CONSTITUTIONAL SHIFTS IN EUROPE AND THE UNITED STATES LEARNING FROM EACH OTHER
CONSTITUTIONAL SHIFTS IN EUROPE AND THE UNITED STATES LEARNING FROM EACH OTHER Address by PRESIDENT MARY ROBINSON
It gives me enormous pleasure to speak here today. Your invitation brought to mind a wonderful summer during the 1980's when I came here to teach European community law - not here at Stanford itself, but up the road in San Francisco. I still recall how refreshing it was to have questions raised by law students familiar with a federal system, who were seeking to compare and contrast that system with the emerging European framework. The discussion at that time encouraged me, in turn, to keep a broad overview of developments in the two regions, and so lead to the theme of my address to you today.
But before I speak of those matters I want to refer to a particular link which makes me feel strangely at home here in Stanford.
When I was a law student at Trinity College Dublin, the writer Frank O'Connor was giving classes on the short story there. It was almost impossible to get through the door. I remember sitting on the steps because the seats were full. And I like to think his whole style of speaking and his eloquence on those occasions owed something to his time at Stanford. And we in turn owe a glimpse of him at Stanford to your own Wallace Stegner - whose name is now on some of your most distinguished fellowships.
In a beautiful essay called "Professor O'Connor at Stanford", and published in a memorial volume at his death, Wallace Stegner writes of that wonderful meeting between County Cork and Palo Alto which took place in this university. And somehow I feel today at home and honoured to be here, although this time it is a meeting of County Mayo and Palo Alto.
Some years after sitting at Frank O'Connor's feet, when I was myself teaching law at Trinity College, I would emphasise how much is shared in the rich constitutional traditions of Ireland and the United States of America. Each of us enjoys a common constitutional heritage, in that the foundations of both our constitutional homes are of solid common law origin. I say "solid", because our two constitutions have been remarkably durable: your constitution is of course now well past its bicentennial birthday while ours has been in place for over fifty years.
But constitutions manage to thrive, as well as merely to survive, when they master the tricky juristic knack of keeping their old words and apparently antiquated phrases in constant touch with the spirit of successive ages. How this is achieved, this magic of constitutional growth, is through a complex interplay between formal amendment, legislative action and imaginative judicial interpretation. As regards this last element - the role of the judges - it is clear that Ireland owes an enormous debt to the United States. It was to the pioneering creativity of the Warren Court of the late 1950s and early 1960s that our own Supreme Court in Dublin looked when it began in the mid 1960s to fashion our 1937 Constitution into the modern rights-based document that it is today. The Irish judges learned then from their American contemporaries, just as earlier generations of American colonists had learned about the control of power from such continental scholars as Montesquieu and Rousseau; and just as both you Americans and we Irish had learned about representative government from the British when our respective founders were planning our States. This process of learning from each other is at least as old as our nations, and its role in our development as nations has been incalculably beneficial.
I would say that this process of learning from each other, far from being over, is as vital now as it has been at any point in the past.
Ireland is no longer standing alone in pure, sovereign isolation. It is part of a bigger family, the European family. From modest beginnings, this European experiment has now reached an absolutely critical point in its development, when a number of fundamental questions are rising unavoidably to the surface. How big should the European Union allow itself to become? How deep should its integration be?
When will it have a single currency and a single central bank? How democratic are the structures of the European Community and the Union? What should the relationship be between the European centre and member states on the one hand, and between that same centre and the regions within those states on the other? How much diversity should be permitted in the name of state or regional rights?
These are issues that grip not only the Irish but all interested Europeans as we move towards the beginning of the twenty first century. Though I present them as European questions, they will be instantly familiar to all students of US government and US constitutional history. Some of the issues they raise reflect debates that you are having today, and some of them remind us of bitter disputes that you have had in the past. In each case, the parallels between the United States and Europe - not any particular state within Europe, but the European Community or Union itself - are remarkable. Reflecting on them can enrich further our understanding of each other and perhaps guide our future actions for the better.
