Europe's Flickering Philadelphia Moment

RUSSELL L. RILEY Associate Professor and Research Fellow University of Virginia

If the present moment be lost it is hard to say what may be our fate.

James Madison, in Philadelphia, to Thomas Jefferson, in Paris 6 September 1787

OVER A YEAR AND A half after French and Dutch voters stunned Europe's political elites by saying no to a proposed continental constitution, European leaders remain unable to agree on a path out of the wreckage. Some have called for scrapping entirely the constitutional experiment as a failed and costly diversion. Better, they say, to redirect the continent s political energies into more fruitful areas of cooperation, such as internal market cohesion. But others very much disagree and continue to seek ways around the formidable obstacles created by two negative votes in a process requiring unanimous consent. In September 2006, Germany's foreign minister declared that one of his country's highest priorities during its term as European Union president in 2007 will be to breathe new life into the rejected charter.' The to-and-fro among the contenders for the constitution's fate has—^with the help of an occasionally hyperbolic European press—evoked images of Monty Python, featuring running arguments about whether the constitution is dead or alive ... or not dead yet.^ Although these developments have been little followed in the United States, they are, in fact, the stuff of James Madison's nightmares. It was precisely the specter of constitutional rejection, and the disorientation that would follow, that moved Madison in 1787 to join with Alexander Hamilton and John Jay in the frenetic composition of The Federalist Papers. An exhaustive set of newspaper essays defending every aspect of that new constitution sprang from their profound anxiety about whether they could in fact get their handiwork ratified. It is worth recalling that the primary target of Publius's efforts was New York,

RUSSELL L. RILEY is an associate professor and research fellow ofthe Miller Center of Public Affairs at the University of Virginia, where he co-chairs the Presidential Oral History Program.

SPRING/SUMMER 2007 • VOLUME XIII, ISSUE 2 RUSSELL L. RILEY the France oftheir union—a large, proud, and politically indispensable member with an independent streak and a demonstrated genius for being difficult. New York's vast size, and vaster ego, made it deeply reluctant to join the common effort to siphon power to a stronger central government. Ultimately, of course, the state did vote to ratify the constitution, convinced that New Yorkers would benefit from trading more oftheir autonomy for membership in a broader and deeper union. Unlike the current situation in Europe, a sufficient number of states accepted the same bargain to bring to life their constitution. Perhaps these different outcomes can be attributed to the power of Publius's pen. (A European Federalist, though contemplated, was never compiled by the Euro-constitution's framers.^) But this reasoning is flawed on two counts. First, most scholars agree that The Federalist zctually had little real impact on the U.S. ratification debates.^ Second, close observers of European politics have concluded that France and the Netherlands were motivated by a kind of visceral discontent with the broad direction of European affairs that is not very susceptible to rational refutation. Severe economic anxiety (as- sociated with the unimpeded invasion from the east of low-wage laborers, symbolized by the oft-observed "Polish plumber"); xenophobia (especially in relation to a large and growing Muslim population); and discomfort with power being drained away from proud national capitals all played a part in the decision to halt the movement toward a stronger but more remote central government. Some disappointed advocates of the European constitution have indeed bemoaned a weak effort to promote its virtues to European publics—to take seriously, as the authors of The Federalist had, the need to win over popular opinion. But it is not at all certain that the emotional disaffection of Europe's naysayers would have yielded to even the best-constructed arguments for the merits of the new constitution's approval. The absence ofa European Federalist is, however, notable for another reason. So much of the European constitution making experiment was deliberately modeled on the United States' experience that the failure to follow the U.S. example in this regard is a remarkable exception. The Europeans decided to convene a U.S.-style constitutional convention in 2002 and they were acutely conscious throughout of both the text of the U.S. Constitution and—marketing aside—the procedures that created it.' The convention's head, former French president Valery Ciscard d'Estaing, called their work Europe's "Philadelphia moment."'^ Yet the European homage to U.S. constitutionalism went much further. Gis- card fended off criticism of his assuming this crucial job at the advanced age of 76 by noting that Benjamin Franklin was five years older when the U.S. founders worked their magic in 1787.^ At various other times, Giscard's role was compared to that of Hamilton, Madison, Washington, and—oddly, by Giscard himself—to Jefferson, who

