On the Referendum #2: The Lisbon Treaty compared with the Articles of Confederation & US Constitution

In 2004, I invited Professor Richard Epstein (Chicago) to London to give a lecture on the EU Constitution, which became the Lisbon Treaty. That lecture became this essay, PDF HERE. Professor Epstein is one of the foremost legal minds in America and one of the great experts on the US Constitution.

His essay is a fascinating comparison of the EU Constitution with the original American Articles of Confederation (after the Declaration of Independence) and the American Constitution that replaced those Articles. He examined how power became ever more centralised in the US federal government despite theoretical protections. For example, the Commerce Clause in the US Constitution (not in the original Articles) that allowed the regulation of trade between states was, by the time of the New Deal, profoundly re-interpreted by the courts to allow the regulation of trade within states.

Given the US Constitution had far greater protections than the EU Constitution / Lisbon Treaty, he predicted that the Lisbon Treaty would be more dangerous. While the Tenth Amendment to the US Constitution explicitly reserves those powers to the states that are not conferred to the centre by the Constitution, the EU Constitution allowed the members to do only what the EU does not. Given the objectives of the EU are so widely drawn, almost no activity can be confidently guaranteed to be outside the EU’s jurisdiction.

Unsurprisingly, the developments since Professor Epstein’s lecture have proved him right. The EU system has worked as intended to centralise power in Brussels and the European Court of Justice. Of course David Cameron famously made a ‘cast iron’ promise to give a referendum on Lisbon / EU Constitution because, he said, he opposed it. It is near-certain, however, that his renegotiation will not undo the main elements of the Lisbon Treaty. Almost all the dangers that Professor Epstein explained therefore remain relevant.

Epstein made a further argument of relevance to the question: what should the trading relationship between European states be? Epstein argued that Europe should replace its system of regulatory harmonisation (adopted to further political, not trading, ends) with a simple agreement on non-discrimination, along the lines of the Articles of Confederation. This would maximise trade gains without damaging markets, individual rights, or democratic accountability. The diversity of institutional structures and the competition between them that would follow would enable faster and more effective adaptation to globalisation’s challenges than bureaucratic uniformity.

His advice to Britain was:

‘For those who want a strong state with weak individual rights, then this Constitution achieves many of their goals. But for those who think that private markets and private property are the keys to social progress and stability, this Constitution should be stillborn. It promises little gain from the federation of defense that was so central to the American Founding, and its internal structures are sure to invite power dominance from the center…

‘My recommendation is therefore this: Opt for the economic free trade zone and consign the EU Constitution to the dust heap.’

I thought it would be interesting to repost the PDF since I cannot find it anywhere else on the web and this historical comparison is, I think, very useful.

His essay starts on page 9 and is preceded by an Introduction written by me in 2005.

Please leave comments below.

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2 thoughts on “On the Referendum #2: The Lisbon Treaty compared with the Articles of Confederation & US Constitution

  1. Good Stuff Mr C.

    The German Budesrat has been much better at protecting the Rights of the States than the US Constitution. I think it comes down to the mechanics of the Federal apparatus – because the US Senate is directly elected it has no interest in protecting State interests, where as if Senate Members came from State Government institutions (as they did until 1913 i think?), they may be more incentified to protect State Power.

    Of course this has nothing to do with the ridiculousness of Lisbon that you point out.

  2. Pingback: On the Referendum #3: The errors of Steve Richards | Dominic Cummings's Blog

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