INTRODUCTION TO PART 1

LEO KLINKERS and Herbert Tombeur

This is the start of our attempt to improve the federal constitution that Herbert Tombeur and I designed in the period from August 2012 to May 2013. It has already been improved by FAEF on a few points. But there is always room for improvement. Hence this Citizens' Convention.

We took as our best practice the famous US federal constitution of 1787, but we did not simply copy it. Our constitution has been adapted to the current situation in Europe, without shortcomings of the US constitution and with the addition of aspects of direct democracy. We have also added a Preamble and an Explanatory Memorandum. These were missing in 1787. This has been partly restored by the Federalist Papers of James Madison, Alexander Hamilton, and John Jay. In 85 Papers they explained in more detail what the members of the Philadelphia Convention meant by their seven article constitution. But it is better if the drafters of a constitution themselves explain what they mean by it. So, we did.

Our federal constitution consists of a Preamble with ten articles. No more. That is sufficient for a democratic and powerful federal state.

Introduction to the Preamble
The Preamble is a special aspect of a constitution. It contains the reason, the motivation to make this constitution, contained in Articles that regulate the relations between Citizens and Government. The Preamble is value-driven. The Articles are the norms by which those values are to be preserved.

The Preamble and the Articles therefore form an end-means relationship. That requires careful attention to the wording of both. This is about human values. Not about human rights. That is what Article 1 is about. The norms must have the power to guarantee the preservation of those human values.

The Preamble distinguishes three groups of values. The first begins with a striking aspect of both the Declaration of Independence of 1776 and the federal constitution drafted eleven years later by the Philadelphia Convention, namely the view that government exists to help citizens pursue their happiness. Therein come together other values, such as preserving the diversity of all life forms on Earth; respecting the diversity of sciences, cultures, ethnicities, and religions; compassion for the less fortunate; and that wisdom, knowledge, humanity, justice, and integrity make it clear that the federation derives its powers from the people, that all people on Earth are equal and that no one is above the law.

The second group of values is indebted to the ideas of European political philosophers to whom we owe the standards of federal organisation. But also to political leaders who, after WWII, strived for a united Europe based on a federal constitution. Consider in particular Altiero Spinelli. An important value is the observation that the federal system is based on a vertical separation of powers. The federal body is only competent in a small list of matters of common interest. All other powers rest with the Member States and their Citizens. That is shared sovereignty. Finally, this group of values enshrines the trias politica and the checks and balances that go with it at both federal and member state level.

The third group of values establishes that the Citizens have not only the right to change, through elections, the composition of governments, but also the inalienable right to depose the federal authorities if they violate the values of the two previous groups. This is a reference to the English Magna Carta of 1215, the Dutch Plackaat van Verlatinghe of 1581 and the French Revolution of 1789: if despots harm the people, the people have the right to depose them.

Who can improve this Preamble?
This Preamble is good. But it can always be better. We seek the wisdom and knowledge of the members of the Citizens' Convention to find that 'better'. 


PART 1  |  02 – 23 OCTOBER 2021

The Draft Constitution (1 August 2021)

PREAMBLE 

We, the citizens of the states [here a list of participating states],

I. Whereas
(a) that the federation of the United States of Europe hereby established by us has the task and duty to support us as citizens in our search for happiness in freedom;
(b) that it should support our quest for happiness, based

  • o on working restlessly to preserve the diversity of all life forms on Earth,
  • o on unconditional respect for the diversity of sciences, cultures, ethnicities, and beliefs of the citizens within the federation,
  • o and on human compassion for citizens from outside the federation who want to find their happiness within the United States of Europe;
  • o that in carrying it out, it should bear witness to wisdom, knowledge, humanity, justice, and integrity, in the full awareness that it derives its powers from the people, that all people on earth are created equal, and that no one is above the law. 

II. Considering further:
(a) that this federal Constitution is based on the wealth of thoughts, considerations and desires of European philosophers - and of European political leaders after World War II - to unite Europe in a federal statehood; 

  1. (b)  that the federal system is based on a vertical separation of powers between the member states and the federal body through which the member states and the federal body share sovereignty; 
  1. (c)  that the horizontal separation of the legislative, executive and judicial powers (trias politica) both at the level of the federal body and at that of the member states is guaranteed by a solid system of checks and balances. 