THE BROWN JOURNAL OF WORLD AFFAIRS Europe's Flickering Philadelphia Moment was diplomatizing in Paris while the Philadelphia convention met.* In addition, com- monplace in contemporaneous press accounts in Europe was a comparison of how the transatlantic founders dealt with a common core problem—rhe need to find a delicate balance between the union's large and small states.' And throughout the process, observers questioned how far the project ought to move toward the creation of a "United States of Europe."'" Admittedly, the product of the European convention's labors was underwhelm- ing—the Euro-constitution is a poor likeness of its U.S. cousin. Alrhough the Euro- pean delegates held the model of the U.S. Constitution as their ideal, they ended up with something more closely approximating Alabama's rambling state charter—over 400 pages oftext. (Europe's constitution- ^^^ ,3 COnStJtUtiOri-WriterS tflUS writers thus bring to mind the old saw about the child who knew how to spell bring to mind the old saw about the banana but just didn't know when to Qhj|(| yy^g l^pgW hOW tO Spell stop.) The thickness of the document has ....,.,,., , subsequently become an easily exploited ^^^ i^^t didn t knOW When tO metaphor for the bloat that many already associate with a distant, extravaganr central government in Brussels.'' This marathon of legalistic prose has provided ample fodder for opponents to pluck out passages for ridicule. Among U.S. critics, the Euro-constitution's preamble has been an easy target. Where rhe United States Constitution begins with the music of democracy—"We the people .. ."—the European version opens in opera bouffe: "His majesty the King of the Belgians . . ." The U.S. criticism, however, has not been primarily about details, but about the very attempt at unity. Comfortably perched on the shoulders of political giants who made a constitution for the ages in 1787, Americans have smugly looked down on the European struggle for deeper union as a fool's errand, a doomed exercise in aggrandize- ment among peoples far too diverse and conflicted ever to succeed as one. The United States, as historian Michael Kammen has reminded us, is a nation of constitution- worshippers, prideful in a compact so perfect as to resist comparison.'^ The confusions in Europe of the past year have merely confirmed, then, the unique character of the United States' blessed national charter. Yet an honest look at how the U.S. Constitution came to life, and how its reach expanded, actually encourages humility. It is an abiding irony that by emphasizing rhe difficult and sometimes unhappy course of their own union building experiment, Americans might actually move their European rivals to adopt a more modest approach to one of the most ambitious political projects ever attempted in the free world. A re- alistic understanding of the complexities of the U.S. union building experiment may actually provide clues to Europe's consritution makers about how they might escape a

SPRING/SUMMER 2007 • VOLUME XIII, ISSUE 2 RUSSELL L. RILEY political trap of their own devising.

A MIRACLE IN PHILADELPHIA?

The notion of a "miracle in Philadelphia" is an attractive bit of mythology, not just to Americans who like to celebrate their past, but also to Europe's constitution makers. It suggests that under the proper set of circumstances, with the right group of people convened in a spirit of rational cooperation, it is possible to craft a document capable of forging unity out of untold diversity. There is, however, much more to the U.S. story than this secular version of an immaculate conception. The constitution-making process in the United States began well before the Phila- delphia convention, even before the signing ofthe Declaration of Independence. The dispersed colonials of that day first began to join hands across colony lines to develop a common response to what they perceived as increasingly heavy-handed rule by the British Parliament. Shortly after independence, the Continental Congress adopted "The Articles of Confederation and Perpetual Union," which went into effect in 1781. Under the Articles, the central government was at the mercy ofthe states, which retained the vast majority of the governing power. The subsequent movement toward a stronger central government was motivated largely because ofthe inability of Congress under the Articles to regulate commerce or to speak with a unified voice in foreign affairs. After an unsuccessful attempt to reform the Articles in Annapolis in 1786, the Philadelphia framers met and decided to scrap the old system of government and to begin anew. The creation ofthe U.S. Constitution was thus an iterative process. The document evolved into its current form because earlier versions had once been thought superior, adopted as such, tested, and fallen short ofthe mark. Success grew from failure. Indeed, the reasons that the Articles collapsed are remarkably like the problems that now vex the European Union. The division of labor between the central and the constituent governments on matters like commerce and foreign policy provoked severe dispute.'^ And a requirement of super-majority decision making encumbered the United States then just as it does the EU today. Americans moved away from these inefficient ar- rangements because they were convinced that nothing short of real, consequential unity would suffice. The European experiment has stalled because Europeans have not yet reached that pass. The Philadelphia convention did not, it should be strongly emphasized, produce a constitution above reproach. It is seldom noted that Philadelphia's miracle workers produced a document that required radical revision almost before the ink was dry on the parchment. Those who drafted it recognized immediately that it had to be funda- mentally changed in order to win ratification by the necessary number of states. A slate