Indeed, if we stand back a little and take stock of the public mood in both regions, we see that we face many common pressures and common concerns. In an era of global markets and job mobility we worry about unemployment. We worry about our capacity to sustain welfare and health care benefits for ageing populations that now live longer. We have begun to respond to the challenge of modern telecommunications and the information society. We are conscious of environmental threats, even to the planet itself. In this post-cold-war phase we see a rise in instability and conflicts, often within state boundaries.
Against this backdrop, subtle but significant constitutional shifts have begun to take place in both regions. We have every reason to look to and learn from each other. Policy approaches signalled by the President and Congress, together with landmark judgements of the Federal Supreme Court, are beginning to map out the future shape in this jurisdiction. In Europe, an Intergovernmental Conference will be held next year to address some of the key issues and set a course for the coming years. During that period, for the second half of 1996, Ireland will hold the Presidency of the European Union, and therefore have a particular responsibility for steering the process to a successful outcome. Indeed, this leadership role in Europe which Ireland will play next year could be a time to serve also as a bridge to the United States, with which we have such close bonds.
And yet, while recognising the parallel shifts taking place - and their significance for each region - I do not seek to equate in a simplistic way the evolution of the federal system of the United States and the development of the unique institutional framework of the European Union. Indeed, I believe the differences between the two systems can be as instructive as the similarities.
But it is useful to reflect on something that far too many of us in Europe take for granted: the very existence of a nation called the United States of America. Far from being historically inevitable, I need hardly remind this audience that in its day the very notion of such a Union was as daring, and as far-fetched as some would say the notion of a European Union is today. The very title, the United States of America, communicates at once both the extraordinary ambition that lay behind the idea and at the same time the daunting, almost paradoxical nature of that ambition, to unite that which by definition - as a group of independent states - was separate. The thirteen independent American States that in 1787 performed their "miracle at Philadelphia" (as one of your finest constitutional scholars has called it) did not believe that they were sacrificing their sovereignty at the altar of some new federalist deity, they remained citizens of their own state while being citizens also of this new United States, whose role moreover was to be restricted to foreign affairs and to specified domestic matters.
But one of those specified matters was of course the famous power, given to Congress, "to regulate commerce . . . among the several states". It was this vision of the United States as a huge nation-wide common market, free from tariffs and other obstacles to trade, that in the first half of the nineteenth century became the engine driving the nation to the political unity that was in the machine from the start. The driver was of course the United States Supreme Court, whose interpretation of the extent of federal power - particularly under your great Chief Justice John Marshall - constantly favoured this vision of America as a single economic bloc. I suppose the classic statement of intent in this area remains his statement in the Steamboat Monopoly Case that "commerce among the States cannot stop at the external boundary line of each state but may be introduced into the interior". I need hardly mention Marbury -v- Madison here, with its immense claims on behalf both of the Constitution and of the role of the judiciary in its protection and enhancement.
I apologise if all this is very familiar to you. But I remind you of this early nineteenth century history in order to highlight the parallels with our own relatively new experiment in building European Union. Europe's start was, if anything, even more self-effacing than that of the United States. The first initiative, in 1951, was to place the production of iron, steel and coal of the six original members under a common authority. A modest-sounding venture today perhaps, but an astonishing breakthrough at the time, when it is remembered that among those six were Germany and France, bitter foes in no fewer than three wars in the preceding eighty years. Like the original United States of America, the six nations who seven years later signed the Treaty of Rome establishing the Common Market did so as six sovereign states, pooling their resources to create in 1958 not a grand political superstructure but primarily a common market - just as their American predecessors had done. And just as the America project was driven by Chief Justice Marshall and his colleagues, so also was the full scale of the European experiment brought home to its participating nations by the judiciary, in this case the judges on the European Court of Justice in Luxembourg drawn from all the member States. Protected by their judicial office they could work through the implications of the new partnership in ways that none of its founding politicians would have dared.
