Part 1, The Federalist Papers, January 2017
by Leo Klinkers |
Now that Germany is chairing the EU again since 1 July 2020, Angela Merkel is being interviewed by the media. To questions about the conflicts within the EU and its increasing (geopolitical) weakness, she answers with remarks like: “We need to think again about a Constitutional Treaty” and: “It is necessary to adapt the EU treaties again”.
This is very serious. There is no such thing as a Constitutional Treaty. Like a pregnant man, it is a linguistic oxymoron: two words that do not match. The fact that she argues for new adaptations of the EU treaties proves that the legal basis of the EU – the Lisbon Treaty – is fundamentally wrong.
On top of that, the EU plans to launch the Conference on the Future of Europe 2020-2022 soon. Its organization is even more flawed than the Convention on the Future of Europe 2001-2003, which led to the Lisbon Treaty in 2009. It is a legal monster that is causing the collapse of the EU. Only a federal constitution can save Europe.
In the context of a series of essays entitled ‘Episodes of flaring up European unity in the context of Federalism’, in January 2017 I wrote an essay on brilliant constitutional innovations of the world’s first federal constitution, designed by the Philadelphia Convention between May and September 1787. In the famous American Federalist Papers, Alexander Hamilton, James Madison and John Jay explain those innovations. Madison and Hamilton, in particular, explain with merciless criticism the seriousness of the flawed nature of the confederate treaty and why it is precisely this treaty itself that is the cause of the growing conflicts between the thirteen states in America and the inevitable downfall of those states when the people of those states are unwilling to accept the draft federal constitution.
Instead of quietly taking note of what Hamilton and Madison already knew in 1787, namely that with a treaty as an accumulation of national interests you cannot administer statehood without causing serious problems, European leaders continue the path of the big mistakes and they themselves destroy the EU. Hopefully, the essay below, dated January 2017, offers some European federalists the confidence that one day Europe will be okay.
The Federalist Papers
Authors: Alexander Hamilton, James Madison and John Jay (1787-1788)
I see the Federalist Papers as a doctrine full of renewing insights in the form and content of constructing states, doing justice to the two inalienable rights of people, namely liberty and happiness. Therefore, this review is meant to fight the unmistakable catastrophe of the disintegration of the European Union. Not by a plea to adapt again – and in vain – the treaty and the organizational structure of the EU, but through replacing this structure with a federal form of state. Exactly as was done between 1787 and 1789 in America. The facts and arguments of that period are convincingly applicable to the dying lifecycle of the EU. Applicable in the sense: “Please, start learning – at last – what the Americans created at the end of the 18th century, based on the thoughts of European philosophers such as Aristotle, Althusius, Montesquieu and Locke.”
Another philosopher should be mentioned here, the famous 17th century Portuguese/Dutch Baruch Spinoza. In his Ethica he answers the age-old question “How can I acquire happiness?” by writing, “Use your brains”.
Herbert Tombeur and I have pointed out – in the European Federalist Papers (2012-2013) – the notion that the EU will disintegrate. It is the inevitable effect of a system error in the Schuman Plan of May 1950. I elaborate on this error in the Series of four videos about federalization in the Section Strong with Europe on the website of the Strong Learning Academy. It is remarkable that it took until 2016 before this process of disintegration was mentioned openly in the media and in the European political arena. It is even more remarkable that President Donald Trump – with hardly tempered irony – is speaking about Europe’s weakness in terms of its predictable disintegration. Probably aiming at playing the Machiavellian game of divide and conquer, and the other game of punish and reward.
In order to avoid misunderstandings: I appreciate the European Union as a symbol of the age-old wish to unite Europe. However, its administrating system contains all the mistakes of the Thick Book of Administrative Mistakes. It is against that background that my observations should be understood.
The Federalist Papers contain a large number of interesting aspects. However, I constrain myself to subjects that are – in my opinion – unique in the history of federal constituting. Unique in two senses. On the one hand because they were completely new, never done before. On the other hand because they were daring, bold, best formulated as ‘stepping out-of-the-box’.
