The European treaty-constitution and constitutional identity: A view from America

International Journal of Constitutional Law

Volumn 3, Issue 2-3, 2005, Pages 316-331

  Rosenfeld, Michel ^a  

^a YESHIVA UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 33746341498     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/moi022     Document Type: Article

References (44)

1. See Armin von Bogdandy, The European Constitution and European Identity Text and Subtext of the Treaty establishing a Constitution for Europe 3 Int'l J. Con. L. (I·Con) 473 (2005).
2. The European Community, which later became the European Union, was established by the 1957 treaty of Rome.
3. See Preamble, art. I., draft CT, July 18, 2003.
4. See Preamble, CT, June 18, 2004.
5. See Michel Rosenfeld, Modern Constitutionalism as Interplay Between Identity and Diversity in Constitutionalism Identity, Difference and Legitimacy: Theoretical Perspectives 4-5 (Michel Rosenfeld ed., 1994).
6. For a more extended discussion of constitutional identity, see Michel Rosenfeld, The Identity of the Constitutional Subject, 16 Cardozo L. Rev. 1049 (1995).
7. The 1789 Declaration of the Rights of Man and the Citizen is indeed universal in tone and tellingly similar in content though not in reach to the 1948 Universal Declaration of Human Rights.
8. Note in this respect, the contrast, originating in their respective eighteenth-century constitutions, between French unitary centralism and American federalism's split of the atom of sovereignty between the union and the states.
9. Even a constitution may be "preconstitutional" in this context if the new constitution radically departs from it and supersedes it. In this sense, a Soviet-style constitution would be "preconstitutional" in relation to a subsequent liberal democratic constitution.
10. See Rosenfeld, supra note 5.
11. For example, a treaty between countries A and B to guarantee the security of country C creates a joint project not a merger.
12. See Henry J. Steiner and Philip Alston, International Human Rights In Context 797-802 (2d ed., Oxford Univ. Press 2000).
13. See Max Weber, Economy and Society 635-639 (G. Roth & C. Wittich eds., Bedminster Press 1968).
14. See, e.g., Rawls' hypothetical contract behind a "veil of ignorance." See John Rawls, A Theory of Justice 136-142 (Harvard Univ. Press 1971).
15. See von Bogdandy, supra note 1, at 298-299.
16. Id. at 315.
17. Cf. Roberto Unger, The Critical Legal Studies Movement, 96 Harv. L. Rev. 561, 625 (1983) ("A regime of contract is just another legal name for a market").
18. Indeed, authoritarian rule such as that of Franco's Spain or of present-day Singapore do not seem to preclude a vigorous market economy.
19. See, e.g., article 55 of the 1958 French Constitution.
20. For a more extended discussion of these models, see Michel Rosenfeld, Constitution-Making, Identity Building, and Peaceful Transition to Democracy: Theoretical Reflections Inspired by the Spanish Example, 19 Cardozo L. Rev. 1891 (1998).
21. Ulrich K. Preuss, Constitutional Power-making for the New Polity: Some Deliberation of the Relation Between Constituent Power and the Constitution, in Constitutionalism, Identity, Difference And Legitimacy: Theoretical Perspectives 150 (Michel Rosenfeld ed., Duke Univ. Press 1994).
22. As Preuss emphasizes although the absolute monarchy had created a centralized state, the French nation was not fully formed in the late eighteenth century. A significant portion of the population did not speak French, and the imposition of French throughout the country became a major administrative task in the 1790's.
23. See Ulrich Preuss, Id. 151-152.
24. Id. at 153.
25. Id.
26. It may seem that ethnocentric self-government is more akin to a natural, quasi-organic, phenomenon than to a constitutional construct involving negation and reincorporation. Nevertheless, as the transition from Weimar to Nazi Germany indicates, imposition of an ethnocentric order - albeit a nondemocratic one - requires both dismantling existing institutions and mores and constructing new ones. Schmitt himself was concerned with suppressing pluralism, but little with democracy as he thought that what was essential was realization of will of the ethnos which could be achieved through dictatorship. For those who are serious about ethnocentric constitutionalism, however, the ethnos must circumscribe the polity, but the requisite elements of constitutionalism and democracy must be cobbled together from available institutional framework and mores found or developing within the polity. Significantly, the post-World War II German constitutional model departs substantially from that advanced by Carl Schmitt.