THE BROWN JOURNAL OF WORLD AFFAIRS Europe's Flickering Philadelphia Moment of ten amendments, the Bill of Rights, was agreed upon as the price of approval. Not long thereafter, they had to make drastic changes to the presidential selection process (through the Twelfth Amendment) to account for the unexpected development of continental political parties. The specifics of this history suggest that there is significant precedent, if the European founders wish to avail themselves of it, for taking another crack at getting their particulars right, even within their unforgiving framework of unanimous consent. Both the U.S. Constitution and the European Union Constitution met with substantial skepticism at home and abroad. There is a remarkable symmetry in how they were received by those on the other side of the Atlantic Ocean. The eastward vol- leys of the United States today sound like perfect echoes of the westward critique that Europe leveled on the Philadelphia constitution over 200 years earlier. "The truth," as a London Times critic put it less than a year after the Philadelphia convention, "is that the thirteen United States may cordially unite on one point—that oftheir independency, [but] it is not possible, perhaps, from their different relative situ- ations and interests, to devise a plan of constitution that can meet equal approbation, or insure any lasting harmony among them."'"* Some in Europe thus firmly believed that the diversity of the thirteen states was an insurmountable obstacle to the development of a unified whole. The constitution was expected, unrealistically, to embrace the governance of peoples ranging across far too big and complex a space to yield to a single government. British readers were told in this and other commentaries (which sometimes took their cues from U.S. anti-federalists) of an array of deficiencies. The division of power between the constituent governments and the central government was deeply flawed. The inner logic and structure of the constitution was a mare's nest, with the central government framed in an unworkable fashion. There was an unconscionable democratic deficit, with the public interest lost in an institutional muddle; the most popular branch had little power, either to "promote good, or restrain bad Government."" Ultimately the U.S. Constitution seemed overly reliant on governors detached from the people, bound only by their own unchecked sense of what was in the public good. It was as though all the lessons of self-government accumulated over the years had been forgot- ten in this exercise in mindless union building. The current brief against the Euro-constitution reads remarkably the same: It tries to make a single people from too diverse a stock. Its internal structures are overly centralized and complex. And the government is too remote from the people and too dependent on cold, faceless bureaucrats. '^ So when George Will predicted in May 2005 that "Europe's elites—political, commercial and media—may [soon] learn the limits of their ability to impose their political fetishes on restive and rarely consulted publics,"

SPRING/SUMMER 2007 • VOLUME XIII, ISSUE 2 RUSSELL L. RILEY he might have offered a footnote to the Times' "Leonidas." "This being the beginning oiAmerican Ereedom^' wrote the pseudonymous critic on 1 April 1788, "it is very clear the ending will be Slavery. For it can not be denied, that this Constitution is, in its first principles., highly and dangerously Oligarchic—and it is every where agreed that a Government administered by a few, is, of all Governments, the worst!'^^