To support this approach I like to ‘hide’ behind Robert A. Levine, former top-official in the American federal administration. He wrote an article in the New York Times of January 9th, 1999, titled: ‘What the EU needs is a copy of The Federalist Papers.’ This statement came at the arrival of the EU’s Economic and Monetary Union. Levine explained that Europe – while striving at an overall economical integration – should learn some useful lessons from America. The most important lesson being: without a federal foundation the Economic and Monetary Union will fail, sooner or later. Considering the nasty effects of the global banking and economic crisis since 2008 we see his prophecy being fulfilled: by the absence of a federal foundation – due to political mismanagement at the moment of establishing the Treaty of Maastricht in 1992 – the single currency called Euro, operates as one of the increasing number of divisive elements disintegrating the European Union.
Well, let’s start working now. The observations about The Federalist Papers are split into New and Out-of-the-box.
For ages – from Aristotle to Montesquieu – thinking about the constitutional and institutional aspects of popular sovereignty and democracy did not lead to binding regulations. Until James Madison arrived at the scene. Firstly, with Vices of the Political System of the United States in April 1787 he ‘killed’ the confederal form of state. Then he wrote a letter, dated April 16th, to George Washington, the then leader of the Confederation, asking permission a) to organize a Convention to investigate the essence of these Vices, and b) to offer the Convention plans for something ‘better’. He elaborated on this ‘better’ some weeks later in the so-called Virginia Plan of May 1787, an encompassing plan for a completely new stately order. Washington gave him the green light for organizing the famous Convention of Philadelphia, and the rest is history. However, a history that never occurred before: the non-binding thoughts of European philosophers were branded in the binding regulations of a federal Constitution. The arrival of this Constitution as such, and its formulation, added to the brevity of only seven articles, have led to the creation of twenty-eight federations, covering – anno 2017 – 40% of the world population. It has not been difficult for Madison to criticize the stately form of the Confederation. The thirteen confederal states were confronted with very severe challenges. They struggled from 1776 (the Declaration of Independence), but actually from 1783 (the official ending of the Independence War) were given the task of transforming their colonies into states. Each state took another path, choosing its own manner of stately organizing. Without any interconnectedness they all tried to find out their own form of democratic government. There was no togetherness at all. Around 1787 they had created a hotchpotch of dissimilar representative governing systems. This explains Madison’s anger, as a member of the Confederal Congress for the state of Virginia.
Now I must confess that it is not quite true what I said about ‘never occurred before in history’. Around 1760, notably on European soil, a Constitution had been created on the island of Corsica (in the Mediterranean Sea) by its leader Pascal Paoli, in co-operation with no one less than Jean Jacques Rousseau. This document was based, of course, on Rousseau’s thoughts on popular sovereignty, democracy and social contract, as well as on the ideas of Montesquieu on the trias politica. Though this occurrence can be considered as transforming non-binding philosophical thinking into binding regulations, it lacked the idea of federalism that became established in 1787 in America.The Americans knew their European classics, while the Europeans did not. Except for Switzerland. That country decided mid 19th century to follow the American example. Germany, Austria and Belgium did the same after World War II. To what degree this thinking in terms of federalism has spread within the European Union is best explained by using the words of Geert Mak in the Dutch television program De Wereld Draait Door on March 7th, 2016: “In Europe talking about federalism is like throwing the devil in a bowl of holy water; the only thing you hear is screaming and moaning.”
