How Europe Might Learn from American Constitution-Making
by James M. Banner Jr. on Jun 10, 2005
With the recent failure of the French and Dutch votes on the European constitution, it's going to be harder than ever to see that we are witnessing one of the most extraordinary developments in recorded history.
Only 60 years after the exhaustion and bitterness of World War II, twenty-five nations of Europe have almost fully yoked themselves together under a single encompassing charter. What's more, the boundaries of the nations so close to placing themselves within a single constitutional regime are almost precisely those of Catholic Christendom in the middle ages seven centuries ago. But this time, Europe is resuming its ancient identity under a constitution, not a church.
Yet it's not the magnificence of the European effort that is the focus of attention now. Instead, it's the European economy and the unpopularity of its nation's many governments that commentators are stressing as they assess the one-two punch the European constitution has just absorbed.
Those commentators need to look elsewhere – to some basic failures of constitutional strategy. Europeans aren't likely to look to the U.S. Constitution for guidance. But their failure to follow some of the Framers' ways has been a costly mistake.
Constitutions are particular to place, time and culture. The American Constitution, written in the early years of a young nation by people of generally similar history who more or less trusted each other, is spare, to the point — and often vague. It sets up a frame of government but lets the institutions established under it set the detailed rules.
Equally significant, in setting the constitutional machinery in motion, the Framers of the American Constitution didn't overlook form and procedure. They anchored its approval in the people, and they made sure that no single state could hold up putting the new system into motion.
It's no surprise that the Europeans didn't follow the American example. The Constitution of our federal system of decentralized power, checked and balanced as it is, has never had much appeal to Europeans used to more centralized systems in which legislatures are predominant. Still, if they go back to the table to try to do better next time, they might well borrow a bit from the Framers.
They should aim for brevity. Unlike the Constitution of 1787, the constitution put before the voters of France and Holland was more than 450 pages long. Since some of its hundreds of provisions were hopelessly obscure and preposterously detailed, its defeat was made likely by the simple fact that no one could easily know what was in it. Voters weren't likely to trust a document that seemed purposefully obscure. Nor did they like being asked to approve something they were simply unlikely to have had time to read.
By contrast, the Framers wanted Americans to read and understand the Constitution they proposed in 1787. Only then was there a chance that those elected to consider the document in each state's ratifying convention would vote in its favor. So the Framers kept it short and comprehensible.
The Framers also turned over the decision about the Constitution to ratifying conventions in each state. In Europe, voters have been able to express their views in democratic referenda, as in France and the Netherlands, or through their legislatures — but not through ratification conventions elected only to evaluate the new constitution.
If that means had been adopted, the people could have spoken to and through these once-in-a-lifetime gatherings of their representatives who were meeting for one, and only one, purpose. Transitory issues, such as the state of the economy and the fear of immigration, might then have played a smaller role, longer-range matters a larger one. The unpopularity of a given government, such asÊ that currently of France, would have counted for less.
Most critically, the Framers didn't make the mistake of requiring unanimity of ratification for the Constitution to take effect, as the Europeans have done. In the American case, only nine of thirteen states could set the new system into operation. The Framers' assumption was that if nine ratified, the remaining four would probably be forced to join up sooner or later. And that's precisely what happened. Once Virginia became the 10th state to ratify, enough New Yorkers feared being left out of the new system that they convinced some ratifying convention delegates to switch their votes and make their state the 11th member of the new union. Then laggards North Carolina and Rhode Island finally joined up.
If a revised European constitution is to be approved, European leaders will have to adopt new tactics. They could do no worse than to follow American approaches to constitution-making now over 200 years old.
James M. Banner, Jr. a historian in Washington, D.C., was co-founder of the History News Service. He is most recently the editor of A Century of American Historiography (2009).