More about the EU

The European Union spent years working on a new constitution. The constitution was intended to address a number of problems with the current treaties, including a mind-numbing opacity.

If you haven't looked at the US Constitution in a while, you may have forgotten that it is short. Really short. Now, on the one hand, this can be a problem. Often the Constitution will have a suggestive phrase, and leave the rest of the work of interpreting it as an exercise for the reader.

For instance, the Commander-in-Chief clause. "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States" Article II, Sec. 2. We've been arguing 200 years over what, exactly, the limits of the President's powers as Commander in Chief are. If the constitution had come with with a "definitions" section life could be much easier.

As an aside, I am reminded of last weeks Corporate Transactions class. The Prof was explaining that in a merger of private companies, his usual preference was to avoid creating a formal "Letter of Intent" instead using mutual term sheets to keep track of the bargaining parties positions. As he explained it, the risk with a Letter of Intent is that, in jumping in to negotiate Letter of Intent, the lawyers may scuttle the deal by killing its momentum. The lawyers, and principals, have a risk of butting heads on problems that don't have solutions at that part of the discussion. And, by spending too much time negotiating the details of the deal up front, the window of opportunity for the deal may be lost altogether.

The men who wrote the US Constitution were brilliant, but also pragmatic. Instead of bogging themselves in myriad details, they wrote a sharp, focused constitution and recognized much would have to be agreed upon later or resolved through the political process. The Europeans, however, seem to have been overcome by the desire to do everything at once, and so have birthed a document of monstrous size (the version here, including a couple of protocols, clocks in at 485 pages.)

Now, in some sense it's unfair to blame the Europeans, because the constitution is also an attempt to consolidate all of the piecemeal treaties into one. It would almost be as if you had to include a compendium of the current Supreme Court jurisprudence (cases, analysis, and decisions) along with the text of the Constitution, which I'm sure could easily beat a measely 500 pages.

But to recognize the difficulty of a thing is not to deny the possibility of doing it well. The process the Europeans used was fine. It is the end result that mocks the good intentions. They sought to increase the democratic accountability of the EU through making its ruling treaties comprehensible, but they only managed to demonstrate how incomprehensible the whole enterprise has become.

The European Constitution comes into effect after all of the member countries have ratified it. On May 29 the French will decide. (See the interactive "State of Play" map here.)

I hope the Constition is defeated, and that after the defeat the focus of effort will be on integrating the newly admitted countries of central and eastern europe. But for now it's a fun time for a Europe watcher.