The Convention of Philadelphia had a specific assignment – based on a law of the Confederal Congress. I shall quote relevant parts of that assignment in order to make clear how Madison defends in Paper 40 the Convention’s operating against the criticism that the Convention ignored that official assignment:
Whereas there is provision in the articles of Confederation and perpetual Union for making alterations therein (-); and whereas experience hath evinced that there are defects in the present Confederation (-); Resolved – That in the opinion of Congress it is expedient that on the second Monday in May next a convention of delegates, who shall be appointed by the several States, be held at Philadelphia for the sole and express purpose of revising the articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress and confirmed by the States, render the federal Constitution adequate to the exigencies of government and the preservation of the Union.The Convention stepped out-of-the-box twice. It threw the Confederal Treaty into the waste paper basket, did not utter a single one word on improving or strengthening the ‘Articles of Confederation’and designed blandly a federal Constitution. In the second place they ignored the task of submitting their creation firstly before the Confederal Congress and the parliaments of the states. Instead, they presented the draft Constitution right away to the citizens of the thirteen states. That is why this step provoked criticism from the side of anti-federalists. In their opinion the Convention was not authorized to deviate so far from their official assignment. Madison, being an outright constitutionalist, writes in Paper 40 a defence that sounds straight, which is however, accompanied by some aspects of sophism. He plays cleverly with some – not quite well formulated – words in the act that carried the assignment for the Convention. Firstly, he formulates the assignment in the way he thinks that it was intended:
From these two acts it appears: 1st, that the object of the convention was to establish in these States a firm national government; 2nd, that this government was to be such as would be adequate to the exigencies of government and the preservation of the Union; 3rd, that these purposes were to be effected by alterations and provisions in the Articles of Confederation, as it is expressed in the act of Congress, or by such further provisions as should appear necessary (-); 4th, that the alterations and provisions were to be reported to Congress and to the States in order to be agreed to by the former and confirmed by the latterThen he begins the counter attack. In a free version of his writing: ‘When I weigh these words fairly – giving the authorization of the Convention – then I must ascertain that the assignment was to design a national government that complies with the requirements of such a government ánd to revise the Articles of Confederation in such a way that they can serve that goal. Well, common sense and legal axioms dictate that there are two rules to be taken into account when confronted with such an assignment. One rule is that those words must have some meaning and must serve a goal. The other rule is that, when some parts are contradictory, the most important parts should take precedence. Here the end justifies the means, not the other way around. If we assume that the words through which the Convention was authorized are incompatible; that both a national ánd an adequategovernment in the view of the Convention cannot be established by means of ‘alterations and provisions of the Articles of Confederation’; which words, then, in the assignment should we embrace and which should we reject? What are the most and least important parts? What is the goal and what are the means? Let the most conscientious analysts in the field of delegated powers, and the unrepentant opponents to the Convention answer these questions. Let them declare if the happiness of the people of America was so important that the Confederal treaty had to be pushed aside in order to establish an adequate government, or that the creation of such an adequate government should be omitted in favour of the preservation of the Articles of Confederation. Let them state whether the preservation of those articles was the goal and that a reform of government was the means; or that the establishment of an adequate government in favour of national happiness was the goal – a goal that sprouted from those articles themselves – and thus now – due to them failing to serve the goal of national happiness – should be sacrificed.’ Madison goes on in this way of reasoning. It would go too far to mention all of his arguments. In essence they boil down to: ‘Do you want liberty and happiness? Well, then stop complaining. It could have never been the goal of the Confederal Congress to forbid with such a solemn assignment the establishment of substantial reforms. Do you fail to understand that the Confederal treaty is not instrumental in realizing the goals of liberty and happiness? Merely adjusting the articles of that treaty is useless and does not serve any purpose. It would make things only worse. To serve those goals we need a federal Constitution and that is it. Period.’
I resist the temptation to sum up in this essay how many times the treaties of the intergovernmental EU-administrating system have already been altered. Without creating or guaranteeing a stability of the Union – let alone happiness of the European people. On the contrary, each alteration of the treaties underlying the EU made things worse, a typical effect of the system error as the root cause of the EU-disintegration process.And this brings me to New 2.
Hamilton and Madison already used the concept of ‘system’. This is the first remarkable aspect. If you know that system theory was not yet developed before the 1930s, it is admirable that they understood that in constituting matters the cohesion between law-making, the allocation and the division of powers, the organizational structures, the processes of designing and implementing policies, the oversight and control, the treaty-based relationships with other countries can be applied in only two ways: good or bad. For fans of cybernetics and social system theory – both to be seen as specific parts of general system theory – The Federalist Papers are a joy to read. Especially for the free and easy way in which the writers deal with the concept of system error.
