So in Friday’s commentary on the Euro Zone crisis I observed that if the 27 members of the EU couldn’t abide by the precise terms of the EU Treaty, they would find a way to go around it, and mentioned James Madison’s discussion of the “delicate” problem of changing compacts with less than the unanimous consent required by the terms of the compact (in 1787, the Articles of Confederation; in 2011, the terms of the EU Treaty). Sure enough, Britain has balked, and the rest of the EU is going to soldier on without them. And there were several stories yesterday raising an eyebrow about the legality of this step, such as this one from Der Spiegel, and this one from The Telegraph. Looks like I was exactly 24 hours ahead of the curve.
A gimlet-eyed reader of my previous post writes in to ask:
Interestingly, is not Madison’s argument here that the existentially expedient must overrule the contract?
[Quoting Madison] “The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”
That sounds too much like the standard Progressive notion that the Constitution must not be allowed to stand in the way of doing what they consider so obviously right for society as a whole!
This is an excellent question, and one that is hard to answer with perfect clarity. Several distinctions should be noted, however. The Progressive view that the older understandings of the Constitution should be swept aside was not based on the same ground as Madison, but on the wholly new and different ground—that the “laws of nature and Nature’s God” that Jefferson and Madison appealed to don’t exist, or are subject to change with the tides of History and Progress (and especially Evolution). In that respect, the use of the term “existential” in the question is quite apt. In other words, the Progressives rejected the philosophical ground to which Madison was appealing. For the Progressives, the Constitution was obsolete not because it was in the way of necessity (the necessity of securing individual rights), but because it was in the way of desire—the desire to redefine individual “rights” and build a larger state.
To understand the difference between the existential calculations of either the Progressives 100 years ago or today’s Eurocrats, and why the example of 1787 is not a crude version of “the ends justify the means,” it is useful to recur once again to more of the terms of the Declaration of Independence that Madison invoked in Federalist 43. The ends to which the institutions (the Articles) must be sacrificed were the natural rights of life, liberty, and property. But keep in mind also the counsel of moderation that also appears—Jefferson’s language about how our institutions should not be sacrificed for “light or transient causes.” In 1787 to have kept the Articles in place would have been to ensure the continuing failure to secure individual rights; it would have led to the breakdown of democratic self-rule as had happened so often in the past with short-lived democracies, and for the same reasons. At the worst, the instability, feebleness, and perverse incentives for the states under the Articles of Confederation might easily have devolved into civil war and/or anarchy before very long.
At least two questions about the Euro Zone crisis come into sharper focus given this background. First, is the current financial crisis a significant political risk to Europe—Merkel has said the alternative is war—or a “light and transient cause” that should be borne “while such evils are sufferable”? In a separate post I’ll delve into some of the dimensions of the Eurozone crisis, but suffice it to say the exceedingly weak agreement struck Friday is the rough equivalent of the Philadelphia Convention having coming out of Independence Hall in 1787 with an agreement that, this time, the 13 states would live up to the terms of the original Articles of Confederation, but with the proviso that they had changed the amendment requirement. Why would we think this would work any better?
This raises, second, a prior question that is not discussed much in polite circles in Europe. Many times I have observed that the EU Constitution—the Lisbon Treaty—resembles in many ways the Articles of Confederation, with an overlay of a 20th century regulatory bureaucracy out of Brussels. In other words, does the European Union actually live up to the Declaration’s principles of securing the natural rights of individuals? Probably not. The EU Constitution, at the size of the Manhattan phone book, is a godawful mess; while it’s protections for property rights, for example, appear more robust on paper than our “takings clause” in the 5th Amendment, in practice it is much weaker. So it is not clear that strengthening the European Union through the extra-legal means like our Founders in 1787 is such a good idea. These are the kinds of questions about which a clear, bright line standard cannot be drawn easily. This is where philosophical judgment and argument come into play, and why we need statesmen to dilate these questions.
This raises a final point (final for this post anyway) about the curious position of Britain, which is the holdout in the latest chapter of this drama, and may yet play a role in saving Europe from a descent into cosmopolitan bureaucratic tyranny. (I recall Margaret Thatcher saying, around 1999, something like “All of the crises of the 20th century began in Europe, and all of the solutions have come from the English-speaking nations.” Might well come true again.) For over 20 years now Britain has been trying to have matters both ways—enjoying the economic fruits of European integration without joining the Euro currency or surrendering their sovereignty to Brussels (and Berlin) as the rest of the continent is slowly doing. But that game has now reached the end of the line. I haven’t been much impressed with David Cameron to date, but he may now be doing Europe and the world a great favor.
More to come on this. But now I have to get ready to head off to the Redskins game, presumably to see them get smacked down by the Patriots. A kind of symmetry here?