The primacy of European law was not explicitly proclaimed in the Treaty of Rome in 1957 - politically as explosive then as it would have been in Philadelphia in 1787 - but as early as 1963 it was confirmed by the European Court of Justice. The Court declared the Community to be "a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields". In a later case, requiring Italian courts to apply a European regulation over and above a later inconsistent Italian law, the European Court of Justice declared that "every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule."
The name changes that the European idea has enjoyed - from the European Coal and Steel Community to the Common Market to the European Economic Community to the European Community to the European Union - indicate the momentum that has developed over the years towards the realisation of the vision of a common Europe, to be shared by all Europeans as fellow citizens, just as the United States is shared by Texans, Californians and citizens of all the other States.
When we reflect on how these two groupings of states, separated by an ocean and nearly two hundred years of history, each managed to develop a momentum towards political as well as economic unity, we must recognise the vital role that the courts have played in both jurisdictions. It is the job of the courts to give full effect to what is implied as well as what is explicitly expressed. If it were otherwise, every constitution would quickly become a dated, parochial dead letter.
The European Union has been immensely enriched by creative judicial interpretation, driven by a vision that would be instantly recognisable to John Marshall. Not only has the European Court of Justice asserted the supremacy of European law, but it has also pushed the benefits of that law into the forefront of every nation's legal system. To this extent it has frequently operated against the grain of the nations which - not unnaturally - have sought to limit the implications of the voluntary delimitation of their own sovereign power. Let me give just a couple of examples here. One of the mechanisms of Community law -making is the Directive, under which a result is specified to be binding on a member state but not the means of getting to that result, which is left to the State's discretion. It would be fair to say that when the Community began, it was not expected that such Directives would have any justiciable effect in themselves. But the obvious problem with this was that a state could simply refuse to act to implement the Directive, thereby nullifying its effect, subject to long and slow legal processes from the European Commission in its role as Europe's vigilant policemen. The Court's answer to such deliberate national tardiness was the ingenious one of giving direct effect to these Directives in certain circumstances, so that individuals could rely on them in their local courts without the need for transforming legislation from the national centre. In this way the tardy local authorities were simply bypassed and local courts turned into the allies rather than the protagonists of Brussels. More recently, the Court has added further bite to these Directives by allowing actions for damages for their non-implementation in certain circumstances.
However, the Court's activism is nowhere more controversial than when its judgment of what European law requires hits the member States, or powerful vested interests in those States, in the pocket. One case in particular, on pension rights and equal treatment, Barber -v- Royal Guardian, even provoked a protocol to the EC Treaty signed in 1992 which purported to interpret a provision of the Treaty in a certain way, so as to limit the effect of that case. Now this is an extraordinarily significant event: an attempt by the European member states to "interpret" in advance the meaning of an EC provision. Can there be a clearer example of an executive exercise of a wholly judicial function, or a better case of an intervention in European law which is driven by domestic rather than supranational considerations?
The protocol that I have just described was agreed as part of the Maastricht process, a phrase which describes the famous treaties on European Union and the European Community which were agreed in that Dutch town at the end of 1991. Despite the grand titles, and the successful conclusion of these two monumental treaties, the Barber protocol was not an isolated example of national anxiety about Europe's momentum towards unity. Quite the contrary; there is no doubt that Maastricht unlocked a serious concern felt by many people about the perceived fast pace of European integration and about the supposed threat to national interests that this seemed necessarily to involve. The French people supported the Maastricht initiatives by the narrowest of margins, and it took two referenda to persuade the Danes to stay on board. In Ireland, too, there were concerns about the extent to which Maastricht could intrude into and distort Irish social values. Indeed our Government felt impelled to negotiate a special protocol to protect one of our own constitutional provisions relating to the right to life of the unborn. In claiming special treatment on a matter of particular interest, we were by no means alone. Apart from the Barber protocol, the Danes protected their legislation prohibiting the acquisition of second homes in Denmark by nationals of other member States, and the British secured for themselves the right both to "opt-out" of the timetable for the move to economic and monetary union and to refuse to participate in the application of the Social Chapter.