That is the second remarkable aspect. The merciless Hamilton and Madison nailed the Articles of Confederation – the treaty that had to glue together the thirteen states – against the wall of system errors. Moreover, they went one step further by explaining that a system based on an error will inevitably go down. And that is the third remarkable aspect. Already at that moment in history it was understood that a system error will hollow out the system itself. Automatically. Nothing can stop that. It works like the meltdown of a nuclear reactor. Once begun, the process of destruction speeds up and spreads itself. Resulting in anarchy and chaos. They understood this, though system theory and cybernetics were not developed until the Interbellum.
And exactly this final aspect – the fact that a system error inevitably destroys the system – is happening within the European Union. No one can deny that some severe problems, coming from outside of the EU – thus externally driven – have led to an increasing amount of internal conflicts. External problems like the banking and economic crisis, the refugee problem and terrorism threats split the European unity further and further. The Lisbon Treaty, intended to keep the Member States together in a stable community, is not sufficiently instrumental to preserve that goal. Moreover, it is itself, as one of the faulty products of the system error in the basis of the EU, accountable for this process of disintegration. What exactly this system error in the EU-basis is, will be dealt with later on.
Let me now focus on Hamilton and Madison. In Paper 6 Hamilton describes his opinion of the Confederation as disunion with the following words:
“To look for a continuation of harmony between a number of independent, unconnected sovereignties situated in the same neighborhood would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages.”
He experiences a process of disintegration of the Confederation, due to system errors in the Confederal Treaty, leading to the age-old manner in which so-called autonomous countries deal with their problems, namely by warfare (Papers 7 and 8).
In my review of the books by Wim de Wagt and Andrea Bosco the continental and the British federalists call the domain between nation-states a condition of anarchy. By the lack of constitutional and institutional links between nation-states wars are inevitable. In their view, only by establishing a federal system the anarchical domain between nation-states can be made harmless.
In the following Papers Hamilton describes in detail how this disunion can be pictured as the disintegration of the whole system. And that only by establishing an energetic, powerful and financially independent federal government such a drama – resulting in new tyranny and anarchy – can be prevented (Paper 9).
In Paper 13 Hamilton explains that the system errors of the Confederation already have led to block formation within the thirteen states. A Northern, a Middle and a Southern block. His fear of wars and violence between those blocks motivates him to commit himself to explaining and defending the federal Constitution as the solution to make it possible for the Member States to keep their own identity and self esteem on the one hand, and to establish above the states a separate constitutional administration that can take care of common interests and sorrows on the other hand.
What do we see at present in the EU? A process of disintegration into four blocks. A Northwestern part that wants to strengthen the integration. A Southern part around the Mediterranean that wants to get rid of the Euro. A Middle part that opposes the Euro, as well as the refugees from the Middle East and North Africa. And a group of four countries at the Balkan that want more opt-outs (just like the UK) from the Lisbon Treaty, urged especially by the refugee problems and the strict EU-budgetary rules.
This marks a striking resemblance with the American Confederation before 1787. The question is, however, if the process of the EU-disintegration can be explained by a system error in the same way as Hamilton and Madison based the disintegration of the Confederation on underlying system errors. Well, nothing is easier than that. The all-encompassing system error that is at present destroying the EU is to be found in the so-called Schuman Plan of May 1950.
Advised by Jean Monnet (about whom I shall speak later, when reviewing the book of Andrea Bosco), and also based on a large number of arguments pro federalization between 1945 and 1950 – among which federal claims by Churchill and Eisenhower – Schuman pleaded for establishing a European Federation under the name of the United States of Europe. However, in the same Plan he made the mistake to lay the powers for establishing such a federation in the hands of government leaders.
