The slow-motion Euro Zone disaster proceeds apace. The lead headline in this morning’s Wall Street Journal is “Tensions Rise at EU Summit.” Seems the Eurocrat crowd can’t agree on what to do. Surprise, surprise.
There’s an interesting issue here that is in some ways an echo right out of 1787. The treaty that established the current form of the EU requires the unanimous agreement of all 27 members to amend it in substantial ways, just as our Articles of Confederation required the unanimous agreement of the original 13 states to be amended. But the talk out of Europe this week is that perhaps a deal involving the rescue of the Euro currency could be done with only the 17 member nations currently in the Euro zone (or maybe even less, if Greece won’t go along). But wouldn’t that be against the literal reading of the EU treaty terms?
Cue James Madison.
I used to pose the following problem to students: while the Articles of Confederation said that amendment required the unanimous agreement of all 13 states, the Philadelphia convention, summoned to revise the Articles remember, instead junked the Articles and produced a proposed Constitution that provided it would go into force upon the agreement of just nine of the 13 states. Question for the class: did the Philadelphia convention act illegally or unconstitutionally in ignoring the explicit terms of the Articles of Confederation? What justification can you offer for their actions?
Madison confronted this problem in Federalist #43, in one of the most curious and interesting passages of the entire Federalist Papers. This is worth some commentary on Madison’s handling of this “delicate” question:
To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable.
This is purely a practical and political argument about tyranny of the minority, and as such isn’t very persuasive, at least as a legal or constitutional argument. Madison’s argument gets more interesting in the immediate sequel:
Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?
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.
This second paragraph is a direct echo of the Declaration of Independence (“the transcendent laws of nature and of nature’s God”)—the only such reference anywhere in The Federalist—and a slightly veiled invocation of the Declaration’s principle of the right of revolution. In other words, Madison is suggesting to discerning readers that the situation of America under the Articles had become too extreme to be allowed to continue, and as such Madison is offering a non-radical gloss on what he understands is a radical, extra-legal act by the Philadelphia convention. Madison’s next, transitional sentence, makes clear that he is appealing beyond the formal written law–to deeper principles outside the law:
PERHAPS, also, an answer may be found without searching beyond the principles of the compact itself.
From here Madison moves on to an argument that renders the dissolution of the Articles into something like a standard contract dispute, in which the parties have voided the contract by violating its terms:
It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the MULTIPLIED and IMPORTANT infractions with which they may be confronted?
This may or may not be persuasive, and Madison’s closing argument hints that he knows this may not be fully persuasive either. He rests finally on muddling through, hoping that as a practical matter this issue will take care of itself by the unanimous ratification of the 13 states (which did in fact take place), and suggests were avert our attention from “an overcurious discussion” of this problem:
The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself.
I’ll return later today perhaps with some thoughts about the narrower politics and financial aspects of the European crisis, which, an extremely well-placed person told me yesterday, is going to drag on well into next year. The point here is to expect that the European “project,” however ill-conceived or problematic on many levels, is going to muddle through and ram whatever changes it needs to make, regardless of legal niceties, because of “the absolute necessity of the case.”
This is not to say they won’t blow it, or that their improvisations will work. But that’s the topic for the next post.