III. Whereas, finally, without prejudice to our right to adjust the political composition of the federal body in elections, we have the inalienable right to depose the federation's authorities if, in our view, they violate the provisions of points I and II, 

Adopt the following articles for the Constitution of the United States of Europe, 

Explanatory Memorandum of the Preamble

The preamble 'We, the citizens of the states ...' shows that this Constitution is ratified by the Citizens themselves. It is thus of, by and for the Citizens of the United States of Europe, in accordance with the adage 'All sovereignty rests with the people'.

The United States of Europe' consists of the Citizens, the Member States and the Federal Authority. 

It is a Constitution, not a Treaty. When countries or regions want to live together in peace and have to cooperate through historically determined borders, but nevertheless want to retain their autonomy and sovereignty, a federation is the only form of state that can guarantee this. This is not possible with a treaty. A treaty is an instrument for administrators to cooperate in policy areas without regular democratic accountability for the decisions they make. 

The fact that this Constitution is first ratified by the Citizens and only then by the parliaments of the Member States indicates that - in accordance with the elementary aspects of federalism formulated by Johannes Althusius in his Political Method around 1603 - it is established from the bottom up and not imposed from above. 

This federal Constitution guarantees the common interest of the Citizens of the United States of Europe and leaves it to the Citizens of the Member States, and to the Member States themselves, to serve their own interests. 

That is why this federal Constitution consists of a limited number of rules of a general binding nature. There are no exceptions - driven by national interests - to these generally binding rules. 

Explanation of Consideration Ia 

The word 'happiness' is not in the Preamble of the American Constitution. We included it in our Preamble. Why? Because the overall meaning of the American Constitution is based on the right of Citizens to pursue their happiness and the duty of government to help them do so. This basic feature of that Constitution derives from the Declaration of Independence drafted by Thomas Jefferson in 1776, which states, among other things: 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the Pursuit of Happiness." 

As an aside, in the Preamble under Ib we have changed the words 'all men' to 'all people'. An overly literal interpretation of the word 'men' might suggest that 51% of the population, women, would be excluded. 

By explicitly mentioning the word 'happiness' in the European Preamble, we want to make it clear that the right of every citizen to pursue his own happiness, and the task of governments to help that citizen do so, is an essential aspect of our federal Constitution. By enshrining this inalienable right in the Preamble, it should be clear to every Government within the European federal system that the realization of this right may not depend on elections. This construction gives an extra legitimacy to the making of a Preamble: whatever Parliament or Government there will be, these are the goals that every public authority has to aim for. 

With the last sentence of the Preamble ('acceptance and tolerance of ...') we want to emphasize that a multicultural debate in the pursuit of a federal Europe is wasted on us. Ever since the Batavians, Gauls, Goths, Huns, Saxons, Franks, Moors, Celts, Romans, Habsburgs, and Vikings have roamed Europe, this continent, and every state within it, has been, and still is, multicultural. And that is good. That is Europe’s strength.

A federal state recognises a European cultural identity with respect for the diversity of cultural identities within Member States. For example, Gerard Mortier says in an interview with the Belgian newspaper De Tijd: 

"We are all part of one big cultural community. (...) The time of nation states is over. (...) The European identity exists, throughout history. It is a reality, not an invention of the European Commission or the European Parliament. Only: why do politicians have such a hard time explaining this European cultural identity? (...) European cultural identity does not destroy local identity. After all, the Langue d'Oc did not disappear by becoming part of France. The many different cultures can even express themselves better in this European federation.” 

Explanation of Consideration Ib 

In the first place, this consideration gives the federation the task of working restlessly to preserve the diversity of all life forms on Earth. Unsuccessful preservation of the diversity of all forms of life threatens human life on Earth. This task requires maximum cooperation, expertise, and reliability within the federation's authorities. 

Secondly, the federation has maximum respect for diversity in social life. Wherever it disappears, monocracies are created, condemning parts of society to inbreeding. Diversity of sciences, cultures, ethnicities, and religions creates new sciences, cultures, ethnicities, and religions. This Constitution therefore rejects any agitation aimed at protecting the so-called 'own people first' and will use all legal means to combat such agitation. 