THE POWER OF THE OTHER

One considerable advantage the Americans enjoyed when starting their union was the existence of a powerful common enemy. The excesses of British rule were indispensable to drawing the colonials together. Indeed, the Declaration of Independence was among other things a brilliant piece of political demonizing, featuring a George III who made a splendid foil. Americans bonded with one another in common cause because of their shared "history of repeated injuries and usurpations." Georgians and Vermonters—as different as they were—had suffered alike the king's "long train of abuses" and so found reason to set aside their differences in service of a continental union. Today, some of Europe's most esteemed thinkers have wondered whether the es- sential missing ingredient for unity is a common emotion—something to inspire people on the continent to think of themselves no longer as French or Dutch (or German or Czech), but as European. Europe's extraordinary inheritance of high culture—especially its art and music—has sometimes been cited as one potential unifying agent. Unfor- tunately however, the simplest unifying emotion to conjure may be the negative: fear ofthe other. There are in Europe today two potential "perils" against which European publics might rally. The first is the Americans themselves. Indeed, a significant impetus for Europe's constitutional convention was a desire to create a balancing mechanism against U.S. power. Thus, the European constitutional experiment already is already tinged somewhat with contra-U.S. sentiments—notwithstanding Europe's admiration for fundamental U.S. constitutional forms.'^ While U.S. popular culture and the central tenets of its democracy remain extraordinarily appealing to the rest ofthe world, the facts of U.S. political and economic dominance cause even the United States' closest friends to chafe sometimes. Unparalleled power has created a mixture of envy and fear—and has tended more toward the latter in recent years as Europeans have watched with mounting anxiety as the United States stirs up a hornets' nest not far off in Iraq. Washington still benefits from an immense reservoir of goodwill that developed during and just after the cold war, but these reserves are now being depleted at a remarkably rapid pace. Polls indicating that Europeans now regard China more favorably than the United States reflect this alarming development."

THE BROWN JOURNAL OF WORLD AFFAIRS Europe's Flickering Philadelphia Moment The second other is the Turks. The Turkish question—or more broadly, the issue of Islamic immigration—remains without a doubt the most emotional, and perhaps incendiary, issue confronting the European Union. The continent is host to a large population of Turkish migrants whose loyalty to their native ways and religious beliefs makes them a very visible presence. Anti-Turkish resentments, by some evidence, ap- pear to be growing. There is significant political pressure in virtually every European country to keep Turkish migration in check. In some prominent cases—such as with Jean-Marie Le Pen in France and Joerg Haider in Austria—these movements have enjoyed considerable success. From the outside, it is not easy to comprehend precisely how such fears might contribute to a deepening sense of oppositional European identity. But these things have a way of following their own dark logic. Indeed, even after episodes of tragic con- sequence—^whether the outbreak of war or the establishment of death camps at Aus- chwitz and Bereen-Belsen—it is often _ ,, ,, , , , , , difficult to believe d.e sequence of events ^00 often the dafkep angels of humaH that brought them about. Too often the nature are vastly iTiore creative than we darker angels of human nature are vastly more creative than we can imagine them to be prospectively. One of the oldest lessons of politics is that it is difficult to know 997 how far demonizing ofthe other might go once the genie is loosed from the bottle. Europe's leaders thus far have attempted to make a constitution largely without exploiting the kinds of demons that might make their task easier. It is strange that more critical attention has been focused on the impracticality of framing a European constitution than on the laudable choice to take the high, but hard, road toward constitutional unity. THE PERILS OF EXPANSION

The Turkish question also highlights the fact that the making of a constitution is only half of the story here. While Europe has been attempting to "deepen" the unity of its membership with a new constitution, it has also been engaged in a historically striking effort to expand. This is where the parallel with U.S. history becomes especially complex—and disquieting. For when attention swings from constitution making to expansion, the American metaphor shifts from Independence Hall to Bleeding Kansas. U.S. historical experience was for the most part sequential: first, a constitution, and then growth in the existing membership through a relatively deliberate pace of expansion. It took nearly six decades for the original 13 states to reach the current size of the European Union (27 members)—a level of post—cold war expansion the EU

