ANALYSIS: Political elites are building the EU polity, writes Paul Gillespie in Brussels
Constitutional moment - or moment of madness? Foundational text or non-event? Citizen's charter or elite compact? Step on the road to a federal superstate or high water mark of integration in the European Union?
Such polarised views of the constitutional treaty will reverberate over the next two years or so as it is ratified or rejected by parliaments and referendums in the 25 member-states. On the (unlikely) assumption that it is agreed by all of them the treaty will not come into effect until 2007; many of its provisions will not apply until 2009 and the arrangements for a smaller Commission not until 2014.
Thus this document will by then have occupied two decades of discussion and argument, from the mid-1990s when the idea of a constitution for the EU was first floated in policy and academic circles, to the time when it would be fully implemented. The political debate on the subject is shorter, beginning essentially with the speech made by the German Foreign Minister, Joschka Fischer, in Berlin calling for a constitution and the series of high-level responses to it from European leaders.
This led to the Laeken Declaration of December 2001, in which EU leaders agreed to summon a Convention on the Future of Europe to draft a possible "constitutional text". Resonances of the Philadelphia Convention which drafted the US constitution in 1787 were noted by commentators and made explicit by its president, Valéry Giscard d'Estaing during its proceedings, when it became more common to refer to it as a draft constitution.
But since the text simplified and rearranged the treaties which empower the EU and handed this over to the member-state governments to negotiate, it is not a stand alone constitution in classic mode, but is better described as a "constitutional treaty".
This expression reflects its dual purpose: to set out the EU's basic values of "respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities", describe its objectives and say how and by what institutions they should be carried out; and to bring together in one document the six treaties involved.
The resulting text is necessarily much longer than national constitutions, but is divided in four parts with differing degrees of legal complexity and is much more easier to consult than the treaties were.
The American historian and political theorist Bruce Ackerman uses the term "constitutional moment" to describe lasting constitutional arrangements resulting from specific emotionally charged responses to fundamental political experiences involving large scale political mobilisation. They are rare and relatively brief, he argues. He identifies three such moments in US history: Philadelphia, the Civil War and the New Deal of the 1930s. Such periods of constitutional politics alter the framework of the ordinary politics coming before and after them and thus have lasting influence.
Drawing on his work the Irish legal scholar Gráinne de Búrca examines the different political purposes lying behind the draft treaty and asks whether it is indeed a Madisonian moment or a moment of madness
(see www.jeanmonnetprogam.org/conference_JMC_Princeton/grainne_de_burca_comment.rtf).
She distinguishes five expressed objectives: enhancing the EU's popular legitimacy as it takes on more governing powers; clarifying and consolidating its legal, political and institutional framework; limiting and reining in its powers and functions by spelling out competences and giving national parliaments a role in policing the validity of proposed EU legislation; marking the reuniting of Europe after the end of the Cold War; and strengthening its external unity and representation in a more globalised world by giving it more political, diplomatic and military capabilities.
These are not necessarily contradictory objectives. Some have been achieved more than others in the text. And it will take time to determine whether the first objective - to construct a degree of constitutional commitment and community through the act of deliberating, debating and enacting the treaty - will be met in the political process of ratifying it.
The next couple of years will tell whether this helps construct what the German philosopher Jurgen Habermas (a close friend of Joshka Fischer) calls a sense of "constitutional patriotism" in the EU, or whether the attempt to force, as the Eurosceptics see it, a settlement presupposing a non-existent demos or political community among its diverse peoples is shown to be a moment of madness when they reject the project.
Ms de Búrca is struck by the shifting balance through the negotiations towards the external dimension, reflecting the Iraq crisis, growing European resentment of US unilateralism and the need to balance it with a stronger EU global role. Such an objective has widespread public support within the EU, which will help bind its peoples together, even if it continues to divide governments and political elites; but the measures proposed are not those of a superstate in the making, since the treaty preserves unanimity and therefore national sovereignty in foreign policy making. How the external action is strengthened is crucial and open to continuing influence by smaller states. This was shown during the Irish presidency, which has emphasised the United Nations, human security and development issues in its work.
Evidence from Eurobarometer polls shows the real cleavage in the EU is between those who identify only with their nation and those who see themselves attached to their country first and Europe too, so that the two identities blend and complement one another. The latter group is steadily growing.
In it there is a sharp increase in the willingness to support greater European integration in spheres such as foreign policy, environmental regulation, economic policy, immigration and asylum. Health, education and taxation are preferred to stay at national level. The treaty roughly reflects such divisions, although there is plenty of room for disagreement about how adequately it does so. Such contests help build a polity by creating a public sphere in which there is talk about similar issues at the same time within a common framework of meaning.
Political elites are building the EU polity, just as they built national ones. They relate much more readily to it because it is more real for them. They now have the task of convincing their publics that this constitutional treaty is worth supporting because it matches their real experiences and preferences.