Thirdly, as a consequence of the above, this Preamble explicitly indicates that there is no room for a slogan like 'Europe first'. The Federation of the United States of Europe shares its place on Earth with all other peoples and does not lock itself up behind the walls of a 'Fortress Europe'. Closing the external borders for the purpose of protectionism of one's own people is not listed in the list of crimes against humanity, but nevertheless has a serious penalty: the eventual disappearance of what one wishes to preserve. In other words: open external borders, not closed borders. That creates obligations: 

  • To design and implement plans such as the Marshall Plan (1948-1952) to support poor countries in their economic development in order to eliminate the need to flee to Europe. 
  • With immediate effect, to provide a humane existence for the approximately eighty million refugees that are wondering on earth. 
  • To strengthen the demographic and geopolitical position of Europe by offering immigrants a secure existence within the Federation with wisdom, knowledge, humanity, justice, and integrity. 
  • Considering the implementation of this as one of the common interests of the federation. 

This Constitution is therefore a task and an opportunity for fundamental political renewal now that post-war democracies have come to the end of a seventy-five- year life cycle and have led to the exclusion of citizens in favour of treaty-based governance which, by its very nature, has become increasingly oligarchic and protectionist. 

A quotation by Robert Michels: 

“The iron law of oligarchy: organization implies the tendency to oligarchy. In every organization, whether it be a political party, a professional union, or any other association of the kind, the aristocratic tendency manifests this very clearly. (....) When
democracies have gained a certain state of development, they undergo a gradual transformation, adopting the aristocratic spirit, and in many cases also the aristocratic forms, against which at the outset they struggles do fiercely.” 

Explanation of Consideration Ic 

The foreseeable end of the political life cycle of post-war democracies, as just mentioned, places those countries that seek to protect democracy on a ‘tour de force’, comparable to the revolution of the Enlightenment. Democracy and the representation of the people must be reinvented on the basis of the principle of 'All sovereignty rests with the people'. 

The Treaty of Lisbon should give way to a Constitution that takes representation of the Citizens as its starting point. This implies, among other things, the abolition of the European Council of Heads of Government and State, the creation of a European Parliament based on proportional representation within one constituency - the territory of the Federation - and an executive government led by a President elected by the Citizens. Thus, equipped with a democratic mandate. 

The reason is explained by Thomas Jefferson: accountable to a real parliament. “Leave no authority existing not responsible to the people.” Of all the non-democratic aspects of the EU, the European Council is the most serious error because this body, which is in charge of final decision making in the EU, is not fully 

That can only succeed with wisdom, knowledge, humanity, justice, and integrity. With only two certainties: if it succeeds, it is a crucial revolution for the preservation of Europe. If it fails, by the end of this century, after the last tribal war in Europe initiated by nation-state anarchy, someone will turn off the light in Europe. 

Democracies cannot prevent elections from leading to groups within democratic institutions that wish to use their power against democracy. This Constitution enables the institutions of democracy as much as possible to deal with abuses of democratic procedures by building in defence mechanisms.

See Matteo Laruffa, The Institutional Defences of Democracy, 'The institutional defences of democracy'. See also Democracy Without Borders: democracywithoutborders.org.

The task is therefore a fundamental reorientation of the concept of democracy in 21st century Europe. With a task for transnational political parties (see Chapter11) to consider their own responsibility to devise instruments to defend democracy against parties that abuse (or would like to abuse) the procedures of democracy in order to destroy that democracy. Probably more than any other organisation within a democratic system, political parties will have to reflect on wisdom, knowledge, humanity, justice, and integrity in order to ensure the viability of a federally united Europe. Chapter 11 adds a revolutionary element to the exalted role and task of transnational political parties.

Explanation of Consideration IIa 

The 'building blocks' of federalism as a state institution originate from the Political Method of Johannes Althusius (1603). The 'cement' to inextricably connect these 'building blocks' was supplied in the writings of European political philosophers such as Aristotle, Montesquieu, Rousseau, and Locke with their views on popular sovereignty and the doctrine of the trias politica. The American federal Constitution is based on these writings, while Europe condemned itself to waging wars for centuries. 

