poverty of standard celebrations of the Union, it is a rarity in the writing on the EU, where philosophical reflection of any kind is for the most part at a discount. That said, the effect of its calque of American virtues for European users is simply to reproduce the constitutional blankness it criticizes—as if Evangelical faith and the US congressman were conceivable, let alone desirable, implants in the body politic of the Old World. No original proposals for Europe eventuate, in a case that dissolves into vagueness just where the sharpest clarity is required: at the virtually opposite meanings of federalism on the two continents, as a centripetal force in America, creating a new sovereignty, and a centrifugal one in Europe, devolving older sovereignties.
For invoking Tocqueville, Siedentop has not remembered him. The historic achievement of American federalism, in Tocqueville’s eyes, was to overcome the weaknesses of the European confederations—Dutch, Swiss, German—that Montesquieu had praised. It had done so by endowing a central authority with its own taxes and troops, and the power to enact laws with direct effect on its citizens, where confederations in Europe had no independent means to enforce their will on the states that composed them. Democracy in America is a far more centralizing text than Democracy in Europe. Tocqueville’s principal misgiving about the US republic, in fact, was that the federal government still lacked sufficient strength to deal with potential resistance from the states. The Founders ‘gave money and soldiers to the Union, but the states kept the love and prejudices of the peoples’, hence the ‘absurd and destructive doctrine’ that allowed Connecticut and Massachusetts to refuse to send their militias into the war with England in 1812.77
But Tocqueville’s overall verdict was clear. In America, he explained, ‘the central power acts without an intermediary upon the governed, administers them and judges them itself, as national governments do, but it acts in this way only in a restricted sphere. Evidently that is no longer a federal government, it is an incomplete national government. So one has found a form of government that is neither precisely national nor federal; but one stops there, and the new word that ought to express the new thing still does not exist’.78 Such robust views would be an embarrassment in Brussels, where talk of an incomplete national government could only set the teeth of its functionaries on edge. By comparison, Siedentop’s recipes are weak medicine.
Philosophical and legal approaches to the EU are necessarily quite distinct, but in moving from one to the other at their best, we remain in Greater America. Of Israeli origin—he describes himself as the ‘quintessential wandering Jew’—the jurist Joseph Weiler, after teaching at Michigan and Harvard, now holds a chair at New York University. Since law in a virtually pure state, without any of its normal accoutrements of administration or enforcement, is the defining medium of the EU, lawyers play an enormous part in both the workings of the Union and the meanings extracted from them. So it is not altogether surprising that even a heterodox legal mind can play more of a role in its affairs than orthodox eminences in other disciplines. Weiler’s services to the Union include helping to draft the European Parliament’s Declaration of Human Rights and advising the Commission on the Treaty of Amsterdam.
But such insider roles have done nothing to blunt intellectual interventions of notable sharpness and verve. The iconography of literature on the EU, like so much of what lies between its covers, is typically of mortal dullness: dominated either by its dreary supermarket-sticker logo—even Gillingham’s book is a victim—or such uplifting clichés—Moravcsik’s—as a streamlined clipper cresting the waves, its sails billowing with the flags of the member-states. With the cover of Weiler’s The Constitution of Europe, from which the grotesques of Ensor’s savage anarchist masterpiece, Christ’s Entry into Brussels in 1889, leer out at us, we are invited into a different world
The central chapter of the book, ‘Fin-de-Siècle Europe: Do the New Clothes Have an Emperor?’, sets the note. What kind of a polity is the EU? Weiler disposes of inter-governmental and confederal paradigms without ceremony, as ‘wishful ideological thinking’ that not only ‘masks serious problems of social control and accountability’ but induces ‘complacency as regards the assault on democracy that the Union often represents’.79 If the EU is not captured by either of these descriptions, it is because the Community, though historically it has often strengthened its member-states, cannot be reduced to a design of which they remain the masters, even if this was what they intended. Rather, in many ways ‘the Community has become a golem that has ensnared its creators’.80 The European Court of Justice is a prime example of this involuntary sorcery. Weiler offers a dazzling analysis of the changing functions and fortunes of the Court, showing the way in which it seized the initiative in establishing an ever-widening supranational jurisdiction that caught governments unawares, before eventually triggering a reaction from them that took the form of stepping up the role of the Council of Ministers and its diplomatic minions in Brussels, at the expense of the Commission. In this dialectic, developments on the legal and political planes moved in opposite directions, both of them departing from the Treaty of Rome.
Although Weiler admires the work of the Court, he warns against excessive celebration of it. Ever since it attracted greater public attention, and increased its caseloads, it has become far more cautious, no longer playing much of a dynamic role in today’s Union. The Council of Ministers and its Committee of Permanent Representatives (Coreper)—the secretive hub of most deal- and decision-making in Brussels—have, on the other hand, certainly not drawn in their claws. For Weiler, the Council not only distorts a proper distribution of powers at Union level, by exercising executive control over legislative activity, but castrates parliamentary authority at national level by the volume, complexity and timing of decisions passed down to it for theoretical approval. The European Parliament, with its huge constituencies and feeble powers, is no counterweight. Moreover, within the Council itself, ideological divisions are typically neutralized, since governments are always of different complexions, evacuating normal political conflict or debate for a technocratic consensus—a ‘consociational’ style of rule that is the formula for a cartel of elites.
The upshot of this institutional drift is bleak. In the beginning, the Community stood for ideals of real significance in post-war Europe: peace, prosperity and supranationalism. Today, the first two are banalities, and the third has been reduced to banknotes. ‘The Europe of Maastricht no longer serves, as its grandparents the Europe of Paris and Rome, as a vehicle for the original foundational values’.81 Already with the Single European Act, not just a technocratic programme for the free movement of factors of production was in train, but ‘a highly politicized choice of ethos, ideology and political culture’, enthroning the market as the measure of social value.82 In this Europe, where politics is increasingly commodified, individuals are indeed empowered, but as consumers, not as citizens. Nor is enlargement changing this: for, as the prevailing idiom would put it, ‘when a company issues new voting shares, the value of each share is reduced’.83 Public life risks sinking into rounds of bread and circuses, without further dignity or legitimacy.
What is to be done? Weiler, no enemy of markets as such, would have them conceived in the spirit of Paine rather than Friedman, as forms of sociability as well as exchange, arenas ‘for the widening of horizons, for learning about and learning to respect others and their habits’—hence in themselves a kind of community too.84 Citizenship, however, is a political bond, and the issue posed since Maastricht is how it can be made effective simultaneously at national and at supranational level. With a sly wave to Marcuse, Weiler casts this as the problem of conjoining Eros and civilization: the nation as abiding, existential focus of romantic attachments, the Union as modern framework of an enlightened reason, each as necessary for a democratic Europe as the other.
The Constitution of Europe concludes with four concrete proposals to this end. On collection of a sufficient number of signatures, citizens should be able to place legislative initiatives, in areas subject to Community law, before voters on the occasion of elections to the European Parliament, which if passed by requisite majorities would be binding on the Union and its member-states. Complementing this Legislative Ballot, a ‘European
