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February 1, 2001 -- One consequence of the U. S. defense of Western Europe during the Cold War was that it made possible an unprecedented level of peaceful cooperation among West European nations. That cooperation has now culminated in the creation of the European Union (EU), a quasi-federal system that is in some ways like America's.
Many of the Union's goals have been laudable: the elimination of protective tariffs between member states; the imposition of substantial budgetary-deficit- and national-debt restrictions in anticipation of monetary union; and monetary union itself, with its increased ease of price comparisons throughout Europe and the imposition of "Greenspanesque" monetary discipline on historically inflationary countries. We are even beginning to see movement toward Europe's assuming responsibility for its own military defense, which would reduce the burden borne by American taxpayers.
Yet the EU also provokes concerns.
The earliest modern call for a European federal system came from Immanuel Kant, in his essay "Perpetual Peace." However, most analysts trace the European Union in its current form to the efforts of the Altiero Spinelli, who argued after World War II for peace through federation by simultaneously invoking Karl Marx (" wealth must be distributed in an egalitarian way, thereby eliminating the parasitic classes and giving the workers the means of production") and James Madison ("the rational organization of the United States of Europe . . . can only be based on the republican constitution of federated countries").
Thus, a paradoxical blend of collectivist and individualist thought has been with the EU from the beginning. In its first institutional form, the European Coal and Steel Community, the goal was to "supranationalize" the French and German steel and coal industries, placing them under the regulatory authority of an agency not beholden to either France or Germany, in order to reduce both countries' industrial ability to wage war. The ECSC was soon followed by the European Economic Community, whose goal was again to limit the power of national governments, in this case, however, to prevent them from impeding trade and commerce across national lines. Both "Communities" also imposed regulatory and protectionist regimes (especially in the field of agriculture), whose character was far from classical liberalism. Taken together, these treaties created the Common Market and its successors, culminating in today's monetary union and introducing the above-mentioned policies of fiscal and monetary restraint. However, it is clear that the framers of even these treaties and institutions conceived of what they were doing along utilitarian lines.
One of the effects of the EU treaties was to create a European Court of Justice to adjudicate disputes between various parties concerning treaty implementation. Often, litigation involved individuals and private companies disadvantaged by national legislation that violated the member states' treaty obligations. In such cases, the Court reasoned that because it is impossible to have trade between citizens in different member states if national legislation impedes it, it follows that the treaties created certain rights, many of which coincided with those celebrated by classical liberals. Although it was heartening that the Court saw a necessary link between freedom and economic policy, seeing individual rights as a means to the end of a utility-maximizing economic policy puts the cart before the horse. (There is a lesson here for those libertarians closer to home who would base their rationale for individual rights on utilitarian considerations.)
Inspired by the Court's willingness to find such rights in Europe's treaties, and the member states' surprising willingness to comply with the Court's rulings, certain leftists tried to establish the enforceability of other rights implicit or explicit in the treaties creating the EU-in particular those enumerated in the European Convention on Human Rights, to which the EU's members are also signatories. In the end, however, the Court balked. If such rights were to be enforced, the Court said, they would have to be explicitly incorporated into new treaties reforming the EU.
Therefore, in recent years, there has been pressure to both simplify the "constitution" of Europe, which currently consists of several complex individual treaties, and to crown such an effort with a Bill of Rights, a "Charter of Fundamental Rights of the European Union," which would enshrine principles not even national governments could set aside through their own legislation.
That sounds benign, and many of the Charter's fifty-four articles do enshrine classical-liberal legal doctrines. But most do not. And those that do not provide a case study in the way a flawed philosophical framework (in this case utilitarianism), when invoked to support sound legal policies, leads to the destruction of those very policies. Last December, a completed draft of the charter was "solemnly proclaimed" in Nice; and though discussion of its possible incorporation into the treaties has been delayed to 2004, the document inspires both laughter and fear.
The laughter is provoked by provisions that do not rise to a level of constitutional importance. For example, Article Three prohibits human cloning. Article Eight appears designed to give a person the right to review his credit report. Article Twenty-Four urges that children be allowed to spend time with both of their parents (presumably in the wake of divorce). Other Articles are so vague as to be meaningless, as when the Charter enjoins "respect" for various things like "diversity" (Article Twenty-Two) and the elderly (Article Twenty-Five). One wonders if such provisions are meant to make the idea of a right look frivolous and thereby undermine the seriousness with which other rights are regarded.
Was this what we spent trillions of tax dollars and 45 years struggling to protect?
But the draft Charter also provokes fear, as when we read (in Articles Twenty-Seven through Thirty Eight) that Europeans will have a right to "protection in the event of unjustified dismissal," "paid maternity leave," "social security benefits and social services," "housing assistance," "health care," "environmental protection," "consumer protection," and, worst of all, "access to services of general economic interest." Though one could argue that these "rights" extend only to the right to obtain them for oneself in the marketplace without government interference, the various Articles' origin in an earlier "Social Charter" (rejected by the United Kingdom) makes clear that the impediment to access envisioned is not the government but the purchaser's inadequate funds. Unless Europeans have discovered a magical method to produce these goods and services, however, it is not clear where this list of positive rights leaves Article Seventeen's claim that "no one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss." That there might in addition be some conflict with Article Five's "no one shall be required to perform forced or compulsory labour," which is what taxation to support these goods comes to, also seems not to have been contemplated by anyone.
The drafters well understand that "social" legislation enacted by a national legislature is vulnerable to changing public opinion, whereas a constitution (in this case, a treaty requiring unanimous consent by all the member states) is extraordinarily difficult to amend. And those who think that at least this is "democratic socialism," as opposed to the more pernicious, undemocratic kind that used to prevail to the East, might do well to read the final Article: "Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein." One wonders if this means Europeans lack the right to discuss the very propriety of the "social" provisions, since such an act could be construed as aimed at the destruction of such so-called rights. Clearly, the concept of "rights" the Charter entertains leads to the destruction of the very possibility of rights properly conceived.
Was this what we spent trillions of tax dollars and forty-five years struggling to protect?
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