Government leaders can – due to their position – only create systems of co-operation on fields of policy-making. They cannot establish the stately form of a federation, based on a federal Constitution. Well, co-operating in one field of policy-making they did. Six government leaders established in 1951 the European Community for Coal and Steel, in 1958 (under the Treaty of Rome) the European Economic Community and since 2009 (under the Treaty of Lisbon) the European Union. This is called intergovernmental administration; not a federal form of state. According to the basic thoughts of Althusius and Locke a federal form of state arises from the bottom up, whereby only a small part of the sovereign powers of the people will be integrated into a federal authority, while all other powers remain with the people and with the states that take part in the federation. Intergovernmental administration is only co-operation in the fields of policy making; it operates top down with centrally imposed uniformity, without democratic control of so-called countervailing powers and checks and balances, while pushing and pressing the Member States towards assimilation. And punishing them if they do not comply.
Back to Hamilton. In Paper 15 he describes the Confederation as a political monster with principal defects and fundamental errors. In Paper 16 he predicts the dying of the Confederation, exactly the picture that belongs to a system error: the system itself is being hollowed out and implodes sooner or later. In Paper 22 he summarizes all aspects of defects and errors as elements of a system that is breaking down as follows:
In this review of the Confederation, I have confined myself to the exhibition of the most material defects; passing over those imperfections in its details by which even a considerable part of the power intended to be conferred upon it has been in a great measure rendered abortive. It must be by this time evident to all men of reflection, who are either free from erroneous prepossessions, or can divest themselves of them, that it is a system so radically vicious and unsound as to admit not of amendment but by an entire change in its leading features and characters.
Herewith he is laying in Paper 22 a basis for the harsh words by Madison in Paper 40, addressed to those who criticise the Convention that it was not authorized to disregard the assignment to adapt the Confederal Treaty by going a completely different path and design a Federal Constitution. Moreover, Hamilton mentions in Paper 22 that the collapse of the confederal system is to be attributed to the fact that the people never had ratified this treaty. To conclude with: “The fabric of American empire ought to rest on the solid basis of the consent of the people.” In Paper 30 – apparently predestined to become Secretary of Finance – he attacks the flaws in the confederal system that make it impossible to create a sound financial basis for an energetic and powerful federal government.
Mind you: the federal American government possesses around 24% of the national income. The EU hardly 1%.
Like Madison, Hamilton puts permanently two extremes opposite one another: liberty and happinesson the one hand – to be realized by a federal Constitution – and chaos and anarchy on the other, if one is holding on to the Confederation. Operating with these kinds of perceptions the federalists received the image of being the good guys while the antifederalists were seen as the bad guys.
Madison also refers in almost of all his twenty-nine Papers to the danger of the disunion, writing in Paper 18 about the “…. weakness, the disorders, and finally the destruction of the confederacy”.However, not until Papers 37-40 he uses the concept ‘system’ to deepen the unmistakable disintegration of the Confederation. In order to avoid too many citations I confine myself to the utmost. See here an observation in Paper 37:
It has been shown in the course of these papers that the existing Confederation is founded on principles which are fallacious; that we must consequently change this first foundation, and with it the superstructure resting upon it.
In Paper 38 Madison uses the patient-doctor metaphor to explain how to deal with the constitutional problem of the disintegrating Confederation. He sees all opponents to the federal Constitution in the same light: doctors who will never be able to cure a sick person because they apply the wrong therapy. In Paper 40 he makes clear that the Convention was meant, “for correcting the errors of a system by which this crisis had been produced.”
Personally I appreciate Madison’s Papers 38, 39 and 40 as the most fundamental ones. In these Papers he explains how it would be possible to establish a correct stately order: by choosing a federal system. This would do justice to the importance of sovereignty on two levels: the sovereignty of the federal state as such, provided with the powers to take care of common interests and concerns on the one hand, and the sovereignty of all other powers remaining with the people and the Member States on the other hand. However, also his Paper 51 is important, especially these words:
You must first enable the government to control the governed; and in the next place, oblige it to control itself – as much a need in a republic as in any other form of government.
And this brings me to New 3.