SPRING/SUMMER 2007 • VOLUME XIII, ISSUE 2 RUSSELL L. RILEY accomplished, by comparison, practically overnight. Even so simplified, the results in the U.S. were ultimately disastrous. Expansion in the United States led the country near the brink of civil v/zv on several occasions before it finally erupted in 1861. The Europeans, however, are attempting to do both at the same time—framing a constitution establishing the terms of unity among an already diverse membership of nations, while simultaneously absorbing into the EU family a large number of new member states with their own distinctive traits and problems. Clearly the pace of Euro- «, ... . - pean growth is something far beyond anything Clearly the pace of European jnJu.s. experience, ytt the period of west growth is something far heyOnd ward expansion in the united states indicates anything in the U.S. experience, how difficult expansion can be, even holding the text of the framing document constant. The collapsing of expansion and constitution making into a single process creates an extraordinarily complex game of three-dimensional diplomatic chess. Growth in a political family raises two fundamental questions: Do the prospec- tive additions fit in with the existing members? And what, if anything, will growth mean for the way decisions are made by the family? The first question concerns the character, culture, and identity of the union; the second deals with the practical busi- ness of governing. Membership questions are among the most troublesome in all of politics. In the United States, they were the stuff of heated conflict during the major period of its growth, between the founding era and the Civil War. Europe is now find- ing what these growing pains are like. Added numbers in the councils of government from newly admitted areas is making for serious problems in keeping the machinery of Brussels fianctioning—and not just because the EU now needs more seats at the table. The Lithuanian vantage on continental politics, for example, is likely to be significantly different from the French or British perspectives. Although it is not commonly characterized this way, the U.S. Civil War was itself a product of expansion. As the nation moved westward in the first six decades of the nineteenth century, it had to confront again and again the possibility that the original compromises established in Philadelphia would come unraveled. Each successive addition to the United States provoked basic questions about whether the uneasy balance of free and slave states could be maintained. In 1820, and again in 1850, disagreements over how to deal with additional member states were so severe that grand compromises had to be crafted to stave off disunion. The limits were reached in 1861. Notwithstanding Lincoln's very public (and very sincere) pledges to keep his hands off slavery in the states where it then existed, the South began to secede from the Union in anticipation ofthe inauguration of a man who had preached the evils ofthe peculiar institution. The bloody war that followed flowed from long-simmering disputes over

THE BROWN JOURNAL OF WORLD AFFAIRS Europe's Flickering Philadelphia Moment the compatibility of differing economic systems (slave versus free) within the union; the sanctity of freely held elections; the legitimacy of secession; and the ultimate location of sovereignty. Six-hundred thousand U.S. soldiers lost their lives contesting these issues. These fundamentals of constitutional democracy were thus settled in the United States not by gentlemen in powdered wigs treating each other to discourses on Montesquieu in a Pennsylvania meeting hall, but by Americans thrusting bayonets into one another in the bloody meadows of Antietam and Gettysburg. This is, grimly, as much a part of the U.S. example of union-building as the "miracle in Philadelphia."

THE POLITICS OF PEACE

The Europeans, of course, have already had their war. The initial movement toward a free and meaningful unification of European states began while memories of World War II were still fresh. The absence of armed conflict between the member states since that time is often cited as a sign of the European Union's extraordinary success in achieving its most fundamental aim—peace. At a time when the EU has experienced what may be its most damaging setback, this is the accomplishment its leaders point to most proudly to justify a decades-long efforr to create an ever-closer union. Yet supporters of a stronger union worry that rhe EU is a victim of its own success. The fears of war that motivated older Europeans ro seek cooperation no longer plague the young, for whom the possibilities of war are as remote as the black and white photographs of destruction they casually pass over in their textbooks while fiddling with their iPods. As Dominique Moisi of the Institut Franq:ais des Relations Internationals has observed, peace is no longer a mission for the young; it is simply an accepted fact of their environment. "The idea that they would resume war with their neighbors is absurd to them."^" With peace established, the remaining arguments in favor of deepening integration and fiirrhering expansion are a more complicated lot. Given the dark history of this continent, it is no doubt a sign of enormous progress that its most menacing figure at the moment is the Varsovian bearing a plunger. But where war and peace are issues of stark clarity, those that seem to matter most to Europeans today—how to preserve their ways of life and their vocations in a globalized age—are murkier. It is not clear how rhe development of a larger and deeper European Union, or a continental constitution, is expected to solve them. In the absence of a compelling argument to grant greater authority to Brussels, the ancient attachments of land and language have reasserted themselves with vigor. The United Stares' history suggests that expanding a constitutional union under the best of circumstances is excruciatingly difficult work—and that rhe Europeans might