Not only philosophers provided the 'cement' for the building blocks of federalism. Also, political, and social leaders - in the Interbellum period, for example the British Philip Kerr, better known as Lord Lothian - and after the Second World War the Italian Altiero Spinelli who, with his Ventotene Manifesto (1941), laid the foundation for the post-war pursuit of federalism. Between 1945 and 1950 this aspiration was led by a large number of conferences and plans led by statesmen, scientists, cultural figures, and civil movements. But in 1950 it radically ceased with the ‘Schuman Declaration’. Although the Declaration fully demanded the creation of a federal Europe, it placed its elaboration in the hands of government leaders. In this way - unintentionally, but through guilty ignorance of how to make a federation - the treaty-based intergovernmentalism that is taking the European Union to the end of its current political life cycle was created. This seems a good place for a quote from Thomas Jefferson in a letter to Roger C. Weightman on 24 June 1826: 

“May it be to the world, what I believe it will be, (to some parts sooner, to others later, but finally to all,) the signal of arousing men to burst the chains under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings and security of self-government.” 

Explanation of Consideration IIb 

The thirteen former American colonies in late 18th century solved the dilemma of 'never again a ruler versus the need to represent the people'. They applied the system of shared sovereignty devised by Althusius by inventing the vertical separation of powers between sovereign States and a Federal body. Without sacrificing the integral member state sovereignty, they asked a federal body to take care - with the powers of the Member States - of a limitative number of common interests. 

Contrary to the assertion that, in a federation, member states transfer all or part of their sovereignty in the sense of 'giving away and thus losing', this is not the case. Member states entrust some of their powers to a federal body for taking care of a limited array of common interests. A federation is not a superstate that destroys the sovereignty of the member states. 

The vertical separation of powers, leading to shared sovereignty between the federal body (operating for the whole) and the member states, also solves another problem. Namely the principle of subsidiarity. This principle in the Lisbon Treaty states: 'The authorities of the European Union should leave to the Member States what the Member States can do better themselves'. Because Article 352 of the Treaty allows the European Council to take any decision that, in the Council's view, serves the Union's objectives, the Council can ignore the principle of subsidiarity. In federal statehood, this legal pitfall is absent. In a federation the subsidiarity principle coincides with the vertical separation of powers and therefore does not need to be mentioned as such in the articles of the Constitution. 

A final aspect of this Consideration IIb implies that - because of the restrictive set of powers of the federal body - all other powers remain with the Citizens and the Member States. This implies, inter alia, that the member states retain their own Constitution, parliament, government, and judiciary, including their own areas of policy, in so far as these are not defined by the vertical separation of powers in the exhaustive list of interests that the federal body is required to represent on behalf of the member states. Any monarchies will also be maintained. 

Explanation on Consideration IIc 

The horizontal separation of the three powers - the legislative, the executive and the judiciary - is not a specific feature of just a federal state form but serves as an adage for any state that wants to prevent domination by one power. Within a federation, however, there are two peculiarities. 

Firstly, from the first federal state - that of the United States of America - the trias politica must be established both at the level of the federal body and at the level of the individual member states. Secondly, in addition to the invention of the vertical separation of powers mentioned above, the federal Constitution of the United States of America has introduced a second innovation: the checks and balances. Saying that a self-respecting state must consider the trias politica high is merely expressing a value. But values can only be guarded and preserved by means of norms. That is why the American Constitution - and also this European Constitution - contains articles that prevent the inevitable action of the three powers in the field of another power from slipping into the supremacy of one power over the other. To that end, there are the checks and balances. They are the indispensable countervailing powers to curb the ever-present ‘desire’ for the three powers to expand their complex of powers at the expense of the powers of the others. 

Explanation of Consideration III 

Citizens derive from the English Magna Carta of 1215, the Dutch Placard of Abandonment of 1581, the American Declaration of Independence of 1776, and the French Revolution of 1789 the inalienable right to depose governments from the federal body if they violate the provisions under I and/or II. 

In accordance with the adage 'All sovereignty rests with the people', the cCtizens of the United States of Europe are the federation's alpha and omega. Alpha in the sense of: they ratify the federal Constitution and thus establish a system of representation of the people, of executive governance based on political decision- making by the representative body and jurisdiction to settle disputes. Omega in the sense of the inalienable right to dismiss those who unexpectedly abuse the federal system, for example by (attempts to) establish autocracy of a leader who wants to operate above the rule of law. 

The Improved Constitution (2021 - 2022)

PREAMBLE 

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