The horizontal division of powers – expressed by the trias politica – is a well-known subject. The vertical division of powers is not well known, though here lays the essence of a federal system. Therefore I put forward the following metaphor.
Take an apartment building. Within each apartment each owner is his own boss. He decides what he will be eating, when he wants to watch television or to sleep, how many times he wants to shower, and so forth. No one outside that apartment has the power to enforce that he has to get up each day at 6 o’clock, is allowed to shower for only five minutes, has to eat chicken on Wednesday and fish on Friday.
However, there are common interests and concerns in the apartment building. Individual apartment owners cannot take care on their own of the maintenance of the roof of the building, of the central heating system, the lifts, the cleaning of staircases et cetera. That is why such a building has the status of a Condominium, an association of owners. They elect a board and pay a certain sum per month to enable that board to take care – on behalf of the owners – of those common interests and concerns. That is a federal organization. The Condominium board is sovereign with respect to a limited series of powers to take care of communal interests and concerns while the owners remain sovereign with respect to everything else in their apartments.
In the Papers 38, 39 and 40 – in addition to Paper 45 – Madison explains this concept thoroughly, although he does not express the words ‘vertical division of powers’. In order to explain that division he uses two words: federal for an organ, an authority, with a limited array of powers (in the German federation called Kompetenz Katalog) that is urgently necessary to be able to take care of communal interests and concerns. Interests and concerns like a common defence and a common foreign policy.
The other word is national. Madison reserves this word for the unlimited domain of sovereign powers that remain with the people and the states. Again and again he stresses the aspect of national to play down the arguments of opponents who fear that a federal organ might evolve into a new tyrant. The Member States remain the basis of the new state, which is purposely expressed in the combination of the words The United States of America. The states remain sovereign, but are united on a federal level. Therefore this division of powers is called shared sovereignty. Madison brings this idea of vertical division forward in Paper 14.
Althusius already knew (around 1600) the concept of shared sovereignty as a fundamental element of layered stately formation from the bottom up. The contemporary Jean Bodin was an outright opponent to the idea of sharing sovereignty. In his opinion sovereignty was indivisible, in the hands of one person, the monarch or the ruler. I leave this matter aside.
There is a second matter to deal with in this respect. Defenders of the Lisbon Treaty state that decisions of the European Council that are disliked by EU-Member States, can be blocked by the principle of subsidiarity. That principle states in Article 5, clause 3 of the Treaty: ‘Leave to the Member States what they themselves can do better or best.’ However, this does not work, which is therefore one of the basic reasons for the increasing frustration and resistance among national parliaments and organized citizens. Why doesn’t it work? Because somewhere else in the Treaty of Lisbon – in Article 352, clause 6 – it is stated that the European Council is allowed to take any decision that, according to the opinion of the Council, serves the goals of the Union. Thus, the European Council can always – whenever it wants to do so – break through the principle of subsidiarity. But that is impossible within a federation. The federal authority can only decide on those subject matters that are put (by the states) under the care of the federal organ in the form of a limitative list of subjects. In other words, due to the existence of the vertical division of powers the concept of subsidiarity is indivisibly connected with the concept of federalization.
In Paper 40 Madison admits that the
… convention have departed from the tenor of their commission. Instead of reporting a plan requiring the confirmation of all the States, they have reported a plan which is to be confirmed and may be carried into effect by nine States only.
What is happening here? The confederal treaty prescribes that important decisions – especially the decision to alter the Treaty and of course even more specifically the decision to abolish the Treaty – requires unanimity. Thus, a ‘yes’ from all thirteen states. However, the Convention had decided to ignore this requirement. It presented the draft federal Constitution to the people of the states, so as to ratify the draft through a system of delegates per state. As soon as the citizens of nine states were to ratify this document the Constitution would go into force.
This was an outright violation of the rules of the confederal treaty. But the Convention did not want to accept the risk of one or two states against the Constitution – and thus its own death – and opted for the introduction of a majority system: with nine states in favour of the federal Constitution, it would go into force.
