Adopting the EU Constitution: One Step Forward, Two Steps Back

Abstract: The purpose of this paper is to determine whether the Treaty to Establish a Constitution for Europe contains the basic and essential constitutional values necessary to safeguard citizens' fundamental rights. This is a significant question since any legal instrument that claims to have constitutional values for the benefit of its citizens should contain certain elements that protect its citizens. This paper consists of five parts. First, I discuss general constitutional values, including the purpose of a constitution and its most basic and essential elements, and how constitutions differentiate from treaties. Next, I survey the current treaties for their constitutional structure and level of rights protection. I then turn to the new Constitutional Treaty to ascertain whether it expands upon citizenship and fundamental rights afforded under the existing treaty system, or whether it undermines, or even jeopardizes existing, constitutional values by its inclusion of a national identities clause and secession clause. Following that, I evaluate the Constitutional Treaty to determine its scope as a constitution versus a treaty, and in doing so I identify its weaknesses as a constitutional document. Finally, I consider the effects that the secession and national identities clauses have on citizen rights within the Constitutional Treaty. Constitutions are created for the people for the purpose of restricting excessive government. The basic ingredient of a constitutional document is a guarantee of fundamental rights to citizens on a permanent and democratic basis. Without these latter elements, constitutions cannot safeguard citizen rights. It's no secret that the current treaties, largely due to the ECJ's role as a guardian and promoter of constitutional values embodied in the current treaties, have created a supranational legal order with a constitutional charter in the EU. So too, then, European citizens should be able to rely on the new Constitutional Treaty provisions to safeguard their constitutional rights, particularly since the Constitutional Treaty would nullify the existing treaty system. The Constitutional Treaty is a step forward in that it codifies the Charter of Fundamental Rights, simplifies the current treaty system into one working legal instrument, and arguably improves voting procedures and administrative efficiency. However, because it derives its powers from both the citizens and the Member States, the Constitutional Treaty puts its own constitutional rights at risk, and thus potentially negates its own advancements, by giving too much power to the Member States. This is evident in both the national identities clause and the secession clause. Precisely because the Constitutional Treaty would replace the current treaties, the secession clause, if utilized, would terminate the fundamental rights of European citizens as if they never existed. In this sense, the EU Constitution takes two steps back. Furthermore, in trying to be both a constitution and a treaty, the Constitutional Treaty undermines the very constitutional values it seeks to establish and belittles the notion of a constitution by maintaining treaty-based constitutionalism. The national identities clause yields too much power to the Member States, which could severely weaken further integration efforts at the European level, as well as the Court's ability to adequately safeguard citizen rights. Besides that, any progress made by the Union could be recoiled at the will of the Member States due to the inclusion of a secession clause. Because it leaves no ambiguity of the drafters' intention, the secession clause would render the Court helpless in protecting the constitutional rights of European citizens should a Member State withdraw from the Union. Therefore, this particular 'Constitution' should not serve as a constitutional model. Rather, the Constitutional Treaty should be scrapped in favor of a constitutional instrument that truly reflects a guarantee of fundamental rights on a permanent basis for European Citizens. In the end, patience and persistence are the ultimate virtues necessary to achieve this goal, while in the interim, the existing treaty system would remain in place to protect those rights established by the current treaties. Lastly, I should state that since I am an ardent supporter of constitutional rights, I would be inclined to support the Constitutional Treaty if the secession clause were removed because its removal would resolve the problem of permanence in a legal sense and thereby provide citizens with the fundamental guarantees necessary of a constitution. I would also take much more comfort if the national identities clause were removed, or at least reworded, in particular by omitting the statement of equality between the Constitution and the Member States. However, I am somewhat optimistic that the Court, and perhaps even the Member States, will interpret this provision in light of the Union supremacy clause and the overall purpose of creating a Constitutional Treaty for the people of Europe.