SPRING/SUMMER 2007 • VOLUME XIII, ISSUE 2 RUSSELL L. RILEY benefit from contemplating whether a more deliberate pace would be in their long- term best interest. Also, regardless of whether The Federalist actually made a difference in the U.S. case, its publication was a sign of what Jefferson called in the Declaration of Independence a "decent respect [for] the opinions of mankind." Europe's political elites would do well to see the centrality of that respect for public opinion in the success ofthe U.S. experiment and thus the need to cultivate popular attitudes as a means of establishing legitimacy. The absence of a European Federalist \s important here as a piece of evidence that fits too well into the perception that the political leadership has given insufficient attention to how their constitutional handiwork plays in the pub or cafe. Still, in the end, the Europeans' effiart to embrace one another—after a century plagued by dislocation, bloodshed, and enforced separation—ought to be seen as one of the grandest attempts at statecraft of all time, regardless of the errors in execution that have until now burdened the attempt. If there is one thing that Americans should understand from their own experience, it is that mistakes, occasionally big ones, are inevitable along the path to a successful continental union. ^P

The author would like to thank the Salzburg Seminar for providing the inspiration and space for writing this essay, and Tim and Marie-Louise Ryback and Tarek Masoudfor their assistance with it.

NOTES

1. Stefan Nicola, "Analysis: High Hopes for German EU Period," United Fress International, 6 Sep- tember 2006. 2. See Stanley Johnson, "Don't Bury the Constitution Just Yet—As Ever, Europe Will Find a Way Around the Current Crisis," Guardian (London), 9 June 2005. In at least one instance the Monty Python reference was explicitly made, by the colorful British MP Dennis Skinner. 3. Vincent Tournier, "Where's the Boeuf?" New York Times, 27 May 2005. 4. See, for example, Clinton Rossiter, "Introduction" in The Federalist Fapers (New York: New American Library, 1961), xi. 5. Tournier, "Where's the Boeuf?"; George Parker, "One Summit Conquered but It Is Still a Hard Climb to the Peak of Ratification," Financial Times, 21 June 2004; Ian Black, "Giscard Hailed as the Socrates of New Europe," Guardian (London), 14 June 2003; Denis Staunton, "Major Step towards Sorting Out Jumble of Treaties," Irish Times, 27 May 2003; Paul Gillespie, "Madisonian Moment or Moment of Mad- ness?" Irish Times, 21 June 2004. 6. "The Real Conference—Blair Has Developed a Means to Deflect Debate from the Central Issues of the EU Constitution," Sunday Telegraph (London), 5 October 2003. 7. Stephen Castle, "Skirmishes as Leaders Meet to Plot Euture of Europe," Independent (London), 28 February 2002. 8. George E Will, "A Botched Constitution," Washington Fost, 27 July 2003; David Lawday, "The New Statesman Profile—Valery Giscard d'Estaing," New Statesman, 4 March 2002. 9. James A. Thomson, "Why U.S. History Holds a Lesson for Europe," Financial Times, 19 Decem- ber 2003; John Tagliabue, "European Union Can't Reach Deal on Constitution," New York Times, 14 December 2003. 10. "The Founding Fathers, Maybe," Economist, 23 February 2002. 11. Paul Robinson, "A Dodgy Constitution," Spectator, 8 February 2003.

THE BROWN JOURNAL OF WORLD AFFAIRS Europe's Flickering Philadelphia Moment 12. Michael Kammen, A Machine that Would Go of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1987). 13. Andrew C. McLaughlin, The Confederation and the Constitution, 1783—1789 (New York: Collier Books, 1962). 14. Times, 22 May 1788. 15. Leonidas, "New Government of America," Times, 1 April 1788. 16. Robert McCrum, "Focus: From Jefferson's Brevity to Convolutions of Bureaucrats," Observer, 14 December 2003; T.R. Reid, "Europeans Open Talks on Drafting Constitution," Washington Post, 1 March 2002; Michael Prowse, "Common Thread That's Proving Hard to Find," Financial Times, 20 June 2002. 17. Ibid; George F. Will, "Europe at the Precipice," Washington Post, 29 May 2005. 18. See Andrew Stuttaford, "Constitutionally Indisposed," National Review Online, 22 February 2005; Gerard Baker, "Against United Europe," Weekly Standard, 22 September 2003. 19. Guy Dinmore, "Anti-Americanism Gives China the Edge in Poll," Financial Times, 24 June 2005. 20. Dominique Moisi, "America and the World" (keynote address, Salzburg Seminar Board of Directors, 25 June 2005). Audio is available at http://www.salzburgseminar.org/2005NewsArchives.cfm.

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