27. See Norman Dorsen et al., Comparative Constitutionalism: Cases And Materials 44-45 (American Casebook Series 2003).
28. In practice, as all identities involved, including ethnic ones, are constructs, the processes of identity formation at the constitutional or national level are dynamic in nature and they require constant give and take. Nevertheless, the above distinctions hold true when matters are considered from an overall perspective.
29. The United States is also a multiethnic society, but consistent with the metaphor of the "melting pot", ethnic differences have no constitutional, and for the most part, little political, weight. In contrast, after ruthless suppression under the Franco regime, the 1978 Spanish Constitution gives constitutional and political recognition to "autonomous regions" such as Cataluña and the Basque region. See 1978 Spanish Constitution, arts. 143-158.
30. Because Spain's 1978 Constitution was crafted with an eye toward future admission to the European Community, it incorporated some of the liberal-democratic norms of the latter into its new constitution. Moreover, such incorporation may also have been useful to devise a workable compromise on regional autonomy within Spain. See Michel Rosenfeld, Constitution-Making, Identity Building, and Peaceful Transition to Democracy: Theoretical Reflections Inspired by the Spanish Example, 19 Cardozo L. Rev. 1891, 1918 (1998).
31. Several more recent constitutions appear to conform, at least in part, with the Spanish model. These include the 1982 Canadian Constitution, several of the postsocialist constitutions in Central and Eastern Europe, and the 1996 South African Constitution.
32. Tailoring universal rights to fit the needs of the French nation-state is an example of the latter type of adaptation. See supra note XXX.
33. See supra note 11.
34. For a discussion of a similarities and differences relating to constitution-making in Europe and the United States, see Michel Rosenfeld, The European Convention and Constitution-Making in Philadelphia, 1 Int'l. J. Con. L. (I·CON) 373 (2003).
35. Significantly, in Spain, Franco's Parliament, the Cortes, filled by his cronies, was used to generate a democratically elected constituent assembly. In addition, King Juan Carlos groomed by Franco to ascend the throne after the latter's death, used his power and influence to promote the smooth advent of constitutional rule. See Michel Rosenfeld, Constitution-Making, supra note 21.
36. It is instructive in this respect to refer to the judicial resolution of difficult constitutional issues, such as the protection of hate speech, which depend, on the level of the nation-state, on recourse to some aspects of common identity. For example, that the United States has far greater tolerance of hate speech than Canada is difficult to understand without reference to the difference between the U.S.'s self-conception as an individualistic "melting pot" and the Canadian self-image as a group-based "multicultural mosaic." See Michel Rosenfeld, Just Interpretations: Law Between Ethics and Politics 185-187 (Univ. of Ca. Press 1998).
37. See von Bogdandy, supra note 1, at 310.
38. See von Bogdandy, supra note 1, at 302.
39. Indeed, remembering that the experiences were "bitter" is undoubtedly a potent incentive for cooperation and unity. Dwelling on who was ultimately responsible and on what led to the "bitter" experience, in contrast, is still likely to be quite divisive.
40. The increasing tensions between French-speaking and Flemish-speaking population had led to an increasing fragmentation of the constitutional order in Belgium. In Canada, Quebec has yet to officially accept the 1982 Canadian Constitution, and periodically considers secession from Canada. See Reference re Secession of Quebec [1998] 2 S.C.R. 217.
41. See Leaders and Veterans Mark D-Day, BBC News UK Edition, June 6, 2004.
42. Id.
43. The new origins at stake in the construction of a European constitutional identity require reinterpretation of the "bitter experiences" of the twentieth century, but not of the many European wars that preceded them. For example, it seems highly implausible that a French President would characterize the decisive 1815 victory over Napoleon in Waterloo as a "victory for France."
44. See von Bogdandy, supra note 1, at 310-312.