amendments to Art. 1 (proposed by Giuseppe Martinico and Cristina Fasone)

[Giuseppe Martinico]

The amendments to Art. 1 and recommendations have been agreed between myself, Prof. Giuseppe Martinico, and my colleague and friend Prof. Cristina Fasone and are intended as jointly submitted.

Second line. please rephrase: “Within the powers not entrusted to the United States of Europe by the Constitution, nor prohibited to the States by this Constitution, the autonomous initiatives of citizens, both as individuals and as members of associations, relating to activities of general interest shall be promoted.

Third line. After “The Charter of fundamental rights of the European Union” please add “which shall have the same legal value as the Constitution”

[Jakub Jermar]

I think the first proposal would disrupt the establishment of the vertical separation of powers in the federation. It completely drops the part about the non-entrusted powers being reserved to the states and moves away from the direct establishment of such a separation towards a mere mention of half of it. Also, the citizen initiatives are covered in one of the following articles of the draft.

[Giuseppe Martinico]

Actually, the principle of competence( “Within the powers not entrusted”) characterizes any federal polity since federalism is also a technique of vertical separation of power. This does not alter anything in this respect. If you don’t clarify this, the combination self rule/shared rule (the heart of federalism) could be jeopardized. Indeed, we also proposed an amendment to Art. III to coordinate this provision with the other relevant passage. This formula recalls the wording of constitutional norms already existing in federal systems and promotes participation which is crucial to galvanising the role of citizens.

[Adam Nettles]

Yes, I also share the concern raised by Jakub. My reflex when I read this clause is that it’s supposed to be a standard (though key) “reserved powers” clause like that in the US model. With the alterations made here, namely removing the explicit reference that non-designated powers are reserved to the states, it seems to cease to serve its purpose.

There’s an implicit assumption here: “Within the powers not entrusted to the United States of Europe by the Constitution, nor prohibited to the States by this Constitution”. It’s that somewhere it’s written which powers are entrusted to the Federation and prohibited by the states. The reservation clause is necessary to make that this assumption is explicit, and guarantee non-designed powers are reserved to the states/citizens and not the Federation.

It would seem that this guarantee should perhaps be another line in and of itself. The section about the promotion of autonomous citizens’ initiatives and whatnot.

Also on the treaty point I wrote a very long post on Jakub’s comment addressing my thoughts on enshrining treaty obligations in constitutions, so I won’t rehash that here.

[Giuseppe Martinico]

Actually, it is very similar to the 10th amendment of the US constitution (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) but we are happy to accept the will of the majority here.

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