I have been following the EU’s Conference on the Future of Europe, particularly its democracy chapter which has helped shape some thoughts. I was interested to note that the US’ route to a federal republic seemed to be a harbinger for the EU’s journey. I wrote, Subsidiarity, representation and human rights, which frankly got blown of course and became a review of Prof. Mark Stoler’s lecture on the US constitution. I had drawn inspiration from the original US restriction on direct taxation and the 10th amendment which defines the powers of the federal government and those of the States, although the 10th amendment also purports to constrain the States power by defining a right of subsidiarity to the people.
This article looks at the flawed route taken by the US Constitution and forsees with hope the EU’s -and the UK’s] adoption of new rules and rights.
When I say it was blown of course, it was hoped to be a polemic for ensuring that the principle of subsidiarity ensured that the EU’s member states implemented a democracy where decisions were taken as close to the citizen and their communities as feasibly possible. The EU Treaties only promise subsidiarity between the Union and the member states, a bit like the 10th amendment and in contradiction to Article VI of the US Constitution, also known as the Federal Supremacy clause.
The EU has its democratic problems, and one of them is that theories of good political governance are dominated, at the least in the Anglosphere, by the US Constitution, even with its obvious flaws, it original racism, and its failure to consider economic justice as a constitutial right. These problems are still extant in both the US, most countries that have adopted similar constitutions but also in Europe.
I was taught and came to believe that the US separation of powers between the legislature, the executive, and the judiciary was an important means of constraining power in government. This insight has recently been reinforced by observing the behaviour of the Johnson government in the UK, where the legislature would not exercise its control, and the executive sought to undermine the judiciary. But is the value of the separation of powers true?
The US Constitution is not neutral and those that seek inspiration from it need to be careful.