Legal Commentary

As I noted in an earlier post, all of the biggest constitutional news this summer comes from abroad. Apart from the Turkish Supreme Court?s apparent coup d?etat against the AKP in the name of secular Kemalism, the constitutional fight that tops all other stories is the rejection of the Lisbon treaty by Irish voters. The Lisbon Treaty is a set of complex proposals designed to strengthen the European Union by (among other things) limiting the unanimity rule in the European Council such that individual states will no longer be able to veto proposals. The treaty would also make the charter of fundamental rights binding on member states. The Treaty must be ratified by all of the member states, but only one state ? Ireland -- held a popular referendum on the Treaty?s ratification.

To any red-blooded, true-blue American, that last fact is the second-most shocking aspect of the EU?s approval process. The EU?s leadership is essentially building a federal state by accretion ? but it has made no substantial effort to enlist European citizens in the project. We Yankees, of course, took special care in Article VII to provide for popular (convention) ratification of our Constitution, rejecting mere legislative approval. Even the most elitist Federalists realized in 1788 that big legal changes require big efforts to mobilize the people affected by them. Therefore, to a Yankee, the absence of any systematic effort to insure popular participation in the Lisbon approval process is simply wacky ? as if one could create a nation on the sly, by dozens of incremental and invisible decisions.

But the absence of conventions, plebiscites, or other general popular mobilization, is only the second most appalling aspect of Euro-constitutionalism. The most appalling aspect is the attitude of the Sarkozy government towards the Irish?s rejection of the treaty. The Irish have been among the EU?s biggest fans. If they reject a treaty strengthening the EU, then one would think that the proponents of the treaty would think long and hard about the deficiencies in their salesmanship and, in a larger sense, the democratic legitimacy of the whole EU enterprise. Instead, Sarkozy has been demanding a re-vote and refuses to budge on the contents of the treaty. What is most appalling about Sarkozy is that he is supposed to be a populist, contrasting with the ENS-style elites who normally govern the French: he is allegedly France at its most democratic.

Of course, there are other opinion leaders in Europe who share my distaste for the arrogance of the French leadership. But these opinions seem curiously absent from the Eurocracy. (For a survey of reactions, see here).

Sarkozy?s attitude encapsulates everything that I find repulsive about European constitutionalism ? dirigiste arrogance towards outlying provinces, elitist indifference to popular opinion, and sheer bureaucratic incompetence at speaking intelligibly to constituents. If this attitude runs deeper in international constitutionalism, then I?m with Scalia in trying to purge it from American law and quarantine it in some Eurocratic watering hole in Davos or Bellagio.