These various examples of special treatment for individual nations run counter to the pure ideal of European Union with which both treaties were supposedly concerned. There were other examples in Maastricht of a new shift away from the centre. I would like to mention two here. First, while the Treaty on European Union does provide for greater inter-state involvement on such matters as foreign and security policy and home affairs and judicial issues, it does not achieve this by strengthening the power of the Community institutions - the Council, the Commission and the European Parliament. Rather the emphasis is on inter-governmental co-operation, with all this implies about bargaining between self-interested nations rather than between representatives dedicated to a common and supranational ideal. This alternative drive to the new Europe is nowhere clearer than in the new power and authority enjoyed by the "European Council", a body which did not exist in the original treaties and which is explicitly based on national rather than supranational interests.
Secondly, there is a new emphasis in Maastricht on the concept of subsidiarity. This is a difficult idea, the chief advantage of which seems to be its capacity to mean all things to all interested parties - simultaneously. The nearest we get to a definition is in article 3b of the EC Treaty: "In areas which do not fall within its exclusive competence, the Community shall take action in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member Stares and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community."
Maastricht and its aftermath has sent an unequivocal message which true and dedicated Europeans can only ignore at their peril. There is a perception - not a majority view, but held by a substantial number of European opinion formers - that the European ideal threatens local interests, local culture, local heritage and local values.
The challenge for today's architects of tomorrow's Europe is not to run away from these anxieties, nor to dismiss them as the irrational outpourings of irredentist nationalism. They need to be respected - and addressed.
We need to take seriously the pressure for more localised decision making, a pressure evidenced by the special protocols, the drift away from supranational structures and the currency given to the principle of subsidiarity at Maastricht. Looking in very broad overview at the history of the United States, it would seem that these centrifugal tendencies ebb and flow over time but are not wholly eradicable. Congress has recently indicated a desire to turn certain matters over to the primary responsibility of the States, just as earlier generations of the same body - with its wide popular support - took exactly the same powers to the centre. Having enjoyed years of steady growth towards the centre, Maastricht has finally signalled the arrival in Europe of a strong localising impulse. I believe it is a complementary rather than a countervailing impulse.
Localism is neither to be scorned nor to be feared. It cannot be - and more importantly - it should not be eradicated. Localism is especially valuable when harnessed in a positive direction, towards the celebration of the diversity of Europe, and of the cultural autonomy and the rich and separate historical traditions of its various parts. When directed at the regions of Europe rather than its nation-states alone, this impulse towards localism can help to liberate places whose culture, traditions and personality have hitherto been kept in check in deference to a faraway national capital that might be thought as foreign as Brussels. As Europe both deepens and widens in the coming decades, it would seem that its most important message is the simple one that unity does not mean homogeneity and conformity. European unity is a means to a richer way of life for all Europeans, potentially all Europeans from the Atlantic to the Urals. The strength of our unity lies in our confident promotion of diversity.
Of course localism, or subsidiarity, or special treatment or however it is described, has its limits. Local autonomy can never be allowed to become a shelter in which the abuse of our human rights is permitted out of too deferential a reverence for a national authority. Nor should subsidiarity become simply a formula deployed by governments so as to avoid the full social and economic consequences of membership.
I hope I have conveyed a sense - or at least given a flavour - of the seminal thinking which members of the European Union have already embarked on. This process will intensify as we enter the next century, with a commitment to expand membership to Central and Eastern European countries. The challenges are fundamental: how is the democratic base to be strengthened through greater participation and accountability at the European level? Will the example of the United States be followed in having an express Bill of Rights for the European Union? How effectively will this new Europe respond to wider international responsibilities?
Simply posing some of the questions - and there are of course many more - brings home the value of learning one from the other. Each region is engaged in pondering on the precise level at which power should best be exercised, and how it is to be made accountable. The gap of history has been closing, and we are on parallel but distinct courses. Perhaps it is because Ireland - uniquely in the European Union - shares with the United States both a common law tradition and a written Constitution, that I have felt it appropriate to reflect on these issues here.