Habermas touches on areas of concern to Classical Liberal and (free market) Libertarian thought. Foucault’s thought is better adapted to these problems. From Society Must be Defended onwards, Foucault distinguishes between the more despotic forms of power and the more limited form of power; between absolutism, or totalitarianism, and govermentality. The idea of governmentality is not the idea of a perfect liberal consensus based on government by consent; it is investigated itself with regard to attacks on the body in biopower and disciplinarity (power over life and death; imposition of regularised activity). Foucault’s approach to liberal government is highly critical, but his analyses of political and ethical thought, and practices, since Antiquity, strongly suggest that he finds individualistic liberty, market economics and limited government to be the best possible counter to the most coercive aspects of power. Comments by associates like Jacques Donzelot on Foucault’s later thought, and the social theory of associates like François Ewald, confirm the impression that Foucault was aiming for balance of individualistic market liberalism, and welfarism. His late comments on Austrian School free market economics, certainly suggest Classical Liberal, and Libertarian, sympathies. The cultural, and media, legitimacy of the emergent European polity can be best elaborated through this kind of analysis, which address those aspects of trans-national European sovereignty which cause most disturbance to critics of European integration. Foucault allows us to avoid the utopian dream of a seamless relation between individualism and collective welfare, between democratic participation and political hierarchy, because he sees legal sovereignty and coercive power, autonomy and mastery as intertwined, in an unavoidable paradox. This establishes a way of thinking in which European sovereignty, including its cultural, and media context, can be both affirmed and seen as in need of restraint, and dispersion. Though Foucault did not directly address issues of the emergent European polity, his later texts are deeply concerned with pan-European ideas of sovereignty and government, including the way that modern European nations emerged as fragments of Roman sovereignty, which they saw themselves as preserving.

Link:Debating European Union.Hulsman & Kupchan

Primary version of this post, with visual content, at Barry Stocker’s Weblog.

Worldwise Transatlantic Pragmatism. John Hulsman and Charles Kupchan at

A moderate Euro-sceptic and a moderate Euro-integrationist engage in an admirably constructive dialogue on the problems and achievements of the European Union, from an American perspective. Topics include: varieties of right-wing Euro-scepticism in the UK and the USA; the EU and USA economic models; relation between public opinion and élites in the EU; the rise of new powers in the Third World (China, India, Brazil, South Africa, Egypt); the less integrated role of NATO after the Cold War; the death of American led interventionism, whether peaceful liberal internationalism or armed neo-conservatism; the death of a global order defined by the USA or the EU; the political problems of the integrationist project in the EU, and the reasons.

Adam Smith for a Unified European ‘Empire’

Primary version of this post, with visual content, at Barry Stocker’s Weblog.

Were all nations to follow the liberal system if free exportation and free importation, the different states into which a great continent was divided would so far resemble the different provinces of a great empire.

(An Inquiry into the Nature and Causes of the Wealth of Nations. IV.v.b)

The quotation above does not directly support the formation of a continent wide ‘European Empire’ based in free trade. It’s not a big jump to infer this though. The biggest ambiguity would be how big the Empire should be? What is now Turkey and the Russian Federation? The whole of Eurasia? The ‘world continent’ of Eurasia and Africa? Since Smith must want ideally to see free trade throughout the world, how about a World Empire? He prefers the word continent, and it’s very likely he saw Europe as a distinct continent, possibly excluding Siberian Russia and the Ottoman lands in Anatolia. He seems to be toying with the idea of a world of continental free trade ‘empires’, which could be unified in a global free free trade. The phrase trade can be seen a covering a range of options with regard to how integrated markets are as a result of which we could talk about a free trade world, in which the removal of barriers is more complete within continental empires, than between continental Empires.

Smith clearly thinks of the emergence if continental empires as desirable. He is thinking in terms of economies which are still very agricultural, so that the issue is one of avoiding famine. This is best achieved by the best possible integration of the largest possible market, so that food can move quickly to areas suffering shortage. In terms of contemporary arguments, the equivalent would be reducing inflation, increasing competition and increasing economic growth. The integration of continent wide markets also depends on the existence of continent wide transport networks. Smith is suggesting that the work of the more advanced individual nations in closing internal barriers to trade and promoting internal communications could be done at the level of a European Empire. The suggestion is evidently of a state, and of a state beyond the bare minimum of an agency to protect life, property and contracts.

Adam Smith prophet of the European Union, and equivalents such as the African Union. Unfortunately the AU is a long way behind Europe in cutting internal trade barriers, sadly, and very sadly for those who starve to death, or survive at a bare minimum of subsistence.