The European Council still uses the principle of unanimity, though for decisions of a lower order (decisions made by EU-councils of Ministers) a majority system is applied. The curse of the unanimity principle is the fear (of a certain kind of politicians) of decisions that may damage the interests of their Member State, therefore inflame national and nationalistic agendas (own country-first), thus operating with concealed vetoes and an exchange of voting behaviours in back chambers.
Madison defends this out-of-the-LEGAL-box step by the Convention by observing firstly that this subject had received hardly any attention in the many criticisms of the work of the Convention, and that this apparent tolerance can only derive from the “irresistible conviction of the absurdity of subjecting the fate of twelve States to the perverseness or corruption of a thirteenth.” Well, these are quite rough words. If you wonder if The Federalist Papers contain more rough language like this, the answer is yes, they do. Only John Jay – who, due to being ill could write only five Papers – put it more mildly. Probably because – being a successful diplomat – he was used to get through to people in a different way. In order to keep this essay at a manageable size I omit here the Papers of Jay.
I have already made it clear: the Convention did not want ratification by the Confederal Congress, nor by the legislatures of the thirteen states, but rather by the people themselves. This was unheard of within confederal circles, but forced by the Convention and throughout The Federalist Papers supported by its authors. The people are the alpha and the omega of federalization. Interesting observations in this respect can be read in Hamilton’s Paper 22, with a statement (among others) that I already mentioned:
The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.And Madison adds to this in Paper 39:
It is to be the assent and ratification of the several States, derived from the supreme authority in each State – the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act.
The invention of the vertical division of powers is the consequence of the rejection of democracy by the Convention in the sense of Aristotle’s popular democracy. Together with all citizens standing on the Agora, the market place in Athens, deciding jointly on all matters, was not something the Convention favoured. Instead, it emphasised the concept of republican government. Republican in two connotations. Firstly, never again a monarch would rule as a tyrant. Secondly, a government of, by and for the people.
However, the Convention feared that by rejecting the old Greek concept of democracy – and thus the necessity to accept that the people should be governed – a potential new tyrant might once again be put on the platform. Adding to this fear that it – being a supporter of the trias-doctrine of Montesquieu – had to carry through one way or another the horizontal division of powers. Thus leading to the question: how on earth do we fix this?
The Convention found the solution in an ingenious system of checks and balances in order to create the required horizontal and vertical division of powers in a correct manner. They understood very well that the legislating, the executing and the judicial branches would operate anyway – sometimes – in the field of another branch. Which would always lead to situations – horizontally speaking – in which one branch would try to acquire more powers at the expense of another branch. The same would apply in the vertical sense. They understood that the federal authority would always try to increase its powers at the expense of the powers of the states and vice versa. Therefore they invented the brilliant system of countervailing powers to prevent usurpation by one power over another.
A detailed description of the usefulness and necessity of this system of a) the horizontal division, b) the vertical division and c) the system of checks and balances in order to keep both the horizontal and the vertical divisions in equilibrium, can be found in Madison’s Papers 47 until 51.
In his Plan of May 1950 Robert Schuman made the system error to lay the establishment of a European Federation in the hands of people – government leaders – who in their capacity do not have the powers to create a federation. The European Union – being one of the faulty results of this system error – went ahead in 2009 under the heading of the Treaty of Lisbon. That treaty – consisting of two partial treaties – contains over four hundred articles. They are not only contradictory, but at the end of all those articles appear the so-called Protocols and Statements which frustrate with opt-outs the working of a number of articles. Therefore the Lisbon Treaty is a legal monster. Here we are dealing with a collision of rules. Law students learn that legislating technique requires that one only should make rules that are generally binding. Exceptions to the legal rules – opt-outs – are a curse. They multiply like rabbits and make the rules not workable, nor enforceable.
The Americans did this quite differently. Apparently knowing the Dutch proverb ‘The more rules, the more fools’, they drafted a Constitution of no more than seven articles. The members of the Convention knew all too well that otherwise the thirteen states would try to cram their own political folklore into the Constitution, a manoeuvre which they could not prevent if they wouldn’t refrain themselves to legislate exclusively general binding constitutional rules. No exception for no one.
