Rules of the game for a European State

Not long ago, Lorenzo posted a link to an article in Le Monde describing the failure of the French social system. It was an interesting and very critical peace. The surprising thing however was the force of the criticism, usual for journalists who tend to adopt more neutral points of views. The failure of this systems remains a point a view, it is hardly a raw fact. However, even a quick overview of the main stream French media shows that this type of strong criticism is coherent with what seems to be a fairly well thought out plan of action of the media and some of the main political parties. They understand the results of the French referendum as coming from an unjustified faith of a large portion of the population in the French social system. If people falsely believe that this system should be preserved – even at the cost of European integration – then, in order to avoid this type of democratic accident in the future, the media and the politicians should start explaining right now that their beliefs are not grounded, that the system they want to keep is no longer virtuous.

I am sure that the media are partly right, and that this type of illusion fits into the complex set of reasons that explain the leftwing vote. What is worrying is that they should focus only on that explanation and won’t understand that if the Constitution was rejected by so many people in several countries it is also because it wasn’t a good enough text. They remind me of parents who can’t cook but complain that their child won’t eat the tasteless food they prepared.

As Lorenzo wrote, we should not dwell too much on the reasons of the various votes and think about the future. How can we go on with the European integration ? It was an argument of the leftwing No that after a final rejection we would be able to start again with a better, more ambitious project for a Constitution. However the failure of this project - which was a beautiful effort - is instructive. Why did it fail ? There are many different reasons, but in the end, if it was rejected in several countries, it is because this constitution was not sufficiently consensual. It was not able to obtain the consensus required by a constitution – because it gives legitimacy to the system as a whole – because it was, as the construction of the European Union itself, ideologically determined. In this sense it was more than a constitution. As Euan argued, to be consensual, the supreme norm of the legal system should not entrench politically controversial issues which should remain up for grabs and decided legislatively through majority decision. The next text for a constitution should give us the rules of the democratic game in a potent European State. According to leftwing opponents of the EU Constitution, the text was not good enough, not because it didn’t protect the French welfare State – as many people say – but because it made it impossible a priori for Europe to adopt a similar model. To content this part of the population the next text should instaure a democratic forum where their representatives could try to persuade others that the welfare State would benefit Europe. Rules of a democratic game are not enough as they only allow a State to formulate political preferences. A potent State is required for these preferences to be applied : one which can decide to raise taxes and decide how to spend them.

Two problems (and many others) remain: part II and part III of the Constitution. Fundemental rights should be entreched only if it is fairly easy for the democratic institutions to overturn a decision of the European Court of Justice interpretating them. How rights should be interpreted is a politically controversial issue which should also be up for grabs. Part III of the Constitution incorporated many rules set by previous treaties into this constitution. This didn't change the place that these rules have in the hierarchy of norms. It was precisely the problem: the new text should lower the level of these rules and retrograte them to the legislative level so that they could be submitted to democratic discussions and decisions by the European legislative institutions.

It is not a paradoxe that a shorter text, containing less rules would be more ambitious than the one which was rejected. The ambition here is to find consensual rules which gives the basis for discussions and decisions on controversial issues, not rules to decide them a priori.