One of the pleasant advantages of making generally binding rules is the consequence that one can only legislate – by definition – very few rules. If everybody has to agree with rules that are intended to bind everyone, one cannot make many rules. Exactly by applying that principle the Convention managed to get the people of nine states behind the Constitution in a very short time. After 1789 the Constitution was improved by twenty-seven Amendments. Yet it is still an exquisite model of conciseness.
The number of nine states in order to get the federal Constitution into operation shows a certain similarity with Article 20 of the Lisbon Treaty. That article grants nine EU-Member States the right to establish a form of so-called strengthened co-operation. This can apply to any subject, even to the forming of a federation. So, nine EU-Member States can establish a federation and then operate as one federal state within the intergovernmental EU, as is already the case with the federal states of Germany, Austria and Belgium. In our European Federalist Papers (see the Section ‘Strong with Europe’ on the website ‘Strong Learning Academy’) Herbert Tombeur and I consider this aspect as key for the establishment of a federation of at least nine EU-Member States, which can function then within the EU as a unity, and which can grow when other Member States follow that example.
In a variety of Papers Hamilton elaborates on Europe. He expresses admiration for Europe, but also fear. Fear of the commercial power of a number of European countries with many trading vessels and a military fleet to protect the trade. However, he is not without arrogance. In Paper 11 he writes:
By a steady adherence to the Union, we may hope, erelong, to become the arbiter of Europe in America, and to be able to incline the balance of European competitions in this part of the world as our interest may dictate.
With these kinds of observations Hamilton constructs the urgency to build a strong defence. This requires a lot of money, which he managed to acquire when he became Secretary of Finance. In Paper 12 he observes that the world consist of four parts, each with interests of its own:
Unhappily for the other three, Europe by her arms and by her negotiations, by force and by fraud, has in different degrees extended her dominion over them all. Africa, Asia, and America have successively felt her domination. (-) It belongs to us to vindicate the honor of the human race, and to teach that assuming brother moderation. Union will enable us to do it. Disunion will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness.
America became arbiter in Europe indeed, even though not until the beginning of the 20th century, by liberating Europe twice from a usurper. Woken up from its 19th century isolationism the American military supremacy – linked to its commercial power – is still vital. We shall see if this will change once President Trump introduces a new form of isolationism, as promised in his campaign for office. In case he pursues this path of isolationism, the leading motives of the Convention of Philadelphia – liberty and happiness versus chaos and anarchy – could become important themes in Europe. Especially if they are considered – as was the case with the Declaration of Independence in 1776 – as inalienable rights. Would the EU with its intergovernmental administration system be able to guarantee these rights?
The body of literature about The Federalist Papers is enormous. This is a small selection of interesting books and websites.
- Allen, Danielle, Our Declaration, a Reading of the Declaration of Independence in Defense of Quality, Liveright Publishing Company, 2014.
- Klinkers, Leo and Tombeur, Herbert, European Federalist Papers, www.europeanfederalistpapers.eu, 2013.
- Klinkers, Leo, Strong with Europe, www.stronglearning.academy, 2016.
- Rossiter, Clinton, The Federalist Papers, New American Library of World Literature, 1961.
- Ketcham, Ralph, The Anti-Federalist Papers and the Constitutional Convention Debates, New American Library of World Literature, 1986.
- Wagt, Wim de, Wij Europeanen, Uitgeverij Bas Lubberhuizen, 2015.
- Wood, Gordon, Revolutionary Characters, What made the Founders Different?, Penguin Books 2006.
- Olthof Jelte, Patchwork Republic, The Rhetoric of ‘We the people’ in the United States Constitutional Debates, 1765-1865, Koninklijke Wöhrmann, 2014.
Dr. Leo Klinkers
President of the Federal Alliance of European Federalists (F.A.E.F.)
President of the Federalism for Peace Foundation